Legal Research

and Writing
for Paralegals

2
 ASPEN COLLEGE SERIES

Legal Research
and Writing for
Paralegals
Eighth Edition

Deborah E. Bouchoux, Esq.

Georgetown University
Washington, D.C.

3
Copyright © 2017 Deborah E. Bouchoux.

Published by Wolters Kluwer in New York.

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Library of Congress Cataloging-in-Publication Data

Names: Bouchoux, Deborah E., 1950- author.

Title: Legal research and writing for paralegals / Deborah E. Bouchoux, Esq., Georgetown University, Washington,
D.C.
Description: Eighth edition. | New York : Wolters Kluwer, [2016] | Includes index.
Identifiers: LCCN 2016038258 | eISBN: 978-1-4548-8169-8
Subjects: LCSH: Legal research — United States. | Legal composition. | Legal assistants — United States —
Handbooks, manuals, etc.
Classification: LCC KF240 .B68 2016 | DDC 340.072/073 — dc23
LC record available at https://lccn.loc.gov/2016038258

4
About Wolters Kluwer Legal & Regulatory US
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solutions, and expert commentary.

5
For my husband, Don, and my children,
Meaghan, Elizabeth, Patrick, and Robert,
who have provided immeasurable support
and inspiration in helping me achieve my
goal of writing a legal research and writing
textbook for paralegal students.

6
 Summary
of Contents

Contents
Preface
Acknowledgments

Section I Legal Research:

Primary Authorities
Chapter 1 Finding the Law
Chapter 2 The Federal and State Court Systems
Chapter 3 Statutory Law
Chapter 4 Case Law and Judicial Opinions
Chapter 5 The Use of Digests, Annotated Law Reports, and Words and Phrases

Section II Legal Research:

Secondary Authorities and
Other Research Aids
Chapter 6 Encyclopedias, Periodicals, Treatises, and Restatements
Chapter 7 Miscellaneous Secondary Authorities
Chapter 8 Legal Citation Form
Chapter 9 Updating and Validating Your Research
Chapter 10 Special Research Issues
Chapter 11 The Digital Library: Lexis Advance, Westlaw, and Nonprint Research Sources
Chapter 12 E-Research: Legal Research Using the Internet
Chapter 13 Overview of the Research Process

Section III Legal Writing

Chapter 14 Back to Basics
Chapter 15 Strategies for Effective Writing
Chapter 16 Legal Correspondence
Chapter 17 Legal Memoranda
Chapter 18 Legal Briefs
Chapter 19 Postwriting Steps

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 Appendices
Appendix A Using Shepard’s in Print Form
Appendix B Sample Legal Memorandum
Appendix C Sample Brief for Court
Appendix D Sample Appellate Brief
Appendix E Sample Table of Authorities

Glossary
Index

8
 Contents

Preface
Acknowledgments

Section I
Legal Research:
Primary Authorities

Chapter 1 Finding the Law

A. The Paralegal’s Role in Legal Research and Writing

1. Legal Research and Writing as Core Competencies
2. Ethical Duty to Research Accurately
B. Law Libraries
1. Types of Law Libraries
2. Arrangement of Law Libraries
3. Law Library Staff
4. Law Library Courtesy
5. Other Library Services
C. Sources of Law in the United States
1. Cases and Our Common Law Tradition
2. Constitutions
3. Statutes
4. Administrative Regulations
5. The Executive Branch
D. Legal Systems of Other Countries
E. Legal System of the United States
F. Law Book Publishing
G. Nonprint Research Media
H. Change in Our Legal System
I. Identifying the Holding in a Case
J. How the Legal Research Process Works: A Research Scenario
K. Case Citation Form
Internet Resources
Writing Strategies
Assignment for Chapter 1
Internet Assignment for Chapter 1

9
 Chapter 2 The Federal and
State Court Systems

A. Federalism
B. Establishment of Federal Court Structure
C. Jurisdiction
1. Federal Question Jurisdiction
2. Diversity Jurisdiction
3. Concurrent Jurisdiction
4. Exclusive Jurisdiction
D. Ground Rules for Cases
E. The Federal Court Structure
1. District Courts
2. United States Courts of Appeal
3. United States Supreme Court
4. Specialized Courts
F. State Court Organization
G. Citation Form
1. Federal Cases
2. State Cases
Internet Resources
Writing Strategies
Assignment for Chapter 2
Internet Assignment for Chapter 2

Chapter 3 Statutory Law

A. Federal Legislation
1. Enactment of Federal Statutes
2. Classification of Federal Statutes
3. Publication of Federal Statutes
a. United States Statutes at Large
b. United States Code
c. Annotated Versions of the United States Code
d. Use of U.S.C., U.S.C.A., and U.S.C.S.
e. Research Techniques
f. Final Research Steps
g. United States Constitution
B. State Legislation
1. Enactment of State Statutes
2. Publication and Codification of State Statutes
3. Research Techniques

10
 a. Descriptive Word Approach
b. Title/Topic Approach
c. Popular Name Approach
d. Locating State Statutes
4. Uniform and Model Laws and Court Rules
C. Statutory Research Overview
D. Citation Form
1. Federal Statutes
2. State Statutes
Internet Resources
Writing Strategies
Assignment for Chapter 3
Internet Assignment for Chapter 3

Chapter 4 Case Law and

Judicial Opinions

A. Selective Publication
1. Standards for Publishing Cases
2. The Controversy Surrounding Unpublished Opinions
B. Elements of a Case
1. Case Name
2. Docket Number and Deciding Court
3. Date of Decision
4. Case Synopsis or Summary or Background
5. Headnotes
6. Names of Counsel
7. Opinion
8. Decision
C. Publication of Cases
1. Official and Unofficial Publication
2. Series of Cases
3. Advance Sheets
D. Publication of State Cases
1. West’s National Reporter System
2. Citation Form
3. Discontinuation of Some Official Reports
E. Publication of Federal Cases
1. United States Supreme Court Cases
a. Publication
b. Rapid Access to United States Supreme Court Cases
2. United States Courts of Appeal Cases

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 3. United States District Court Cases
4. Cases Interpreting Federal Rules
F. Star Paging
G. Specialized National Reporter System Sets
H. Features of West’s National Reporter System
1. Tables of Cases Reported
2. Tables of Statutes and Rules
3. Table of Words and Phrases
4. List of Judges
5. Key Number System
I. Finding Parallel Cites
J. Summary of West’s National Reporter System
K. Briefing Cases
L. Citation Form
1. Federal Cases
2. State Cases
Internet Resources
Writing Strategies
Assignment for Chapter 4
Internet Assignment for Chapter 4

Chapter 5 The Use of Digests,

Annotated Law Reports,
and Words and Phrases

A. Using Digests to Locate Cases

1. Introduction
2. The American Digest System
3. Organization of the American Digest System
4. West’s Digest Topics
5. Four Strategies to Find a Topic and Key Number
a. Descriptive Word Approach
b. Topic Approach
c. Table of Cases Approach
d. “Case on Point” Approach
6. Using Your Topic and Key Number to Find Cases
7. Other West Digests
a. United States Supreme Court Digest
b. Federal Practice Digests
c. Regional Digests
d. State Digests
e. Specialized Digests

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 8. Common Features of West’s Digests
a. Uniform Classification
b. Descriptive Word Indexes
c. Table of Cases
d. Table of Words and Phrases
e. Supplementation
f. Cross-Referencing
9. Other Digests
B. American Law Reports
1. Introduction
2. A.L.R. Organization
3. Features of A.L.R.
4. Finding A.L.R. Annotations
a. Index or Descriptive Word Approach
b. Digest Approach
c. Miscellaneous Approaches
5. Updating A.L.R. Annotations
a. Updating Older A.L.R. Annotations
b. Updating Newer A.L.R. Annotations
C. Words and Phrases
D. Citation Form
Internet Resources
Writing Strategies
Assignment for Chapter 5
Internet Assignment for Chapter 5

Section II
Legal Research:
Secondary Authorities
and Other
Research Aids

Chapter 6 Encyclopedias,
Periodicals, Treatises, and
Restatements

A. Encyclopedias
1. Introduction
2. General or National Encyclopedias
a. C.J.S.

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 b. Am. Jur. 2d
c. Features Common to C.J.S. and Am. Jur. 2d
d. Research Strategies for Using National Encyclopedias
e. The Am. Jur. Total Client-Service Library
3. Local or State Encyclopedias
a. Introduction
b. Features Common to State Encyclopedias
c. Research Strategies for Using State Encyclopedias
4. Special Subject Encyclopedias
5. Summary of Encyclopedias
B. Legal Periodicals
1. Introduction
2. Law School Publications
3. Bar Association and Paralegal Association Publications
4. Specialized Publications
5. Legal Newspapers and Newsletters
6. How to Locate Periodical Articles
a. Print Indexes
b. Electronic Finding Aids
c. Special Subject Indexes
d. Other Finding Techniques
7. Summary of Legal Periodicals
C. Texts and Treatises
1. Introduction
2. Common Features of Treatises
3. Using and Finding Treatises
4. Research Strategies for Using Treatises
D. Restatements
1. Introduction
2. Arrangement of Restatements
3. Research Strategies
4. Effect of Restatements
E. Citation Form
Internet Resources
Writing Strategies
Assignment for Chapter 6
Internet Assignment for Chapter 6

Chapter 7 Miscellaneous
Secondary Authorities

A. Attorneys General Opinions

14
 1. Introduction
2. Research Strategies
B. Legal Dictionaries and Thesauri
C. Directories
1. Introduction
2. Martindale-Hubbell Law Directory
3. Local Directories
4. Specialized Directories
5. Internet Directories
D. Form Books
1. Introduction
2. Well-Known Form Books
3. Locating Form Books
4. Research Strategies
5. Summary
E. Uniform Laws
1. Introduction
2. Research Strategies
3. Use of Uniform Laws
F. Looseleaf Services
1. Introduction
2. Arrangement of Looseleaf Services
3. Research Strategies
G. Jury Instructions
1. Introduction
2. Research Strategies
H. Summary
I. Citation Form
Internet Resources
Writing Strategies
Assignment for Chapter 7
Internet Assignment for Chapter 7

Chapter 8 Legal Citation Form

A. Introduction to Citation Form

B. Citation Manuals
1. Introduction
2. Overview of The Bluebook
3. Other Citation Manuals
C. The Bluebook
1. Organization of The Bluebook

15
 2. Typeface Conventions
3. Revisions to the Twentieth Edition of The Bluebook
D. Bluebook Citation Rules and Examples for Primary Authorities
1. Cases
a. Introduction
b. Case Names
c. Parallel Citations
d. Recent Cases
e. Abbreviations in Case Citations
f. Spacing
g. Federal Cases
h. Subsequent History
i. Prior History
j. Parenthetical Information
k. Different Case Name on Appeal
l. Order of Preference for Citations
2. Statutes
a. State Statutes
b. Federal Statutes
c. Miscellaneous Rules Regarding Citation of Statutes
3. Rules
4. Constitutions
a. State Constitutions
b. United States Constitution
E. Bluebook Citation Rules and Examples for Secondary Authorities
1. Annotations
2. Encyclopedias
3. Periodical Materials
4. Books, Texts, and Treatises
5. Restatements
6. Uniform Laws
7. Dictionaries
8. Attorneys General Opinions
9. Looseleaf Services
F. ALWD Citation Manual
1. Introduction
2. Differences Between The Bluebook and ALWD
G. Special Citation Issues
1. Introduction
2. Punctuation
a. Citation “Sentences”
b. Citation “Clauses”

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 3. String Citing
a. Introduction
b. Order of Citations in String Cites
4. Quotations
a. Introduction
b. Indicating Quotations in Text
c. Alterations of Quotes
d. Adding Emphasis
e. Omitting Citations
f. Use of Ellipses
g. Omissions from the Middle of a Quote
h. Omissions from the End of a Quote
i. Using Quoted Language as a Phrase
j. Paragraph Structure
5. Citation Signals
6. Short Form Citations
a. Cases
b. Statutes
c. Constitutions
d. Books and Periodical Materials
7. Use of Id., Supra, Infra, and Hereinafter
a. Id.
b. Supra
c. Infra
d. Use of “Hereinafter”
8. Capitalization in Court Documents and Legal Memoranda
9. Electronic Sources, Databases, and the Internet
a. Introduction
b. Citing to Lexis, Lexis Advance, and Westlaw
c. Citing to the Internet
10. Citing to Court and Litigation Documents
11. Public Domain Citations
H. Tips for Effective Cite Checking
I. Quick Reference for Citations
1. Cases
2. Statutes
3. Constitutions
4. Encyclopedias
5. Law Review Articles
6. Texts and Treatises
7. Restatements
8. Dictionaries

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 9. Cases Located on Westlaw and Lexis or Lexis Advance
10. Summary of Special Citation Issues
11. Internet Citation Form
Internet Resources
Writing Strategies
Assignments for Chapter 8
Internet Assignment for Chapter 8

Chapter 9 Updating and Validating Your Research

A. Using Shepard’s in Print Form

B. Electronic Updating of Legal Authorities
1. Introduction to Electronic Updating
2. Shepardizing Online
a. How to Shepardize Cases Using Lexis Advance
b. Features of Shepard’s
c. Shepardizing Statutes and Regulations
d. Shepardizing Other Authorities
e. Automatic Citation Validation for Lexis Advance
3. KeyCite
a. How to KeyCite Cases Using Westlaw
b. Features of KeyCite
c. KeyCiting Statutes and Regulations
d. KeyCiting Other Authorities
e. Automatic Citation Validation for Westlaw
4. Comparing Shepardizing Online with KeyCiting
5. Other Electronic Citator Services
6. Summary
Internet Resources
Writing Strategies
Assignments for Chapter 9
Internet Assignment for Chapter 9

Chapter 10 Special Research Issues

A. Legislative History
1. Introduction to Federal Legislative History Research
2. Documents Composing Federal Legislative History
3. The Process of Compiling a Legislative History: Three Approaches
a. Using Conventional Print Sources to Compile a Legislative History
b. Using Electronic Sources and the Internet to Compile a Legislative History
c. Using Compiled Legislative Histories

18
 4. Alternative Methods of Obtaining Legislative History for Federal Statutes
5. State Legislative History
a. The Process of Compiling a State Legislative History
b. Alternative Methods of Obtaining Legislative History for State Statutes
6. Tracking Pending Legislation
7. Summary of Legislative History Research
B. Executive Materials
1. Introduction
2. Proclamations
3. Executive Orders
4. Compilation of Presidential Documents
C. Administrative Law
1. Introduction to Federal Administrative Law
2. Publication of Federal Administrative Law
3. Research Techniques for Administrative Law
a. C.F.R.
b. The Federal Register
4. Updating C.F.R. Regulations
a. Step One: Review the List of C.F.R. Sections Affected
b. Step Two: Review C.F.R. Parts Affected
5. Electronic and Online Methods of Administrative Law Research
6. Decisions
7. Review of Agency Decisions
8. Locating Federal Cases Reviewing Agency Decisions
9. The United States Government Manual
10. State Administrative Law
D. International Law
1. Introduction
2. Sources of International Law
3. Overview of International Law Research Procedure
4. Basic Texts and Sources
5. Treaties
6. Sources for Treaties
a. Pre-Ratification
b. Post-Ratification
7. Determining the Current Status of Treaties
8. Interpreting Treaties
9. International Tribunals
10. International Organizations
E. Municipal Research
1. Introduction
2. Terminology

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 3. Municipal Research Materials
4. Municipal Research Procedure
5. Interpretations of Municipal Ordinances
F. Rules of Procedure and Court Rules
1. Introduction
2. Federal Rules of Procedure
3. Federal Rules of Court
4. State Rules of Procedure and Court Rules
G. Citation Form
Internet Resources
Writing Strategies
Assignment for Chapter 10
Internet Assignment for Chapter 10

Chapter 11 The Digital Library:

Lexis Advance, Westlaw, and
Nonprint Research Sources

A. Introduction to Computer-Assisted Legal Research

1. Lexis Advance and Westlaw
2. Getting Started Using Lexis Advance or Westlaw
3. Boolean Searching
4. Plain English Searching
B. Lexis Advance
1. Getting Started from Your Home Screen
2. Constructing a Search and Display of Search Results
3. Specialized Searches
a. Searching for Statutes and Constitutions
b. Searching for Cases
c. Searching for Administrative and Legislative Materials
d. Searching for Law Reviews and Journals
e. Searching for Secondary Authorities
4. Shepardizing
5. Other Lexis Advance Features
6. Quick Review of Lexis Advance
C. Westlaw
1. Getting Started from Your Home Screen
2. Constructing a Search and Display of Search Results
3. Specialized Searches
a. Searching for Statutes and Constitutions
b. Searching for Cases
c. Searching for Administrative and Legislative Materials

20
 d. Searching for Law Reviews and Journals
e. Searching for Secondary Authorities
4. KeyCiting
5. Other Westlaw Features
6. Quick Review of Westlaw
D. Final Pointers on Computer-Assisted Legal Research
1. When to Use Lexis Advance or Westlaw
2. Limitations of Computer-Assisted Legal Research
3. The Future of Print Publishing
E. Other Competitors in Commercial Electronic Research
F. Nonprint Research Tools
1. Microforms
a. Types of Microforms
b. Summary of Microforms
2. Sound Recordings and Videos
3. CD-ROMs, DVDs, and eBooks
G. Citation Form
Internet Resources
Writing Strategies
Assignments for Chapter 11
Internet Assignment for Chapter 11

Chapter 12 E-Research:
Legal Research Using
the Internet

A. Introduction
B. Glossary of Terms
C. Conducting Legal Research Online
1. Getting Started
2. Using a Good Start Page
3. Assessing the Credibility of Websites
D. Strategies and Tips for Internet Legal Research
E. Ethical Concerns Regarding Use of the Internet
F. Practical Concerns Regarding Use of the Internet
G. Surf’s Up: The Best Internet Legal Research Sites
1. Best Legal Start Sites
2. Best Sites for Locating Cases
3. Best Sites for Locating Statutes
4. Best Sites for Government Materials
5. Best Sites for Locating Forms
6. Paralegal Sites

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 7. Best Specialty Sites
8. Best Nonlegal Sites
9. Where to Start When All Else Fails
10. Tech Trends: Blogs, Apps, and More
H. Cautionary Notes on Internet Legal Research
I. Citation Form
Net Tips
Writing Strategies
Assignment for Chapter 12

Chapter 13 Overview of the

Research Process

A. How to Begin
1. Introduction
2. Thinking Things Through
3. Tackling the Project
a. Familiarization
b. Consult Primary Sources
c. Consult Secondary Sources
d. Miscellaneous Research Guides
e. Strategies for Effective Research
B. Working with the Authorities
1. Note-Taking
a. Organizing Your Notes
b. Contents of Notes
c. Complete Notes
2. Staying Focused
C. When to Stop
1. Practical Considerations
2. Complex Projects
3. Quick Questions
4. Established Issues
5. Newly Emerging Issues
6. Issues of First Impression
7. How Many Authorities Are Enough?
Internet Resources
Writing Strategies
Assignment for Chapter 13
Internet Assignment for Chapter 13

Section III
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 Legal Writing

Chapter 14 Back to Basics

A. The Mechanics of Writing

B. Grammar, Spelling, and Punctuation
1. Grammar Do’s and Don’ts
a. Subject-Verb Agreement
b. Sentence Fragments
c. Run-on Sentences
d. Modifiers
e. Split Infinitives
f. Dangling Participles
g. Pronouns
2. Spelling
3. Punctuation
a. Introduction
b. Commas
c. Apostrophes
d. Colons
e. Semicolons
f. Quotation Marks
g. Parentheses
h. Dashes
i. Exclamation Marks
j. Hyphens
k. Slashes or Virgules
Internet Resources
Assignment for Chapter 14
Internet Assignment for Chapter 14

Chapter 15 Strategies for

Effective Writing

A. Introduction
B. The Plain English Movement
C. Prewriting
1. Purpose
2. Audience
D. Precision
1. Word Choice

23
 2. Vague Words
3. Word Connotation
E. Clarity
1. Elegant Variation
2. Negatives
3. Word Order
F. Readability
1. Prefer the Active Voice
2. Use Lists
3. Avoid Nominalizations
4. Avoid Legal Jargon
5. Keep Subjects and Verbs in Proximity
6. Use Forceful Words
7. Repeat Strong Words and Phrases
8. Vary the Length of Sentences
G. Brevity
1. Omit Needless Words
2. Avoid “Throat-Clearing” Introductions
3. Avoid Redundancy
4. Avoid Repetition
H. Order
1. Outlines
2. Internal Organization
a. Use Headings
b. Use Effective Paragraphs
c. Use Effective Transitions
d. Use Position and Voice for Emphasis
I. Drafting Techniques
1. Getting Started
2. Finishing on Time
3. Methods of Writing
a. Writing by Hand
b. Dictating
c. Using a Word Processor
J. Electronic Communications
1. Phones and Voice Mail
2. Communication by Facsimile
3. E-mail
4. Text Messaging
Internet Resources
Assignment for Chapter 15
Internet Assignment for Chapter 15

24
 Chapter 16 Legal
Correspondence

A. Letterwriting
1. Introduction
a. Who Will Be Reading This Letter?
b. What Will This Letter Say?
2. The Elements of Letters
a. Letterhead
b. Date
c. Special Mailing Notations
d. Inside Address
e. Reference or Subject Notation
f. Salutation
g. Body
h. Closing and Signature
i. Reference Initials, Enclosures, and Copies
j. Format Considerations
3. Types of Letters
a. General Correspondence
b. Demand Letters
c. Opinion Letters
B. Conclusion
Internet Resources
Assignment for Chapter 16
Internet Assignment for Chapter 16

Chapter 17 Legal Memoranda

A. Introduction
1. Be Objective
2. Be Specific
3. Be Complete
B. Format of Memoranda
1. Heading
2. Issue(s) or Question(s) Presented
3. Brief Answer(s)
4. Statement of Facts
5. Applicable Statutes
6. Analysis or Discussion
7. Conclusion
C. A Blueprint for Preparing a Memorandum

25
 Internet Resources
Assignment for Chapter 17: Legal Memorandum
Internet Assignment for Chapter 17

Chapter 18 Legal Briefs

A. Introduction
B. Five Tips for Effective Briefs
1. Be Persuasive
2. Be Concise
3. Use a Thesis Statement
4. Be Honest
5. Know the Rules
C. Trial Court Briefs
1. Introduction
2. Elements of a Trial Brief
a. Caption
b. Introductory Statement
c. Statement of Facts
d. Argument
e. Conclusion
f. Signature and Date
g. Certificates of Service and Compliance
h. Exhibits
i. Order
D. Appellate Briefs
1. Introduction
2. Steps in the Appeal Process
3. Standards of Appellate Review
4. Amicus Curiae Briefs
5. Elements of an Appellate Brief
a. Cover Sheet
b. Identification of Parties
c. Table of Contents
d. Table of Authorities
e. Jurisdictional Statement
f. Constitutional and Statutory Provisions
g. Questions Presented
h. Statement of the Case
i. Summary of the Argument
j. Argument
k. Conclusion

26
 l. Signature and Date
m. Certificates of Service and Compliance
n. Appendix
E. Ten Pointers for Effective Brief Writing
Internet Resources
Court Brief Exercise for Chapter 18
Assignment for Chapter 18
Internet Assignment for Chapter 18

Chapter 19 Postwriting Steps

A. Reviewing and Revising: Stage One

B. Reviewing and Revising: Stage Two
1. Sentence Length
2. Needless Words and Phrases
3. Legalese
4. Passive Voice
C. Proofreading
D. Proofreading Projects by Others
E. Proofreaders’ Marks
F. Polishing Your Writing
1. Paper
2. Typeface
3. Type Size
4. Length of Document
5. Headings
6. Quotations and Lists
G. The Final Review
H. Conclusion
Internet Resources
Assignment for Chapter 19
Internet Assignment for Chapter 19

Appendices

Appendix A Using Shepard’s in Print Form

Appendix B Sample Legal Memorandum
Appendix C Sample Brief for Court
Appendix D Sample Appellate Brief
Appendix E Sample Table of Authorities

Glossary

27
Index

28
 Preface

You will soon discover that legal research is truly a “hands-on” subject. Although there
are numerous books to be found that discuss methods and techniques, there is no substitute
for actually performing the task of legal research. A simple analogy can be drawn to driving
a car: You may find several manuals that discuss driving and provide tips on better driving,
but simply reading about operating a car is not a substitute for actually driving a car
yourself. Similarly, you will learn the most about legal research, about which shortcuts are
invaluable, and about which techniques are non-productive, only by doing legal research.
To that end, library assignments are placed at the conclusion of each chapter so you can see
and use the books discussed in each chapter. You should never have to use a book or set of
books that have not been discussed in the chapter you have finished reading or any
preceding chapter. Take the time to explore the books by reviewing the foreword, table of
contents, and index found in each volume. Familiarize yourself with all of the features of
the books or electronic resources you use, and you will simplify your legal research.
Performing legal research can be both frustrating and gratifying. It can be frustrating
because there is often no one perfect answer and because there are no established guidelines
on how much research to do and when to stop. On the other hand, legal research is
gratifying because you will be engaged in a task that requires you to do something and one
in which you will be rewarded by finding the right case, statute, or other authority.
You should view legal research as an exciting treasure hunt—a search for the best
authorities to answer a question or legal issue. In this sense, the task of using and exploring
the law library or the Internet for answers to legal issues or questions should be a welcome
relief from the assignments of other classes, which may be passive in nature and involve
copious amounts of reading.
I would encourage you to research with other students if you are comfortable doing so.
Often you will learn a great deal by comparing notes with others who may be able to share
successful strategies for effectively using various books or electronic resources or finding the
answers to research problems. Naturally, sharing ideas and tips for research techniques
should not be viewed as an excuse not to do the work yourself or a license to use answers
discussed by others. In other words, you should research with other students (if you find it
useful to do so), but you should never write together. Not only is this practice dishonest,
but it will prevent you from effectively learning the skill of legal research. Ultimately, an
employer is not interested in how many “points” you obtained on a class exercise or what
grade you obtained, but in whether you can be depended upon to research an issue
competently. As adult learners and professionals, you should concentrate on learning the
skill of legal research rather than focusing on the number of right answers you can obtain.
Although this text shows case names and book titles in italics, underlining or
underscoring is also acceptable according to The Bluebook: A Uniform System of Citation

29
(Columbia Law Review Ass’n et al. eds., 20th ed. 2015), which is the standard reference
tool for citation form. There is variation among practitioners, so check with your firm or
office to determine if there is a preference. Unless otherwise noted, all citations given in
Bluebook form are displayed in the format used by practitioners, not in the LARGE AND
SMALL CAP format used in academic writing. Most citation examples are fictitious.
In 2000, the Association of Legal Writing Directors introduced a new citation manual,
now in its fifth edition: ALWD & Coleen M. Barger, ALWD Guide to Legal Citation (5th
ed. 2014). This manual, referred to as ALWD (pronounced “all wood”), provided a user-
friendly alternative to The Bluebook. After the first edition of ALWD was published in
2000, each edition steadily crept closer to Bluebook citation format, and with the
publication of the fifth edition in 2014, it is identical to The Bluebook in all critical respects.
Thus, the focus of this text is on The Bluebook because it is the citation manual used in
nearly all law firms and the one you will be expected to have “on the job.”
When you begin reading this book, most of you will be unfamiliar with cases, statutes,
constitutions, or the numerous other legal authorities. As you progress in class and through
the chapters and assignments in this text, you will readily be able to measure your progress.
When you complete this text and your legal research class, you will have gained thorough
mastery of legal research and writing techniques as well as familiarity with the numerous
sets of law books and electronic resources that you will be required to use in your
profession.
This eighth edition of the text provides several new features, including the following:

Discussion of new titles added to the United States Code.

Discussion of new website GovInfo (the intended successor to FDsys) for free,
official, and authenticated documents from all three branches of the government.
Discussion of new sources for conducting research, such as the Law Review
Commons (Chapter 6), which provides free access to thousands of law review articles.
Discussion of new tools such as Lexis for Microsoft Office and Thomson Reuters’s
Drafting Assistant, which can check citation formats and quotations, prepare tables
of authorities, and assist with proofreading.
Revamped discussion of citation form (Chapter 8), including the following:
Discussion of The Indigo Book: A Manual of Legal Citation and Professor Peter
W. Martin’s Introduction to Basic Legal Citation, both of which are free, online
citation manuals that follow Bluebook form but provide clear and articulate
explanations and examples.
Tips on updating your Bluebook and truncating long and unwieldy URLs.
An all-new section on citing to the Internet with extensive examples and
discussion of new Bluebook rules on citing to archival URLs and social media.
Enhanced discussion of citation software and automatic citation tools such as
Lexis for Microsoft Office, Thomson Reuters’s Drafting Assistant, Zotero, and
Juris-M.

30
 Elimination of material on ALWD citation form, now that ALWD’s rules and
format are virtually identical to The Bluebook.
Extensively revised discussion of computer-assisted legal research in Chapter 11:
Targeted focus on the new platforms Lexis Advance (which is replacing Lexis)
and Westlaw (previously called WestlawNext) and their research-friendly
features.
Discussion of Ravel Law, the newest entrant into computer-assisted legal
research.
Assignments for both Lexis Advance and Westlaw so users may see the
similarities and differences in the two systems.
The information relating to Shepardizing using print volumes of Shepard’s in Chapter
9 has been moved to its own back-of-the-book Appendix. Because so few law firms
and libraries subscribe to the print volumes and updating now is done nearly
exclusively electronically, this older material was moved out of the main volume.
New information on practical concerns in citing to the Internet in Chapter 12 with
regard to its reliability and currency, citing to sources such as Wikipedia, and the
issue of “link rot,” or the disappearance of websites and hyperlinks that make it
impossible to find Internet sources.
Practical writing tips such as using Word Clouds to provide a visual demonstration of
the depth of a discussion.
Information on new research management tools such as Zotero, Juris-M, and
Evernote.
All new Discussion Questions and Internet Legal Research Assignments.

Additionally, new Practice Tips, websites, and sample documents are included, such as a
Practice Tip in Chapter 8 on using Lexis Advance and Westlaw to help you format your
citations. Reflecting the continuing and dramatic effect of the Internet on legal research
and the ever-increasing accessibility of resources in cyberspace, new websites and blog sites
are provided, and links for Web-based tutorials are given when applicable. Chapter 13
(which provides an overview of the legal research process) includes a full range of open-
ended research questions, requiring readers to use and apply all skills learned in previous
chapters to obtain answers to these research questions.
The vast number of legal authorities available both in a conventional law library and
through digital law libraries means that effective legal researchers are flexible. Sometimes
the materials you need are not on the shelves, and you will need to switch direction.
Sometimes new methods of locating materials emerge. In any event, you will find legal
research an interesting hunt for the authorities you need, whether in conventional print
sources, on Lexis Advance or Westlaw (the computer-assisted legal research systems), or on
the Internet.
At the time of the writing of this eighth edition, FDsys, the comprehensive website of
the U.S. Government Publishing Office, was in the process of migrating its vast collection
of federal materials to GovInfo, located at https://govinfo.gov, and currently in its test or

31
beta stage. Researchers may need to use both sites to obtain various federal documents.
Although every effort has been made to refer to useful websites, those sites can change
both their content and addresses without notice. References to websites are not
endorsements of those sites.

Textbook Resources

Instructor resources to accompany the text, including a comprehensive Instructor’s

Manual, Test Bank, and PowerPoint slides, are available on the Companion Website for
this book.

Deborah E. Bouchoux, Esq.

Summer 2016

32
 Acknowledgments

I would like to express my deep appreciation to the many individuals who contributed
greatly to the development of this text and its eighth edition. First, I would like to express
my gratitude to Susan M. Sullivan, the former Director of the University of San Diego
Paralegal Program, who provided me with my first opportunity to teach and who suggested
I write a legal research and writing text. She has been a good friend and colleague.
Thank you to Alex Butler for his assistance in obtaining photostats for the text and to
Gayle P. Gregg of Kaufman & Canoles for providing numerous sample pages and forms.
Many thanks also to the various reviewers who evaluated the manuscript on behalf of
the publisher. Throughout the more than 20 years I have taught I have also received
continuing evaluation from my students, who have offered their comments and insight
regarding methods of teaching, productive assignments, and effective writing strategies.
Finally, my deepest appreciation to the following individuals at Wolters Kluwer and
Aspen Publishers: Joe Terry, Publisher; Donna Gridley, Portfolio Manager, Legal and
Regulatory Solutions; Kaesmene Banks, Product Manager; Dana Wilson, Production
Editor; Betsy Kenny, Developmental Editor; and David Herzig, Associate Publisher, all of
whom offered encouragement and support throughout the development of this text. Their
thoughtful comments and suggestions were welcomed and greatly contributed to this
eighth edition. Thanks also to Lauren Arnest for her excellent copyediting skills.

I would like to acknowledge the following publishers who permitted me to reproduce

copyrighted material for this text.
Chapter 2: The Federal and State Court Systems
Most of the statistical information in this chapter was obtained from
http://www.uscourts.gov and http://www.supremecourt.gov.
Chapter 3: Statutory Law
Figure 3-4: Reprinted with permission of Thomson Reuters from Title 11 of U.S.C.A.
Figure 3-5: 12 U.S.C.S. § 1848. Reprinted with the permission of LexisNexis.
Figure 3-6: Cover of Cumulative Supplement, 42 U.S.C.A. §§ 1983, 1984, reprinted
with permission of Thomson Reuters.
Figure 3-7: Reprinted with permission of Thomson Reuters.
Figure 3-9a: U.S.C.A. General Index. Reprinted with permission of Thomson Reuters.
Figure 3-9b: U.S.C.S. General Index. Reprinted with permission of LexisNexis.
Figure 3-10: Reprinted with permission of Thomson Reuters from U.S.C.A. Popular
Name Table.
Figure 3-11: Va. Code Ann. § 18.2-26. Reprinted with permission of Thomson
Reuters.
Chapter 4: Case Law and Judicial Opinions

33
 Figure 4-1: Reprinted with permission of Thomson Reuters from 595 S.E.2d 697.
Figure 4-2: Reprinted with permission of Thomson Reuters from 108 S. Ct. 2830.
Figure 4-6: Reprinted with permission of LexisNexis from 33 L. Ed. 2d 363.
Chapter 5: The Use of Digests, Annotated Law Reports, and Words and Phrases
Figure 5-2: Reprinted with permission of Thomson Reuters.
Figure 5-3: Reprinted with permission of Thomson Reuters from Descriptive Word
Index to Atlantic Digest, 2d.
Figure 5-4: Reprinted with permission of Thomson Reuters from 20A Atlantic Digest
2d, page 12.
Figure 5-5: Reprinted with permission of Thomson Reuters from 20A Atlantic Digest
2d, Table of Cases, page 61.
Figure 5-6: Reprinted with permission of Thomson Reuters from 20A Atlantic Digest
2d, page 489.
Figures 5-7, 5-8, and 5-9: Reprinted with permission of Thomson Reuters from
American Law Reports.
Figure 5-10: Reprinted with permission of Thomson Reuters from Words and Phrases.
Chapter 6: Encyclopedias, Periodicals, Treatises, and Restatements
Figure 6-1: Reprinted with permission of Thomson Reuters from 87 C.J.S.
Figure 6-2: Reprinted with permission of Thomson Reuters from 29A Am. Jur. 2d.
Figure 6-3: Reprinted with permission of Thomson Reuters from General Index
Update to Am. Jur. 2d.
Figure 6-4: Reprinted with permission of Thomson Reuters from Deeds § 87:77, Am.
Jur. Legal Forms 2d.
Figure 6-6: Reprinted with permission of the publisher, California Western Law
Review, Vol. 51, Number 2, Spring 2015, copyright © 2015.
Figure 6-7: Reprinted with permission from Paralegal Today, The Authority for the
Paralegal Profession, subscribe at www.paralegaltoday.com
Figure 6-8: Index to Legal Periodicals & Books, volume 43, page 22 (Ipswich, MA: H.W.
Wilson, a division of EBSCO Publishing 2004). Used with permission of EBSCO
Information Services.
Figure 6-9: Reprinted with permission of Thomson Reuters from McCarthy on
Trademarks and Unfair Competition.
Figure 6-11: Restatement of the Law, Second, Contracts, Copyright © 1981 by the
American Law Institute. Reproduced with permission. All rights reserved.
Chapter 7: Miscellaneous Secondary Authorities
Figure 7-1: Reprinted with permission of Wolters Kluwer from The Wolters Kluwer
Bouvier Law Dictionary.
Figure 7-2A: Reprinted with permission of LexisNexis from Virginia Forms, Vol. 3B,
Form 9-1706, by Frank J. Gallo.
Chapter 9: Updating and Validating Your Research
Figure 9-1: Reprinted with permission of LexisNexis from Lexis Advance.
Figure 9-2: Reprinted with permission of LexisNexis from Lexis Advance.

34
 Figure 9-3: Reprinted with the permission of Thomson Reuters from Westlaw.
Figure 9-4: Reprinted with the permission of Thomson Reuters from Westlaw.
Chapter 11: The Digital Library: Lexis Advance, Westlaw, and Nonprint Research
Sources
Figures 11-1, 11-2, 11-3, 11-4, and 11-5: Lexis Advance screens. Reprinted with the
permission of LexisNexis.
Figures 11-6, 11-7, 11-8, and 11-9: Westlaw screens. Reprinted with permission of
Thomson Reuters.
Chapter 12: E-Research: Legal Research Using the Internet
Figure 12-2: Reprinted with permission of Justia Inc.
Figure 12-3: Washlaw screen. Reprinted with permission of Washlaw .edu.
Appendix A
Figure A-1 in Appendix A: Reprinted with permission of Lexis Advance from Shepard’s
Pacific Reporter Citations.
Public Domain Materials
No copyright is claimed in the material shown in the following figures: 2-2, 3-2, 7-5,
10-1, 10-3, 10-4, 10-5, 10-6, 10-7, 10-8, 12-1, 15-1, Appendix C, Appendix D, Appendix
E.

35
 Section I

Legal
Research
Primary Authorities

36
 Chapter 1

Finding the Law

We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our
liberty and of our property under the Constitution.
Charles Evans Hughes (1907)

A. The Paralegal’s Role in Legal Research and Writing

B. Law Libraries
C. Sources of Law in the United States
D. Legal Systems of Other Countries
E. Legal System of the United States
F. Law Book Publishing
G. Nonprint Research Media
H. Change in Our Legal System
I. Identifying the Holding in a Case
J. How the Legal Research Process Works: A Research Scenario
K. Case Citation Form

Chapter Overview
In this chapter we will discuss the role of paralegals in legal research and writing, the ethical
duty to perform research competently, types of law libraries and their uses, and the sources
of law in the United States. We will also examine the classification of law books as either
primary or secondary sources. Finally, there is a brief introduction to the major law book
publishers, who will be compared in greater detail in later chapters.

A. The Paralegal’s Role in Legal Research and Writing

1. Legal Research and Writing as Core Competencies

Paralegals are expected to perform the task of legal research competently and cost
effectively. In fact, the American Association for Paralegal Education (“AAfPE”), a national
organization that serves the needs of paralegal educators and institutions offering paralegal
education programs, identifies legal research as one of the “core competencies” that a
successful paralegal must possess.
Performing legal research today is both easier and more difficult than it was just a
generation ago. It is easier because many materials are available through electronic sources
and on the Internet, making it quick and easy to find statutes, cases, and other legal
authorities. It is more difficult because these new materials make so many sources accessible
that tracking down the right authority can seem like finding a needle in a haystack.

37
 Today’s paralegals are expected to know how to use conventional print sources, the
computer-assisted research services Lexis Advance and Westlaw, and the Internet to find
the best answer to a research problem as quickly and effectively as possible.
Once you have conducted legal research, you will need to communicate the results of
that research. In fact, the cornerstone of the legal profession is communication —
communication with a colleague, client, adverse party, or judge. In most cases the
communication will be in written form. Even in those instances in which you communicate
orally, you will often follow up with a written letter or memo to a file. Effective legal
writing is not only a task expected of paralegals but also one of the core competencies
identified by AAfPE for success in the paralegal profession.

2. Ethical Duty to Research Accurately

Perhaps the most fundamental aspect of the attorney-client relationship is the client’s
absolute trust and confidence in the competence of the attorney. This duty of competence
is imposed on paralegals as well who are required to exercise the ordinary skill and
knowledge that would be expected of similar paralegals in similar circumstances. In fact,
Guideline 1 of the American Bar Association’s Model Guidelines for the Utilization of
Paralegal Services specifically requires that attorneys take reasonable measures to ensure that
a paralegal’s conduct is consistent with the attorney’s obligations, meaning that obligations
imposed on attorneys are likewise imposed on paralegals. Thus, attorneys are responsible
for ensuring that their paralegals are competent to perform assigned work, including legal
research and writing.
Although it is important to “know” the law, particularly in a field in which you may
intend to specialize, it is even more important to be able to “find” the law. In this sense,
proficiency in legal research is the foundation for a successful career as a paralegal. Your
employer will not be as interested in your final grade in any specific class as much as your
ability to find accurate answers to questions relating to topics even though you may not
have been exposed to those topics in school. If you cannot perform legal research tasks
accurately and efficiently, you will not be a successful paralegal despite excellent grades in
your coursework.
In fact, the duty to perform accurate legal research has been addressed in a number of
cases, including People v. Ledesma, 729 P.2d 839, 871 (Cal. 1987), in which the court
noted that an attorney’s first duty is to investigate the facts of a client’s case and to research
the law applicable to those facts. In sum, the ethical duty to conduct adequate research
required of attorneys is shared by paralegals as well.
Moreover, the failure to research adequately may lead to liability for legal malpractice.
In one of the earliest cases on this subject matter, Smith v. Lewis, 530 P.2d 589 (Cal.
1975), overruled on other grounds, 544 P.2d 561 (Cal. 1976), the California Supreme Court
affirmed a lower court decision awarding $100,000 to be paid to a former client by an
attorney who had failed to conduct adequate legal research. The court held that the
attorney was obligated to undertake reasonable research and stated, “[e]ven as to doubtful

38
matters, an attorney is expected to perform sufficient research to enable him to make an
informed and intelligent judgment on behalf of his client.” 530 P.2d at 596. In sum, you
will be expected to perform competent legal research not only because your employer will
insist on it but also because ethical standards demand it. Finally, as further evidence of the
importance of legal research, a number of law librarians and other experts have advocated
that bar examinations include a legal research component. Now that we have established
the role of paralegals in legal research and writing and the ethical duty shared by paralegals
with attorneys to conduct competent legal research, we can address two critical questions:
where legal research is performed and what sources are used.

B. Law Libraries

1. Types of Law Libraries

As noted in the introduction to this text, legal research is a “hands-on” skill, requiring you
to know how to use a law library. Your first task, therefore, is to locate a law library that
you may use. There are approximately 3,600 law libraries in the United States. Following is
a list of the most common types of law libraries with a brief description of each:

Law School Libraries All accredited law schools have their own law libraries, most of
which will have tens of thousands of volumes in print and nonprint forms such as
Lexis Advance, Westlaw, e-books, microforms, and online. If you are attending a
paralegal program that is affiliated with a law school, you will undoubtedly have
access to the law library at the law school. Even if you do not attend a paralegal
program affiliated with a law school, you may have access to a law school library if it
has been designated as a Federal Depository Library, or a partial or selective
depository, meaning that certain publications of the United States government,
generally statutes and court decisions, will be sent to the library for review and access
by the general public. In many cases, local public libraries or university libraries are
designated as federal depositories. You can easily determine whether a library is a
Federal Depository Library by calling the reference librarian at the library and
inquiring. The locations of the approximately 1,250 depository libraries can be
found at the Government Publishing Office’s website: http://www.gpo.gov/libraries
or at http://www.fdlp.gov.
Paralegal School Libraries Some paralegal programs maintain their own law libraries,
although these are typically much smaller and contain far fewer volumes than law
school libraries. Generally, only students who attend these programs have access to
these law libraries.
Local Law Libraries Often a county or city will maintain a law library, and these are
usually open to members of the general public. These law libraries vary in size, with
the largest law libraries being found in the largest counties. Often they are located
near a courthouse. The American Association of Law Libraries provides a list of state,

39
 county, and court law libraries at the following website:
http://www.aallnet.org/sections/gll/membership/Member-Libraries.html.
Government or Agency Law Libraries Various governmental agencies, such as the
Department of Justice, maintain their own law libraries. These law libraries typically
serve only agency employees, and members of the general public will have no access.
The Library of Congress, the world’s largest library, located in Washington, D.C.,
was established by the United States Congress in 1800 primarily to provide reference
and research assistance to members of Congress. It has an excellent law library,
which is open to any member of the general public.
Courthouse Law Libraries Many courts, both federal and state, maintain their own law
libraries. Court law libraries are often found in the courthouse for the county seat.
Some law libraries are open to the public while others restrict access to courthouse
personnel, attorneys, and their paralegals.
Bar Association and Private Group Law Libraries Often bar associations or private groups,
such as insurance companies or real estate boards, will maintain law libraries. These
are usually open only to members of the association or group.
Law Firm Libraries Almost every law firm will maintain a law library, some of which may
be nearly as extensive as a law school or courthouse law library. These law libraries
are available for use only by members or employees of the firm.

You should consult a directory or use a general Internet search engine, such as Google,
and contact law schools, courthouses, and county offices in your area to determine whether
members of the general public have access to those law libraries and to obtain the hours for
each. Be particularly careful of law school libraries, which tend to schedule their hours of
operation around the law school calendar and will often close unannounced after final
exams or during semester breaks.
Additionally, many public and college or university libraries are increasing their
collections of law books. Although these libraries typically offer only the major sets of
books, such as the cases of the United States Supreme Court, federal statutes, and statutes
from the state in which they are located, these public or college libraries may afford a quick
answer to some legal research questions.
Finally, law libraries now exist in computer databases such as those offered by Lexis
Advance or Westlaw and in cyberspace with vast collections of legal materials available for
free “24/7.” These virtual law libraries afford quick and easy access to a significant number
of legal resources. One of the best known and most reliable is the Federal Digital System
(https://www.gpo.gov/fdsys), which provides free online access to publications from all
three branches of the federal government, including access to federal statutes and
regulations and selected federal court cases. The Federal Digital System is being replaced by
a new site, GovInfo (https://www.govinfo.gov), in its beta stage at the time of the writing
of this text. Conducting legal research using Lexis Advance and Westlaw is discussed in
Chapter 11, and conducting legal research through the Internet is discussed in Chapter 12.

40
2. Arrangement of Law Libraries

There is no one standard arrangement for law libraries. Each law library is arranged
according to the needs of its patrons or by decision of the law librarian. The best
introduction to a law library is a tour given by a staff member, and you should inquire
whether orientation tours of the law library are given. If you cannot arrange for a tour,
obtain a copy of the library handbook or guide that will describe the services offered, set
forth the library’s rules and regulations, and provide a floor plan of the law library. Spend
an hour wandering around the law library and familiarizing yourself with its arrangement,
organization, and collections. You will notice that there may be duplicate volumes of some
books or even duplicate sets of books. In general, books that are widely used will have
duplicates to ensure ease of use and accessibility. In many cases you can judge legal books
by their titles, which usually describe their contents. The law library’s website may offer a
“virtual” tour.
Nearly all law libraries use an electronic or online catalog or OPAC (online public
access catalog) to help you locate materials.
Most of the online catalogs are very easy to use, and you should not be intimidated.
The law library staff is usually quite willing to provide instruction, and training sessions can
be completed in only a few minutes. Typically, you will type in or “enter” the title, author,
or subject matter you desire in the search box displayed on the screen, and you will then be
provided with the “call number.” The shelves or “stacks” in the law library are clearly
marked, and locating a book is merely a matter of matching up the call number provided
by the online catalog with the appropriate stack label.
Most law school and large law firm law libraries use the Library of Congress
classification system to arrange their books. The Library of Congress classification system
arranges books on the shelves in subject order. Materials are organized according to twenty-
one branches of knowledge. The category “law” is Class K. Each book is marked with a
three-line classification number, consisting of an alphanumeric combination, which
includes letters, a whole number, and a decimal. For example, a book may be classified as
“KFC80.W5.” The designation “KF” is the Library of Congress identifier for American
legal publications, “C” represents “California,” and “80.W5” refers to the book’s location
in the stacks.
An unusual feature of law libraries is that, in general, they are not circulating libraries.
That is, unlike other libraries that circulate their volumes by allowing one to check out
books, law libraries seldom allow patrons to check out books. You can imagine your
frustration if you were unable to read a case because someone had already checked out the
volume containing the case. Books that are not widely used, however, may often be checked
out by individuals who possess library identification cards.

Practice Tip

The Law Library

41
 Familiarize yourself with your law library by investing half an hour to wander through the stacks and gain a
sense of how the library is arranged. Experiencing the way the stacks are organized will imprint itself on your
memory. This initial investment will save time for you later when you need to recall, for example, where the
books relating to corporate law or litigation are located.

3. Law Library Staff

Most of the larger law libraries are serviced by full-time law librarians who not only are
lawyers who have been awarded a Juris Doctor degree but also possess a Master’s Degree in
Library Science. Most library staff members are extremely helpful and responsive to
questions; however, you should diligently try to locate a book or answer before you
approach library staff for help. In law school libraries, the individuals who sit at the front
desk are often law students who may not be thoroughly knowledgeable about the
arrangement of the library or its collections. Therefore, if you have a question, be sure to
address it to one of the professional law librarians (in this regard, the reference librarians are
particularly helpful) rather than a student who may be more interested in studying at the
front desk than helping you locate a book. Many reference librarians are available for
research consultations by appointment. Some law library websites offer live chat assistance.
Although law librarians will provide useful research tips and suggestions, they will not
provide legal advice.

4. Law Library Courtesy

You should assume that everyone who uses the law library is as busy as you, and therefore
you should observe standard library etiquette by reshelving properly every book you use
(unless the law library you use prohibits reshelving or has a separate preshelving area for
books that are to be reshelved). Nothing is more frustrating than taking time out of a busy
schedule to travel to a law library and search for the appropriate sources only to realize that
a needed volume is missing. If you take books to a study carrel to read or to the
photocopier to reproduce a page, you must reshelve them when you are finished. This is
particularly true in school situations in which your fellow classmates will in all likelihood
have the same assignments as you and will thus need to use the same books.
Do not deface the books by turning pages down or marking an answer. Finally, do not
resort to unfair conduct by hiding or intentionally misplacing books. There is no excuse for
such overzealous tactics that not only impede learning but also reflect poorly on one who is
purporting to be a member of a profession devoted to the law.

Ethics Alert

Researching Economically

Because legal researchers have so many sources from which to choose when conducting a research project, it is
critical to consider which sources best serve the client’s interests. Rather than rushing to begin a project the
minute it is assigned, spend some time thinking things through. Should you begin with the conventional

42
 print sources? Lexis Advance or Westlaw? The Internet? Your ethical duty to research accurately includes the
duty to research economically as well.

5. Other Library Services

Most law libraries offer a variety of other services to ensure students can conduct productive
research. For example, if you are working on an extensive project, your law library may
reserve a carrel for you and allow you to store books and materials there. Similarly, you may
be able to reserve a group study room so you can meet with other students to brainstorm a
research project. Law librarians can provide you with permits and letters of introduction to
other law libraries in the area so you can retrieve materials not available at your law library.
If certain materials are not maintained at your law library, the reference librarian may assist
you in borrowing materials from other institutions through interlibrary loans. The ease of
facsimile and online transmission results in ready access to a wealth of materials from all
over the nation and the world. Most law libraries also offer research tutorials though their
websites.

Practice Tip
Legal Abbreviations

In the beginning of your legal career, you may become confused by the numerous abbreviations used for legal
books, case reports, and journals. To determine the meaning of abbreviations such as “Ala.” (for Alabama
Reports) or “C.J.S.” (for Corpus Juris Secundum), check Appendix A in Black’s Law Dictionary (10th ed.
2014), which provides an extensive list of abbreviations commonly used in law. Additionally, be patient.
Within just a few weeks you will likely learn about 90 percent of all of the abbreviations you are likely to
encounter. See Chapter 4 for a list of some common legal abbreviations.

C. Sources of Law in the United States

1. Cases and Our Common Law Tradition

If your task is to be able to find the law, one may well ask, “What is the ‘law’ we are talking
about?” There are numerous definitions of the word “law.” On an academic or
philosophical level, law is a system of rules that governs society so as to prevent chaos. On a
practical level, on the other hand, as indicated by the quotation at the beginning of this
chapter, Governor of New York, and later United States Supreme Court Chief Justice,
Charles Evans Hughes suggested that the law “is what the judges say it is.” This second
view may give you cause for concern. If the law is what a judge says, what if the judge rules
against you because of your race, or sex, or religion? What if the judge is not familiar with
an area of the law? The American legal system has certain safeguards built into it to protect
litigants from such scenarios.
The American legal system is part of what is referred to as the “common law” tradition.

43
“Common law” is defined in part by Black’s Law Dictionary (10th ed. 2014) as that body of
law that derived from judicial decisions rather than from statutes or constitutions.
Common law is thus often referred to as “judge-made law.”
This common law system began in England several hundred years ago. Since at least
1300 A.D., people who may have been training to be lawyers began “taking notes” on what
occurred during trials. When judges were called upon to decide cases, they then began
referring to these written reports of earlier cases and following the prior cases in similar
situations. The English referred to this system as the “common law” because it was applied
equally all throughout England and replaced a less uniform system of law. This system of
following similar previous cases was considered the most equitable way of resolving
disputes: People who are involved in like situations should be treated in the same manner.
This concept of following previous cases, or precedents, is called stare decisis, which is a
Latin phrase meaning “to stand by things decided.” In its broadest sense, the doctrine of
stare decisis means that once courts have announced a principle of law, they will follow it in
future cases that are substantially similar. It is this doctrine of stare decisis that serves to
protect litigants from judges who may not be familiar with an area of the law. If the judge is
required to follow precedent, he or she cannot rule against you based on your race, sex, or
religion. Similarly, these precedents will guide a judge who is unacquainted with a certain
area of the law. In this way, stare decisis advances fairness and consistency in our legal
system.
Moreover, stare decisis promotes stability in our judicial system. It would not only be
chaotic but manifestly unfair if judges treated each case that came before them as being
severed from our great body of legal tradition and then rendered different and inconsistent
rulings on a daily basis. You can imagine the frustration of a client who seeks advice of
counsel on the division of property in a dissolution of a marriage only to be informed that
the division depends on which judge hears the case: that Judge Jones divides property in a
marital dissolution on a 50/50 basis; Judge Smith divides the property on a 40/60 basis;
and Judge Anderson divides the property differently each day depending upon his mood.
The client’s rights would be totally dependent upon an arbitrary assignment to a judge.
Such a result is not only unjust but also unpredictable. Thus, stare decisis not only
encourages stability in our legal system but also aids those in the legal profession in advising
clients as to the likely disposition of their cases.
Under this system or doctrine of precedent following, “the law” was thus found in the
written decisions of the judges, and these decisions served as precedents that were followed
in later cases involving substantially similar issues. Thus, the first source of law in the
United States is judge-made case law.

2. Constitutions

The second source of law in the United States is constitutions. A constitution sets forth the
fundamental law for a nation or a state. It is the document that sets forth the principles and
basic laws that govern a country, state, or organization. We have a United States

44
Constitution, our supreme law of the land, and each state has its own constitution.

3. Statutes

The third source of law in the United States is statutes. A statute, or law, is defined by
Black’s Law Dictionary (10th ed. 2014) as “a law passed by a legislative body.” In the
United States, legislatures did not become particularly active in enacting statutes until the
early to mid-nineteenth century, when the United States economy began changing from a
very rural base to a more urban base. This major change in American society was coupled
with a tremendous population growth, due largely to immigration, and it became clear that
rather than having a system that decided disputes on a case-by-case basis, which was slow
and cumbersome at best, enacting broader laws that would set forth rules to govern
behavior of the public at large would best serve the needs of a growing society. For example,
when people live miles apart from one another and interact on a sporadic basis, few
disputes will arise. On the other hand, when people are crowded into apartment buildings
and work in densely populated urban areas, the number of problems greatly increases, and
there is a concomitant need for general regulation by law or statute.

4. Administrative Regulations
A fourth source of law in the United States is found in the vast number of administrative
rules and regulations promulgated by federal agencies such as the Federal Communications
Commission (“FCC”), the Food and Drug Administration (“FDA”), the Occupational
Safety and Health Administration (“OSHA”), and numerous other agencies. Agencies exist
in the individual states as well, and these also issue rules and regulations.
The agencies play a unique role in our legal system because they function quasi-
legislatively and quasi-judicially. You may recall from basic history and civics classes that
our government is divided into three branches: the legislative branch, which makes laws;
the judicial branch, which interprets laws; and the executive branch, which enforces laws.
Each division is to exercise its own powers, and, by a system known as “checks and
balances,” each functions separately from the others and limits the powers of the others.
The agencies, on the other hand, perform two functions: They act as a legislature by
promulgating rules and regulations that bind us; and they act as a judiciary by hearing
disputes and rendering decisions.
Although you may not have given a great deal of thought to the effect of the agencies in
your daily life, their influence is significant and far-reaching. For example, the radio you
listen to and the television you watch are regulated by the FCC; the cosmetics you use and
the food or aspirin you ingest are regulated by the FDA; and the safety of your workplace is
regulated by OSHA.

5. The Executive Branch

Although the primary function of the federal executive branch is to enforce the law, it does

45
serve as a source of law in three ways. First, treaties are entered into by the executive branch
with the advice and consent of the United States Senate. These agreements between two or
more nations do affect your daily life and serve as a source of law because they may relate to
trade and import matters, economic cooperation, or even international boundaries and
fishing rights. Second, the President, our chief executive, can issue executive orders to
regulate and direct federal agencies and officials. State governors may also issue executive
orders. Third, the executive branch exerts influence on the law through policies on
enforcing laws.
For example, if various federal laws relating to possession of small amounts of drugs are
rarely enforced, the effect is as if the law does not exist despite the fact that a statute clearly
prohibits such acts. Nevertheless, although such an approach by the executive branch
influences the law as well as societal behavior, such influence on the law is indirect and
remote. In the event the government then prosecutes an individual for violation of such a
previously unenforced law, the individual usually cannot raise the previous laxity as a
defense. In a related example, in 1980, when the Selective Service System was reinstated to
require United States males born in 1960 or later to register with the Service, several
conscientious objectors refused to register. The federal government immediately prosecuted
some of these individuals, who then asserted as a defense that they had been singled out for
prosecution because they had been vigorous opponents of this draft registration. This
defense, commonly known as “selective enforcement,” is rarely successful and was not
successful in the draft registration cases. To use a simple analogy, if you are cited for
speeding, you cannot successfully assert that either all people who speed should be likewise
cited or that none should. You would accept that you had simply been unluckier than other
speeders. On the other hand, if only women are cited or only Hispanics are cited, such
would appear to be the result of discrimination based on sex or ethnic origin, and a defense
of selective enforcement alleging such invidious discrimination might well be successful.

D. Legal Systems of Other Countries

Although every country has its own system of law, most systems are classified as being
either part of the common law tradition, described above, or part of the civil law tradition.
Civil law systems developed from Roman law. The Eastern Roman emperor Justinian I
commissioned a comprehensive code of laws known as Corpus Juris Civilis, meaning “Body
of Civil Law,” to set forth all of the law of the Roman Empire. As a result, countries whose
systems of law follow the Roman scheme of law with thoroughly comprehensive codes are
said to be part of the civil law tradition. Even today many countries’ codes of civil law are
derived from the original Roman codes.
In general, civil law countries (which are a majority of nations) place much heavier
reliance on their collections of statutes than on their much smaller collections of cases.
These statutes are designed to address every conceivable legal issue that might arise, and it is
these statutes that provide the ultimate answers to legal questions. Cases considered by

46
judges rarely form the sole basis for any decision in civil law countries. Austria, China,
France, Germany, Greece, Italy, Japan, Mexico, the Russian Federation, South Korea,
Spain, and most of the countries of Latin and South America are considered civil law
countries. Islamic law is followed by several countries in the Middle East.
In general, English-speaking countries or those that are prior British Commonwealth
colonies are part of the common law system, which is greatly dependent on cases used as
precedents, which in turn are followed in future cases that are substantially similar. Non-
English-speaking countries are usually part of the civil law system, which is greatly
dependent on codes or statutes intended to apply to every legal question or dispute.
Because of the thoroughness of the Roman codes, statutes came to be known as the
“written” law while the common law, relying as it does on judge-made case law, is often
referred to as the “unwritten” law.
It is interesting to note that every state in the United States, except Louisiana, and every
Canadian province, except Quebec, is part of the common law tradition. Because Quebec
and Louisiana were settled by the French, their legal systems are largely patterned after the
law of France, a civil law country. In fact, the Civil Code of Louisiana is heavily influenced
by the Code Napoleon, the French legal code enacted in 1804. In practice, however, even
in many countries with systems based on civil law, case law still plays a significant role.
Table T.2 of The Bluebook identifies more than 40 foreign countries as either common law
or civil law countries.

E. Legal System of the United States

The nature of our federalist system of government seeks to apportion power between our
central or federal government and the 50 separate states and the District of Columbia. The
framers of the country feared that an overly strong federal government with concentrated
power would ultimately engulf the separate states. Therefore, the Tenth Amendment to the
Constitution was adopted. This amendment reserves to the individual states any powers not
expressly granted or delegated to the federal government.
As a result, although the United States adheres to a uniform common law tradition,
there is no one single legal system in this country. We have federal laws enacted by the
United States Congress and federal cases decided by our federal courts, including the
United States Supreme Court. Moreover, unless an area of the law has been preempted by
the United States Constitution or the federal government, each state and the District of
Columbia are free to enact laws as well as decide cases dealing with state or local concerns.
Even within each state are smaller political subdivisions such as cities and counties, which
enact local ordinances and regulations.
Thus, there is a tremendous body of legal literature on the shelves of law libraries:
federal cases and federal statutes; Connecticut cases and Connecticut statutes; Florida cases
and Florida statutes; Utah cases and Utah statutes; and so forth. Additionally, both the
federal government and state governments promulgate administrative regulations, attorneys

47
general issue opinions regarding legal problems, and experts publish commentary regarding
the law. As early as 1821, Supreme Court Justice Joseph Story complained, “The mass of
the law is accumulating with an almost incredible rapidity . . . . It is impossible not to look
without some discouragement upon the ponderous volumes, which the next half century
will add to the groaning shelves of our jurists.” This statement was made about the time
volume 19 of the United States Reports was published. As of 2016, the United States Reports
covered more than 560 volumes.
All of the great mass of legal authorities can be classified as either primary authority or
secondary authority. That is, every book in any law library is a primary authority or a
secondary authority. See Figure 1-1.
Primary authorities are official pronouncements of the law by the executive branch
(treaties and executive orders), legislative branch (constitutions, statutes, and administrative
regulations and decisions), and judicial branch (cases). The key primary authorities are
cases, constitutions, statutes, and administrative regulations. Thus, primary sources are
those created by a governmental entity.
If a legal authority does not fall within one of the previously mentioned categories, it is
a secondary authority. Secondary authorities may consist of legal encyclopedias, which
provide summaries of many areas of the law; law review articles written about various legal
topics; books or other treatises dealing with legal issues; law dictionaries; annotations or
essays about the law; and expert opinions on legal issues. In general, the secondary
authorities are not the law but rather provide comment, discussion, and explanation of the
primary authorities and, more important, help you locate the primary authorities.
It is critical to understand thoroughly the differences between primary and secondary
authorities because only the primary authorities are binding upon the court, agency, or
tribunal that may be deciding the legal issue you are researching. That is, if your argument
relies upon or cites a case, constitution, statute, or administrative regulation that is relevant
to a legal issue, it must be followed. All other authorities, for example, the secondary
authorities, are persuasive only. If your argument cites Black’s Law Dictionary for the
definition of negligence, a court might be persuaded to adopt such a definition, but it is not
bound to do so. On the other hand, if you cite a relevant case that defines negligence, a court
must follow that definition. In sum, a primary authority is the law; a secondary authority
discusses the law.
Even though the secondary authorities are not binding on a court, they are often
extremely effective research tools and provide excellent introductions to various legal topics.
Nevertheless, you should keep in mind the purpose of the secondary authorities — to
explain the primary authorities and locate the primary authorities that, if relevant, must be
followed by a court.
In addition to the various authorities previously discussed, there are other books in the
law library that are in the nature of practical guides or finding tools. These include books
such as digests, which help you locate cases (see Chapter 5); form books, which provide
forms for various legal documents such as wills, deeds, and contracts (see Chapter 7); and
print and electronic tools that help you update the primary authorities you rely upon in any

48
legal writing (see Chapter 9). Although these books are not true secondary authorities, their
principal function is either to assist in locating primary sources or to serve as practical or
finding guides for those in the legal profession.

The Final Wrap-Up

Using and Citing Primary and Secondary Authorities

Use: Use primary authorities to support the legal assertions you make. Use secondary
authorities to summarize and explain the primary authorities and to help you
locate the primary authorities.
Citation: You may cite to any primary authority. If a primary authority is on point, it
must be followed in your jurisdiction. You may cite to most secondary
authorities. Many are highly authoritative (such as the Restatements and many
treatises). Others, however, are elementary and weak (for example, most legal
encyclopedias) and should be used to familiarize yourself with an area of law and
to direct you to the primary authorities.

F. Law Book Publishing

As shown in Figure 1-1, the collection and variety of books in a law library are incredibly
extensive.
Compared to the litigation explosion of the last generation, the early period of
American history produced a fairly small number of cases. But just as the change in
American society from agrarian and rural to an industrial and urban population resulted in
a need for statutes to establish standards for behavior, this change also resulted in increased
litigation and attendant case decisions.
For example, in the United States district courts alone, the number of civil cases filed
between 2006 and 2015 increased by about 8 percent. According to the National Center
for State Courts, the nation’s state courts received more than 94 million cases in 2013. In
fact, this same organization reports that approximately 95 percent of all legal cases initiated
in the United States are filed in the state courts. Most cases filed in the trial courts,
approximately 90 percent, never come to trial. Of those state court cases that go to trial,
only about 10 percent are appealed and result in a published opinion due to the fact that
trial court opinions are rarely published. Nevertheless, even that number, added to the cases
decided and published by the federal courts, results in approximately 50,000 cases being
published each year. Additionally, Congress and the state legislatures publish thousands of
pages of statutes, and thousands of pages of administrative rules and regulations are also
published annually.

49
 Figure 1-1
Primary Authorities (binding)

Secondary Authorities (persuasive)

Thus, a tremendous amount of publication of legal authorities, both primary and

secondary, occurs each year. You cannot expect to know all of the law contained in these
authorities; however, you can be reasonably expected to be able to locate and use these legal
authorities. That is the goal of legal research.
The actual publication of these authorities is conducted by only a handful of publishing
companies, including the following, which are among the best known legal publishers:
• Thomson Reuters Corporation (“West”). Although West, with its U.S.
headquarters in Minnesota, is actually owned by Thomson Reuters Corporation, a global
information company, in the United States it is still routinely referred to as Thomson

50
Reuters/West or simply “West.” Because so many practitioners still refer to this publisher as
“West” and many of the publisher’s books themselves still use the brand “West,” this text
will generally refer to this publisher as “Thomson Reuters/West” or “West” rather than
“Thomson Reuters.” Founded in 1872, West publishes cases, statutes, secondary
authorities, and provides Westlaw, its computer-assisted legal research system (previously
called “WestlawNext” for several years but rebranded as simply “Westlaw” in 2016). West
also owns FindLaw (http://www.findlaw.com), a leader in free online legal information.
For simplicity, this text will generally use “West” when referring to print products and
“Westlaw” to refer to the computer-assisted legal research system.
• LexisNexis Legal & Professional (“Lexis”). Lexis is a division of RELX PLC
(formerly Reed Elsevier) of London. It competes head-on with West in the publication of
many legal sources, including statutes. Lexis also provides its self-named computer-assisted
legal research system. Its newer research platform, Lexis Advance, will soon replace the
original platform, Lexis; thus, the focus of this text is on Lexis Advance. Through a series of
acquisitions, Lexis has combined with other publishers, including Matthew Bender. You
will likely notice some differences in the presentation of Lexis’s name on its various
publications. For simplicity, this text will generally use “Lexis” to refer to the company’s
print publications and “Lexis Advance” to refer to its electronic research service.

• Wolters Kluwer. Headquartered in the Netherlands, Wolters Kluwer includes a

number of other “brands,” including Aspen Publishers and CCH Inc. Wolters Kluwer
publishes a variety of primary and secondary authorities.

The numerous combinations and acquisitions of publishing companies have resulted in

changes in some features of some law books. For example, for years a set of books called
American Law Reports was published by Lawyers Co-op. It therefore referred its users to
other Lawyers Co-op books. In 1998, the set was acquired by West, and thus it now directs
readers to West-owned law books. Moreover, some of the features of the set changed
slightly after West acquired it. Thus, as books are described in this text, it is possible that
some of their features and layout have changed over the years, with recent books in a set
appearing slightly different from earlier published books in the set.
Law book publishers also face increasing competition from emerging technologies. As
discussed in Chapter 11, many cases now appear on the Internet at no cost. These inroads
on print publication have caused decreases in circulation of print materials.
Additionally, some companies such as Bloomberg BNA specialize in the publication of
looseleaf services — that is, sets of books dealing with various legal topics and contained in
ringed binders. The hallmark of these looseleaf volumes is that they publish information on
legal topics that are subject to frequent change and that if placed in hardback volumes
would quickly become out-of-date. Publication of materials in looseleaf binders allows
frequent updating by replacement of individual outdated pages with current pages. The
looseleaf sets are thus “evergreen.”
One of the common features shared by the primary sources (cases, constitutions,

51
statutes, and regulations) as they are initially published is that they are arranged in
chronological order. That is, cases are published in the order in which the court issued the
decisions. A court will not designate a month as landlord-tenant month and only hear cases
dealing with landlord-tenant law before moving on to some other topic, but rather may
hear a case involving burglary followed by a contract dispute followed by a probate matter.
The cases appear in volumes of books, called “court reports,” in chronological order.
Similarly, during any given session, a legislature will enact laws relating to motor
vehicles, regulation of utilities, and licensing of real estate salespeople. The initial
publication of these statutes is in the order in which they were enacted rather than
according to subject matter.
This type of organization makes research difficult. If you were asked to locate cases
dealing with landlord-tenant law, you would find that they have not been brought together
in one specific location but rather may be scattered over several hundred volumes of cases.
It is clear then that a method of obtaining access to these primary authorities is needed and,
in general, the secondary authorities and digests will assist you in locating the primary
authorities. For example, a secondary source such as a legal encyclopedia will describe and
explain landlord-tenant law and will then direct you to cases that are primary or binding
authorities relating to this area of the law. These cases, when cited in a legal argument,
under the doctrine of stare decisis, must be followed by a court, whereas the encyclopedia
discussion is persuasive only and need not be followed by a court.

G. Nonprint Research Media

For centuries, all legal research was performed using conventional print volumes in law
libraries. With the advent of computer-assisted legal research (see Chapter 11) and Internet
legal research (see Chapter 12), legal professionals use a variety of media to get the right
answers to their research questions and are no longer tied to the law library. Good
researchers must be adept at both methods of performing legal research: using conventional
print sources and using newer technology sources such as law-related mobile “apps,”
commercial databases such as Lexis Advance and Westlaw, and the Internet. In fact, in
2012 the American Bar Association modified its Model Rules of Professional Conduct to
impose an affirmative duty on attorneys to understand the benefits and risks of technology.
Using newer technologies allows legal professionals to perform research at their desks and
on the road.
Some methods are more efficient and cost-effective than others. For example, if you
need general background information about an area of law, you should consider browsing
an encyclopedia or treatise in print form. If you need information about a new or evolving
area of law, computer-assisted legal research will likely provide the most current
information. If you need to refresh your memory about a statutory provision, it may be
more cost-effective for the client if you quickly review the statute in print form rather than
going to the expense of logging on to Lexis Advance or Westlaw. Moreover, you need to be

52
flexible in using all methods of legal research if case materials are unavailable: Books can
disappear from library shelves and networks can crash.
Thus, effective legal researchers are creative and adaptable. A 2014 survey by the
American Bar Association reported that the responding attorneys used fee-based services,
such as Lexis Advance and Westlaw, and free Internet sites more than any other sources
when starting a project (although print sources were popular in certain practice fields, such
as trusts and estates and with more experienced attorneys). Legal Technology Resource
Center, American Bar Association.
Successful legal researchers thus combine research media to obtain information for
clients. Knowing which media to use requires an analysis of many factors, including the
complexity of your task, the costs involved, and time constraints. Many teachers urge
students first to become familiar with the conventional print tools before becoming too
wedded to computer-assisted or Internet legal research. Strong skills in manual legal
research provide a good foundation for using Lexis Advance, Westlaw, and the Internet
more effectively. Thus, this text will fully examine the conventional print research tools
before discussing technologies such as computer-assisted legal research and Internet legal
research.

Practice Tip
Access to Government Publications

The Government Publishing Office website (previously known as “GPO Access”) provides free online access
to official publications from all three branches of the federal government through its “Federal Digital System”
(often referred to as “FDsys” and located at http://www.gpo.gov/fdsys). This site offers easy access to
authenticated government documents, including our federal statutes, our Code of Federal Regulations, and
numerous other primary sources. At the time of this writing, FDsys was being replaced by a newer and
enhanced platform, GovInfo (https://www.govinfo.gov), which allows easier searching, more documents, and
improvements to facilitate use on mobile apps.

H. Change in Our Legal System

Although stare decisis promotes stability, fairness, and uniformity in our legal system, blind
adherence to established precedents in the face of changing societal views and mores may
result in injustice. For example, in 1896, the United States Supreme Court held that
“separate but equal” public facilities for blacks and whites were lawful. Plessy v. Ferguson,
163 U.S. 537 (1896). This precedent served to justify segregation for more than 50 years.
In 1954, however, in Brown v. Board of Education, 347 U.S. 483, 495 (1954), the Supreme
Court overruled its earlier decision and held that segregation solely according to race in
public schools violated the United States Constitution. A strict adherence to stare decisis
would have precluded a second look at this issue and would have resulted in continued
racial segregation.

53
 Similarly, the view of women has changed in our case law. In Bradwell v. State, 83 U.S.
(16 Wall.) 130, 141 (1872) (Bradley, J., concurring), the Justice noted: “The paramount
destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.
This is the law of the Creator.” One hundred years later, Justice Brennan acknowledged,
“There can be no doubt that our Nation has had a long and unfortunate history of sex
discrimination. Traditionally, such discrimination was rationalized by an attitude of
‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a
cage.” Frontiero v. Richardson, 411 U.S. 677, 684 (1973).
Thus, it is clear that as society changes, the law must also change. A balance must be
struck between society’s need for stability in its legal system and the need for flexibility,
growth, and change when precedents have outlived their usefulness or result in injustice. In
discussing the fact that the United States Supreme Court can overrule its precedents to
correct an injustice, Woodrow Wilson remarked that the Court sits as “a kind of
constitutional convention in continuous session.” It is the function of our courts to achieve
both of these seemingly contradictory goals: the need for stability and the need for change.
You should not view these changes as abrupt and unsettling frequent events. Change
often occurs slowly and always occurs in an ordered framework. This order is a result of the
structure of our court systems into a hierarchy of lower courts, which conduct trials, and
higher courts, which review the conduct of those trials by appeal.
Change in established legal precedent comes about by rulings of higher courts, which
then bind lower courts in that judicial system or hierarchy. For example, a small claims
court in Portland, Oregon, cannot overrule Brown v. Board of Education. Because Brown v.
Board of Education was decided by the United States Supreme Court, it can only be
overruled by the United States Supreme Court. Similarly, a decision by the highest court in
Minnesota binds all of the lower courts in Minnesota, and a decision by the Ninth Circuit
Court of Appeals is binding on all courts within that circuit, but not in other circuits.
Nevertheless, lower courts often attempt to evade precedents by striving to show those
precedents are inapplicable to the cases then before them. For example, a lower court might
hold that a precedent established by a court above it dealing with the interpretation of a
written contract is not binding because the lower court is interpreting an oral contract.
Lower courts thus often reject precedent or refuse to follow precedent on the basis that
those precedents are inapplicable to their case or can be distinguished from their case. This
flexibility in reasoning results in a rich, complex, and sometimes contradictory body of
American case law. According to Hart v. Massanari, 266 F.3d 1155, 1173 (9th Cir. 2001),
“This ability to develop different interpretations of law among the circuits [and courts] is
considered a strength of our system. It allows experimentation with different approaches to
the same legal problem so that when the Supreme Court eventually reviews the issue it has
the benefit of ‘percolation’ within the lower courts.”
Thus, stare decisis means more than simply following settled cases. It means following
settled cases that are factually similar and legally relevant to the case or problem you are
researching. Such a factually similar and legally relevant case from a court equivalent to or
higher than the court that will hear your particular case is said to be “on point” or “on all

54
fours” with your case. The goal of legal research is to be able to locate cases on point with
your particular case. Such cases are binding upon and must be followed by the court
hearing your case.
In the event you cannot locate cases on point in your judicial hierarchy (possibly
because your case presents a novel issue not yet considered in your jurisdiction), you should
expand your search for cases on point to other jurisdictions. That is, if your case presents an
issue not yet decided by the Minnesota courts, often called a case “of first impression,”
search for on-point cases in other states. If you locate a Wisconsin case on point, it is not
binding in Minnesota. It may, however, be persuasive to the Minnesota court. If the
Minnesota court adopts the view espoused in the Wisconsin case, it is then a precedent in
Minnesota and according to the doctrine of stare decisis is binding upon that Minnesota
court and all others lower than it in Minnesota. See Figure 1-2.
Among the factors that may be considered by the Minnesota court in adopting the
Wisconsin view are whether the Wisconsin case is well reasoned and well written, whether
Minnesota and Wisconsin have some tradition in relying upon and respecting each other’s
cases, whether the Wisconsin case was issued by one of the higher Wisconsin courts, and
whether the Wisconsin view is shared by other jurisdictions or approved by legal scholars.
Change in our legal system can occur not only as a result of judges expanding or
overruling precedents found in cases but also through enactment, repeal, or amendment of
a statute by a legislature or even through judicial interpretation of a statute. You may notice
as you read statutes that many are broadly written, ambiguous, or vague. In such a case,
judges may interpret the meaning of the statute, clarify ambiguous terms, explain the
language of the statute, or declare the law invalid. For example, a statute may require a
landlord to provide 30 days’ notice to a tenant before evicting the tenant for nonpayment
of rent. A question may arise as to the meaning of this provision if the thirtieth day occurs
on a national holiday. If the statute does not address this issue, a court is free to determine
that if the thirtieth day occurs on a Sunday or holiday, the tenant will be given an extra
day’s notice. Although a court cannot change the plain meaning of a statute, it is free to
interpret the statute. Thus, even when you locate a statute that appears directly to address
your research problem, you cannot stop researching. You must read the cases that have
interpreted the statute because it is judicial interpretation of a statute rather than the naked
language of a statute that is binding under the doctrine of stare decisis. This research
requirement brings us full circle to the practical definition of “the law” given before — that
the law is what the judges say it is. In statutory construction, the law is not always what the
statute says but rather what a judge says it means.
You have seen that a case from a higher court in one state or jurisdiction is binding
upon lower courts in that state or jurisdiction and may be persuasive authority in other
states. In contrast, a statute has no effect whatsoever anywhere other than in the jurisdiction
that enacted it. When the Kansas legislature is enacting statutes relating to the licensing of
real estate salespersons, it is unaffected by statutes in Nevada relating to the same topic. Any
Nevada statutes on this topic lack even persuasive effect outside Nevada’s jurisdictional
boundaries.

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 Figure 1-2
Stare Decisis and Our Judicial Hierarchy

• Primary law consists of cases, constitutions, statutes, treaties, executive orders, and
administrative regulations. All other legal authorities are secondary.
• Primary law from your state or jurisdiction is binding within your state or
jurisdiction.
• Primary law from another state or jurisdiction is persuasive only in your state or
jurisdiction.
• If your state or jurisdiction adopts the law or position of another state or
jurisdiction, then that position is now binding within your judicial hierarchy.
• Secondary law (no matter where it originates) is persuasive only.
• Higher courts in any given judicial hierarchy bind lower courts in that hierarchy.
• Higher courts can depart from a previously announced rule if there are compelling
and important reasons for doing so.
• United States Supreme Court cases are binding on all courts in the United States.

I. Identifying the Holding in a Case

You can readily see that the foundation of the American legal system lies in its rich and
varied body of case law. While analysis of cases will be discussed in great detail in Chapter
4, you should be aware that under the concept of stare decisis, only the actual rule of law
announced in a case is binding. That is, only the holding of the case is authoritative. The
holding is referred to as the ratio decidendi or “reason for deciding.” The remainder of the
language in the case is referred to as dictum, which is usually used as an abbreviated form of
obiter dictum, meaning a remark “in passing.” Black’s Law Dictionary (10th ed. 2014)
provides that dictum is “a judicial comment made while delivering a judicial opinion, but
one that is unnecessary to the discussion in the case and therefore not precedential.”
Dictum in a case is persuasive only.
On some occasions, a court may speculate that its decision would be different if certain
facts in the case were different. This type of discussion is dictum and although it may be
persuasive in later cases, it is not binding authority.
In many cases, distinguishing the holding from the dictum is easily done. Often a court
will set the stage for announcing its holding by using extremely specific language similar to
the following: “We hold that a landlord may not commence an action to evict a tenant for
nonpayment of rent without providing the tenant with a written notice to either pay rent
or forfeit possession of the leased premises.” On other occasions, finding the holding
requires a great deal more persistence and probing.
You may notice that some cases are difficult to read and are written using archaic and
outmoded language. Do not get discouraged. Reading cases takes a great deal of patience
and experience. You will find, however, that the more cases you read, the more skillful you

56
will become at locating the holding, distinguishing dicta from the holding, and
understanding the relevance of the case for the future.

J. How the Legal Research Process Works: A Research Scenario

Just as it is nearly impossible to put together a puzzle without first seeing a picture of the
finished product, it is difficult to understand the process of legal research before actually
performing a legal research project. To understand what you will be able to do when you
have completed your research class, consider the following scenario, which is typical of the
type of task a researcher often encounters.

Peggie, a paralegal, was recently hired by a law firm and asked by her supervising attorney to do some legal
research. The attorney met with a client, Grace, whose husband Phil died two years ago. Grace is the mother of a
ten-year old boy. The son spends occasional time with Phil’s parents. Grace is remarrying, and although Phil’s
parents are kind and loving, Grace has decided that it would be better to limit any visits by her son with them so
that she can begin her new marriage and start her new family. Phil’s parents have told Grace that they will go to
court to seek visitation. The attorney wants Peggie to find out how the courts in the state handle grandparent
visitation.
After getting the assignment, Peggie returned to her office to begin the research process. First, she thought about
the places she might need to look to find an answer to this question. Because Peggie is unfamiliar with family law,
she realized that she would need to learn a bit more about grandparent visitation in general so that she would have
the background to understand the materials she would be reading as she worked on this research assignment.
Peggie thus reviewed some introductory information in a legal encyclopedia (Chapter 6) to “get her feet wet.”
Next, she looked to see whether her state had any statutes (Chapter 3) that address this issue. After reading the
statutes, Peggie realized that she needed a better understanding of the meaning of some of the language in the
statute, so she looked up some court cases (Chapter 4) that interpreted the statute. One case in particular was
relevant to this question, so she used a digest (Chapter 5) to find other cases that dealt with the same issue. She
then reviewed a set of books on family law in general and read the chapters relating to grandparent visitation
(Chapter 6). Peggie also decided to use Lexis Advance or Westlaw to locate the most current information and
other specialized articles or texts on grandparent visitation (Chapter 11). Next, she made sure that the statutes and
cases were still in effect and had not been modified or overturned (Chapter 9). Finally, Peggie wrote her attorney a
memorandum (Chapter 17) describing what she had found out from her research, being careful to use correct
citation form (Chapter 8).

Peggie’s approach to her research problem is only one way that the problem could be
solved; another researcher might well approach the problem differently, but both would
reach the same conclusion.
It is thus important for researchers to understand thoroughly all of the legal research
resources that are available, so that when a project is received, it can be completed
efficiently and correctly. Moreover, researchers need to understand the American legal
system and court structures (Chapters 2 and 4) so that cases can be put into context and
researchers therefore understand which authorities are binding.
Legal research is not so much about following a predictable formula as it is about
understanding how the numerous resources fit together so that researchers can make
intelligent decisions about performing legal research. Thus, the next chapters will afford
you an in-depth understanding of the available resources so that you will know how and

57
where to look for answers, allowing you to fulfill your ethical duties to perform research
accurately and efficiently and help clients with their legal problems.

K. Case Citation Form

Although case citation will be discussed in depth in Chapter 8, the sooner you begin
examining the books in which our cases are published or reported and the sooner you begin
reading those cases, the more confident you will become about your ability to research
effectively.
All cases follow the same basic citation form: You will be given the case name, the
volume number of the set in which the case is published, the name of the set in which the
case appears, the page on which it begins, and the year it was decided (and the deciding
court, if not apparent from the name of the set). For example, in “reading” the citation to
the United States Supreme Court case Brown v. Board of Education, 347 U.S. 483 (1954),
you can readily see the following:

1. The case name is Brown v. Board of Education;

2. It is located in volume 347;
3. It is found in a set of books entitled United States Reports;
4. It begins on page 483 of volume 347; and
5. It was decided in 1954.

State court cases are cited much the same way. The citation State v. Paul, 548 N.W.2d
260 (Minn. 1996) informs you that:

1. The case name is State v. Paul;

2. It is located in volume 548;
3. It is found in a set of books entitled North Western Reporter, Second Series;
4. It begins on page 260; and
5. It is a Minnesota Supreme Court case decided in 1996.

Although this text shows case names and book titles in italics, underlining or
underscoring is also acceptable according to The Bluebook: A Uniform System of Citation
(Columbia Law Review Ass’n et al. eds., 20th ed. 2015) (“The Bluebook”). For many years,
another citation manual competed with The Bluebook. That citation manual, ALWD &
Coleen M. Barger, ALWD Guide to Legal Citation (5th ed. 2014), was user-friendly and
popular with students. In its present fifth edition, however, its rules are identical in nearly
every respect to those in The Bluebook, and thus the emphasis in this text is on The
Bluebook, which is the commonly accepted manual for citation form throughout the
nation. There are additional citation systems, however, and variation among practitioners,
so check with your firm or office to determine if there is a preference. Finally, this text will

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show citations in the “ordinary” typeface used by practitioners, rather than in the LARGE
AND SMALL CAPITAL format used for academic writing and law review articles. (See Chapter
8.)

Internet Resources

59
Writing Strategies

Always support arguments with cases on point. Precedents that differ

significantly from your case will not only not be helpful, they may actually hurt your
case by causing the reader to believe that there is no authority to support the position
you advocate.
Carefully scrutinize the cases you find for their weight (what level is the court
that rendered the decision?), their date (when was the case decided?), their issues (are
the legal issues involved in the cases you find similar or identical to ones in your
case?), and the facts (are the facts involved in the cases you find similar or analogous
to the ones in your case?).
Use only the “best” decisions to support your argument. Be merciless. Discard
cases that provide the adversary with any ammunition. When you have selected the
cases that will best advance your position, use analogy to show the reader how similar

60
 they are to your case so the reader can easily see why these cases are controlling.
Use active voice and vivid and forceful language when constructing your
argument. Personalize your clients by identifying them by name (“Jill Wallace”) and
depersonalize adverse parties by referring to them by a “label” (the “defendant,” the
“company”).

Assignment for Chapter 1

1. a. Give the name of the case located at 501 U.S. 808 (1991).
b. Review the quotation on page 827 of the case relating to stare decisis. Why is
stare decisis the “preferred course”?
2. a. Give the name of the case located at 561 U.S. 63 (2010).
b. Who delivered the opinion of the Court?
c. Who dissented in this case?
3. a. Give the name of the case located at 549 U.S. 199 (2007).
b. Who delivered the opinion of the Court?
c. Was the lower court’s ruling affirmed or reversed?
4. a. Give the name of the case located at 542 U.S. 129 (2004).
b. Give the date the case was argued.
c. Give the date the case was decided.
d. In brief, what general subject matter or topic does this case discuss?
e. Locate a case in this volume in which the defendant’s name is Winn and give its
citation.
f. What part did Justice Kennedy play in this Winn case?

Internet Assignment for Chapter 1

1. Use the Glossary at the website of the George Mason School of Law. What is the
definition of “precedent”?
2. Access the website of the American Association for Paralegal Education. Review
the Core Competencies expected of paralegals. What is the last legal research skill
identified?
3. Access the website for the National Center for State Courts and select
“Information and Resources” and then “Browse by State.”
a. Who is the Chief Justice of the California Supreme Court?
b. Review California’s State Court Structure Chart. Which court is the
exclusive court for death penalty cases?
4. Access the website of the Government Publishing Office and locate information

61
 about the Federal Depository Library Program. Identify the library in
Wilmington, North Carolina, that is a federal depository library.
5. Access the website for the Law Library for UCLA’s School of Law. Select “Law
Library Research Guides” and then “UCLA School of Law Legal Research and
Writing Guide.” Locate the Research Checklist. What is the third task in a
research project?

62
 Chapter 2

The Federal
and State
Court Systems
To have standing, a complainant must have a dog in the hunt; if complainant has no such dog, then complainant cannot
object to things occurring in the hunt.

Tex. Disposal Sys. Landfill, Inc. v. Tex. Comm’n on Envtl. Quality,

259 S.W.3d 361, 363 (Tex. App. 2008)

A. Federalism
B. Establishment of Federal Court Structure
C. Jurisdiction
D. Ground Rules for Cases
E. The Federal Court Structure
F. State Court Organization
G. Citation Form

Chapter Overview
As discussed in Chapter 1, there is no one legal system in the United States. There are 52
legal systems: one system composed of cases and statutes decided and enacted by federal
courts and the federal legislature, namely, the United States Congress, and another system
composed of cases and statutes decided and enacted by the state courts and state legislatures
for each of the 50 states and the District of Columbia.
This chapter will provide an overview of the federal and state court systems. To
perform research tasks, you should understand these court structures so that when you are
confronted with a research assignment or a case citation you will readily understand the
hierarchy of cases within a given court structure, giving greater emphasis to cases from
higher courts such as the United States Supreme Court and the United States Courts of
Appeal than to cases from the federal trial courts, the United States District Courts, or the
lower state courts.

A. Federalism

As you no doubt remember from basic American history or civics classes, there are three
branches in the federal government: the legislative branch, which is charged with making

63
federal law; the executive branch, which is tasked with enforcing the law; and the judicial
branch, whose function is interpreting the law. A chart showing the organization of the
government of the United States can be found in the U.S. Government Manual available at
https://www.gpo.gov/fdsys.
That we have federal courts that exist separate and apart from state courts is a result of a
feature of our system of government called federalism. The principle of federalism
developed from the time of the drafting of the Constitution.
At the time of the Constitutional Convention in 1787, there were two conflicting ideas
held by the framers of the Constitution. On the one hand, the framers recognized the need
for a strong central or “federal” government to act in matters of national concern and to
reduce George Washington’s fear that the fledgling nation had “thirteen heads, or one head
without competent powers.” On the other hand, the delegates to the Convention were
wary of delegating too much power to a centralized government; after all, almost all of the
delegates had served as soldiers in the Revolutionary War, which had been fought against a
monolithic government insensitive to the rights of the newly emerging colonies. This
principle of states’ rights was seen as the best protection against an encroaching central
government.
The solution was a compromise: For those delegates opposed to a strong national
government, the principle developed that the national government could exercise only
those powers expressly delegated to it. These powers were specifically enumerated in Article
I, Section 8 of the Constitution, which states that, among other things, the federal
government has the power to borrow money, collect taxes, coin money, establish post
offices, declare war, raise and support armies, and make any other laws “necessary and
proper” for carrying out these delegated powers. This “necessary and proper” clause is often
called the “elastic” clause as it makes clear that the federal government not only has the
powers expressly delegated to it in Article I, Section 8 but can also take action that is not
specifically mentioned so long as it is “necessary and proper” to enable it to carry out the
delegated powers.
As is readily seen, these specifically enumerated powers are extremely important, and
those delegates in favor of states’ rights were concerned that, as a result of the compromise,
the federal government was too strong and would eventually “swallow up” the states. In
fact, Patrick Henry refused to attend the Convention because of his opposition to granting
any additional power to the national government and expressly warned that the
Constitution “squints toward monarchy . . . . Your President may easily become King.”
However, the Constitution was immediately modified by the addition of ten amendments
collectively known as the Bill of Rights, which were designed to protect individual liberties.
The Tenth Amendment, in particular, was enacted to reassure those in favor of states’
rights that the federal government would not be able to encroach on the rights of the 13
new states or their citizens. The Tenth Amendment, often referred to as the “reserve”
clause, provides that any powers not expressly given to the national government are reserved
to, or retained by, the individual states (or the people).
The result of the historic Constitutional Convention is our “living law” — a unique

64
federalist system in which the states have formed a union by granting the federal
government power over national affairs while the states retain their independent existence
and power over local matters. In a system based on federalism, power is shared between the
national and state governments.

B. Establishment of Federal Court Structure

Article III, Section 1 of the Constitution created the federal court system. This section
provides in part that “the judicial power of the United States shall be vested in one
Supreme Court, and in such inferior courts as Congress may from time to time ordain and
establish.” Thus, only the existence of the Supreme Court was ensured. It was left up to
Congress to determine its composition and to create any other federal courts. In fact, the
very first Congress began to work on establishing a functioning federal court system and
enacted the Judiciary Act of 1789. This Act created 13 district courts in prominent cities
with one judge apiece, three circuit courts, and above these, the United States Supreme
Court consisting of a Chief Justice and five Associate Justices. Although the Judiciary Act of
1789 has been amended several times (among other reasons, to increase the number of
Supreme Court Justices), the basic structure of our federal court system remains as it was in
1789: district courts, intermediate circuit courts of appeal, and one United States Supreme
Court. Judges appointed to these courts (and to the United States Court of International
Trade) are often referred to as “Article III judges.”

C. Jurisdiction

The jurisdiction (or power to act) of the federal courts does not extend to every kind of case
or controversy but only to certain types of matters. You will learn a great deal more about
this topic in your litigation or civil procedure classes, but a brief explanation is in order here
for you to understand fully why some research assignments will be researched through the
exclusive use of federal law, and others will be researched through the exclusive use of the
law of a particular state.
There are two types of cases that are resolved by federal courts: those based on federal
question jurisdiction and those based on diversity jurisdiction.

1. Federal Question Jurisdiction

The federal courts are empowered to hear cases that involve a federal question, namely, any
case arising under the United States Constitution, a United States (or federal) law, or any
treaty to which the United States is a party. Additionally, federal courts may decide
controversies between states or between the United States and certain foreign officials and
any cases involving the U.S. government. Cases arising under the Constitution include
cases alleging racial, sexual, or age discrimination; cases involving freedom of speech,

65
freedom of the press, freedom of religion; cases involving a defendant’s right to a fair trial;
cases involving federal crimes such as bank robbery or kidnapping; and any other such
actions pertaining to a federal law or the Constitution.
It may be easier for you to remember the scope of federal question cases (sometimes
called “subject matter jurisdiction” cases) if you keep in mind a simple analogy. If a 7–11
convenience store in your neighborhood were burglarized, you would expect your local law
enforcement officials to investigate the crime. On the other hand, if a bank in your area
were burglarized, you would expect the investigation to be handled by the FBI, our federal
law enforcement officials. Similarly, federal questions, namely those arising under federal
law or the Constitution, are resolved by federal courts while more local matters are typically
resolved by state courts.

2. Diversity Jurisdiction

The other category of cases that is handled by federal courts is determined not by the issue
itself (as are federal question cases) but by the status of the parties to the action.
Imagine you are a New York resident on vacation in Montana where you become
involved in an automobile accident with a Montana resident. You may have some concern
whether a court in Montana would treat you, an outsider, the same as it would treat its
own residents, particularly in a locality in which the residents elect the judge.
To ensure that litigants are treated fairly and to eliminate any bias against an out-of-
state litigant, the federal courts may resolve cases based on the diversity of the parties; that
is, in general, federal courts may hear cases in civil actions between: (i) citizens of different
states; and (ii) citizens of a state and citizens of a foreign nation. Diversity cases accounted
for about 34 percent of the total filings in federal district courts in 2014.
Note that diversity jurisdiction is conditioned upon satisfying another key element: The
amount in controversy must exceed $75,000 exclusive of interest and court costs. For
example, if a resident of Oregon sues a resident of Nevada for breach of contract and alleges
(in good faith) damages in the amount of $80,000, the matter may be instituted in federal
court.
Diversity must be complete; all plaintiffs must be citizens of different states from all
defendants. A federal court in a diversity case will apply the substantive state law of the state
in which it is located. For example, if an Ohio resident sues a Texas resident for $100,000
for breach of contract in a Texas federal court, the federal court will rely on Texas’s law in
reaching its decision. In early 2005, Congress passed the Class Action Fairness Act of 2005,
which amended the federal diversity statute (28 U.S.C. § 1332 (2012)) by granting district
courts original jurisdiction in civil actions in which the matter in controversy exceeds $5
million. The legislation was intended to reduce forum shopping by sending most large
multistate class actions to federal court (although the district court may decline jurisdiction
and send the case to a state court if the primary defendant(s) and more than one-third of
the plaintiffs are from the same state).
Over the years, the federal courts have increased the monetary amount in diversity cases

66
in order to prevent the federal courts from becoming inundated with cases. Until 1988, the
monetary amount was $10,000. When it became apparent that almost any routine “fender
bender” resulted in damages in excess of $10,000, Congress increased the monetary limit to
the amount of $50,000. In October 1996, the limit was increased again to its present
requirement of $75,000. There is no monetary jurisdictional limit for cases instituted in
federal court based on federal questions; that is, if a plaintiff alleges she has been wrongfully
discharged from her employment due to sexual discrimination, she need not allege damages
in excess of $75,000. Congress has periodically considered automatically increasing the
monetary limit in diversity cases based on changes in the Consumer Price Index.
Diversity jurisdiction has its detractors, among them late Chief Justice William H.
Rehnquist, who had urged elimination of diversity jurisdiction as a basis for initiating an
action in federal court. Because total elimination of diversity jurisdiction appeared unlikely,
Rehnquist alternatively suggested that diversity jurisdiction be curtailed so as to prevent
citizens of one state from suing citizens from another state in federal court. It is believed
such a modification to diversity jurisdiction would eliminate “forum shopping,” that is, the
selection of a particular federal court for certain perceived advantages, among them the
strategy of making it difficult for individuals to defend themselves in a court not located
near their residences.
Another criticism of diversity jurisdiction, especially in cases brought by a citizen of one
state against a citizen of another state, is that the federal courts are becoming “clogged up”
deciding non-federal questions such as routine automobile accident cases, which are better
resolved by the state courts.
Finally, federal courts do not exercise jurisdiction in domestic relations or probate
matters, even if other diversity requirements are satisfied. Thus, federal courts do not
probate wills or issue divorce decrees.
If a plaintiff brings a case in state court that could have been brought in federal court
(based on either federal question or diversity jurisdiction), the defendant may remove it to
federal court. If removal was improper (because the court lacked jurisdiction), the case must
be remanded or returned back to the state court.
See Figure 2-1 for chart of federal jurisdiction.

Figure 2-1
Federal Jurisdiction

Federal jurisdiction may be based upon the following:

• Federal question: Any case arising under the U.S. Constitution or any federal law
or treaty (28 U.S.C. § 1331 (2012)); or
• Diversity: Generally, cases in which all plaintiffs are from different states from all
defendants and in which the matter in controversy exceeds $75,000. (28 U.S.C. §
1332 (2012)).

67
 Additionally, cases originally filed in state court may be removed to a federal court, as
follows:

• Removal: If a civil action is originally filed by a plaintiff in state court and federal
jurisdiction exists, the case may be removed to federal district court by the
defendant. (28 U.S.C. § 1441 (2012)).
• Remand: If it appears that a district court lacks subject matter jurisdiction, the case
must be remanded or returned to the state court. (28 U.S.C. § 1447 (2012)).

3. Concurrent Jurisdiction

Often one hears about cases that are being litigated in a state court when it seems clear the
action involves a federal question, for instance, racial discrimination. In such cases,
concurrent jurisdiction may exist, meaning the plaintiff alleged a cause of action that
violated both state law and federal law. In the example mentioned above, the basis for the
action, racial discrimination, violates both California law and federal law. The plaintiff in
such a case then has a choice whether to proceed in state court or federal court. In fact,
unless Congress vests exclusive jurisdiction of a matter in the federal courts, any claim
arising under federal law may be heard in either federal or state court.
The decision in which court to bring an action when concurrent jurisdiction exists is
often made on the basis of tactics and strategy. For example, a plaintiff may wish to proceed
in a federal court because it is not as crowded with cases as the local state court, thus
resulting in a more speedy trial and resolution. Moreover, any diversity jurisdiction case
regardless of the amount of money involved may be brought in a state court rather than a
federal court.

4. Exclusive Jurisdiction

Some matters are handled exclusively by federal courts and are never the subject of
concurrent jurisdiction. For example, by federal law all bankruptcy cases are resolved by the
United States Bankruptcy Courts (discussed below). Other examples of cases that are
handled exclusively by federal courts are maritime, copyright infringement, and patent
infringement cases. Generally, statutes govern which cases are subject to such exclusive
jurisdiction.
Because issues relating to jurisdiction are often complex, always ask your supervising
attorney if you have a question relating to the jurisdiction of a case.

D. Ground Rules for Cases

Even if a federal question is involved or even if the requirements for diversity jurisdiction
are satisfied, there still remain some ground rules that must be satisfied before a federal
court will hear a case.

68
 In large part, these ground rules are rooted in Article III of the Constitution, which
establishes the jurisdiction of federal courts and restricts federal courts to resolving “cases”
and “controversies.” This limitation has been construed to mean that federal courts will
only resolve an actual controversy. Moreover, the actual controversy must exist throughout
the matter, and not merely at the date the action is initiated. With very few exceptions,
federal courts will not consider issues that are “moot” or already resolved. In fact, it is a
fraud on a court to continue with a case that is moot. An exception to this requirement is
demonstrated by the well-known case Roe v. Wade, 410 U.S. 113 (1973), in which a
pregnant plaintiff challenged a Texas law prohibiting abortion. By the time the case reached
the United States Supreme Court, the plaintiff had given birth and placed the baby for
adoption. The United States Supreme Court could have dismissed the case claiming it was
moot — namely, that the issue had already been effectively decided upon the birth of the
child and that even if the court awarded the relief the plaintiff had requested, declaring
abortion lawful, the plaintiff’s situation would not be affected by the ruling. However, in
Roe, the United States Supreme Court, realizing that such a case would inevitably be
rendered moot by the time it would reach the Court, made an exception and heard the
case.
A close corollary to this ground rule that federal courts will not consider questions that
are moot is that federal courts will not render advisory opinions, even if asked by the
President. The federal courts view themselves as constitutionally bound to resolve actual
ongoing disputes, not to give advice. For example, President George Washington once sent
the Supreme Court 29 questions on treaties and international law, asking for advice. The
Justices refused on the dual bases that under the Constitution, they could not share powers
and duties with the executive branch and that they were forbidden to issue advisory
opinions.
Finally, a plaintiff must have personally suffered some actual or threatened injury; that
is, the plaintiff must be adversely affected by some conduct of the defendant and cannot
base a claim on the rights or interests of some other persons. No matter how convinced you
may be that a law is unconstitutional, you cannot challenge it unless your rights are directly
affected. This requirement is referred to as “standing.” For example, in Sierra Club v.
Morton, 405 U.S. 727 (1972), the Sierra Club brought an action to prevent development of
California’s Mineral King Valley into a commercial resort. The Court concluded that the
Sierra Club lacked standing as it had not alleged that it or any of its members would be
affected by the defendant’s activities in developing Mineral King Valley. The Court noted
that standing does not exist merely because one has an interest in a controversy or a matter
is personally displeasing; one must have a personal stake in the outcome of the controversy.
In a more recent example, in late 2009, the United States District Court for the
District of Columbia entered judgment in favor of defendant’s Ringling Bros. circus in an
action brought by a former circus employee who alleged that the circus’s conduct toward its
elephants violated the Endangered Species Act. The court ruled that the plaintiff lacked
standing to sue because he did not prove he had a strong attachment to the elephants and
that their treatment caused him to suffer injury. The court also found that he lacked

69
credibility because he was essentially a “paid” plaintiff. ASPCA v. Feld Entm’t, Inc., 677 F.
Supp. 2d 55, 67 (D.D.C. 2009).

E. The Federal Court Structure

1. District Courts

The district courts are the trial courts in our federal system. At present, there are 94 district
courts scattered throughout the 50 states, the District of Columbia, and the territories of
the United States. There is at least one district court in each state, and the more populous
states, namely, California, New York, and Texas, have four within their territorial borders.
Other less populous states, such as Alaska, Idaho, and Vermont, each have only one district
(although they may have branches or divisions in other parts of the state to allow easy access
for litigants). There are also district courts located in Puerto Rico, Guam, the Northern
Mariana Islands, and the Virgin Islands. Although there may not be a federal district court
located in your hometown, there is at least one in your state, thus providing you with ready
access to the federal courts. See Figure 8-1 in Chapter 8 for a list of all district courts.
These district courts have jurisdiction over a wide variety of cases. One day a district
court judge may hear a case involving a bank robbery and the next day may resolve a civil
rights question followed by a case involving securities fraud. Bankruptcy courts are
considered units of our district courts with judges appointed by the courts of appeal for
renewable terms of 14 years. Each of our 94 districts includes a United States bankruptcy
court.
There are 670 authorized judgeships for our federal district courts. The judges are, as
are all of the judges in the federal court system, appointed by the President and confirmed
with the advice and consent of the United States Senate. The number of judges assigned to
a particular district court will vary depending upon the number of cases the court is called
upon to adjudicate. There may be as few as one district court judge assigned to a division
(although there must be at least two assigned to each district), or there may be nearly 50, as
is the case for the increasingly busy Southern District of New York. In the event of a shift
in the population that increases the caseload of a district, the United States Congress will
add or approve new judgeships to enable the district court to keep pace with its increasing
demands.
The district court judges, who are paid $203,100 per year, usually sit individually; that
is, they hear cases and render decisions by themselves rather than as a panel or group as the
judges for our intermediate courts of appeal and our United States Supreme Court Justices
sit.
The vast majority of all federal cases end at the district court level; only approximately
18 percent of these federal cases are appealed. Civil filings in the district courts increased
about 4 percent between 2010 and 2014. Recent studies estimate that less than 2 percent of
all federal civil cases go to trial, fewer than did in 1962, partly because of out-of-court
settlements and partly because of alternatives to litigation, such as mediation and

70
arbitration. Many experts are dismayed by the lack of trials, believing that the trial system is
central to democracy and to developing our common law. Additionally, prisoner petitions
declined after the enactment of the Prisoner Litigation Reform Act, aimed at reducing
prisoner petitions. Finally, product liability cases such as those involving breast implants
and asbestos cause moderate fluctuations from year to year.

2. United States Courts of Appeal

The 13 United States Courts of Appeal, sometimes called the circuit courts, are the
intermediate courts in our federal system. The theory of our judicial system is that a litigant
should have a trial in one court before one judge and a right to an appeal in another court
before a different judge or judges. This structure serves to satisfy the cause of justice and to
ensure that a litigant who may have been denied any rights at the trial in the district court
will have a second opportunity before a different panel of judges in these intermediate
courts of appeal. In fact, a statute directs that no judge may hear an appeal of a case
originally tried by him or her.
In a civil case, either side may appeal the verdict. In a criminal case, the defendant may
appeal a guilty verdict, but the government may not appeal if a defendant is found not
guilty. Either side in a criminal case may appeal with respect to the sentence that is imposed
after a guilty verdict.
It is critical to distinguish between the district courts, where the trial occurs, evidence is
presented, witnesses testify, and a decision is rendered, and the courts of appeal, whose
primary function is to review cases from these district courts. The courts of appeal do not
retry a case. They do not receive additional evidence or hear witnesses. They merely review
the record and the briefs of counsel to determine if a prejudicial error of law was made in
the district court below. A second important function of the United States Courts of
Appeal is to review and enforce decisions from federal administrative agencies such as the
National Labor Relations Board or the Securities and Exchange Commission. Judicial
review in cases involving certain federal agencies or programs, for example, disputes over
Social Security benefits, may occur first in a federal district court rather than in one of the
courts of appeals.
The United States is divided into 12 geographical areas, often called “circuits,” and
there is a court of appeal in each of these circuits. Additionally, there is a Court of Appeals
for the Federal Circuit, as discussed below. Figure 2-2 shows the grouping of states that
make up each circuit. It is not critical to know which states or district courts fall within the
boundaries of which circuits. A map of the circuit courts is readily available at
www.uscourts.gov. You should certainly know which circuit covers the state in which you
will be working and that each circuit is assigned a number and will have several states (and
their district courts) within it. For example, the Ninth Circuit covers California and most
of the western states.
Thus, if a trial occurs in the Northern District of California, the appeal is filed in the
Ninth Circuit. Similarly, if a trial occurs in the Southern District of New York, the appeal

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is filed in the Second Circuit. All lower federal district courts that fall within the
jurisdiction of a federal circuit court are bound by its decisions. Each of the intermediate
circuit courts of appeal is free to make its own decisions independent of what other circuits
have held; however, in practice, the circuit courts are often guided by decisions from other
circuits. Decisions by the U.S. Supreme Court often resolve conflicts among the circuits —
not only those in the lower circuit courts but in all other courts in the nation.
The Eleventh Circuit was created in 1981 to relieve some of the pressure the Fifth
Circuit was facing due to an ever-increasing caseload caused by population growth. The
Fifth Circuit, which had covered Texas, Louisiana, Mississippi, Alabama, Georgia, and
Florida, was split, and a new Eleventh Circuit was created by the United States Congress to
handle cases from Alabama, Georgia, and Florida (leaving Texas, Louisiana, and Mississippi
in the Fifth Circuit).
Since the 1940s, several proposals have been made to split the huge Ninth Circuit in
two. At the time of writing of this text, legislation is pending in the 114th Congress (H.R.
166) that would reorganize the Ninth Circuit by leaving California, Guam, Hawaii, and
the Northern Mariana Islands in the Ninth Circuit and creating a new Twelfth Circuit (to
be composed of Alaska, Arizona, Nevada, Idaho, Montana, Oregon, and Washington). The
primary reason advanced for dividing the Ninth Circuit is that it is simply too large,
making for inconsistent law. Many of the judges in the Ninth Circuit are opposed to the
split, including former Chief Judge Mary Schroeder, who testified before the 109th
Congress that advances in technology, including computer-assisted legal research, email,
and an automated docketing system, have improved the circuit’s efficiency. Many experts
believe that because most of the judges in the Ninth Circuit oppose the split, Congress
should not effect it. As former Chief Judge Schroeder remarked as early as 2004, “Divorce
is expensive. This family is going to stay together.”

Figure 2-2
The Thirteen Federal Judicial Circuits (See 28 U.S.C.A § 41)

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 In addition to the 11 “numbered” circuits (First Circuit, Second Circuit, and so forth),
there is a United States Court of Appeals for the District of Columbia Circuit and a circuit
court created in 1982 that merged the United States Court of Customs and Patent Appeals
and the appellate division of the United States Court of Claims into a new court known as
the Court of Appeals for the Federal Circuit, located in Washington, D.C. This court has
exclusive jurisdiction over patent appeals, and many practitioners believe it has
strengthened our patent system. Intellectual property cases make up about 60 percent of its
caseload. This court also handles certain specialized appeals such as those from the United
States Court of International Trade, the Trademark Trial and Appeal Board, the United
States Court of Appeals for Veterans Claims, the United States Court of Federal Claims,
and other specialized courts as well as appeals from all district courts.
There are more than 170 judgeships authorized for the 13 United States Courts of
Appeal, with each court of appeals having from six to 29 judges assigned to it, depending
on the caseload for the circuit. The judges usually hear the appeals from the district courts
as a panel of three judges, although they may sit en banc with all judges present. These
federal judges are also appointed by the President and earn an annual salary of $215,400.
Although the workload of the circuit courts has increased significantly since 1990, no new
permanent judgeships have been authorized since that date. Judgeships bills have been

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introduced in nearly every Congress since 2000, but all have died before being enacted.
Moreover, in 2015, the United States Judicial Conference recommended the creation of
nearly 70 new judgeships.
The United States Courts of Appeal typically issue more than 30,000 opinions each
year, although only about 12 percent are published.
For the vast majority of litigants, these intermediate courts of appeal represent the last
opportunity to prevail. As you will see, the popular notion that everyone has access to the
United States Supreme Court is unfounded; for most litigants the court of appeals is the
last chance to win, as one who wishes to appeal a case to the United States Supreme Court
is largely dependent on the Court’s discretion in accepting a case for review.

3. United States Supreme Court

The United States Supreme Court consists of eight Associate Justices and one Chief Justice.
Although the Chief Justice is paid more than the Associate Justices ($260,700 to their
annual salaries of $249,300), and although he has prestige and certain authority by virtue
of seniority, the Chief Justice’s vote counts equally with that of any Associate Justice.
Nevertheless, as the presiding officer of the Supreme Court, he is responsible for
administration of the Court and leadership of the federal judicial system. Upon the death
or resignation of a Chief Justice, the President may either appoint one of the eight existing
Associate Justices to the position of Chief Justice or may appoint an “outsider” as Chief
Justice. That is, there is no seniority system whereby an Associate Justice works his or her
way up to the Chief Justice position.
As are all Article III judges in the federal system, the Supreme Court Justices are
appointed by the President and hold office “during good behavior.” This means they are
not subject to mandatory retirement and may sit as federal judges until they voluntarily
resign or die. As an example of the lack of a mandatory retirement, United States Senior
District Court Judge Wesley Brown, the nation’s oldest sitting judge at the time of his
death, died in 2012 at the age of 104. Although federal judges can be impeached by the
Congress, this drastic remedy is seldom used, and only a handful of judges have been
removed through impeachment and conviction by Congress of treason, bribery, or other
high crimes and misdemeanors. To further ensure the independence of the federal
judiciary, the Constitution prohibits any decrease in federal judges’ salaries during their
term in office. These two protections ensure that an independent judiciary decides cases
free from popular passion and political influence.
The individuals who sit on the United States Supreme Court (or state supreme courts)
are usually referred to as “Justices” while the individuals who sit on lower courts are referred
to as “judges.” Occasionally, individuals who sit on intermediate appellate courts are also
referred to as “justices,” although in general the term “Justice” is reserved for individuals on
the United States Supreme Court or a state supreme court.
The Supreme Court has not always had nine Justices. When the Court was established
in 1790, there were only six Justices. The number of Justices has changed several times; at

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one point there were ten Justices. The present composition of nine Justices has existed since
1869. The most recent attempt to alter the size of the Supreme Court occurred in 1937
when President Franklin D. Roosevelt presented a plan to the Senate for reorganization of
the Court. President Roosevelt’s proposal called for adding an additional Justice each time
any Justice reached the age of 70 and did not voluntarily retire, to a maximum of 15
Justices. Fierce public outcry immediately met this attempt to “pack” the Supreme Court
and there has been no serious discussion of altering the number of Justices since that time.

Federal Court Caseloads

• The last year that new, permanent judgeships were authorized for the federal appellate courts was 1990.
• About 70 percent of federal judges come from the public sector; fewer than 35 percent come to the bench from
private practice.
• Of the appeals commenced in the federal courts of appeal in 2014, most came from the Ninth Circuit (22 percent),
while the fewest came from the District of Columbia Circuit (only 2 percent).
• The number of criminal cases filed in the United States district courts in 2014 was 62,722, a 9 percent decrease
from 2013.
• Most of the work of the United States district courts relates to its civil caseload. In 2014, civil cases constituted
approximately 78 percent of total filings, and criminal cases accounted for 22 percent. Of the civil cases, personal
injury actions make up the majority, followed by civil rights and real property cases. Of the criminal cases, most
involve drugs and immigration law violations.
• The Department of Justice (which is responsible for prosecuting federal crimes and representing the government in
civil actions) is the most frequent litigator in the federal court system.
• Between 2010 and 2014, the number of civil cases filed in the United States District Courts climbed 4 percent.

Because there is no mandatory retirement for federal judges, many have served for
extremely long periods — notably Chief Justice John Marshall, widely regarded as the
finest jurist produced by the United States, who served 34 years, Associate Justice William
O. Douglas, who served for 36 years, and Associate Justice John Paul Stevens who
announced his retirement in 2010 at age 90 after 35 years on the bench. The average
number of years served by Supreme Court Justices is 16.
In addition to their primary activities of hearing Supreme Court cases and writing
opinions, each Justice is assigned to one of the federal judicial circuits for the purpose of
handling special and emergency matters such as stays of execution and injunctions. For
example, in mid-2000, Associate Justice Anthony Kennedy, then assigned to the Eleventh
Circuit, which includes Florida, rejected an emergency request to allow Elian Gonzales, a
Cuban child, to remain in the United States. Similarly, in spring 2005 Justice Kennedy
(after his referral to the Court) denied an application by Floridian Terri Schiavo’s parents
to reinsert her feeding tube. Because there are 13 federal circuits and only 9 Supreme Court
Justices, some Justices are assigned to more than one circuit. Assignment to the circuits is
made by the Chief Justice at the beginning of each term. A listing of the assignments is
found in the front of each volume of United States Reports.
The United States Supreme Court is currently located in Washington, D.C. Initially,
the Court met in New York City, the original capital of the United States. When the

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national capital was relocated to Philadelphia, the Court established its offices there. When
Washington, D.C., became the permanent national capital in 1800, the Court again moved
and was located in the United States Capitol. In 1929, former President William Howard
Taft, who had been appointed as Chief Justice of the Court after his presidential term,
persuaded Congress to construct a permanent building for the Court. The Supreme Court
building was completed in 1935, almost 150 years after the Court was created.
By federal law the term of the United States Supreme Court commences on the first
Monday in October. Typically the term ends at the end of June nine months later. During
the summer recess the Justices teach and continue working and reviewing the many
petitions for relief the Court receives during the year. The last month of the term is often
referred to as the “June crunch” as the Court struggles to finalize and release opinions
before the summer recess. In the last month of the Court’s 2014-2015 term, it produced
decisions in about one-third of its cases, some of which were the most complex on its
docket.
Many interesting traditions endure in the Court. The Justices are seated at the bench by
seniority: The Chief Justice occupies the center seat and the most senior Associate Justice
sits to his right; the next most senior Associate Justice sits to his left, and this procedure
continues, with the newest member of the Court occupying the chair at the extreme right
(as seen by one facing the bench). Formal pictures of the Justices also reflect this seniority
arrangement.
Though seldom used, white quill pens are still placed on the tables in the Court, just as
was done 200 years ago. They are given to the attorneys as souvenir gifts. One of the more
impressive traditions is the “conference handshake,” which was instituted by Chief Justice
Melville W. Fuller in the late 1800s. As the Justices take their seats on the bench and at the
beginning of the case conferences at which they meet to review cases, each Justice formally
shakes hands with each of the other Justices. This handshake serves as a visible reminder
that while the Justices may offer differing views of the law, they are united in their purpose
of interpreting the United States Constitution. Because the Court has retained so many
traditions, one legal historian has called it “the first Court still sitting.”
Until William H. Rehnquist became Chief Justice, the caseload of the United States
Supreme Court increased dramatically each year. In just the nine-year period between 1994
and 2003, the number of cases appealed in the federal system grew more than 20 percent.
In recent years, however, the Court has been reducing its docket and producing far fewer
opinions. During the 1980s, the Court routinely decided roughly 150 cases per term. In its
2014-2015 term, the Court decided only 75 merits cases in total and issued only 66 signed
opinions.
By the authority of the Constitution, the United States Supreme Court has the
jurisdiction to act not only as an appellate or reviewing court but also, in very limited
instances, as a court of original jurisdiction or a trial court for cases involving controversies
between two states and many cases affecting ambassadors, public ministers, and consuls.
Although the Supreme Court can conduct a trial in these cases, it prefers that trials be
conducted in the district courts below. As might be expected, few litigants elect to have

76
their trial conducted in this highest court as there is no avenue for an appeal if a party loses
a trial before the United States Supreme Court. In cases involving controversies between
two or more states, the United States Supreme Court has original and exclusive
jurisdiction. For example, in 2005, New Jersey initiated an action in the Supreme Court
against Delaware regarding each state’s rights to the Delaware River. The Supreme Court
typically hears only one or two original jurisdiction cases per term. See Figure 2-3 for an
outline of jurisdiction of the United States Supreme Court.
The most important function of the United States Supreme Court is its appellate
jurisdiction; that is, its authority to review decisions from lower courts. Cases may come to
the Supreme Court from the lower federal courts or from the highest court in any state.
Although a few cases, such as some cases under the Interstate Commerce Act, are
directly appealable from the district courts to the United States Supreme Court, the vast
majority of federal cases that the Supreme Court reviews proceed to the Court in the
expected “stair-step” fashion: trial in the district court, an intermediate appeal to the
appropriate circuit court, and a final appeal to the United States Supreme Court. In the
2014-2015 term, 67 of the Court’s 75 total cases came from the federal appellate courts, 2
came from the federal district courts, and 5 came from state appellate courts (and it decided
1 original jurisdiction case).
Additionally, special statutes might allow for direct appeal to the Supreme Court. For
example, you might recall that in mid-2000, the Department of Justice asked that the
United States Supreme Court review the Microsoft antitrust case under a special federal
statute that would have resulted in the case moving from the United States District Court
directly to the Supreme Court, skipping over the intermediate court of appeals. The
Supreme Court declined the case, and it was sent to the Court of Appeals for the District of
Columbia Circuit. In more than 30 years, only one such case has gone directly to the
Supreme Court under special legislation (15 U.S.C. § 29(b) (2012)) that provides that
government-initiated antitrust cases of general public importance should receive direct
consideration by the Court.

Figure 2-3
Jurisdiction of United States Supreme Court

I. ORIGINAL JURISDICTION (28 U.S.C. § 1251 (2012))

A. Controversies between two or more states (exclusive jurisdiction)
B. Actions in which ambassadors or other public ministers of foreign states are
parties (non-exclusive jurisdiction)
C. Controversies between the United States and a state (non-exclusive jurisdiction)
D. Actions by a state against the citizens of another state (non-exclusive jurisdiction)
II. APPELLATE JURISDICTION (28 U.S.C. §§ 1253, 1254, 1257 (2012))
A. Cases from federal courts
1. United States District Courts (special statutes allow some direct appeals as
well as appeals from three-judge district courts granting or denying

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 injunctive relief to be directly appealed to United States Supreme Court)
2. United States Courts of Appeal
(a) Certiorari
(b) Certification (granted only in exceptional cases)
B. Cases from highest state courts that present a federal question

The most widely used means to gain access to the United States Supreme Court from
the lower circuit courts of appeal is the writ of certiorari. Certiorari is a Latin word meaning
“to be more fully informed.” Black’s Law Dictionary (10th ed. 2014). A litigant who has
lost an appeal in the intermediate circuit court will file a document or petition with the
Supreme Court called a Petition for Writ of Certiorari. The fee for filing the Petition for
Writ of Certiorari is $300. This petition will set forth the litigant’s (or petitioner’s) basis for
appeal and will enumerate the errors that were allegedly committed by the lower court(s).
The Supreme Court will either grant the petition and direct the lower court to send its
records and files to the Supreme Court for review (in which instance the case is often
referred to as being “cert worthy”) or will deny the petition, meaning that the lower court
decision will stand. In the vast majority of cases, issuance of the writ, or “granting cert,” is
discretionary with the Supreme Court, and seldom does a litigant have an absolute right to
have the Supreme Court review a case.
Approximately 7,000 petitions for certiorari are filed with the United States Supreme
Court each year, and the Justices typically grant cert in fewer than 100 of these cases. Full
written opinions are issued in about 75 cases, and the remaining cases are disposed of
without oral argument or formal written opinions.
Deciding which of the approximately 7,000 petitions for certiorari to grant (which will
result in the United States Supreme Court’s hearing the appeal) may be as important as the
actual decision ultimately reached. The Justices contend that their screening function in
determining which appeals to hear is critical in importance. A Supreme Court historian
once stated that deciding which petitions for certiorari should be granted is “arguably the
most important stage in the entire Supreme Court process.”
Each Justice is entitled to four law clerks who are usually top graduates of the nation’s
best law schools. Some of the Justices themselves, including Chief Justice Roberts and
Associate Justices Breyer and Kagan, have served as law clerks. These law clerks routinely
work 70 to 90 hours per week (as do many of the Justices) and prepare memoranda for the
Justices summarizing the petitions for certiorari that have been filed. Eight of the nine
present Justices make use of a “cert pool,” pooling their law clerks, who take turns
evaluating the cert petitions and writing memos. Justice Alito prefers to rely on his own
clerks. All of the Justices review all of the petitions or the clerks’ memoranda discussing the
petitions, and they meet on Wednesdays and Fridays in “conference” to discuss the
petitions for certiorari. Once again, the Justices sit in order by seniority at their conference
table with the Chief Justice sitting at the east end. No notes are taken, and no one other
than the nine Justices is ever present at these confidential case conferences. For certiorari to
be granted, only four of the nine Justices need vote to accept the case for review. This

78
process is often referred to as “the rule of four.”
There are no clearly articulated or published criteria followed by the Justices in
determining which petitions will be deemed “cert worthy.” The guideline most frequently
given is that certiorari will be granted when there are “compelling” reasons for doing so.
These “compelling” reasons are, of course, determined by the Justices. In general, however,
a review of the cases accepted by the Supreme Court reveals some common threads: If the
lower federal courts of appeal are in conflict on a certain issue and are issuing contradictory
opinions, the Supreme Court often grants certiorari so that it can resolve such conflicts; if a
case is of general importance, the Court will grant certiorari; or if a state court of last resort
has decided an important federal question in a way that conflicts with a decision of another
court, certiorari is often granted. These three factors considered by the Court are also set
forth in Rule 10 of the Rules of the Supreme Court.
Denial of the writ of certiorari is not to be viewed as a message to the petitioner from
the Court that it has fully reviewed and researched all aspects of the case and it is satisfied
the lower court’s ruling is correct but rather that for reasons of judicial economy not every
case can be heard. The Supreme Court cannot possibly review every case that litigants
desire to appeal, and the appeal process must end somewhere. In most cases originating in
the federal court system, the litigant had a trial conducted by a judge who was appointed by
the President and confirmed by the Senate; an appeal then followed in one of the circuit
courts of appeal before a panel of judges appointed by the President and confirmed by the
Senate. This should be sufficient to satisfy the cause of justice. In fact, in 1925, Chief
Justice William Howard Taft (formerly President Taft) stated, “[N]o litigant is entitled to
more than two chances, namely, to the original trial and to a review.” Denial of a writ of
certiorari is the chief means the Justices have of controlling their caseload and ensuring they
continue to issue opinions on a timely basis.

Practice Tip
Denials of Certiorari

Be a savvy reader. Understand that the denial of certiorari is not an endorsement or affirmance of lower court
action but merely a determination by a court that it will not take a case.

Once the petition for certiorari has been granted, the attorneys or parties are notified
and instructed to submit their written arguments, called briefs, which are then filed with
the Court and made available to the public.
Oral arguments are heard two weeks of every month on Mondays, Tuesdays, and
Wednesdays through April. Thursdays and Fridays are generally reserved for reading briefs,
writing opinions, and voting on petitions for certiorari. A typical day begins with a case at
10:00 A.M., and another at 11:00 A.M. followed by a lunch break from 12:00 noon to 1:00
P.M. The afternoon session may also be devoted to two cases, one at 1:00 P.M. and another
at 2:00 P.M. In recent years, however, the Court has not heard cases in the afternoon,

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probably due to its decreased caseload. At least six Justices must be present to hear a case.
The two-week sessions when the Court hears arguments and delivers opinions are called
“sittings,” and the two-week sessions when the Justices consider business before the Court
and write opinions are called “recesses.”
Usually only one-half hour is allotted to each side for oral argument. Timing is
regulated by a lighting system. After 25 minutes, a white light is turned on, notifying the
speaker that only five minutes remain for oral argument. A red light signals the end of the
30-minute oral argument period. During the oral argument, the Justices usually ask
questions and often interrupt the speaker. It is rare for a case to exceed the one hour
allotted for oral argument. Cameras, computers, and cell phones are not authorized in the
courtroom, and spectators are not permitted to take notes.
After oral argument, the Justices again meet in conference and discuss the case. A
preliminary vote is taken (with the Justices voting in order of seniority) to determine the
Court’s disposition of the case. This is the time when the power and prestige of the Chief
Justice are shown. If, for example, the preliminary vote is 5–4 with the majority in favor of
affirming and the Chief Justice is in the majority, he may assign the opinion to be drafted
by any of the Associate Justices in the majority group or may decide to author the opinion
himself. When the Chief Justice is not in the majority, the senior Associate Justice in the
majority group will make the assignment.
While one Justice is drafting the majority opinion, others may be writing separate
dissents or concurring opinions (see Chapter 4). Drafting the majority opinion may take
weeks or months, and the law clerks often write the first drafts. Justice Brennan once
disclosed that he circulated ten drafts of an opinion before one was approved. When the
opinion is complete, it is circulated to the other Justices for comments. Justices who were
originally in the majority may, after reviewing the opinion, change their votes, and it is
possible that what initially appeared to be a majority may vanish and the original dissenters
may become the majority. While the average length of time between oral argument and
issuance of the opinion is about three months, in some instances there may be a period of
six or seven months before the final opinion is released. Generally, all cases argued during a
term are decided before the summer recess begins.
Finally, the last revisions are made to the opinion and it is released to the public and
authorized for printing in the United States Reports, the official publication of the Court’s
work. Only the final version of the opinion is printed and only it is the law, serving as a
legal precedent under the doctrine of stare decisis.
In its 2014-2015 term, the Court continued its practice of overturning lower court
judgments in the vast majority of the cases that it fully reviewed. Specifically, the Court
reversed or vacated lower court rulings approximately 72 percent of the time. The United
States Court of Appeals for the Ninth Circuit is often the most frequently reversed court (it
was reversed 63 percent in the 2014-2015 term), and it continued to face heavy scrutiny by
the Supreme Court. Cases from the Ninth Circuit accounted for about 21 percent of the
decisions issued by the Supreme Court in its 2014-2015 term.
Although the popular view of the Supreme Court is that the Justices are often divided,

80
with few exceptions, their unanimity rate has generally remained above 30 percent since the
early 1990s (and it was 40 percent in the 2014-2015 term). When the Court is evenly
divided (as may be the case if a Justice has recused himself or herself due to a conflict of
interest), the ruling of the lower court stands, and no nationwide precedent is set.
Although the vast majority of cases arrive at the United States Supreme Court from the
various United States courts of appeal by means of the writ of certiorari, there is one other
means by which cases from the United States Courts of Appeal may be reviewed by the
United States Supreme Court: certification. Certification is the process by which a court of
appeals refers a question to the United States Supreme Court and asks for instructions.
Certification is not done for the benefit of the parties to the case. It is done at the desire of
the court and typically involves questions of grave doubt. The Court itself refers to its
certification jurisdiction as “exceptional.”
One example of certification occurred in mid-2004, after the Supreme Court issued a
decision relating to federal criminal sentencing guidelines. The Court of Appeals for the
Second Circuit certified the case to the Supreme Court and issued a set of three questions
for the Court. The Second Circuit noted the rarity of the certification process by remarking
that it had not certified a case for more than 20 years and stating that a prompt answer to
the questions was needed to avoid a major disruption in the administration of criminal
justice.
The certification procedure does not play a significant role in the Court’s caseload.
Certification is discretionary with the Court and is granted only for exceptional cases. In
addition, a party may appeal directly to the United States Supreme Court from an order
granting or denying injunctive relief in any case determined by a three-judge district court,
as it did in two cases in its 2014-2015 term.
Cases from state courts may be appealed to the United States Supreme Court from the
highest court in a state if and only if a federal question is involved. Even then, the Court
may, in its discretion, refuse to grant certiorari, thus rendering the state court decision final.
State court cases seeking access to the United States Supreme Court have no absolute right
to an appeal and are entirely dependent on the Court granting certiorari. In the 2014-2015
term, the Court took only five cases from the state courts. See Figure 2-4 for a diagram of
our federal court structure.

Figure 2-4
Structure of Federal Court System

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 Ethics Alert

Court Rules
You must comply with all court rules when submitting any document to a court. Failure to follow local court
rules may result in the court’s refusal of your document, which could lead to liability for legal malpractice. In
addition, you may not circumvent court rules relating to length of documents by using smaller typeface or
font. For example, the U.S. Supreme Court rules that that “[e]very booklet-format document shall comply
with the word count limits shown on the chart in subparagraph 1(g) of this Rule.” Sup. Ct. R. 33(1)(d).
Nearly all courts post their rules on their websites. See Table T.1.3 of The Bluebook for identification of each
state’s judicial website.

4. Specialized Courts

In addition to the district courts, the intermediate circuit courts of appeal, and the United
States Supreme Court, certain specialized courts exist in the federal judicial system to
determine particular issues. These include the following:

• the United States Court of Appeals for the Armed Forces (previously United States
Court of Military Appeals), which exercises worldwide appellate jurisdiction over

82
 members of the armed forces;
• the United States Tax Court, which issues decisions in tax matters relating to
income, gift, and estate taxes;
• the United States Court of International Trade (previously called the Customs
Court), which provides judicial review of civil actions arising out of transactions
affecting international trade;
• the United States Court of Appeals for Veterans Claims, which reviews
determinations regarding matters pertaining to veterans of the armed services such
as benefit and disability determinations; and
• the United States Court of Federal Claims (formerly called the United States
Claims Court), which considers and determines certain claims (other than in tort)
seeking monetary damages from the United States government, for example, claims
by contractors working on federal projects. The court handles more claims for tax
refunds than any other type of case. In every case, the defendant is the federal
government.

A review of some recent Court of Federal Claims cases reveals a class action suit alleging
that the government took property interests of landowners when it authorized conversion
of a rail corridor to a recreational trail, a case brought by the Navajo Nation claiming
mismanagement of tribal funds by the government, and cases seeking damages under the
National Vaccine Injury Compensation Program. In fiscal year 2015, the court rendered
judgments in more than 600 cases and awarded nearly $13 billion in damages.
As a matter of historical perspective, it is useful to know that the United States Court of
International Trade, the district courts, the intermediate courts of appeal, and the United
States Supreme Court are referred to as “constitutional courts” as they exist under Article
III of the Constitution, and their judges (the “Article III judges”) are protected as to tenure
and salary reductions. Most of the specialized courts described above are created by
Congress under Article I of the Constitution and are referred to as “legislative courts” or
Article I courts; their judges are appointed for specific terms.

F. State Court Organization

In addition to the federal court structure discussed earlier in this chapter, each of the 50
states and the District of Columbia has its own arrangement for its court system. Although
the names of these courts vary, the general organization is the same in each state and in the
District of Columbia: A trial is held in one court and the losing party will have the right to
at least one appeal in an appellate (or reviewing) court. Some state courts are courts of
“limited” or “special” jurisdiction, meaning they can hear only certain types of cases, such
as probate cases, cases involving juveniles, or cases involving certain amounts of money,
while other state courts are courts of “general” jurisdiction, meaning they hear a wide
variety of cases.

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 Some state courts are extremely busy. For example, the National Center for State
Courts has noted that the State of California has the largest court system in the world. The
Superior Court of Los Angeles County alone is larger than the court systems of several
countries. Remember that state courts handle approximately 95 percent of all cases
processed each year. In 2013, the total caseloads in our state trial courts exceeded 90
million.
California’s court system is typical of many states and is shown in Figure 2-5. Different
states assign differing names to their trial courts, such as superior court, circuit court, or
district court. Intermediate appeals are heard by the court of appeals, with the California
Supreme Court serving as the state court of last resort. You can see that this structure is
extremely similar to the federal court structure in which a trial is held in the district court,
an intermediate appeal follows in the United States Courts of Appeal, and a final appeal
may occur in the United States Supreme Court.

Figure 2-5
California Court Structure

Although the majority of courts have a two-tier appellate system, in ten jurisdictions
(Delaware, District of Columbia, Maine, Montana, New Hampshire, Rhode Island, South
Dakota, Vermont, West Virginia, and Wyoming) there is no intermediate court of appeal,
and dissatisfied litigants proceed directly from the state trial court to the court of last resort

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in the state, usually called the supreme court. For example, in South Dakota a breach of
contract case alleging damages of $50,000 would be tried in the South Dakota Circuit
Court. The party who loses would appeal directly to the South Dakota Supreme Court.
(See Figure 2-6.) Nevada and North Dakota have intermediate appellate courts, but those
courts only hear cases assigned to them.
In 48 jurisdictions, the highest state court is called the supreme court (or something
similar). Maryland, however, calls its highest court the court of appeals. New York also calls
its highest court the court of appeals and calls one of the courts below it, which handles
felonies and miscellaneous civil actions, the supreme court, which can cause a great deal of
confusion. When reading cases from New York, therefore, exercise a great deal of caution
and remember that the decisions of its highest court, the court of appeals, bind all other
courts in New York, while its supreme court is not New York’s highest court despite its
name. Similarly, the decisions of Maryland’s highest court, the court of appeals, bind all
other courts in Maryland. Likewise, the court of last resort in the District of Columbia is
called the court of appeals.

Figure 2-6
South Dakota Court Structure

Decisions by the highest courts in all states are rendered by odd-numbered panels of
judges (or justices) who typically function in a collective manner similar to the Justices of
the United States Supreme Court. Seventeen of the 50 states have a five-member supreme
court; 28 of the states have a seven-member supreme court; and five of the states (and the
District of Columbia) have a nine-member supreme court.
As of 2015, the median salary for justices on the highest state courts is $162,000. The
median salary for judges sitting on the state intermediate appellate courts is $154,000; and
the median salary for state trial court judges is $145,000. Note that most of these salaries
are about the same as the starting salaries paid to new attorneys in the nation’s largest law

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firms, which range from $140,000 to $160,000 or more.
Although all judges in the federal system are appointed by the President and are
confirmed by the United States Senate, there is great variation among the states with regard
to the selection of state court judges. Many states use a merit selection method (somewhat
similar to the federal presidential appointment method) in which the governor appoints a
judge from a list of nominees provided to him or her by a judicial nominating commission.
Other states elect their judges by vote of either the state legislature or the general
population for specific terms.
For information about all federal and state courts, see Federal-State Court Directory
(previously Want’s directory, now available through Leadership Directories at
http://www.leadershipdirectories.com). This annual directory provides thorough
information about federal and state courts and judges and also provides charts showing the
organization of each state court system. Generally, each state’s judicial website also includes
basic information about the judicial system in that state. Table T.1.3 of The Bluebook
provides a reference to each state’s judicial website.

Practice Tip
Reading Citations

Gain as much information from citations as you can. When you see the word “App.” in a case citation,
immediately think to yourself that the case is likely not from the state’s highest court. Similarly, the absence
of the word “App.” in a citation is probably a signal that the case is a strong one and is from your state’s court
of last resort.

The state trial courts are often referred to as courts of first resort: Witnesses appear and
testify, evidence is introduced, and a decision is rendered by a judge or jury. State appellate
courts do not retry a case. Rather, they review the record or transcript from the trial court
below, read the written briefs submitted by the attorneys for each party, listen to oral
arguments in some cases, and then render a decision. No evidence is presented and no
witnesses testify. It is often said that appellate courts cannot make factual determinations
and are restricted to deciding issues of law. For example, if a jury convicts Defendant Smith
of manslaughter, the appellate court cannot overturn or reverse this judgment on the basis
that Smith seems like a fine, upstanding individual and the appellate court cannot believe
Smith would have committed such an atrocious act. The trial court has already determined
a fact: Smith killed the victim. With few exceptions, it is not within the province of an
appellate court to substitute its judgment for that of the jury. The appellate court may,
however, reverse the judgment and order a new trial on the basis that prejudicial hearsay
was incorrectly admitted at trial, that the jury instructions were improper, or that evidence
used at the trial to convict Smith was obtained without a search warrant. Such issues are
ones of law rather than fact. Appellate courts typically review only questions of law, not
factual determinations that have already been made by a judge or jury at the trial below.

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Thus, it is often said that trial courts try cases whereas appellate courts try trial courts.

G. Citation Form

1. Federal Cases

a. United States Supreme Court cases:

Vestron, Inc. v. Lowell, 347 U.S. 483 (1965).
b. United States Courts of Appeal cases:
Bailey v. Talbert, 585 F.2d 968 (8th Cir. 1989).
c. United States District Court cases:
Peters v. May, 697 F. Supp. 101 (S.D. Cal. 1988).

2. State Cases

Cite to the regional reporter for the region in which the court is located, if the opinion
appears in that reporter. Otherwise, cite to the state’s official report. Do not include parallel
citations unless required by local rules.
Janson v. Keyser, 415 N.E.2d 891 (Mass. 1976).

Supreme Court Dicta

• In 2000, when the Supreme Court heard Bush v. Gore, 531 U.S. 98 (2000), just four days elapsed between the time
the Court agreed to hear the case and when it issued its decision, which represented the quickest turnaround in the
Court’s history.
• When the constitutionality of the Affordable Healthcare Act was argued in the Supreme Court in 2012, the Court
scheduled six hours of argument over three days, the most time it had spent on an issue in nearly 45 years.
• The Justices often interrupt oral argument with questions. In the Court’s 2014 term, Justice Scalia had the highest
average number of questions per argument. Justice Thomas seldom, if ever, asks a question.
• The annual salary of the first Chief Justice was $4,000. The salary of the current Chief Justice is $260,700.
• By law, the Chief Justice sits on the boards of three significant Washington cultural institutions, including the
Smithsonian Institution.
• William Howard Taft is the only Chief Justice in history to have previously served as President.
• The United States Supreme Court reverses cases from the United States Courts of Appeal approximately 65 percent
of the time.
• In the Court’s 2014-2015 term, the Justices were split 5–4 in 26 percent of the cases they decided.
• Supreme Court Justice Sonia Sotomayor took her judicial oath in 2009 using the Bible signed by every Justice who
has served in the past 100 years.
• Supreme Court clerks who enter private practice after clerking typically make a six-figure salary and receive signing
bonuses in excess of $200,000.
• In 1999, Justice Breyer used the pronoun “I” in a Supreme Court opinion, violating a 200-year-old tradition,
begun by Chief Justice John Marshall, of speaking collectively by using the pronoun “we” in Majority opinions.
• Each October before the Court begins its session, several Justices attend a “Red Mass” (named for the red vestments
of its celebrants) at the Roman Catholic Cathedral of St. Matthew (where President Kennedy’s funeral Mass was
held), where the church blesses the forthcoming term as well as the work of other civic leaders.
• Chief Justice John G. Roberts, Jr.’s replacement of Chief Justice Rehnquist was the first time that a Chief Justice’s
former law clerk succeeded him.

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• A 2010 poll by FindLaw revealed that two-thirds of Americans cannot name any of the Justices of the United States
Supreme Court.
• Avid lawyers and students can participate in Fantasy SCOTUS, a U.S. Supreme Court fantasy league
(https://fantasyscotus.lexpredict.com) in which they make predictions about the Justices’ votes and pending Court
proceedings.
• Although all states allow television coverage of at least some court proceedings, television coverage of oral
arguments has been forbidden by continuous order of the Supreme Court. Cameras, computers, cell phones, and
PDAs are also forbidden. In fact, the Justices typically communicate on paper rather than by email.
• After leaving office, President John Adams stated, “My gift of John Marshall [appointed by Adams as Chief Justice
in 1801] to the people of the United States was the proudest act of my life.” One Court observer remarked that to
try to describe Marshall’s eloquence “would be to attempt to paint the sunbeams.”
• According to Justice Joseph Story, on rainy days the early Justices would enliven case conferences with wine. On
other days, even if the sun was shining, Chief Justice John Marshall would order wine anyway, saying, “Our
jurisdiction is so vast that it must be raining somewhere.”
• Injuries suffered by Chief Justice Marshall, often referred to as “the man who made the Court Supreme,” in a
stagecoach crash while riding circuit court were said to have hastened his death.
• Harlan Fiske Stone (appointed Chief Justice in 1941), a former farm boy, once said, “Had I realized what I’d be
doing later in my career I’d have hung on to that pitchfork.”

Internet Resources

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Writing Strategies

When selecting cases to discuss and analyze in your writing, examine citations
carefully for the signals they will give you about the level of the court that rendered
the decision. When viewing a “U.S.” citation, immediately think “highest court in
the country”; when viewing an “F.2d” or “F.3d” citation, immediately think
“intermediate federal appellate courts”; when viewing an “F. Supp.,” “F. Supp. 2d,”
or “F. Supp. 3d” citation, immediately think “trial court — lowest court in the
federal system.”
Although there is nothing wrong with district court cases, you should prefer cases
from higher courts over lower courts, everything else being equal.
Examine opinions for clues regarding their strength. If the precedent you rely on
was a 9–0 decision, refer to it as a “unanimous decision” or a decision by an
“undivided court.” Refer to cases relied upon by an adversary, if applicable, as
decisions rendered by a “bare majority” or a “divided court.”
If you cannot find cases as recent as you would like, try to enhance the stature of
older cases by describing them as “well-established,” “well-settled,” or “landmark”
cases. Select cases from your circuit and remind the reader of this in your writing by
stating, “This circuit has held . . .” or “Since 1967, the law in this circuit has been . .
. .”
Discuss your argument. Do not shift the focus away from your position to your
adversary’s by spending all of your time refuting your adversary’s contentions.

Assignment for Chapter 2

1. Use volume 553 of the United States Reports.

a. Give the name of the case in this volume in which the defendant’s name is
Oregon Department of Agriculture and give the citation for this case.
b. Who was acting as the U.S. Solicitor General at the time this case was
decided?
c. During the period of time covered by this volume, which U.S. Supreme
Court Justice was assigned or allotted to the Second Circuit?
d. Locate a case in this volume in which the plaintiff’s name is Culverson. What
was the decision or holding in this case?
2. Locate and review the case published at 994 F. Supp. 2d 135.

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 a. In which district court was this case decided?
b. Review the information on page 141 of the case relating to diversity
jurisdiction. What did the court state about the failure of complete diversity?
3. Locate and review the case Smith v. Town of Eaton, 819 F.2d 1469.
a. In which circuit was this case decided?
b. Review the information on page 1471 of the case. What did the court say it
would not hesitate to do when it received “poorly prepared and researched
briefs”?

Internet Assignment for Chapter 2

1. Access the site for the U.S. Courts and answer the following questions.
a. What is the address for the U.S. District Court for the Western District
Court of Texas?
b. In what city is the main office for the District Court of Utah?
c. Federal Judge Robinson would like to serve on the board of his local law
school. Review the Code of Conduct for U.S. Judges and determine whether
this is permissible. What Canon governs your answer?
2. Access the site for the National Center for State Courts and locate information
about state courts.
a. How many justices sit on the Texas Supreme Court?
b. Review the Florida state court structure chart. If you wish to bring an action
in Florida for breach of contract for $20,000, in which court would you
initiate the action?
3. Access the site for the U.S. Supreme Court. Locate information about the Justices.
For which law school did Justice Kagan serve as Dean?

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 Chapter 3

Statutory Law
Nearly all legislation involves a weighing of public needs as against private desires; and likewise a weighing of relative
social values.

Louis D. Brandeis (year unknown)

A. Federal Legislation
B. State Legislation
C. Statutory Research Overview
D. Citation Form

Chapter Overview
Recall from Chapter 1 that courts often interpret statutes. Thus, this chapter focuses on
statutory law because the logical progression many researchers follow when given a task is to
first determine whether a statute relates to the issue. If so, they begin by reading the statute
itself and then reviewing the cases and other sources that interpret it.
In this chapter we will thus discuss the enactment of federal and state legislation and
will then focus on the publication and codification of statutes. In order to conduct research
efficiently and effectively, you will need a clear understanding of the procedure by which
laws are passed and the sets of books in which they are found. Following this, we will focus
on research techniques that will enable you to locate statutes.

A. Federal Legislation

1. Enactment of Federal Statutes

The chief function of the Congress of the United States is its lawmaking task. Congress is a
bicameral (two-chamber) legislature. It consists of 100 members of the Senate and 435
members of the House of Representatives (“House”).
The framers of the Constitution anticipated that most legislation would originate in the
House. This expectation arose from the fact that the House is considered more
representative of the country’s population and its desires. Every state, without regard to its
size, sends two senators to Congress. On the other hand, states that are less populous, such
as Montana or Alaska, send far fewer representatives to the House than heavily populated
states such as New York or California. Although the Senate can introduce most types of
legislation, the drafters of the Constitution correctly anticipated that most legislation would
commence in the House. For example, during the first session of 114th Congress, from
January 6, 2015, through December 31, 2015, 5,060 measures were introduced in the

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House, whereas 2,832 were introduced in the Senate. The Constitution provides that only
the House of Representatives can originate revenue-raising bills. By tradition, the House
also initiates appropriation bills. Legislation can be proposed by anyone, including
members of Congress, executive departments of the federal government, private
individuals, or lobbyists. These individuals or groups transmit their proposals to their
representative who then introduces the proposed legislation.
There are several steps in the enactment of legislation (we will assume legislation is
originating in the House):

• A bill, which is a proposed law, is introduced by its sponsor in Congress by being

handed to the Clerk of the House or to the Speaker of the House or by being
placed in a wooden box called the “hopper.”
• The bill is numbered. If the bill originated in the House, it will be labeled “H.R.”
Those bills introduced in the Senate are labeled “S.”

Examples

(i) H.R. 4269 (from the first session of the 114th Congress): “To regulate assault
weapons, to ensure that the right to keep and bear arms is not unlimited, and for
other purposes.”
(ii) S. 754 (from the first session of the 114th Congress): “An original bill to improve
cybersecurity in the United States through enhanced sharing of information about
cybersecurity threats and for other purposes.”

The numbering of the bills is always sequential; for example, “H.R. 41” indicates the
forty-first bill introduced in the House in a particular congressional session.

• The bill is now printed in slip form (as an individual pamphlet) by the
Government Publishing Office and sent to the appropriate committee. For
example, if the bill deals with the military, it will be referred to the House (or
Senate) Armed Services Committee. If it involves the judiciary, it will be referred to
the House (or Senate) Judiciary Committee. The House has 20 permanent or
“standing” committees, and the Senate has 16. Additionally, several select
committees exist, such as the Senate Select Committee on Ethics. Much of the
work involved in enacting federal legislation is done by these committees or by
their subcommittees.
• The committee will now place the bill on its calendar. The committee’s initial
action is usually to request interested agencies of the government to comment upon
the proposed legislation. The committee may hold hearings regarding the proposed
legislation, and interested parties, lobbyists, experts, and consumer advocates may
testify either voluntarily or by subpoena. Cabinet officers and high-ranking civil
and military officials of the government may also testify.

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• If a subcommittee was involved, it may hold a “markup” session to study the views
of both sides and to determine whether to report it to the full committee. The
committee (or subcommittee) may decide to report (recommend) the bill without
any revisions; it may report it unfavorably; it may report the bill with revisions and
modifications; or it may “table” the bill or postpone action indefinitely. If the
committee votes to report the bill to the House, it will prepare a committee report,
which explains the purpose and scope of the bill and why the bill has been
approved or modified. Generally, a section-by-section analysis is given. Committee
reports are perhaps the most valuable single element of the legislative history of a
law. They are often used by the courts, executive departments, and the public as a
source of information regarding the purpose and meaning of the law.
• After the bill has been returned to the chamber in which it originated, it is placed
on the calendar and scheduled for debate on the floor of the House (or Senate, if
the bill was introduced in the Senate). Although there are certain limits for the
duration of debate in the House, debate in the Senate is usually not subject to any
limits. The House Rules Committee may call for the bill to be voted on quickly if
it is important or urgent.
• Voting occurs after debate, typically by electronic voting device.
• After a bill is passed in the chamber in which it originated, it is sent to the other
chamber, which may pass the bill in its then present form. When a final bill is
passed by one chamber, it is called an “engrossed” bill. More likely, however, the
bill will be sent to the appropriate committee for analysis. This committee may also
approve the measure, report it unfavorably, modify it, or table it. A report will be
issued by the committee explaining the action taken by it.
• After the bill is reported out of the committee, it will be scheduled for debate and
voting in the second chamber.
• If the bill is passed and the version agreed to by the second chamber is identical to
the one passed by the first chamber, it will be sent to the President for signature.
• If the versions passed by the House and Senate differ, the measure is sent to
“conference,” the function of which is to reconcile these differing versions and
produce compromise legislation acceptable to both chambers. The conference is
typically made up of senior members or “conferees” of the House and Senate
committees that studied the bill, although in recent years junior members of the
committee have been appointed as well as other members interested in the measure
who were not on the committees.
• The conference may continue for weeks or months as the conferees struggle to
harmonize the conflicting versions of the bill. After agreement is finally reached,
the conferees will prepare a report setting forth their conclusions and
recommendations. This compromise measure must again be voted on by both the
House and Senate.
• When the reconciled bill has been passed by both the House and Senate, it is
printed by the Government Publishing Office in a process called “enrollment” and

93
 is then certified as correct and signed by the Speaker of the House and then the
Vice President.
• The bill is now sent to the President for signature. If the President approves the
bill, he will sign it, date it, and usually write the word “approved” on the bill,
which has now been printed on parchment. Once the President has signed the bill,
it is referred to as a “law” or a “statute” rather than a “bill.” (An “act” is a series of
statutes related to the same topic, such as the Lanham Act, which consists of
numerous statutes all dealing with federal trademark law.) If the President fails to
take action within ten days, excluding Sundays, while Congress is in session
(January 3 until mid-summer), the bill will become law without his signature. If
Congress adjourns before this ten-day period and the President fails to sign the bill,
it will die. This is often referred to as the “pocket veto.”
• If the President vetoes the bill or rejects the bill by refusing to sign it, Congress may
override this veto and enact the measure if both the House and Senate vote to
approve it by a two-thirds majority. Failure to secure this two-thirds vote will result
in the President’s veto being upheld.
• When the bill is signed, it is assigned a public law number in sequential order. For
example, Pub. L. 112-120 would indicate the 120th public law enacted during the
One Hundred Twelfth Congress.
• A bill that is not enacted in a particular Congress does not carry over to the next
Congress; it must be re-proposed in a following Congress if legislation is desired.
For example, the Brady Bill, dealing with the sale of firearms, was introduced in
several Congresses before finally being enacted into law. Far more bills are
introduced in any session than are passed. For example, between January 6, 2015,
and December 31, 2015, 7,883 measures were introduced in the House and
Senate, but only 966 (about 12 percent) had become law.

See Figure 3-1 for a diagram showing how a bill becomes a law.

2. Classification of Federal Statutes

After the bill is enacted into law, it is sent to the Archivist of the United States, who will
classify each law as public or private and will direct its publication.
Public laws are those that affect society as a whole, such as tax laws, laws relating to
federal lands, laws relating to bankruptcy, and the like.
Private laws are those that affect only one person or entity or a small group of persons,
granting them some special benefit not afforded to the public at large. The most common
private laws are those dealing with immigration or naturalization; for instance, those
allowing an individual or a family to enter the United States even though the immigration
quota of that country has been met. Other private laws might deal with forgiveness of a
debt owed to the United States or allowance of a claim against the United States
government that would ordinarily be barred due to sovereign immunity (the principle that

94
government entities are not subject to or are “immune” from certain types of claims). Only
a handful of private laws are passed in any congressional session. See Figure 3-2 for an
example of private legislation.
Laws can also be classified as permanent or temporary. Permanent laws remain in effect
until they are expressly repealed, while temporary laws have limiting language in the statute
itself (often called “sunset clauses”), such as the following: “This law shall have no force or
effect after December 31, 2017.”
As you might expect, the vast majority of laws are permanent, as it would be
extraordinarily inefficient for lawmakers to pass legislation that continually expires.
Nevertheless, there are many situations in which temporary legislation is enacted. For
example, in 1998, the U.S. Congress enacted the Internet Tax Freedom Act (Public Law
105-277). To encourage Internet access, the Act established a three-year moratorium (until
October 2001) on the imposition of new state and local taxes on Internet access, as well as
on multiple or discriminatory taxes on electronic commerce. The Act has been extended
five times since its original enactment. Various spending measures, appropriations bills, and
tax laws are often temporary.

Figure 3-1
How a Bill Becomes Law

95
Figure 3-2
Private Law

96
3. Publication of Federal Statutes

a. United States Statutes at Large

As each law is passed, it is published by the United States Government Publishing Office as
a looseleaf unbound pamphlet or sheet of paper (or several sheets, depending upon the
length of the law), referred to as a “slip.” At the end of each congressional session, these
slips are taken together and are placed in chronological order in a hardback set of volumes
called United States Statutes at Large. Keep in mind that a session is one year and that there
are two sessions for each Congress because a new Congress comes into existence every two
years upon the election of the members of the House of Representatives. All of our federal
laws since 1789 are contained in more than 120 volumes of United States Statutes at Large.
This set is often referred to as our “session laws,” because it includes all the slips from each
legislative session in chronological order.
Because it can take a year or longer after the end of a congressional session for the
applicable volume of United States Statutes at Large to arrive at a law library, you should
know there are several alternate sources available that will provide you with the exact
wording of a federal statute. In this regard, you should never rely on a summary or synopsis
of any legislation. You must obtain and analyze the exact wording of the statute in order to

97
ensure that your research is correct because a mere summary, in a news publication or
otherwise, cannot convey the explicit nature of statutory language.
To obtain the exact wording of a federal statute without waiting for the hardback
bound volumes of United States Statutes at Large to become available, consult the following:

(1) Slip Laws

The slips themselves are available in certain libraries throughout the United States.
Nearly 1,300 libraries scattered throughout the nation (including law libraries) have been
designated as United States Federal Depository Libraries, which will receive certain selected
government materials, notably slip laws. In a large city there may be several depository
libraries. For example, there are seven in Los Angeles, California. Often these depositories
are large law school libraries, public libraries, or the libraries in courthouses in a county
seat. To find out if a library is a depository library, simply call the reference librarian at a
few of the libraries in your area (both law school libraries and at the largest courthouse in
your region). The reference librarian will inform you if the library has been designated as a
federal depository. If so, any member of the public will have access to the depository
materials, including the slip laws. These slips may be available as early as five to seven days
after the law is enacted. Alternatively, to locate federal depository libraries, access
https://www.gpo.gov/libraries.

(2) United States Code Congressional and Administrative News (“USCCAN”)

This publication is issued monthly by West, which prints in a softcover or pamphlet
form the complete text of all of the public laws passed during the previous month as well as
newly enacted federal regulations, executive orders, presidential proclamations, committee
reports, and more. A law firm or law library subscribes to this publication in much the
same way an individual might subscribe to Time Magazine, Sports Illustrated, or Wired,
although the cost is substantially higher. At the end of each congressional session, the
pamphlets making up USCCAN are published in hardback volumes.

(3) U.S.C.S. Advance Pamphlets

A monthly pamphlet issued by the publisher of U.S.C.S. and called U.S.C.S. Advance
publishes the text of newly enacted public laws passed during the previous month. There
are no hardbound volumes. Presidential documents are also included, together with tables
that pinpoint the sections of the United States Code that have been affected by recent
legislation or regulatory action.

(4) Congressional Representatives

You should also consider contacting the sponsor of the legislation or your congressional
representative(s) to ask for the complete text of a recently enacted law. Most representatives
have local telephone numbers, which can be found in your telephone book or local

98
newspaper, and most of them have assistants or “staffers” who are very helpful and skillful
in locating the information you need and sending it to you at no cost. Alternatively, access
Congress.gov (https://www.congress.gov) and select “Members” to locate contact
information for all members of Congress. All congressional representatives and their staffers
have immediate access to Congressional Research Service, a division of the Library of
Congress, the primary function of which is to provide research and reference assistance to
the United States Congress. If your first request for information is not successful, try again.
Often the information you request will be provided to you within a matter of days.

(5) The Internet

Rapid access to federal statutes can also be found on the Internet. One of the best sites
for legislative information is Congress.gov, a site provided by the Library of Congress that
offers the text of proposed and enacted legislation (since 1993), committee information,
calendars for hearings scheduled, and member profiles. Access https://www.congress.gov.
(See Figure 10-1.) Searching may be done by keyword or bill number.
Alternatively, access GPO’s Federal Digital System “FDsys,” previously known as
“GPO Access,” at http://www.gpo.gov/fdsys, or its successor, GovInfo, at
https://www.govinfo.gov, which is in its beta stage at the time of the writing of this text. A
sample page from Congress.gov is shown as Figure 10-1 in Chapter 10. Research using the
Internet will be fully discussed in Chapter 12.

(6) Lexis Advance and Westlaw

You can also gain rapid access to federal statutes (together with their legislative history,
including committee reports and debates) through either of the two major online legal
research services, Lexis Advance and Westlaw. These services are fully described in Chapter
11.
As discussed above, at the end of each congressional session, the slip laws are compiled
chronologically into the bound set of volumes called United States Statutes at Large. United
States Statutes at Large contains both public and private laws, although private laws are
typically found in a much smaller section near the end of each volume.
Although United States Statutes at Large offers a wonderful historical overview of the
order in which the United States Congress has enacted laws for the previous 220-plus years,
it suffers from three glaring deficiencies from a legal researcher’s point of view:

• The arrangement of United States Statutes at Large is chronological rather than by

subject or topic. Thus, if you were asked to find all of the federal laws relating to
trademarks, you might find them scattered over more than 120 volumes rather
than being contained in volumes devoted solely to the topic of trademarks.
• Subsequent amendments to or even a repeal of a previously passed law will not
appear together with that law but will appear in the volumes relating to the session
in which those amendments or repeals were enacted. That is, if a law enacted in

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 1990 was amended in 2000 and repealed in 2016, you would need to look at three
separate volumes of United States Statutes at Large—those for 1990, 2000, and
2016—to obtain the complete history and current status of this legislation.
• There is no one comprehensive index to United States Statutes at Large. Even
though each volume of United States Statutes at Large contains an index and a table
of contents, there is no one cumulative index to tell you which specific volumes to
examine if you were charged with the responsibility of locating all of the federal
laws relating to trademarks, for example. Rather, you would be forced to pick up
each volume of the set and examine its index to determine if any laws relating to
trademarks were contained in that volume.

b. United States Code

Because the organization of United States Statutes at Large makes research using the set so
difficult, it became readily apparent that a set of books should be developed to eliminate
these barriers to efficient research. The process of developing a set of books that compiles
the currently valid laws on the same subject together with any amendments to those laws is
referred to as “codification.”
The first codification of United States Statutes at Large occurred in the mid-1870s. A
second codification or edition followed a few years thereafter but the set or “code” in
current use originates from 1925, when Congress authorized preparation of the United
States Code (U.S.C.).
All of the statutes enacted into law and contained in United States Statutes at Large were
analyzed and categorized by subject matter so that at the completion of this project there
were 50 categories or “titles” of federal statutes. For instance, Title 7 contains statutes
dealing with agriculture; Title 25 contains statutes dealing with Indians; Title 38 contains
statutes dealing with veterans’ benefits; and Title 50 contains statutes dealing with war and
national defense. New titles, Titles 51 through 54, have been added since 2010. At the time
of the writing of this text, proposals are pending to add additional titles. See Office of the
Law Revision Counsel (http://uscode.house.gov) for information. The 54 titles are further
divided into chapters and sections. A citation to any statute in the United States Code
indicates the number of the title, the name of the set, the section number, and the year of
the code, as follows:

42 U.S.C. § 1396 (2012)

Title Set Abbr. for section Section no. Year of code

It is not important to know what subject each of the 54 titles refers to. It is sufficient to
understand that there are, in fact, 54 groups of statutes or titles, that they are arranged
largely alphabetically, and that these 54 titles are permanently established, meaning that any
federal statute relating to agriculture will always be found in Title 7, that any federal statute
dealing with Indians will always be found in Title 25, and so on. See Figure 3-3 for a listing

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of the 54 titles of the United States Code.

Figure 3-3
Titles of United States Code

1. General Provisions
2. The Congress
3. The President
4. Flag and Seal, Seat of Government, and the States
5. Government Organization and Employees
6. Domestic Security
7. Agriculture
8. Aliens and Nationality
9. Arbitration
10. Armed Forces
11. Bankruptcy
12. Banks and Banking
13. Census
14. Coast Guard
15. Commerce and Trade
16. Conservation
17. Copyrights
18. Crimes and Criminal Procedure
19. Customs Duties
20. Education
21. Food and Drugs
22. Foreign Relations and Intercourse
23. Highways
24. Hospitals and Asylums
25. Indians
26. Internal Revenue Code
27. Intoxicating Liquors
28. Judiciary and Judicial Procedure
29. Labor
30. Mineral Lands and Mining
31. Money and Finance
32. National Guard
33. Navigation and Navigable Waters
34. Navy (see Title 10, Armed Forces)
35. Patents
36. Patriotic and National Observances, Ceremonies, and Organizations

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 37. Pay and Allowances of the Uniformed Services
38. Veterans’ Benefits
39. Postal Service
40. Public Buildings, Property, and Works
41. Public Contracts
42. The Public Health and Welfare
43. Public Lands
44. Public Printing and Documents
45. Railroads
46. Shipping
47. Telecommunications
48. Territories and Insular Possessions
49. Transportation
50. War and National Defense
51. National and Commercial Space Programs
52. Voting and Elections
53. [Reserved]
54. National Park Service and Related Programs

The United States Code is “official,” a term whose sole meaning is that publication of
the set is directed by a statute or that the set is designated as “official” by a statute or court
order. The actual printing of the set is done either by the United States Government
Publishing Office or at its express instruction. In fact, West has helped organize and
maintain the United States Code since 1926. The United States Code is revised and a new
edition published by the Government Publishing Office every six years (although there is
often a delay in publishing a new edition). During this six-year period, statutes may be
amended or even repealed. Changes to federal statutes during the course of the six years are
reflected in annual hardbound supplements placed on the shelf after Title 54. However,
these annual cumulative supplements often take eight months to two years to be printed.
Thus, researchers often rely on one of the annotated versions of the United States Code for
more rapid updating and other useful research features, as described below.

c. Annotated Versions of the United States Code

Although the United States Code is an efficiently organized set in that all federal statutes
relating to bankruptcy have been brought together, all federal statutes relating to crimes
have been brought together, and so forth, researchers typically want something more than a
mere recitation of a statute. If you will remember the point made in Chapter 1, that under
the concept of stare decisis, it is not the naked statutory language that controls but a court’s
interpretation of that statute (particularly in instances in which the statute is vague or
ambiguous), you can readily see why the United States Code, although organized in an easy-
to-understand scheme, is still unsatisfactory to researchers. That is because researchers

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prefer to read a statute and immediately be directed to cases that have construed or
interpreted that statute.
Because the United States Code simply recites the exact text of a federal statute and
immediately thereafter recites the exact text of the next federal statute without providing
any comment regarding the law or any reference to any cases that may have interpreted that
law, two private publishers, Thomson Reuters/West and Lexis, have separately assumed the
task of providing this necessary information to those in the legal profession. Because the
publication of these two sets is not directed by statute, these publications are referred to as
“unofficial.” Note that the terms “official” and “unofficial” relate to whether the
publication of a set is government-approved or not. The terms do not relate to the accuracy
or credibility of a set. Both U.S.C.A. and U.S.C.S. are referred to as “annotated” codes,
meaning they contain “notes” referring readers to cases interpreting statutes.
Note that the classification and organization of all of the federal statutes, both official
and unofficial, is identical so that once a statute is assigned to a title and given a section
number, it retains those designations for all purposes.

(1) United States Code Annotated

West publishes an annotated version of the United States Code titled United States Code
Annotated, universally referred to as “U.S.C.A.” The word “annotated” means “with notes,”
and one of the most useful features of U.S.C.A. is the notes provided to researchers who use
U.S.C.A. These include references to additional primary and secondary materials.
U.S.C.A. is a set of more than 350 volumes, all of which are relatively small in size for
law books (approximately 5½”×9½”) and all of which are a deep maroon color. U.S.C.A. is
divided into the very same groupings or 54 “titles” as the United States Code and reproduces
the exact wording of the federal statutes contained in the United States Code. There is a
multivolume general index to U.S.C.A.
The front of each volume of U.S.C.A. contains a list of the 54 titles of the United States
Code. Therefore, you need not memorize which statutes are contained within each title
because you can readily determine this information.
You may have observed that there are only 54 titles to the United States Code (and
U.S.C.A.), and yet U.S.C.A. comprises more than 350 volumes. This arrangement arises
out of the fact that some titles, such as Bankruptcy, contain numerous statutes and “spill
over” into several volumes.
U.S.C.A. is not valuable because it provides the exact text of federal statutes—the
United States Code provides that as well. U.S.C.A. is valuable because of the “extra” features
provided to researchers. Those are displayed in Figure 3-4 and are as follows:

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 Figure 3-4
Sample Pages from U.S.C.A. (Title 11)

104
 (a) Historical and Statutory Notes
Following the statute you will find an overview of the history of a particular statute,
including the Public Law Number, the effective date of the statute, its citation in United
States Statutes at Large, an indication of the date certain parts or subsections of the statute
were added or deleted, and a basic summary of the evolution of this particular federal law.

(b) Cross References

Following the historical notes you will be sent to other federal statutes that may be of
assistance in helping you understand this federal statute.

(c) Federal Rules and Code of Federal Regulations

Following the cross references you may be directed to federal rules and sections of the
Code of Federal Regulations (see Chapter 10) that relate to this statute.

(d) Library and Research References

In the section called “Library References,” you will be given West’s topic name and key
number assigned to the subject covered by the statute so you may access West’s digests

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(discussed in Chapter 5). In the section titled “Research References,” U.S.C.A. directs you
to other sources in the law library, including form books, practice manuals, texts and
treatises, jury instructions, encyclopedias, A.L.R. annotations, and law review articles that
also deal with the topic covered by the statute. If there are an unusually large number of law
review articles that discuss a statute, they may be listed in a separate section called “Law
Review and Journal Commentaries.”

(e) Notes of Decisions

These notes or “annotations” are the most valuable part of U.S.C.A., for it is these
notes that will direct you to cases that have interpreted the statute you have just read.
Because a case citation standing alone might not be particularly helpful to a researcher,
you will be given not only the case citation but also a brief one-sentence description of the
case so you do not waste time pulling endless cases off the library shelves but instead can
make an informed decision as to which cases to review based upon the quick summary or
“annotation.” Although West’s goal is to serve as a comprehensive tool for researchers,
U.S.C.A. will not send you to every case that may interpret or mention a statute.
Nevertheless, you will be sent to a sufficient cross-section of cases so you can embark upon
your research tasks.
Because some statutes have been interpreted in hundreds of ways on hundreds of
occasions, U.S.C.A. does not merely give you a long list of annotations but organizes or
indexes these annotations for you under numbered catchlines. For instance, if you have
read a statute and want to read cases that interpret the statute generally, you may be
directed to read the annotations listed under the catchline called “Note 1.” Note 1 will then
give you quick summaries of several cases that discuss this statute in a general fashion. The
annotations are arranged roughly alphabetically with numbered notes so you can readily
locate court decisions on any section or portion of the statute you are researching. For
example, suppose you are researching 42 U.S.C.A. § 1758(y) (West 2012), relating to
school lunch program requirements. The annotations are arranged, in part, as follows:

Notes of Decisions

Attendance, eligibility 13
Eligibility 11-16
Income levels, eligibility 15
Participation in program 6
Purpose 1

Thus, if you are interested in eligibility for school lunches, you would review the
annotations listed under Notes 11-16. You must then read the cases to which you are
directed. Although the brief digests or summaries are extremely well done and are written
by attorney-editors, they cannot convey the subtle nuances of a case and are never a
substitute for full analysis of a case. It is possible there may be no annotations following a

106
statute, which would indicate that the statute has not been the subject of litigation and thus
has not been interpreted or construed by any cases.
Finally, U.S.C.A. not only contains a multivolume general index at the end of the set,
but each title is separately indexed, and each volume in the set is kept current by an annual
cumulative pocket part or by separate softcover supplements, the importance of which will
be discussed below.

(2) United States Code Service

Lexis also publishes an annotated version of the United States Code entitled United
States Code Service Lawyers Edition and referred to as “U.S.C.S.” Similar in arrangement to
U.S.C.A., U.S.C.S. is a set of more than 230 volumes, which conform in size to most law
books in that they are approximately 7”×10”. The U.S.C.S. volumes are black and have
aqua trim that is displayed on the spines of the books. Like U.S.C.A., this set also contains
a multivolume general index. U.S.C.S. is divided into the same 54 titles as U.S.C. and
U.S.C.A. and contains the identical wording of the federal statutes published in United
States Statutes at Large.
Although U.S.C.A. contains more than 350 volumes and U.S.C.S. contains more than
230 volumes, you should not make the assumption that U.S.C.A. is more valuable than
U.S.C.S. or that U.S.C.A. gives you far more information than U.S.C.S. provides. Rather,
the individual volumes in U.S.C.S. are quite large compared to the smaller size volumes
used for U.S.C.A., and therefore, although the number of books in each set differs, the
material contained within the books is substantially similar.
Like U.S.C.A., U.S.C.S. is “unofficial,” meaning that it is published by a private
publishing company without any government direction or mandate. Just as provided by
U.S.C.A., U.S.C.S. contains the text of the federal statutes. If you are curious why these
various sets (U.S.C., U.S.C.A., and U.S.C.S.) are all available, all of which provide the
wording of the federal statutes, you should note a simple analogy to automobiles. All
automobiles provide the same service: transportation. Yet consumers develop distinct
preferences for Chevrolets, Fords, or Hondas and may select one make of automobile over
another based on habit, perceived differences, or various options available.
Similarly, all of the codifications mentioned herein (U.S.C., U.S.C.A., and U.S.C.S.)
provide the same coverage: federal statutes. Yet consumers, namely, law firms and law
libraries, may choose to purchase one set over another based on various perceived
advantages or options available.
Among the features provided by U.S.C.S. are the following:

(a) History; Ancillary Laws and Directives

Immediately following the text of the federal statute you will be provided with
information relating to the effective date of the statute and amendments and revisions made
to the statute. A citation to United States Statutes at Large is provided. This feature of
U.S.C.S. is virtually identical to that feature of U.S.C.A. titled “Historical Notes,” as both

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features show the evolution and development of the statute.

(b) Code of Federal Regulations

U.S.C.S. will direct you to sections of the Code of Federal Regulations, if any, that relate
to this statute.

(c) Cross References

U.S.C.S. will direct you to other federal statutes that refer to your statute.

(d) Research Guide

U.S.C.S. will direct you to other sources in the library (books, forms, encyclopedias,
annotations, law review articles, for example) that may be helpful in construing and
interpreting this statute. This feature of U.S.C.S. is equivalent to the feature of U.S.C.A.
titled “Research References,” although it is somewhat broader in scope than the references
given by U.S.C.A. in that you are often directed to a wider variety of law review articles.

(e) Interpretive Notes and Decisions

These notes or annotations are the most important of the features offered by U.S.C.S.
Functioning identically to the annotations found in U.S.C.A., these notes will direct you to
cases that have interpreted or discussed the statute being researched. Just as given by
U.S.C.A., U.S.C.S. will provide you not only the citations to cases that have construed this
statute but also a short digest or summary of the cases to enable you to research more
efficiently by selecting only those cases that appear promising. Just as seen in U.S.C.A.,
U.S.C.S. will organize the annotations for you by numbering them so that all of the cases
discussing one part of the statute are brought together, all of the cases discussing another
part of the statute are brought together, and so on. See Figure 3-5 for sample pages from
U.S.C.S.
As you can see, the unofficial sets, U.S.C.A. and U.S.C.S., are substantially similar:
Both provide the exact wording of the public federal statutes; both provide information
relating to the history of the statute; both direct you to other sources in the library to
enhance your understanding of the statute; and both provide you with citations and
summaries or “annotations” of cases interpreting the statute.
Beyond this, both sets share additional features in common:

• The front of each volume of U.S.C.A. and U.S.C.S. contains a listing of the 54
titles of the United States Code;
• The citations to U.S.C.A. and U.S.C.S. are nearly identical in form. For instance, if
a statute is found at Title 42, Section 1352, it will be cited: 42 U.S.C. § 1352
(2012), 42 U.S.C.A. § 1352 (West 2011), and 42 U.S.C.S. § 1352 (LexisNexis
2013). Thus, once a law is categorized within one of the 54 titles of the United

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 States Code and assigned a section number, it will retain this title and section
number for U.S.C.A. and U.S.C.S;
• Both U.S.C.A. and U.S.C.S. have conversion tables that allow you to locate a
federal statute if the only information you have is the public law number or the
U.S. Statutes at Large citation. You can convert these citations into a citation to
U.S.C.A. or U.S.C.S. For example, if you know a statute is cited as 125 Stat. 318,
tables in the last volumes of U.S.C.A. and U.S.C.S. located after the volume for
Title 54 will convert this citation to 35 U.S.C. § 123 so you can readily locate the
statute; and
• Both U.S.C.A. and U.S.C.S. are kept current by the most typical method of
updating legal research volumes: annual cumulative pocket parts. Statutes are
subject to frequent repeal or

Figure 3-5
Sample Pages from U.S.C.S. (Title 12)

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amendment, and this method allows the codes to be kept current without requiring
the entire set of volumes in U.S.C.A. or U.S.C.S. to be replaced. A slit or “pocket”
has been created in the back cover of each hardback volume of U.S.C.A. and
U.S.C.S. Sometime during the first quarter of each year the publishers of U.S.C.A.
and U.S.C.S. mail small, softcover pamphlets called “pocket parts” to law firms,
agencies, and law libraries that have subscribed to U.S.C.A. and U.S.C.S. These
pocket parts slip into the slits in the back of each hardback volume of U.S.C.A. and
U.S.C.S. and provide current information about the statutes in that volume,
including changes or amendments to the statute and references or annotations to
cases decided since the hardback volume of U.S.C.A. or U.S.C.S. was placed on
the library shelf.
Pocket parts are prepared annually. When the pocket part is received for 2016,
for example, the law librarian removes and discards the old 2015 pocket part and
replaces it with the new 2016 pamphlet. The pocket parts are cumulative, meaning
that if a hardback volume was received in 2012, the 2016 pocket part found in the
back of that volume will have all of the changes and updates relating to the statutes
in that volume since 2012. See Figure 3-6 for a sample cover from a pocket part.

110
 On occasion, and over a period of time, the pocket parts may become too thick to fit
into the slit cut into the back of each hardbound volume of U.S.C.A. or U.S.C.S. On such
occasions, the publishers will issue a softcover supplement that functions in the same way as
a pocket part but sits on the library shelf next to the volume it updates.
There are few invariable or inflexible rules in legal research, but one of them is that you
must always consult a pocket part (or softcover supplement) if the volume you are using is
updated by a pocket part pamphlet. If you wish, you may elect to check the pocket part
before reviewing the hardbound volume itself. When you review the pocket part is not
critical; that you review it is critical. Oftentimes, research in a university law library can be
frustrating as a volume will contain a slit or opening for a pocket part and yet no pocket
part is found. If this is so, you should assume that a pocket part does exist but that it has
been misplaced, because the publishers of both U.S.C.A. and U.S.C.S., as a courtesy to
researchers, will provide either a pocket part for each volume or a notice, which slips into
the pocket and will inform you “this volume contains no pocket part” or will direct you to
the softcover supplement. See Figure 3-7.

Figure 3-6 Figure 3-7

Front Page of Pocket Notice That No Pocket
Part to U.S.C.A. Part Exists

You can easily see the advantage of the pocket parts and supplements: rapid updating of
the statutes and annotations at a cost much lower than replacing the more than 350

111
volumes of U.S.C.A. or the approximately 230 volumes of U.S.C.S. each year.
Nevertheless, the expenses associated in maintaining any law library are substantial.
To enhance the updating of U.S.C.A., West provides an additional pamphlet service.
These Statutory Supplement pamphlets are designed to accelerate the updating of statutes
in U.S.C.A. before the publication of next year’s pocket part. They include the public laws
passed since the publication of the most recent pocket part and that relate to sections of the
United States Code as well as providing additional case annotations, directing you to the
most recent cases that discuss your statute. Therefore, after you check the pocket part
(published yearly) or softcover supplement to determine if a statute has been amended or
repealed, check the Statutory Supplement pamphlets (published periodically) to determine
if even more recent changes have occurred. Because the Statutory Supplements are not
cumulative, you will have to check each one. These Statutory Supplements update all 54
titles of U.S.C.A., and thus are shelved after the end of Title 54. When new pocket parts
are published at the beginning of each year, they will include all of the information
previously included in the Statutory Supplement pamphlets, which are then discarded.
The publishers of U.S.C.S. also issue a similar updating pamphlet called Cumulative
Later Case and Statutory Service (published three times annually) as well as a monthly
pamphlet, U.S.C.S. Advance, to each subscriber of U.S.C.S. These pamphlets include
materials such as newly enacted (but not yet codified) public laws, presidential
proclamations and executive orders, and other presidential documents. Each monthly issue
of Advance includes a cumulative index. A section titled “Current Awareness Commentary”
includes highlights of new legislation, and “Supreme Court Update” discusses recent
United States Supreme Court cases and cases accepted for review by the Court. See Figure
3-8 for a chart showing how to update research of federal statutes.
When a statute is located under a particular title and section, for example, 42 U.S.C.A.
§ 1861 or 42 U.S.C.S. § 1861, any amendment or further information relating to it in the
pocket parts (or supplementary pamphlets) will also be located under the same title and
section number. Similarly, the pocket parts use the same annotation titles or catchlines as
the hardbound volumes so researchers can readily locate the latest decisions interpreting a
statute.
When necessary, the publishers of U.S.C.A. and U.S.C.S. will issue replacement
volumes for the hardback volumes in the set by simply mailing the law firm, agency, or law
library a new volume together with a bill for the new volume.
Finally, you will be able to do some updating using various online sources. For
example, the site for the Office of the Law Revision Counsel at http://uscode.house.gov
lists the sections of the United States Code affected by recently enacted laws. Select
“Classification Tables.” Similarly, the site FDsys, maintained by the Government Printing
Office at http://www.gpo.gov/fdsys, ensures that its online references to the United States
Code are always current. Of course, the online research services Lexis Advance and Westlaw
provide current statutory language and alert you to any pending statutory changes.

Figure 3-8

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 Updating Federal Statutory Research

d. Use of U.S.C., U.S.C.A., and U.S.C.S.

As you now know, there are three sets of codes you may use to locate and interpret federal
statutes: U.S.C., U.S.C.A., and U.S.C.S. It is unlikely you will use U.S.C. very often
because U.S.C.A. and U.S.C.S. provide you with the exact wording of the federal statutes
found in U.S.C. together with extremely useful annotations, which refer you to cases
interpreting and construing the statutes. Moreover, the updating of U.S.C. is much slower
than that for U.S.C.A. or U.S.C.S. Nevertheless, you may choose to use U.S.C. on the rare
occasions when you are primarily interested in reviewing only the statutory language itself
rather than any judicial decisions interpreting the statutes. Moreover, Bluebook citation
form prefers citation to U.S.C.
When you are interested in researching the history of a statute, finding other sources in
the law library that discuss or refer to that statute, and, most important, reviewing judicial
decisions that have interpreted the statute, use U.S.C.A. or U.S.C.S. There are some
differences between them. For example, U.S.C.S.’s section titled “Research Guide” refers
you to more sources in the library than does U.S.C.A.’s comparable section titled “Research
References.” In general, U.S.C.A. tends to direct you to other Thomson Reuters/West

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publications, and U.S.C.S. tends to direct you to other Lexis publications. Additionally, the
organization of the annotations within each set differs in that U.S.C.A. uses an alphabetical
arrangement whereas U.S.C.S. uses a topic approach. Finally, U.S.C.A. and U.S.C.S. may
each refer you to cases that the other set does not. In general, West’s publication, U.S.C.A.,
attempts to be as comprehensive as possible, sending you to nearly all cases interpreting or
discussing a federal statute, whereas the publisher of U.S.C.S. aims to provide researchers
with the most significant cases, eliminating what it believes to be outmoded or repetitive
cases, having stated that U.S.C.S. writes annotations only for cases that offer actual
interpretation of statutes so its users will “never have to spend valuable time pouring
through irrelevant case law.”
Another difference is that the language contained in U.S.C.A. is identical to the official
text of the United States Code, whereas the language in U.S.C.S. is identical to the text of
United States Statutes at Large. Thus, the language found in U.S.C.S. replicates the language
of statutes as enacted by Congress. Only on rare occasions, however, will an error in
reprinting a statute occur in the United States Code, and this difference may be more
imagined than real. If there is an inconsistency, however, the language of U.S. Statutes at
Large controls.
Most experts agree that these differences are not significant for most research projects.
Therefore, for the typical research project you will ordinarily use U.S.C.A. or U.S.C.S. but
not both. Using both sets would be analogous to driving to work in a Ford and then
walking home and driving to work again in a Chevrolet. In most respects, U.S.C.A. and
U.S.C.S. are competitive sets, meaning they are equivalent. The choice of which set you
ultimately use may depend on habit or convenience. If your first employer has purchased
U.S.C.A. and you become familiar with the organization and arrangement of this set, you
may find that you prefer to use U.S.C.A. Some people prefer U.S.C.S. due to the larger size
of the books and larger and bolder typeface, which is easy to read. Some researchers prefer
an integrated approach to all legal research and will consistently use all West publications
when possible, thereby gaining access to all of West’s books and its proprietary key
number/digest system (see Chapter 5), whereas others prefer to use books published by
Lexis to obtain access to its other publications.
In summary, if you are engaged in an extremely detailed research project, you should
consult both U.S.C.A. and U.S.C.S. Ordinarily, however, one set will be sufficient for most
of your research needs, and most law firms, corporations, and agencies purchase only one
set or the other.
The exercise placed at the end of this chapter will require you to use both U.S.C.A. and
U.S.C.S., and you may find you have an immediate preference for one set over the other.

Practice Tip

Annotations
Never fully rely on the one-sentence annotations or descriptions of cases provided by U.S.C.A., U.S.C.S., or

114
 any other annotated set. It is not possible to convey complex case analysis in one sentence. Similarly, never
quote from an annotation. They are not the law but rather very brief summaries of the law that are prepared
by commercial publishers, not courts, for the convenience of readers.

e. Research Techniques
There are three primary techniques you may use to locate federal statutes: the descriptive
word approach, the title/topic approach, and the popular name approach.

(1) Descriptive Word Approach

This method of locating statutes is one that you have undoubtedly used before in other
research projects. For example, if you were asked to find out how far Earth is from Mars,
you might elect to use an encyclopedia; however, you would not simply start reading at
page 1 of volume 1, hoping you would eventually stumble upon the information. You
would consult the general index at the end of the encyclopedia set and look for various
words that describe the problem such as “Earth,” “Mars,” “planets,” or “solar system.” The
index would then direct you to the appropriate volume and page number. This is the
descriptive word approach.
Both U.S.C.A. and U.S.C.S. have a multivolume general index, which is arranged
alphabetically and is usually located after Title 54, the last volume in both U.S.C.A. and
U.S.C.S. These index volumes are softcover books that are replaced each year. When you
have been assigned a legal research problem, you should try to think of keywords or phrases
that describe this problem. To assist in developing descriptive words or phrases, consider
the following questions: Who is involved? What is the issue under consideration? Where did
the action take place? When did the action occur? Why did the issue develop? How did the
problem arise? You should then look up these words or phrases in the general index of
U.S.C.A. or U.S.C.S., which will then direct you to the appropriate title and section of the
code. See Figure 3-9.
The indices for U.S.C.A. and U.S.C.S. are both very “forgiving.” For example, if you
selected “landlord” and the statute is indexed under “tenant,” both U.S.C.A. and U.S.C.S.
will guide you to the appropriate word, as follows:
Landlord. Tenant, this index.
U.S.C.A. and U.S.C.S. will direct you to the appropriate statute by listing the title first
and then identifying the specific statute section, as follows:
Citizenship, 8 § 1409
You are thus directed to Title 8, Section 1409.
If you have difficulty thinking of an appropriate word to look up in the index, you
might consider using a thesaurus to provide you with synonyms or antonyms. Generally,
however, such a practice will not be necessary as the indices for both U.S.C.A. and
U.S.C.S. are excellent finding tools and have indexed statutes under numerous words or
topics. Thus, you need not distill your research problem into one perfect word; even
phrases such as “sudden infant death syndrome” are found in the general indices to

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U.S.C.A. and U.S.C.S., and there are typically numerous cross-references and entry words
in these indices that will lead you to the correct statute.

Figure 3-9
Sample Page from U.S.C.A. General Index

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 After you have been directed to the appropriate title and section, you can readily locate
the statute by scanning the library shelves. U.S.C.A. and U.S.C.S. are arranged by titles 1
through 54, and the spine of each volume that faces you in the library stack is clearly
marked to facilitate your research efforts.
This descriptive word approach (sometimes called the “index method” because you use
the general index to find statutes) is usually the easiest and most efficient way to locate a
statute, particularly for beginning researchers. This is the technique you should use until
you are extremely familiar with the organization of U.S.C.A. and U.S.C.S. and feel
comfortable using the next method of statutory research: the title/topic approach.

(2) Title/Topic Approach

As you know, all of the statutes in U.S.C.A. and U.S.C.S. are divided or categorized
into 54 titles. It is possible that you may be so familiar with the contents and organization
of U.S.C.A. and U.S.C.S. that when presented with a legal research problem, you bypass
the general index, and immediately proceed to remove the appropriate title from the library
shelf.
Thus, if you consistently performed research in the area of bankruptcy and were asked a
question relating to the filing of a petition under the United States Bankruptcy Act, you

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may be able to immediately recognize that this subject is covered by Title 11. You would
proceed to the appropriate volume(s) relating to Title 11, and begin examining the statutes
and annotations therein.
At the very beginning of Title 11 is a broad table of contents, which gives you an
outline of the bankruptcy statutes to follow so you can select the appropriate one.
Additionally, after the very last bankruptcy statute you will be given an index to all of the
preceding bankruptcy statutes in Title 11, and you may use this to focus in on the specific
statute you are seeking.
This title/topic method is best employed by researchers who are sufficiently familiar
with U.S.C.A. and U.S.C.S. that they can confidently select the one particular title of the
54 titles available and review the statutes therein. Because it is possible that some statutes
may be covered under more than one title and because this title/topic approach presumes a
great deal of knowledge about U.S.C.A. and U.S.C.S., you should avoid using this method
when you are just beginning to perform legal research.

(3) Popular Name Approach

Many of our federal statutes are known by a popular name—either that of the sponsors
of the legislation (McCain-Feingold Act, Taft-Hartley Act, Sarbanes-Oxley Act of 2002) or
that given to the legislation by Congress or the public (Affordable Care Act, TARP
Program, AMBER Alert Act). If you are asked to locate one of these statutes, you can easily
do so in either U.S.C.A. or U.S.C.S.
To find such a statute in U.S.C.A., locate the volumes entitled Popular Name Table,
which list in alphabetical order federal laws known by their popular names. Simply look up
the law you are interested in, and you will be directed to the appropriate title and section.
See Figure 3-10 for a sample page from the Popular Name Table.
To locate such a statute in U.S.C.S., you should consult the Popular Name Table
found in a separate volume of U.S.C.S., which lists the federal statutes known by a popular
name in alphabetical order. Just as with U.S.C.A., you will be directed to the appropriate
title and section.
The United States Code also includes a table, “Acts Cited by Popular Name,” in a
separate volume.
Another print publication, Shepard’s Acts and Cases by Popular Name: Federal and State,
organizes federal and state statutes in alphabetical order, providing you with citations to
federal as well as state laws and cases known by popular names. For federal laws, this
compact set also provides a citation to United States Statutes at Large and gives the public
law number as well as the year the statute was enacted. Shepard’s Acts and Cases is kept
current by softcover supplements.
Finally, if you have only a public law number (such as P.L. 113-114) or a reference to
the statute from Statutes at Large (such as 125 Stat. 766), both U.S.C.A. and U.S.C.S. have
separate volumes marked “Tables” after Title 54 of the respective sets, allowing you to

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translate and convert a public law number or a Statutes at Large citation into a citation to
U.S.C.A. or U.S.C.S.

Practice Tip

Infra and Supra

When using indices for almost any set of law books, you may encounter the words infra (meaning “below”)
and supra (meaning “above”). These are signal terms that direct you to other pages within the index. For
example, if you look up the word “tenant” in an index, you may see the instruction “See landlord, supra,”
meaning that you should look at the entries listed under the word “landlord” given previously in the index.

f. Final Research Steps

After you locate the statute you are interested in, read it carefully. Examine the historical
notes, and review the library references to determine whether other sources in the library
provide further information on this statute or the subject matter it discusses. Then read the
annotations carefully, and decide which cases you will read in full based on your initial
reading of the brief descriptions of these cases. Finally, check the pocket part and any of the
interim pamphlets or supplements (which are arranged exactly like the numbering used in
the hardback volumes)

Figure 3-10
Sample Page from U.S.C.A. Popular Name Table

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to determine if the statute has been amended or repealed and to look for annotations or
references to cases that have interpreted the statute subsequent to the publication of the
hardbound volume. If you have any difficulty performing statutory research, you may call
either Lexis ((800) 833–9844) or West ((800) 733–2889) to receive personal assistance
from reference attorneys.

Ethics Alert

Updating the Annotated Codes

Always examine the pocket parts or softcover supplements to the annotated codes. They provide the only way
you can ensure that your statutory research is complete. Failure to review the pocket parts and supplements is
a breach of your ethical duty to research accurately and thoroughly.

g. United States Constitution

Although the United States Constitution is not one of the 54 titles of the United States

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Code, nevertheless both U.S.C.A. and U.S.C.S. contain volumes for the Constitution. You
will be provided with the text of the Constitution and its amendments and then, by the use
of annotations, you will be referred to cases that interpret the Constitution. For example,
after you read the First Amendment, you will be directed to thousands of cases that have
construed the First Amendment. You will also be provided with reference guides and cross-
references to other materials to help you better understand the constitutional provision you
are researching. Unannotated versions of the United States Constitution can be found in
U.S.C. and at various Internet sites, such as Congress.gov and FDsys.
Depending upon the arrangement of the law library you use, the volumes for the
Constitution may precede Title 1 on your library shelves, may be located as the last
volumes after Title 54, or may appear alphabetically within the set between the volumes for
Conservation and those for Copyrights.
The three primary research approaches discussed above, namely, the descriptive word
approach, the title/topic approach, and the popular name approach, should also be used
when you are presented with a constitutional research issue. Be sure to refer to the pocket
parts or softcover supplements for the applicable volumes to locate the newest cases
interpreting constitutional provisions.

B. State Legislation

1. Enactment of State Statutes

The process of enacting and publishing legislation at the state level is substantially similar
to the process described above for the federal level. Most state legislatures closely conform
to the United States Congress with regard to their organization and manner of enacting
law. Just as the United States Congress is divided into two chambers—the Senate and the
House of Representatives—each state (except Nebraska) has a legislature divided into two
chambers. Such a legislature is referred to as a bicameral legislature. Nebraska has a one-
house or unicameral legislature. The names given to the two chambers may vary from state
to state. For example, the two bodies in California are the Senate and the Assembly; the
two chambers in Louisiana are the Senate and the House of Representatives; and the two
bodies in Virginia are the Senate and the House of Delegates. Today 46 state legislatures
meet on a yearly basis, while the remaining 4 state legislatures meet every other year.
Similar to the process of enacting federal law, much of the work in enacting state law is
done by committees. When a final version of a bill is agreed upon, it will be sent to the
governor of the state for signature, at which time it is referred to as a “law” or “statute”
rather than a bill.
Additional information regarding the names of the lawmaking bodies for each of the
states and the process of enacting legislation can be obtained from almost any general
information encyclopedia or at the website of the National Conference of State Legislatures
at http://www.ncsl.org. Table T.1.3 of The Bluebook also provides the URL for each state’s
legislative home page.

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2. Publication and Codification of State Statutes

Many states, particularly the most populous ones, initially publish their laws in slip form,
similar in appearance to federal slip laws. At the end of the state’s legislative session, these
slips are taken together and compiled into books, which are generally referred to as “session
laws.” Although some states may not use the words “session laws” and may name their
compiled statutes “acts and resolves,” “laws,” or “statutes,” or some other name, the generic
title given to volumes that set forth a state’s laws in chronological order is “session laws.”
These session laws are analogous to United States Statutes at Large. That is, the volumes
of session laws will contain the laws of a particular state in the order in which they were
enacted. Just as researchers required United States Statutes at Large to be better arranged, or
“codified,” in order to bring together all the current laws on the same subject and eliminate
laws that had been repealed, codification of the session laws of each state has also taken
place. These state codifications may be called “codes,” “statutes,” “general laws,”
“compilations,” “revisions,” or “consolidations,” depending on the state.
Most states arrange their statutes by titles and chapters, such as Virginia: Va. Code
Ann. § 8.01-108 (2012). A few states, usually the more populous ones, arrange their
statutes in named titles, such as California: Cal. Evid. Code § 312 (West 2013). Thus,
numbering and format vary from state to state.
Most states have annotated codes, meaning that after you are provided with the
wording of the state statute, you will be directed to cases that interpret the statute. West
publishes annotated codes for most of the states, although Lexis publishes state codes as
well. A few states use other (or both) publishers. An identification of the publisher for each
state’s statutes can be found in Table T.1.3 of The Bluebook.
Although the publication of each state’s statutes will vary somewhat and although the
publication may be official or unofficial, most state codes share the following features:

(i) The constitution of the state will be contained in the code;

(ii) The statutes will be organized by subject matter so that all of the
corporations’ statutes are together, all of the penal statutes are together, all of
the workers’ compensation statutes are together, and so forth;
(iii) There will be a general index to the entire set and often each title will be
separately indexed, so that after you read the last evidence statute you are
given an index to all of the evidence statutes, and so forth;
(iv) The statutes are kept current by annual cumulative pocket parts, which will
be placed in the back of each hardback bound volume, or by supplements
placed on the shelves next to the volumes being updated;
(v) Annotations will be provided to direct you to cases interpreting the statutes,
typically through the use of a one-sentence summary of the case and its
citation, similar to the arrangement and organization of annotations provided
by U.S.C.A. and U.S.C.S.;
(vi) Historical notes, which explain the history and amendments to the statute,

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 and library references, which will direct you to other sources in the law
library to assist you in interpreting the statute, will typically be provided (see
Figure 3-11 for a sample page of a state statute); and
(vii) Conversion tables are provided in each volume so that if a state statute has
been repealed or renumbered, you will be informed of the repealing or
provided with the new section number of the statute.

Figure 3-11
Sample Page from Code of Virginia

3. Research Techniques

The same techniques used to locate federal statutes are used to locate state statutes. They
are as follows:

a. Descriptive Word Approach

This method requires you to determine which words or phrases relate to the issue you are
researching and then locate those words or phrases in the general index, which will then

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direct you to the appropriate statute.

b. Title/Topic Approach
This technique may be used when you have become so familiar with your state code that
you bypass the general index, and immediately locate the particular title or chapter that
deals with the research problem.

c. Popular Name Approach

This method of locating statutes is used in those instances in which a state statute is known
by a popular name, such as the “Megan’s Law” in your state. You can locate this statute by
simply looking up the name of the act or statute in the alphabetically arranged general
index.

d. Locating State Statutes

Suppose you wish to determine whether the directors of a corporation may conduct a board
meeting by conference call. If you elect to use the descriptive word approach, you should
consider looking up some of the following words in the general index in order to be
directed to the appropriate statute: “directors,” “board of directors,” “corporations,”
“meetings,” or “conference calls.” Researchers who are familiar with their state’s code may
use the topic approach and immediately locate the volumes in the state code that contain
statutes dealing with corporations, and review the separate index at the end of all of the
corporations statutes or the table of contents, which appears at the beginning of the statutes
dealing with corporations.
After locating the statute, read it carefully, examine the historical notes and library
references, if any, analyze the annotations you believe appear promising, and examine the
pocket part (or supplements) to ensure the statute is still in force and to locate newer cases
that may have interpreted the statute. You must then read the relevant cases in full.
You may observe that the numbering system for some state codes is unusual, with large
gaps between some sections; for example, section 1815 might be followed by section 1832.
Such a gap may indicate that sections 1816 through 1831 have been repealed or
renumbered. Consult any conversion tables that appear in the volume to determine
whether sections 1816 through 1831 have been repealed or whether they have been
renumbered and subsumed within some other title or chapter in the code.
On other occasions you may notice that the numbering of state statutes is not by whole
numbers but rather by decimals or subsections. For instance, section 410 may not be
followed by section 411, but by section 410.10, section 410.20, section 410.30, and then
by section 411. This numbering scheme typically indicates that after the state legislature
enacted statutes that were numbered as section 410 and section 411, other statutes were
enacted that dealt with the same general topic or subject matter and thus needed to be
inserted between section 410 and section 411.
Finally, there is no one set of books that will provide you with all of the laws for all

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U.S. jurisdictions. Such a set would be unwieldy, expensive, and generally not very useful,
as researchers in one state are usually not interested in the statutes of another state.

The Final Wrap-Up

Use and Citation of Annotated Codes

Use: Use annotated codes to find relevant statutes. Then use the annotations or one-sentence case summaries to
locate cases on point. You may also use the various research references to expand and supplement your
research efforts because these will direct you to useful forms, helpful law review articles, and so forth.
Citation: You may (and should) cite to and quote from the statutes you find in an annotated code, but you may never
cite to or quote from the one-sentence annotations (case summaries) or any research references. You must
retrieve the cases and references cited, read and analyze them, and then you may cite to these sources.

4. Uniform and Model Laws and Court Rules

Uniform and model acts are those drafted for topics of the law in which uniformity is
desirable and practical. For example, a set of laws relating to the formation, operation, and
dissolution of partnerships, called the Uniform Partnership Act (1914 & 1997), has been
adopted in every state but Louisiana. Once adopted in a state, a uniform law is then a state
statute like any other and can be located using any of the research techniques discussed
above. Many states, however, often make changes and modifications to the uniform laws,
resulting in laws that are highly similar from state to state but that are not perfectly
uniform. Uniform and model acts are discussed in detail in Chapter 7.
Rules of procedure and court rules bind those practicing in a given jurisdiction. These
rules of procedure and court rules are fully discussed in Chapter 10.

C. Statutory Research Overview

When you are undecided whether to begin a project by examining federal or state statutes,
keep in mind that some matters are exclusively presumed to be federal in nature. For
example, establishing a uniform currency system is the province of the federal government,
which eliminates the confusion that would result if each state developed its own types of
coins. On the other hand, states have the power to enact laws relating to local concerns,
such as establishing the death penalty in the state, residency laws for obtaining a divorce,
and statutes of limitation for breach of contract matters. If you are uncertain whether an
area is governed by federal or state law, examine the federal statutes first. If the topic is not
covered by federal statute, proceed to examine your state statutes.
When you locate a statute, quickly review the entire scope of the statutes governing the
topic. Generally, terms used in the act or statutory scheme are first defined. Definitions are
usually followed by the rules announced in the statute and then by penalties for violations

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of the statute. Assume that each word in the statute is there for a purpose, and the words
are to be given their plain meaning. If the statute is vague or ambiguous, examine the cases
that discuss the statute to determine how courts have interpreted the statute. You can also
examine the legislative history of the statute by reviewing the documents considered by the
legislature when it enacted the law, such as the transcripts of committee hearings and
committee reports. Legislative history research is fully discussed in Chapter 10. Remember
that it is the court’s interpretation of a statute rather than the naked statutory language that
is controlling under our system of law. It is the province of our courts to apply and
interpret statutes and even strike down statutes as unconstitutional.

D. Citation Form

1. Federal Statutes

11 U.S.C. § 1327 (2012).

11 U.S.C.A. § 1327 (West 2009).
11 U.S.C.S. § 1327 (LexisNexis 2013).

2. State Statutes

Ind. Code Ann. § 14-201 (West 2007).

N.Y. Bus. Corp. Law § 601(McKinney 2014).
Wash. Rev. Code § 8.907 (2009).

Internet Resources

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Writing Strategies

Examine statutes as carefully as possible. Every word and phrase is meaningful. If

the statute is contrary to the client’s position, look to see if your issue fits within any
exceptions to the statute. Review the law review articles you are directed to by the
cross-references to determine if any guidance is given as to what situations the statute
was designed to address or remedy.
Statutes can be long and complex. To avoid having to reproduce all of a lengthy
statute in your writings, say “in pertinent part New York General Business Law
section 26 (McKinney 2012) provides . . . .”
If the statute supports the client’s position, say so forcefully: “California
Government Code section 426 (West 2014) [requires] or [mandates] or [imposes] . .
. .”

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 If the statute contradicts the client’s position, try to shift the focus away from the
statute and toward the cases interpreting the statute that may provide you with more
latitude due to vague or imprecise language: “In the seminal case interpreting Indiana
Code Annotated section 14-11-1-6 (West 2012), the court . . . .”

Assignment for Chapter 3

1. What title of the United States Code relates to Conservation?

2. Use U.S.C.A. and cite the title and section that govern the following:
a. Funds for Head Start.
b. Libraries for former presidents.
3. Use either U.S.C.A. or U.S.C.S. and cite the title and section that govern the
following and answer any question.
a. The sale or distribution of date rape drugs on the Internet.
b. Our national motto.
c. What is our national motto?
4. Use the popular name tables as directed and cite the title and section for the
following:
a. Use U.S.C.A. and give the citation for the short title of the Adam Walsh
Child Protection and Safety Act of 2006.
b. Use U.S.C.S. and give the citation for the Early Learning Opportunities Act.
c. Use either U.S.C.A. or U.S.C.S. and give the citation for short title of the
Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act.
5. Use U.S.C.A. How is the word “honey” defined?
6. Use either U.S.C.A. or U.S.C.S. Give the citation for the statute that provides the
definition of “human organ” for the purposes of organ transplants.
7. Use the U.S.C.A. volumes for the Constitution. Answer the following questions
and cite the best case to support your answer. Give case names only.
a. Under the Fourth Amendment “Exclusionary Rule,” were a defendant’s
rights violated by admission into evidence against him of a palm print (taken
while he was legally in the custody of law enforcement officers on another
matter but after he had requested counsel before further questioning)?
b. Under the Eighth Amendment (Prison Conditions), is prohibiting a federal
prisoner from enjoying telephone and visitation privileges for the illegal use
and unauthorized possession of a cell phone and books of postal stamps cruel
and unusual punishment?
8. Use U.S.C.A.
a. Under 15 U.S.C.A. § 1120, if an individual uses a corporation to falsely
procure a registration of a trademark for the purposes of harassing others, will
the corporation or the “corporate fiction” be disregarded? Answer the

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 question and give the name of the case that supports your answer.
b. What encyclopedia are you directed to in order to better understand this
statute?
c. Give the public law designation for the 1975 amendments to this statute.
d. To which C.F.R. provision are you directed?
9. Use U.S.C.S.
a. Under 7 U.S.C.S. § 2012, are foster children members of a “household” for
food stamp allotment purposes? Answer the question and give the name of
the case that supports your answer.
b. A bank officer has violated 18 U.S.C.S. § 656 by embezzling $800. What is
the punishment that may be imposed?
10. Locate the statutes for Texas.
a. Which Texas statute relates to a waiver of notice for a corporate directors’
meeting?
b. Review the statute. May a waiver be oral to be effective?
11. Use United States Statutes at Large.
a. What is the short title of Public Law 112-44?
b. What was its designation in the House?
12. Use United States Statutes at Large.
a. For whose relief was Private Law 111-1 enacted?
b. Briefly state the purpose of this private law.

Internet Assignment for Chapter 3

1. Access Congress.gov. Locate H.R. 2250 introduced in the 114th Congress.

a. What is the name of this legislation?
b. What is its Public Law number?
2. Access Congress.gov. Select “Members.” Who are the current senators from the
State of Washington?
3. Access Congress.gov. Locate S. 1774 introduced in the 111th Congress.
a. What is the title of this legislation?
b. What was the purpose of this legislation?
c. What is its Private Law number?
4. Access the website of the National Conference of State Legislatures. Select
“Research,” then “About State Legislatures,” and then “Term Limits.”
a. How many states have term limits for their legislators?
b. Which state allows for the longest period of service?
5. Access FDsys.
a. Select the U.S. Code for the most current year. Locate 7 U.S.C. § 2702.
What is the definition of “hen”?

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b. Select the U.S. Code for the most current year. Locate and review 1 U.S.C. §
112. What is the effect of U.S. Statutes at Large in a court of law?

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 Chapter 4

Case Law and Judicial Opinions

It is evident that I consider stare decisis essential to the rule of law.

Supreme Court Associate Justice Lewis F. Powell, Jr. (1990)

A. Selective Publication
B. Elements of a Case
C. Publication of Cases
D. Publication of State Cases
E. Publication of Federal Cases
F. Star Paging
G. Specialized National Reporter System Sets
H. Features of West’s National Reporter System
I. Finding Parallel Cites
J. Summary of West’s National Reporter System
K. Briefing Cases
L. Citation Form

Chapter Overview
This chapter will discuss judicial opinions and provide you with an understanding of the
publication of cases, the elements of a typical court case, and the types of opinions written
by judges. We will present the elements of analyzing and briefing cases and introduce the
National Reporter System, a thorough and comprehensive series of case reporters, which
publishes decisions from state and federal courts.

A. Selective Publication

1. Standards for Publishing Cases

At the conclusion of Chapter 1, you were required to locate certain published cases. This
emphasis on locating cases is a cornerstone of the legal profession, primarily because of our
common law tradition of reliance on case law as precedent. You will recall from Chapter 1
that the concept of stare decisis requires that a court follow a previous case from that
jurisdiction if the case is materially similar to the case then before the court, although
higher courts may depart from previously decided cases if a change in the law is deemed
important. Each year approximately 60,000 new cases are published, and each one of these
adds to the great number of cases or precedents that you may need to locate to persuade a
court to rule in a client’s favor. Although previous assignments have required you to locate

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cases, it was easy to accomplish because the citations to the cases were given to you.
Seldom, if ever, does such a lucky event occur in the workplace. Generally, you will be
provided only with an overview of the legal problem or question involved, and you will
then be required to locate cases on point without the aid of a specific citation or often any
direction whatsoever. In Chapters 5, 6, and 7 you will read about several publications that
will help you locate relevant cases. Before you begin to locate cases, however, you will need
a clear understanding of the elements of a typical court case and the process of publication
of cases.
You may be surprised to learn that not all cases are published or “reported.” In general,
and with the exception of some trial cases from our federal courts and a few state courts,
trial court decisions are not published. If you consider the overwhelming number of routine
assault and battery cases, divorce or dissolution actions, or cases relating to the possession of
narcotics, you can readily see why trial court decisions are not usually published. Many of
these cases add little to our body of precedents and relate only to the litigants themselves. If
we were to publish the more than 90 million cases that are incoming annually in our state
courts, our bookshelves would soon collapse of their own weight. As a result, usually only
decisions of appellate courts are published. Because approximately 10 percent of cases are
appealed, even the reporting of appellate court decisions results in a mass of publication.
Therefore, in general, only appellate court cases that advance legal theory are published.
Only about 12 percent of cases disposed of by the federal courts of appeal are published.
Generally, only the decisions of the courts of last resort in a jurisdiction are published in
full. For example, all of the decisions of the United States Supreme Court and the
California Supreme Court are published in full officially, but the decisions of the lower
federal courts and lower California courts are not.
In many instances, the courts themselves decide whether a case merits publication. For
example, in California, California Rule of Court 8.1105 provides that cases that meet the
following criteria, among others, should be considered by appellate courts in determining
which cases should be officially published:

• those that establish a new rule of law or modify or criticize an existing rule;
• those that address an apparent conflict of authority in the law;
• those that involve a legal issue of continuing public interest; or
• those that make a significant contribution to legal literature.

In many jurisdictions, including California, unpublished cases cannot be cited or used

as precedents except in very limited circumstances. You should not interpret the fact that
many cases are not published as a conspiracy to prevent people from obtaining access to
cases. Unless a case is sealed (usually for national security reasons, to maintain trade secrets,
or for the protection of a minor), the case file is readily accessible at the state courthouse
that handled the case. If you know the name of the case, you can determine its docket
number in a Plaintiff-Defendant Index at the courthouse (or often online). You may then
ask a court clerk to allow you to review the file, and you will have access to all of the

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pleadings filed in the case as well as the judge’s decision and the final judgment. If you need
a case from another jurisdiction, consult an online directory and locate an “attorneys
service” company. These companies will locate and copy case files and pleadings for you for
payment of a fee. Documents filed in federal cases can be reviewed through PACER
(https://www.pacer.gov), an electronic service offering public access to case information
from federal courts. PACER is discussed further in Chapter 11.
You can see, therefore, that publishing every case decided in the United States this year
would not be of any great value to researchers and would simply result in needless
publication. Thus, a certain amount of “weeding out” or selectivity occurs in the
publication of cases.

2. The Controversy Surrounding Unpublished Opinions

As discussed above, generally a court decides which cases to publish by certifying them for
publication after determining that the cases meet the court’s standards for publication. In
recent years, however, the issue of selective publication of cases has sparked a great deal of
controversy. In Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir. 2000), the court
ruled that allowing judges to ignore unpublished cases was unconstitutional and gave them
arbitrary power. Although Anastasoff was later vacated as moot on other grounds, see
Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000), the issue regarding the
precedential value of published decisions continued to engender heated debate.
Remember that “unpublished” does not mean “unavailable”; it simply means that the
case will not be printed in a conventional hardbound book. As courts have published their
opinions on their own websites and released them to Lexis Advance and Westlaw, the
online legal research systems, the public has been able to access these otherwise unpublished
decisions, and attorneys and litigants have wanted to refer to, cite to, and rely upon these
unpublished decisions to support their arguments and their clients’ positions. Moreover, in
2001 West created the Federal Appendix, a set that prints the unpublished federal courts of
appeals decisions, together with headnotes, key numbers, and topic names, making these
unpublished cases even more readily available to researchers. Finally, pursuant to the E-
Government Act of 2002, 44 U.S.C. § 3601 (2012), all federal appellate courts must
provide access over the Internet to all of their written opinions, regardless of whether such
opinions are to be published. Thus, researchers were able to locate and access these
“unpublished” cases through numerous means and demanded the right to cite to them in
their briefs.
After several years of discussion and debate, with some circuits (such as the Ninth
Circuit Court of Appeals) vehemently opposed to allowing parties to cite unpublished
cases, the issue was resolved on January 1, 2006, when the Federal Rules of Appellate
Procedure were amended to add Rule 32.1, which prohibits courts from restricting parties
and attorneys from citing unpublished federal judicial opinions issued after January 1,
2007. (You may cite pre-2007 unpublished cases if local federal rules permit such.) In any
event, although you may cite to an unpublished case issued after January 1, 2007, its

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precedential effect is questionable. Such cases generally have persuasive effect only, and thus
some experts believe that researchers will likely cite to these unpublished cases only when
they can locate no precedential decisions.
You may wonder whether you have an obligation to locate and cite to one of these
numerous unpublished authorities if it supports a client’s position. At present there is no
legal obligation to locate authorities that may be persuasive only; thus, failure to cite to
such unpublished opinions would likely not constitute malpractice.
State courts also differ in their treatment of unpublished decisions, with about one-half
of the states allowing citation of unpublished decisions, although most of these concur that
these unpublished decisions are not binding precedent under the theory of stare decisis.
Others, such as California (which publishes only about 8% of its courts of appeals cases
each year), strictly prohibit courts and parties from citing or relying upon state court
opinions not certified for publication except in limited circumstances. Cal. R. Ct. 8.1115.
As a researcher, you will have access to unpublished decisions (from the courts’ own
websites, through Lexis Advance and Westlaw, and through various Internet sources). You
will need to know and comply with your state and applicable federal rules regarding citing
to these unpublished cases when you prepare documents for filing with courts.

B. Elements of a Case

When an appellate court has reviewed the transcript of the trial below, read the written
arguments (called “briefs”), which were submitted by the parties, and perhaps heard oral
argument, the court will render its decision in a written opinion. It is this opinion that will
be published (assuming it advances legal knowledge) and that will now serve as a precedent
under the doctrine of stare decisis.
Cases that are published or reported typically contain the following elements (See
Figure 4-1):

1. Case Name

The name or title of a case identifies the parties involved in the action and also provides
additional information about the nature of the proceeding. There are several types of case
names.

Smith v. Jones. This case name is the most common and indicates by the use of the signal
“v.” (for “versus”) that the matter is adversarial in nature. The first listed party,
Smith, is the plaintiff, who has instituted this action against Jones. Usually the case
name will remain the same if the case is appealed, although some courts may reverse
the order by placing the name of a defendant who lost the trial below and instituted
the appeal first. For example, if Jones lost the trial and appealed the decision, the
case might then be identified as Jones v. Smith, even though the original plaintiff was
Smith. The Bluebook requires that only the first listed plaintiff and first listed

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 defendant be identified in a case citation. Nevertheless, a case may involve several
plaintiffs and defendants or may be a consolidation of several cases so a court can
resolve cases dealing with the same legal issue at one time.
In re Smith. The phrase “in re” means “regarding” or “in the matter of.” This case name
designates a case that is not adversarial in nature. That is, rather than one party
instituting an action against another, this case involves only one matter or party,
such as a bankruptcy proceeding, a conservatorship, disbarment, or a probate matter
that relates to the rights of one individual. Additionally, “in re” is used to designate
civil cases involving multiple claims that are transferred to one federal court for
coordinated and consistent handling, such as the case In re Takata Airbag Products
Liability Litigation.
State v. Smith (or United States v. Smith). This case name generally indicates a criminal
proceeding. In our legal system, when a crime is committed, the state will prosecute
the action on behalf of its citizens, all of whom have been injured by the crime.
Some jurisdictions identify these cases as People v. Smith, and four jurisdictions
(Kentucky, Massachusetts, Pennsylvania, and Virginia) are known as
“Commonwealths” and will identify their criminal cases as Commonwealth v. Smith.

Figure 4-1
Sample of a Published Case

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136
137
In re Johnny S. Case names that indicate only a party’s first name or initials (such as In re
J.B.) are typically used to designate matters that involve minors. Often these cases
relate to delinquency actions involving minors, adoption proceedings, or child
custody proceedings. For purposes of privacy, the minor’s surname is omitted from
the published opinion.
Ex rel. Smith. The phrase “ex rel.” is short for “ex relatione” meaning “by or on the
relation of.” Such a case name indicates a legal proceeding instituted by an attorney
general or some other state or governmental official on behalf of a state but at the
instigation of a private party who has an interest in the matter. For example, an
action by the State of Arizona through its Attorney General Thomas Horne that
alleged fraud against Arizona consumers by a defendant in its mortgage business was
titled Arizona ex rel. Horne v. Countrywide Financial Corp.
Ex parte Smith. “Ex parte” means “on one side only” and usually refers to an action by or
for one party without notice to or any contest by the other party.
Complaint of M/V Vulcan. A case with this type of title will involve maritime or
admiralty matters or will deal with a ship or sailing vessel. “M/V” means “motor
vessel.”
United States v. 22,152 Articles of Aircraft Parts. Such an oddly named case typically

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 involves the forfeiture or seizure of illegal goods or contraband. For example, this
case was a forfeiture action brought by the United States government, which sought
title to aircraft parts that a purchaser had attempted to export illegally to Libya.

Practice Tip

Citations in Cases

The citations that appear in published case reports are often not in correct Bluebook form. For space reasons,
these published cases often take shortcuts in citing cases and other authorities. Similarly, the cases available or
cited on Lexis Advance or Westlaw often violate Bluebook citation rules. Rely on The Bluebook when citing
legal authorities.

2. Docket Number and Deciding Court

Immediately beneath the case name you will be provided the docket number of the case.
When the first paper or pleading in a case is filed, the clerk of the court will stamp a
number on the papers. This number, referred to as a docket number, serves to identify and
track this case as it progresses through the court. Courts do not identify cases by name,
primarily due to the possibility of duplication and confusion. Often docket numbers
provide information about a case. For instance, a docket number of “CV-16-862-CAJ”
indicates the case was a civil case filed or instituted in 2016, it was the 862nd case filed that
year, and it has been assigned to Judge Carolyn A. Jackson. Following the docket number,
the deciding court is often identified.

3. Date of Decision

The date the case was decided by the court will be given. If two dates are given, one will be
identified as the date the case was argued, and the other will be the date the decision was
issued by the court. For citation purposes, the critical date is the year of decision. Many
courts now use the word “filed,” as in “Filed July 16, 2015,” to indicate the date an opinion
is issued.

4. Case Synopsis or Summary or Background

Before you are given the actual opinion of the court, you will be provided with a paragraph
summarizing the nature and background of the case, an identification of the parties, the
name of the lower court judge, a description of what occurred at the court(s) below, the
name of the judge authoring this opinion, and what this court’s decision is. This
introductory paragraph, often referred to as a case synopsis or case background (or
occasionally as a “syllabus”), provides a quick overview of the general nature of the case and
by what procedure it arrived at this court. This summary is typically prepared not by the
court that issued the opinion but rather by the editors at Thomson Reuters/West, Lexis, or
some other publishing company and is intended to serve merely as a convenience to legal

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professionals. Thus, although it serves as a quick introduction to the case, it may never be
quoted from or relied upon as authority. A case synopsis merely helps you weed out
irrelevant cases.

5. Headnotes

Before the actual opinion of the court, you will be provided with short paragraphs, each of
which is assigned a number and a name. These are called headnotes. (For the present time,
ignore the pictorial design of the “Key” followed by another number. This Key Number
System will be thoroughly described in Chapter 5.) For instance, you may be presented
with the following headnote:

3. Criminal Law
To convict defendant of aiding and abetting offense against the United States, Government must prove defendant
was associated with criminal venture, participated in it as something defendant wished to bring about, and sought
by his or her actions to make it succeed.

Each point of law discussed in the case is assigned a headnote. If a case discusses 20
issues of law, there will be 20 headnotes. These headnotes usually are prepared by the
editors of the companies that publish the court reports and serve as a table of contents or
index to the case. They allow you to determine, usually in less than one minute, whether
the case is worthy of additional analysis. For example, someone in your law office may
realize you are researching a fraud issue and may recommend that you read the case Alberts
v. Kappos, 917 F. Supp. 2d (D.D.C. 2013). When you retrieve this case, you discover the
case is 30 pages long. It is possible that you could spend two hours reading this case only to
realize, on the last page, that Alberts is not at all on point and that you were steered in the
wrong direction.
Headnotes help reduce the time you might spend reading a case that ultimately proves
to be of no value to you and serve to give you a brief glimpse at the legal topics discussed in
a case. By examining the headnotes, each of which is only a sentence in length, you can
make an informed decision whether to read the case in full or whether to put the case aside.
If the issue you are researching is fraud, quickly scan the headnotes looking for the
word “fraud.” If none of the headnotes deal with this issue but rather deal solely with
“licenses,” “deeds,” and “trusts,” you can make a quick determination to set the case aside
rather than spend hours reading a case that does not discuss the issues in which you are
interested.
If your examination of the headnotes reveals that headnote 6 discusses fraud, you
should then examine the case and locate a boldface, bracketed “6.” This [6] corresponds
with and directs you to the portion of the case devoted to the discussion of fraud. Because
the headnote is usually only a single sentence, you should now read this section [6] of the
case in full. If this reading looks promising, you should return to the beginning of the case
and read the entire case.
Because the headnotes are typically prepared by publishers rather than judges, you

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cannot rely on the headnotes as authoritative, and you should never quote from the
headnotes. You should rather use the headnotes to assist you in making an initial
determination whether the case will be helpful to you and then to locate the most relevant
portion of the case. Like the case synopsis, use the headnotes to help you weed out
irrelevant decisions.

6. Names of Counsel

You will be provided with the names and locations of the law firms and the individual
attorneys in those firms who represented the parties in the case. You may wish to contact
the attorneys, especially if the case presents a novel issue or represents a change in the law.
Although you can readily obtain copies of the briefs and papers filed in a court case from
the clerk of the court, discussing the case with the attorney involved may be of particular
help to you.

7. Opinion
The commencement of the opinion of the court is almost always marked by an
identification of the judge or justice who authored the opinion. For example, “Petersen,
C.J.” would indicate Chief Judge or Chief Justice Petersen. Everything that follows the
identification of the author is the court’s opinion. Some sets of case reports include
introductory summaries before the case begins. For example, the set United States Reports,
which publishes decisions of the U.S. Supreme Court, includes a Syllabus before most
opinions, which is a summary of the decision to follow. The Syllabus is prepared by the
Reporter of Decisions (the official charged with editing and publishing the Court’s
decisions), and most cases include the following disclaimer: “The Syllabus constitutes no
part of the opinion of the Court but has been prepared . . . for the convenience of the
reader.” Similarly, some older sets of case reports and some of the unofficial sets include
summaries of the arguments advanced by each party or summaries of the opinion to follow.
Make sure you understand the difference between these useful editorial enhancements and
the actual opinion. Only the court’s opinion is binding; summaries or syllabi are helpful
overviews of the case to follow, but they are usually prepared by a court official or a private
publisher, and you may not quote from them or rely on them.
Most opinions start with a recital of the facts in the case because without factual
background, the rest of the opinion exists in a vacuum. The court will then apply the law of
the jurisdiction involved to the facts in this particular case. Precedents may be cited, and
statutes or other authorities may be relied upon.
As you read the opinion in the case, keep in mind the key distinction between the
holding in the case and dicta, extraneous comments made by the court that cannot serve as
binding authority. You will notice that there are different types of opinions:

Majority opinions are those written by a member of the majority after the court has
reached its decision. A majority opinion is one in which more than half of the judges

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 or justices agree. The holding, or ratio decidendi, announced in the majority opinion
is the law and serves as binding authority on lower courts in that jurisdiction.
Per curiam opinions are opinions issued by the whole court and no specific author will be
identified. Per curiam or “unsigned” decisions are usually short and often deal with
uncontroversial matters. Per curiam decisions are not necessarily unanimous. One
highly controversial decision, Bush v. Gore, 531 U.S. 98 (2000), was a
nonunanimous per curiam decision. After the opinion, Chief Justice Rehnquist
(with whom Justices Scalia and Thomas joined in a concurring opinion) wrote, “We
join the per curiam opinion. We write separately because we believe there are
additional grounds that require us to reverse the Florida Supreme Court’s decision.”
Id. at 111.
Concurring opinions are opinions written by justices who agree with the actual result
reached in a case, for example, that the case should be reversed, but would rely on
authorities other than those depended upon by the author of the opinion. A
concurring opinion often uses language such as the following: “I agree the lower
court erred and its decision should be reversed; however, while my colleagues rely on
Civil Code § 52, I would rely on Probate Code § 901.” For example, in Lynch v.
Donnelly, 465 U.S. 668, 687 (1984), Justice O’Connor’s concurring opinion began
as follows: “I concur in the opinion of the Court. I write separately to suggest a
clarification of our Establishment Clause doctrine.” A concurring justice is essentially
telling others in the majority, “You got the right answer but for the wrong reason.”
Although most concurring justices set forth an actual opinion giving the reasons they
concur, others may simply state, “I concur,” and give no opinion.
Plurality opinions are those in which a result is reached but due to the existence of
numerous concurring opinions, there is no common legal ground upon which the
majority has agreed. For example, in Furman v. Georgia, 408 U.S. 238 (1972), the
five Justices supporting the judgment issued five separate opinions. Although a
plurality opinion resolves the dispute between the litigating parties, it is a weak
opinion because it does not reflect a single rationale that garnered a majority vote. In
fact, the reasoning of the plurality is not binding in future cases although it may be
highly persuasive.
Dissenting opinions are those written by members of the minority who disagree with the
result reached. Just as is seen with concurring opinions, a dissenting judge may write
a full opinion giving the reasons for the dissent or may simply indicate, “I dissent.” If
a certain case hurts your legal position, read the dissent carefully, as it may suggest
arguments against the majority opinion.
Memorandum opinions report routine decisions. They provide a holding or result but
little, if any, reasoning therefor. The decisions of the United States Supreme Court
that merely reflect that a writ of certiorari has been denied are examples of
memorandum opinions. Other memoranda opinions may state only, “For the
reasons given by the court below, we also affirm.” See Figure 4-2 for examples of
memorandum opinions.

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 Figure 4-2
Sample Page from West’s Supreme Court Reporter Showing Memorandum Decisions

Chamber or in-chambers opinions are written by a United States Supreme Court Justice in
his or her capacity as the Justice assigned to a circuit rather than in the capacity of
writing for the majority. An in-chambers opinion is usually used to dispose of an
application by a party requesting some form of interim relief, such as a temporary
injunction or a stay of a judgment or order of a lower court. For example, in a
matter arising out of the Kobe Bryant sexual assault case, the trial court issued an
order prohibiting the press from publishing certain transcripts that the press received
by an inadvertent e-mail transmission. The press requested a stay of the order, and
Justice Breyer, writing an in-chambers opinion as Circuit Justice, denied the
application for a stay. Associated Press v. Dist. Court for the Fifth Dist. of Colo., 542
U.S. 1301 (2004). For another example, a decision by a Supreme Court Justice to
stay an execution of a convicted murderer in his or her assigned circuit is a chamber
opinion. A chamber opinion begins with words such as the following: “Justice Scalia,
Circuit Justice.”
En banc opinions are those in which all judges in a court participate. For example, if all of

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 the judges in the Fourth Circuit sit together to decide a case (rather than the case
being heard by a panel of three judges, as is the usual procedure), the decision is said
to be rendered en banc, literally “in the bench.”

Some Supreme Court cases, such as Bush v. Gore, produce several separate opinions,
and sorting them out can be difficult. Remember that only the majority opinion is the law
that is binding on lower courts. Dissenting opinions and concurring opinions are not the
law and although they may be persuasive, they are not mandatory authorities that must be
followed.

Practice Tip
Headnotes
Never quote from either the synopsis or the headnotes in a published case. Although these editorial
enhancements are very helpful to researchers, they are not the law but rather the publisher’s interpretation
and summary of the law. Recognize these features for what they are — tools to help you pick the right cases to
read and focus on the most pertinent parts of the case.

8. Decision

The final element in a case is the actual decision reached by the court. The final decision
may be to affirm or uphold the determination of the lower court, to reverse or overturn the
determination reached below, or to remand or return the case to the lower court for further
action consistent with the court’s findings. A court may also vacate or annul the prior
ruling. Although, strictly speaking, the word “decision” refers only to the final disposition
of a case, in many instances and in common usage, the words “opinion,” “judgment,”
“decision,” “case,” and “holding” are often used interchangeably to refer to an entire case
from the name of the case to the final decision.

Ethics Alert

Reliance on Non-Majority Opinions

Whenever you cite a case in a document, the reader will assume that you are relying on the majority opinion.
If you are relying on anything other than the majority opinion, such as a dissent, concurring, or plurality
opinion, you must inform the reader by indicating such, as follows: Circuit City Stores, Inc. v. Adams, 532
U.S. 105, 125 (Stevens, J., dissenting).

C. Publication of Cases

1. Official and Unofficial Publication

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Now that you are familiar with the elements of a case, you should become familiar with the
publication of cases and the features provided in the casebooks, which will assist you in
your research efforts. The books in which cases are published are referred to as “reporters”
or “reports,” and each one has a specific abbreviation. If cases are published pursuant to
some statutory directive or court rule, the sets of books in which they are collected are
referred to as “official” reports (although they may be actually published by a private or
commercial publisher). Cases published without this type of governmental mandate are
collected in sets of books referred to as “unofficial” reporters. Although the terms “report”
and “reporter” are often used interchangeably, the term “report” usually refers to an official
set of cases, such as the U.S. Reports or California Reports, whereas the term “reporter”
usually refers to an unofficial set, such as the Supreme Court Reporter or Pacific Reporter.
Keep in mind that the terms “official” and “unofficial” have nothing to do with the
quality or accuracy of the cases. Cases found in “official” sets are neither better nor more
precise than those found in “unofficial” sets. The terms “official” and “unofficial” relate
solely to the method of publication, not to the legal status of the cases. In the rare event of
some discrepancy between two versions of a case, however, the official or government-
approved version will govern. As discussed in Chapter 3, statutes are also published
officially and unofficially. It is important to understand the difference between official sets
and unofficial sets because in many instances case citation rules require one form of citation
over another or may require that a writer provide both citations, giving the official citation
first.
When decisions are rendered by a court, they are initially available in slip form; that is,
as looseleaf sheets of paper, or in small pamphlets. For example, a decision released by the
highest court in North Carolina, the North Carolina Supreme Court, will initially be
published in slip form. It may also be published on the court’s website and on various
Internet sites and will be available on Lexis Advance and Westlaw. At this stage, the
opinion will consist solely of the case name, date of decision, docket number, names of
attorneys, opinion (and concurring or dissenting opinions, if any), and decision. Many of
the extra features discussed above, such as the headnotes and the introductory paragraph or
synopsis, will not yet be present. North Carolina publishes all of its decisions officially and
therefore the case will appear next in softcover temporary volumes called advance sheets and
thereafter in hardbound volumes known as North Carolina Reports.
Because the case itself is not copyrighted and is in the public domain, you would be free
to take the case, photocopy it, perhaps add a few extra features, such as your own form of
headnotes, place it in a set of volumes that you publish, and give the set your name. Such a
publication would be “unofficial,” as there is no statute that directs you to publish this case.
The case in your privately published volume would be word for word the same as that
which appeared in the official North Carolina Reports — after all, what the judge has said in
issuing the opinion is “etched in stone.” What may distinguish your unofficial set of case
reporters from the official set would be the “extra” features such as headnotes, the case
summary or syllabus, and the like. These extra features are often called “editorial
enhancements.”

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 This type of duplication of case publishing by private individuals (or companies) is
exactly what has occurred, and there now exist official and unofficial sets, each of which
might publish the same case and each of which might add special or extra features to the
sets. This is why you cannot quote from or rely exclusively on the headnotes or case
synopsis — they are not usually prepared or written by the court but by a publishing
company, and therefore are not the law. Similarly, the availability of cases on the Internet
(see Chapter 12) arises out of the fact that cases are not copyrightable. Thus, they can be
copied, posted on the Internet, and disseminated to others.

2. Series of Cases

You may have observed that some of the case reports on the shelves are marked Atlantic
Reporter or Federal Reporter, while others indicate Atlantic Reporter 2d Series or Federal
Reporter 3d Series on the spine. In some states, such as California, where there is an
abundance of reported cases, some of the spines indicate California Reports 3d Series and
even California Reports 4th Series.
The switch to a new series (which merely indicates newer cases) does not occur at
regularly scheduled intervals, and you cannot predict when the next series will commence.
It is believed that the change to a new series is done to prevent the volume numbers from
getting too high. For example, volume 300 of the South Western Reporter is followed by
volume 1 of the South Western Reporter, Second Series, and volume 999 of the Federal
Reporter, Second Series is followed by volume 1 of the Federal Reporter, Third Series. If the
volume numbers were to reach 1806, for example, the likelihood of transposing the
numbers and making an error in citation form are much greater.
You do not need to know which years are covered by which series. It is sufficient that
you know, for example, that any case published in Southern Reporter 2d Series is newer than
any case published in Southern Reporter, and so forth.

3. Advance Sheets

After a case is released by a court in slip form, publishers correct minor errors, add the
editorial enhancements such as the headnotes, and then gather and publish the cases in
temporary softcover books or pamphlets referred to as “advance sheets.” These advance
sheets are published to provide rapid access to cases and are often available within a few
weeks after a decision is issued by a court. West publishes advance sheets for its reporters
(usually every two weeks) and sends them to law libraries, agencies, and law firms that
subscribe to its services, much the same way you might subscribe to Sports Illustrated.
The advance sheets are placed on the shelves next to the hardbound volumes they relate
to and are meant to last only until a permanent hardbound volume is published, typically
several months later. Upon receipt of the permanent volume, the advance sheets are
discarded. The permanent volumes will share the identical volume number and pagination
as the earlier advance sheets. Therefore, you may readily rely upon and quote from cases
appearing in the advance sheets because the citation to the page a quote appears on in the

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advance sheet will be identical to the page a quote appears on in the later published
hardbound volume. West is so exacting that if a word is hyphenated between pages 242
and 243 of an advance sheet, it will likewise be hyphenated between pages 242 and 243 of
the later permanent volume. After a case is printed in a West advance sheet but before
publication in hardbound form, West returns the case to the authoring judge for additional
comments or corrections, which are then included in the final print version. In sum, there
are three stages in case publication: slip form, advance sheets, and permanent hardbound
volumes.

D. Publication of State Cases

1. West’s National Reporter System

In 1879, brothers John and Horatio West created and published the North Western
Reporter. The North Western Reporter is unofficial; it is published by Thomson
Reuters/West, which is acting independently and without any direction or order from any
governmental authority. In most instances, the cases “picked up” by West and published in
its North Western Reporter were already being published officially. West, however, believed
that by grouping neighboring states together from the northwest region of the United
States and by adding extra features to its sets of books, it could provide better service to
those in the legal profession and could create a market for its publications. The set was so
successful that West followed it by creating reporters for other geographical regions of the
United States. The sets of books published by West that collect state and federal cases are
collectively referred to as the National Reporter System. In these sets of books West publishes
all the cases released by courts for publication as well as adding numerous cases not released
for official publication and those that were reported as memorandum decisions.
The states that make up each unit of the National Reporter System can be readily seen in
the map shown as Figure 4-3 and are as follows:

147
 These geographical units were the first units created by West. It is not important to
memorize or know which state is published or covered in which unit. It is sufficient if you
understand the general structure of West’s National Reporter System: It is a set of books,
published unofficially, which reports many cases already published officially by many states
themselves. You should know, however, which unit covers the state in which you will be
working. As you can see from the map in Figure 4-3, West’s grouping of the states is not a
perfect geographical division. Certainly no one would view Kansas or Oklahoma as Pacific
states, and yet their cases have been placed in the Pacific Reporter. Thus, although a
knowledge of geography may be helpful in considering which unit publishes decisions from
a certain state, you cannot be absolutely certain unless you review the list that is found in
the front of each and every volume of the books in the National Reporter System units.
No one state has ruled on every issue, and researchers in a state are often required to
search for cases outside their home or forum jurisdiction. West’s grouping of cases from
neighboring states affords legal practitioners the ability to engage in such research.
Although a case from one state is not binding outside its jurisdictional borders (see Chapter
1), in the absence of its own binding authority a state might adopt the position announced
by another state. If it does, under our concept of stare decisis, the principle then binds the
lower courts within that state.
Because West believed that New York, California, and Illinois published so many cases,
it created units just for those states: the California Reporter (created in 1959 to publish cases
from the California Supreme Court, the California Court of Appeal, and the Appellate
Departments of California’s Superior Courts); the New York Supplement (created in 1956,
which publishes decisions of various New York courts); and Illinois Decisions (created in

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1976 to publish cases from the Illinois Supreme Court and Appellate Court but which
ceased publication in 2011). Thus, a case citation to a California case may appear as
follows:

People v. Wright, 40 Cal. 4th 81, 146 P.3d 531, 51 Cal. Rptr. 3d 80 (2006).

This citation indicates there are three sets of books in which you could locate this
California case: the official California Reports, the unofficial Pacific Reporter, and the
unofficial California Reporter. These three citations are called “parallel” citations. The
publication of cases in more than one location can be a great service to a researcher: If the
volume of California Reports that you need is missing from the shelf, you can elect to read
the case in the Pacific Reporter or the California Reporter. Remember that the opinion issued
by the court in People v. Wright will be the same no matter which of the three sets you
select to locate the case. What the judge has stated in the opinion will not be revised by
West’s books in any manner. What will differ, however, may be the color of the set, the
quality of the paper used, the typeface, and the editorial enhancements such as headnotes
and the case summary or synopsis.

Figure 4-3
National Reporter System Map Showing the
States Included in Each Reporter Group

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 As is common with well-established and popular sets, all of the regional units have
reached the second series (S.E.2d and N.W.2d), and five reporters have reached their third
series (A.3d, P.3d, N.E.3d, S.W.3d, and So. 3d).
If you are puzzled why multiple sets of case reporters are needed, you should simply
bear in mind that many different types of automobiles are also available in the United
States. It is possible to buy a Ford, a Chevrolet, a Nissan, or a Honda. Each car will provide
the same function: transportation. Yet an individual may develop a preference for one
manufacturer or may select one model over another based on considerations of price or
available options. The same is true for law firms, corporations, and agencies. Some may
elect to purchase official reports rather than unofficial reporters based upon price or some
other consideration, and some may prefer the many extra and integrated features found in
West’s National Reporter System.
One of the advantages of the National Reporter System units lies in its grouping of states.
A law firm in South Carolina that purchases the official South Carolina Reports will acquire
a set of books that contains cases from South Carolina. If that firm purchases the South
Eastern Reporter, however, it will acquire a set of books that contains decisions not only
from South Carolina but also from Georgia, North Carolina, Virginia, and West Virginia.
This allows legal professionals in states without a rich or complex body of case law to review

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decisions from other states, which decisions might be relied upon if a case of first
impression arises in South Carolina. Thomson Reuters/West also markets about 30 state-
specific versions of its regional reporters. For example, in Massachusetts a law firm can
purchase a set called Massachusetts Decisions comprising only the Massachusetts cases from
the North Eastern Reporter. Descriptions of the sets of books published by West are available
on its website at http://legalsolutions.thomsonreuters.com/law-products.
West’s National Reporter units often publish cases that would not otherwise be
published in the official state reports. This is because West will publish cases that have been
designated “not for publication” due to the fact that these cases do not advance legal theory
or are duplicative of other already published cases.
Interestingly enough, and perhaps because of its publishing expertise, West has been
recognized as the official or primary source of decisions in a majority of the states. Thus,
although Arizona Reports and Ohio State Reports are the official sets of the respective states,
the actual publication of the books is accomplished by West. Similarly, some states have
adopted West’s regional reporters as their official state reporters.
Additionally, the availability of unpublished opinions on the computerized legal
research systems, Lexis Advance and Westlaw, on the Internet, and in the newly published
Federal Appendix has contributed to the increasing proliferation of cases. As noted earlier,
many states attempt to reduce the mass of legal publication by enacting court rules or
statutes prohibiting citation of cases in court documents unless those cases have been
marked “for publication.” Others require authors citing unreported cases in court briefs to
include a copy of the case with any document citing the case. In any event, at present, an
unreported case is not binding precedent under the doctrine of stare decisis but is rather
persuasive authority only. As noted, the issue whether researchers should be allowed to cite
to unpublished opinions in documents submitted to courts has generated considerable
controversy, leaving state courts highly divided as to whether to allow (and the effect of)
such citation.

2. Citation Form

Although citation form will be covered in depth in Chapter 8, at this point you should
know one importance of distinguishing an official citation from an unofficial citation.
Many courts require that citations to state court cases include a citation to the official state
report followed by a parallel citation to West’s regional reporter. Thus, you will need to
know the units in West’s National Reporter System so that when you are confronted with a
case citation such as Neibarger v. Universal Cooperatives, Inc., 439 Mich. 512, 486 N.W.2d
612 (1992), you will know that because the North Western Reporter is one of West’s
National Reporter System unofficial regional units, the citation to it should follow the official
Michigan Reports citation. Under The Bluebook (unless local rules require otherwise), the
citation would include only the West regional reporter and not the official citation, as
follows: Neibarger v. Universal Cooperatives, 486 N.W.2d 612 (Mich. 1992).

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3. Discontinuation of Some Official Reports

Because of the success and accuracy of West’s National Reporter System, and because many
researchers preferred using and buying these regional reporters with their convenient
grouping of cases from neighboring states and user-friendly editorial enhancements, many
states have ceased publishing their cases officially. In fact, between 1948 and 1981, 20
states discontinued officially publishing their cases. Another reason for the discontinuation
of official reports in many states is the expense of publishing cases that West will also be
publishing and that may also be released on the Internet. In the states shown below there
are no longer parallel citations, and the only citation to cases from these states is to the
appropriate geographical unit of West’s National Reporter System:

E. Publication of Federal Cases

1. United States Supreme Court Cases

a. Publication

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United States Supreme Court cases are published in the following three sets of books. Most
law firms or offices will purchase only one set.

(1) United States Reports (U.S.)

The United States Reports is official. It is published by private firms under contract with
the United States Government Publishing Office and comprises more than 560 volumes.
Approximately three to five volumes, totaling 5,000 pages, are published each year.
Initially, cases from the United States Supreme Court were published in sets of books
named after the individuals responsible for publishing the set. Thus, the initial 90 volumes
of this set have names on the spines such as Dallas, Cranch, Wheaton, and Peters. In 1875,
it became apparent that it was unsatisfactory to name a set after an individual who would
inevitably retire or die. Therefore, in 1875, the set that reported United States Supreme
Court cases was named the United States Reports. The older volumes were later numbered
consecutively. Citations to these older cases appear as follows: Turner v. Fendall, 5 U.S. (1
Cranch) 117 (1801). When you observe such a citation, you should simply realize the case
is very old. Cases in United States Reports appear initially as bench opinions, which are small
pamphlets issued to the press and the public on the day opinions are announced by the
Court. Several days later the case will be printed in slip form and then in softcover advance
sheets. Several months later, the hardbound volumes are published and sent to law firms,
law libraries, and other subscribers.

(2) Supreme Court Reporter (S. Ct.)

The Supreme Court Reporter is published by West and is unofficial. It is another unit of
West’s National Reporter System. This set began its coverage in 1882 and reports in full
every decision rendered by the United States Supreme Court since that time. Cases initially
appear in advance sheets, which are issued twice a month. The advance sheets are later
discarded and replaced by temporary interim volumes, which remain on the bookshelves
for two or three years until the final permanent corrected and hardbound volumes are
available.

(3) United States Supreme Court Reports, Lawyers’ Edition (L. Ed.)
United States Supreme Court Reports, Lawyers’ Edition (and Lawyers’ Edition 2d), is
published by Lexis and is unofficial. It was created in response to a need among lawyers for
less expensive books reporting Supreme Court cases than the official ones then being
published. It contains all decisions issued by the Supreme Court since 1789. This set
contains many useful editorial features such as quick summaries of the holdings of the
cases, summaries of the briefs of counsel for the parties in the cases (given for older cases),
research references, and, for some cases, annotations or essays written by Lexis’s staff
attorneys on significant legal issues raised in the case. Be careful when reading older cases
reported in Lawyers’ Edition, as it may be easy to confuse the arguments being advanced by
counsel with the actual opinion of the Court. Make sure you rely only on information

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appearing after the authoring Justice’s name. Any information that precedes the majority
opinion has usually been prepared by the publisher, and although it is extremely valuable
and useful, it is not the law. Cases initially appear in advance sheets about twice per month,
and these advance sheets are discarded when the permanent volumes are received.
There are thus three parallel cites for all United States Supreme Court cases, and you
can locate the 1986 case, Batson v. Kentucky, in three locations: 476 U.S. 79, 106 S. Ct.
1712, and 90 L. Ed. 2d 69. In the event of any conflict in versions of the cases reported in
these volumes, the version of a case found in the official U.S. Reports governs.
All three sets reporting cases from the United States Supreme Court (U.S., S. Ct., and
L. Ed.) include a section called “Syllabus,” given before each opinion published in the set.
The Syllabus is a comprehensive summary of the case to follow. Although it is prepared by
the Court’s Reporter of Decisions, it is not the opinion of the Court itself. Therefore, it is a
useful feature but cannot be quoted from. Be careful to rely only on the case itself, not on
any of the editorial enhancements that accompany a case. Locate the name of the author of
the majority opinion (or the words “per curiam”). This name signals the start of the
opinion. Everything given after it is “fair game.”

b. Rapid Access to United States Supreme Court Cases

As described above, all of the sets that publish United States Supreme Court cases issue
advance sheets. Nevertheless, even the advance sheets may take four to six weeks to be
received. Very rapid access to United States Supreme Court cases can be achieved through
the following sources:

(1) Slip Opinions

After the bench opinion is made available to the public, the United States Supreme
Court issues its opinion in slip form. These slip opinions are available at the United States
Supreme Court the day a decision is announced. The slips are then immediately sent to law
libraries, law book publishers, and other subscribers. The slip opinions can typically be
located in law libraries within five to ten days after the date of decision. The slips will
contain only the decision of the Court and the Court’s Syllabus; they will not include any
editorial features such as headnotes.

(2) Computer-Assisted Research

As we will discuss more fully in Chapter 11, the computer-assisted research services
Lexis Advance and Westlaw usually have the full text of a United States Supreme Court
case within one hour after the decision is released. Other computer-assisted legal research
services also offer immediate access to these cases.

(3) United States Law Week

United States Law Week publishes in looseleaf form (for example, looseleaf pamphlets,

154
which are then maintained in ringed binders), the full text of United States Supreme Court
opinions from the preceding week. Just as you may subscribe to Architectural Digest or In
Style, law firms and law libraries subscribe to United States Law Week to obtain rapid access
to recent United States Supreme Court decisions. In addition to publishing the United
States Supreme Court cases, United States Law Week also indicates which cases have been
docketed or scheduled for hearing by the Court and includes summaries of cases recently
filed with the Court, a calendar of hearings scheduled, and summaries of oral arguments
made before the Court. United States Law Week’s print service is complemented by its e-
mail notification service, called Supreme Court Today, which provides subscribers with e-
mail alerts every day the Court decides a case or grants or denies review. Highlights and
summaries of arguments are also included.

(4) Newspapers
Many law firms and law libraries subscribe to legal newspapers, which report news of
interest to legal professionals. Often these newspapers will print United States Supreme
Court cases in full as well as cases from lower federal courts or cases from the courts in the
state in which the newspaper is published. These newspapers are generally available within a
few days after the decision is rendered.

(5) Westlaw Court Express Document Research and Retrieval

West provides a variety of services allowing ready access to cases. Specifically, Westlaw
Court Express Document Research and Retrieval provides public records, court documents,
and so forth by overnight delivery, e-mail, or fax. Call 1-877-DOC-RETR.

(6) Internet
As discussed in Chapter 12, Supreme Court cases are now available at no cost on many
Internet sites. The most authoritative site is that of the Supreme Court itself at
http://www.supremecourt.gov. The text of each opinion is posted to the Court’s site within
an hour after the opinion is announced.

2. United States Courts of Appeal Cases

The set of books that publishes cases from the intermediate courts of appeal (for example,
First Circuit, Second Circuit, and so forth) is the Federal Reporter (abbreviated “F.”) and
the Federal Reporter, Second Series and Third Series (abbreviated as “F.2d” and “F.3d”). The
Federal Reporter was created by West in 1880 to publish decisions from the United States
Courts of Appeal. Although the primary function of the Federal Reporter is to publish
decisions from these intermediate federal courts, it has published cases from various other
courts as well. See Figure 4-4.
This set of reporters is unofficial and is yet another of the units in West’s National
Reporter System. In fact, the Federal Reporter is the only set that reports decisions from these

155
intermediate courts of appeal. Although only approximately 12 percent of the cases for the
Courts of Appeal are published, the Federal Reporter grows by about 20 to 25 hardbound
volumes each year. There is no official reporter for these cases. Thus, there are no parallel
cites for cases from our federal courts of appeal. The only citation that you will encounter is
to the Federal Reporter or Federal Reporter, Second Series or Third Series. As is typical of
publication of court decisions, the cases are initially published in softcover advance sheets
that are later replaced by hardbound permanent volumes.
Although the overview of the Federal Reporter, as shown in Figure 4-4, is a useful
historical guide, it is sufficient to know that the chief role of the Federal Reporter is to report
decisions from the United States Courts of Appeal.
As discussed earlier, in 2001 West began publishing a new set of books, the Federal
Appendix, which reports opinions from all courts of appeals that are not selected for
publication in the Federal Reporter. Each case begins with the announcement, “This case
was not selected for publication in the Federal Reporter.” The set is part of the National
Reporter System. Each case includes West’s editorial enhancements, such as case synopses,
key numbers, headnotes, and so forth. As a researcher, you will be able to access
unpublished federal decisions (through Lexis Advance and Westlaw, the online legal
research systems, on the Internet, and now through the Federal Appendix), but you must
comply with all federal and court rules regarding citation to such opinions when you
submit documents to a court.

3. United States District Court Cases

You will recall from Chapter 2 that the United States District Courts are the trial courts in
our federal system. You may also recall that Section A of this chapter noted that trial court
decisions are not usually published. An exception to this general rule lies in the Federal
Supplement and Federal Supplement, Second Series and Third Series (abbreviated as “F.
Supp.,” “F. Supp. 2d,” and “F. Supp. 3d”), created in 1932 by West and which publish
decisions from the United States District Courts, our federal trial courts. Although the
Federal Supplement and its Second and Third Series publish decisions from other courts as
well (see Figure 4-5), their key function is to report decisions from these United States
District Courts, although they publish only about 15 percent of the cases heard by our
federal district courts. The Federal Supplement (and its later series) are other unofficial West
publications and are a part of West’s National Reporter System. The Federal Supplement and
its Second and Third Series are the only sets of books that publish United States District
Court cases. Thus, there are no parallel citations for United States District Court cases. Just
as with other case reports, cases appear first in advance sheets and later in hardbound
volumes.

Figure 4-4
Coverage of the Federal Reporter

156
 Figure 4-5
Coverage of the Federal Supplement

4. Cases Interpreting Federal Rules

Yet another unit in West’s National Reporter System, the Federal Rules Decisions set,
publishes United States District Court cases since 1941 that interpret the Federal Rules of
Civil Procedure and, since 1946, cases that interpret Federal Rules of Criminal Procedure.
Federal Rules Decisions (abbreviated as “F.R.D.”) publishes these cases in advance sheets and
then in replacement hardbound volumes. These cases do not otherwise appear in the
Federal Supplement. Thus, the name of this set, Federal Rules Decisions, is perfectly
descriptive of its function: It publishes cases that construe federal rules, whether those rules
are rules of procedure for civil cases or for criminal cases. Articles that provide comment on
the federal rules are also included.

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 Practice Tip

Common Legal Abbreviations in Law Books

Newcomers to the legal profession are often bewildered by the numerous odd abbreviations found in law
books. With just a little time and effort, you will be able to understand and translate the quirky abbreviations
you see. Black’s Law Dictionary (10th ed. 2014) includes a table of abbreviations, and The Bluebook is helpful
in interpreting legal abbreviations.

Another book, Prince’s Bieber Dictionary of Legal Abbreviations (6th ed. 2009) by Mary Miles Prince and
published by William S. Hein & Co., offers a dictionary of legal abbreviations and acronyms. Many law
libraries have a copy of this useful book. Finally, the front of each volume of West’s encyclopedia Corpus Juris
Secundum includes a table of legal abbreviations.

Following are some of the more common abbreviations you will encounter:

A. or Atl. Atlantic Crim. Criminal

P. Pacific (or Procedure) Ct. Court
S.E. South Eastern Super. Superior
S.W. South Western
N.E. North Eastern C.D. Central District
N.W. North Western E.D. Eastern District
So. or S. Southern M.D. Middle District
F. or Fed. Federal N.D. Northern District
R. Rule, Rules S.D. Southern District
Supp. Supplement or Support W.D. Western District
App. Appellate or Appeal or Appendix J. Judge, Justice
(or Journal)
D. or Dist. District JJ. Judges, Justices
Div. Division A.J. Associate Judge, Associate Justice
Ch. Chapter or Chancery C.J. Chief Judge, Chief Justice
Cl. Claims P.J. Presiding Judge
Cir. Circuit L. Law
Civ. Civil

F. Star Paging

Citation form will be thoroughly discussed in Chapter 8, but for now it is sufficient if you
are aware that many court rules require that citation to cases include all parallel cites. The
rule for United States Supreme Court cases is far different. The Bluebook requires that for
United States Supreme Court cases, you are to cite only to the official United States Reports.
That is, for citation form purposes, it is as if the unofficial sets, West’s Supreme Court
Reporter (S. Ct.) and Lexis’s Supreme Court Reports, Lawyers’ Edition (L. Ed.), do not exist

158
(unless the citation to the United States Reports is unavailable).
Obviously, therefore, the publishers at West and Lexis were in a dilemma. It would be
extremely difficult for these publishers to attempt to market their sets of books because no
matter how wonderful and useful the extra features contained in these unofficial sets might
be, law firms and other users would be highly unlikely to purchase a set of books that could
not be cited or quoted.
The publishers at West and Lexis thus developed a technique of continually indicating
throughout their sets which volume and page a reader would be on if that reader were using
the official United States Reports. This technique of indicating page breaks in the official set
is called “star paging” because the early method of indicating when a new page commenced
was through the use of a star or asterisk (*).
Lexis indicates its page breaks with a boldface reference in brackets, as in [546 US 14].
West uses an inverted “T.” For example, if you are reading a case in West’s Supreme Court
Reporter, each page therein will provide you with the parallel citation to the official United
States Reports. This citation is usually found in the upper corner of each page. As you are
reading through the opinion, you might see language such as the following:

“We therefore the law of implied indemnity . . . . ”

Such an indication informs you that if you were reading this case in the United States
Reports, after the word “hold” you would have turned the page to page 218. The first word
on page 218 in that volume of the United States Reports would be “that.”
Star paging is entirely self-correcting. If you have any doubt that you are converting the
page numbers accurately, you can always retrieve the appropriate volume of the United
States Reports and verify that the first word on page 218 is “that.” As a result, no matter
which set of unofficial books you use for United States Supreme Court cases, you can
readily tell the page you would be on if you were holding the official United States Reports.
Figure 4-6 shows a sample page illustrating star paging. Star paging is also found in many
other West sets, such as in the Pacific Reporter, California Reporter, and the New York
Supplement, directing you to pagination for the official California and New York reports.
When you read cases on the Lexis Advance or Westlaw screens, star paging is also provided
(by the use of brightly colored numbers) so that you can determine where the page breaks
occur in the print versions of the cases you are viewing on the screen.

Figure 4-6
Sample Page from Lexis’s Lawyers’ Edition,
Second Series Showing “Star Paging”

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 G. Specialized National Reporter System Sets

There are additional sets of books that are also a part of West’s National Reporter System
series. These reporters, however, publish very specialized cases and are as follows:

• West’s Military Justice Reporter. This set publishes decisions from the United
States Court of Appeals for the Armed Forces and the military courts of criminal
appeals and their predecessors.
• West’s Veterans Appeals Reporter. This set publishes cases decided by the United
States Court of Appeals for Veterans Claims, created in 1988, and previously
named the United States Court of Veterans Appeals.
• West’s Bankruptcy Reporter. The Bankruptcy Reporter publishes selected decisions
that are not found in the Federal Supplement and that are decided by the United
States Bankruptcy Courts, the Bankruptcy Appellate Panels, and the United States
District Courts. Additionally, this set reprints bankruptcy decisions of the United
States Courts of Appeal and the United States Supreme Court.
• West’s Federal Claims Reporter. This set (previously called United States Claims
Court Reporter) publishes decisions from the United States Court of Federal Claims

160
 (formerly called the United States Claims Court). Cases include tax refund suits,
government contracts cases, environment and natural resource disputes, and
civilian and military pay questions.
• West’s Federal Cases. Until 1880, when West began publishing cases from the
lower federal courts, there was no one comprehensive set of books that reported
decisions from these courts. Although several sets existed, none were adequate.
Therefore, in 1880, West collected all of these lower federal court cases together
and republished them in a set of books titled Federal Cases. Federal Cases is a very
unusual arrangement of cases as it publishes these lower federal court cases that
preceded the establishment of the National Reporter System in alphabetical order
rather than chronological order, as is the usual format. If you examine Federal Cases,
you will note that each case is assigned a consecutive number, with the first case
referred to as No. 1, The Aalesund, and the last case referred to as No. 18,222, In re
Zug. Because Federal Cases covers much older cases, it is rarely used and is often
available only at larger law libraries.

Practice Tip
Google Scholar

A new feature introduced by Google, “Google Scholar,” allows free and easy searching of court opinions from
federal and state courts. Access https://scholar.google.com and select the “Case law” button. Type in your case
name, citation, or search terms in plain English and you will be directed to cases relating to your topic. You
may also explore related cases, articles, and cases that have cited your case.

H. Features of West’s National Reporter System

The case reporters in Thomson Reuters/West’s National Reporter System possess a number
of useful editorial features that aid in and simplify legal research. These features are found
in both the advance sheets and the permanent hardbound volumes (except as noted) and
are as follows:

1. Tables of Cases Reported

There will be at least one alphabetical table of cases in each volume of West’s National
Reporter System sets. For example, in any volume of the Supreme Court Reporter, there will
be a complete alphabetical list of all of the cases in that volume. This feature is useful if you
know the approximate date of a Supreme Court case and need to examine a few volumes of
the set to locate the specific case itself. Additionally, you may have inadvertently transposed
the numbers in a citation and be unable to locate the case you need. The table of cases will
allow you to look up the case you desire, and then locate the specific page on which it
appears. Cases can be found by using either the plaintiff’s or the defendant’s name.

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 Some sets of books have two tables of cases. For instance, any volume in the Pacific
Reporter will contain one complete alphabetical list of the cases in that volume as well as an
alphabetized list of the cases arranged by state so that the Alaska cases are separately
alphabetized, the Arizona cases are separately alphabetized, and so on. Similarly, any
volume in the Federal Reporter will possess one complete alphabetical list of the cases in that
volume and will also separately arrange and alphabetize the First Circuit cases, then the
Second Circuit cases, for example.

2. Tables of Statutes and Rules

The Table of Statutes will direct you to cases in a volume that have interpreted or
construed any statutes or constitutional provisions. Thus, if you are interested in whether
any recent cases have interpreted N.Y. Banking Law § 317 (McKinney 2012), you can
consult the table of statutes in any recent volume of the North Eastern Reporter, and you
will be directed to the specific page in the volume that interprets that statute.
Similarly, there are tables listing all federal rules of civil and criminal procedure, federal
rules of appellate procedure, and federal rules of evidence that are construed by any cases in
a particular volume. This feature is not found in all sets or in newer volumes.

3. Table of Words and Phrases

This table alphabetically lists words or phrases that have been interpreted or defined by any
cases in a volume of the National Reporter System. For example, you can consult the Table
of Words and Phrases and determine if the words “abandonment,” “negligence,” or
“trustee” have been defined by any cases in a volume, and you will be directed to the
specific page in a volume on which such a word is judicially defined. This feature is not
found in all volumes or sets.

4. List of Judges

This feature is found only in the hardbound volumes of the National Reporter System and is
a list of all of the judges sitting on the courts covered by that particular volume. Thus, any
hardbound volume of the Federal Reporter will provide a list of First Circuit judges, Second
Circuit judges, and so on.

5. Key Number System

Although West’s Key Number System will be described in full in the next chapter, for the
present it is sufficient to know that in the back of each hardbound volume in West’s
National Reporter System (except the Bankruptcy Reporter and the Federal Claims Court
Reporter), West will provide a brief summary of each case in the volume arranged by topic
and key number. All of the books in the National Reporter System are participants in the
Key Number System, West’s integrated research system that helps you find cases discussing
similar points of law.

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 I. Finding Parallel Cites

You have seen that many cases can be found in more than one place. This is because many
cases are published officially and unofficially. The different citations to a case are known as
parallel cites.
On some occasions, you may have one cite and may need the other parallel cite. This
could be due to the fact that court rules require all parallel cites or it could be for the very
practical reason that the volume you need is missing from the library bookshelf, and you
must obtain the parallel cite to locate the case you need. There are several techniques you
can use to find a parallel cite.

• Cross-References. Many cases provide all parallel cites. For example, if you open a
volume of California Reports to the case you need, at the top of each page you are
given all parallel cites for this case. Similarly, most of West’s reporters will provide
the official citation for cases they report unofficially. Note that all parallel citations
are shown at the top of Figure 4-6. Additionally, Lexis Advance and Westlaw
screens display parallel citations.
• National Reporter Blue Book and State Blue and White Books. West’s National
Reporter Blue Book gives you tables converting official citations to unofficial
regional citations. Similarly, for about one-half of the states, West publishes Blue
and White Books, which also provide conversion tables with parallel citations.
Unfortunately, West recently discontinued publishing all of these sets, and no
further updates to the sets are being produced.
• Shepard’s Citations and KeyCite. As you will learn in Chapter 9, when you
Shepardize or KeyCite either an official or an unofficial citation, you are given the
parallel cite.

The Final Wrap-Up

Using and Citing Cases

Use: Use cases to support the legal assertions you make. Focus on the relevant facts
and the reasoning relied upon by the deciding court. Did the court establish a
new rule of law? Is the holding limited to the particular facts of the case, or is it
broad enough to serve as a precedent in later cases? Also use cases to direct you
to other authorities, both primary and secondary. Most court opinions cite
numerous other legal authorities, many of which may be helpful to you.
Citation: Because cases are primary authority and because they are binding in your
jurisdiction (assuming they are on point), your documents will probably cite
cases more than any other authorities. Use proper citation form.

163
 • State Digests. West has published sets of books called “digests” for each state
except Delaware, Nevada, and Utah. These digests (discussed in detail in the next
chapter) contain tables of cases, which provide parallel citations. Thus, if you look
up a case by name in the Table of Cases for the Wisconsin Digest, you will be
provided with the citation for the case in the Wisconsin Reports as well as in the
North Western Reporter.

J. Summary of West’s National Reporter System

Thomson Reuters/West’s National Reporter System is a series of sets of case reporters that
publishes cases from state appellate courts and from federal trial and appellate courts. All of
the sets of books in the National Reporter System are unofficial because the books are
published privately by West rather than pursuant to some statutory directive or mandate.
Although West’s National Reporter System is the largest collection of case reporters, West is
not the only publisher of cases. For example, Lexis publishes United States Supreme Court
cases in its set United States Supreme Court Reports, Lawyers’ Edition.
West publishes state court cases in various regional units, each of which contains cases
from a particular geographical area. The regional units are as follows:

North Western Reporter

Pacific Reporter
North Eastern Reporter
Atlantic Reporter
South Western Reporter
Southern Reporter
South Eastern Reporter

Because the states of New York, California, and Illinois decide so many cases, West also
created the following separate sets just for these states:

New York Supplement

California Reporter
Illinois Decisions (discontinued in 2011)

Federal cases are published in these sets of books:

Supreme Court Reporter (cases from the United States

Supreme Court)
Federal Reporter (cases from the United States

164
 Courts of Appeal)
Federal Supplement (cases from the United States District Courts)
Federal Rules Decisions (cases interpreting federal rules of civil and criminal procedure)

West also publishes other sets, which are descriptively titled, such as the Military Justice
Reporter, the Veterans Appeals Reporter, the Bankruptcy Reporter, and the Federal Claims
Reporter. The Federal Appendix reports unpublished decisions from the United States
Courts of Appeal. Specialized sets exist for about 30 states, such as Kentucky Decisions and
Texas Cases.
All of the books in West’s National Reporter System possess a variety of useful features
and all are participants in West’s Key Number System, which is described in full in
Chapter 5. See Figure 4-7 for a summary of case law publication.

K. Briefing Cases

The importance of cases in our common law system has already been discussed. You will
also recall that in our legal system it is not sufficient merely to read a statute assuming that
it will provide the answer to a question or problem because it is the task of our courts to
interpret and construe statutory language. Thus, reading, interpreting, and analyzing cases
are of critical importance to all involved in the legal profession.
Few people find it natural to read cases. The language used by courts is often archaic,
and the style of writing can make it difficult to comprehend the court’s reasoning.
Moreover, the topics discussed in cases are often complex. The most common technique
used to impose some order or structure on the confusing world of case law is case briefing.
Do not confuse the word “brief” in this context, in which it means a summary of the key
elements of a case, with the written argument an attorney presents to a court, which is also
called a “brief.” A case brief is a short, written summary and analysis of a case.

Figure 4-7
Summary of Case Law Publication

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 Practice Tip

Finding Authorities
Be a smart researcher. When you read cases, be alert to references to other cases and legal authorities cited in
the opinion. These may help you in your research tasks.

It is extremely common for law students to brief cases so in the event they are called
upon in class to discuss a case, they will have a convenient summary to use. Moreover,
practicing attorneys often desire to have cases briefed so they may save time by reading the
briefs first and then, based upon the initial reading, analyze only selected cases in full. In
some instances, months can go by between hearings in court, or new attorneys and
paralegals may join the legal team. The case briefs for a matter handled by the team should
be sufficiently readable and useful that new team members can be immediately brought “up
to speed” by reviewing the briefs.
Perhaps the primary reason for briefing cases, however, is to learn how to focus on the
important parts of the case in order to obtain a thorough understanding of the case and its
reasoning. Although you may be tempted to view case briefing as busywork and may

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believe you can understand a case by simply reading it through, research has shown that
people tend to read quickly and see words in groupings. Briefing a case will force you to
slow down and concentrate on the critical aspects of the case.
Preparing a case brief requires you to tear the case apart and rebuild it in a structure
that helps you and others understand it. Case briefing helps develop your analytical skills
and forces you to focus on the critical parts of a court’s opinion. In a sense, you are taking
notes on the cases you read, and just as explaining a difficult concept to another helps you
understand it better, preparing a case brief will help clarify your comprehension of the case.
As discussed below, after you have mastered case briefing and thus trained yourself to
analyze cases properly, you may be able to dispense with separately prepared written briefs
and be able to brief cases by merely underlining or highlighting the key portions of cases.
The first briefs you prepare may be nearly as long as the case itself. This is because it
takes practice to learn to recognize the essential elements of a case. Initially, every part of
the case will seem critical to you. With time, however, you will develop skill at briefing and
will be able to produce a concise summary of cases. Ideally, a case brief should be no more
than one typed page, although longer and more complex cases may require a longer brief.
There is no one perfect form for a case brief. Some large law firms provide suggested
formats. If no form is given to you, you should use a style that best suits you and helps you
understand the case and its significance as a precedent for the research problem on which
you are working. Read through a case at least once before you begin to brief it so you will
have a general idea as to the nature of the issues involved and how the court resolved these
issues. Resist the temptation to read only the headnotes or to skim the case. A close scrutiny
of the case may reveal critical analysis likely to be overlooked in a cursory reading. See
Figure 4-8 for some reading strategies.
It may take you several readings of a case to understand it thoroughly. You may need to
take notes, and prepare a diagram or flowchart showing the path the case followed in
reaching this court and the relationship of the parties to each other.

Figure 4-8
Case Reading Strategies

Consider the following strategies to help you better understand the cases you read and
to help prepare case briefs.

• During your first reading, focus on who the parties are and what relief they wanted
from the court. Ask, “What is the plaintiff’s gripe?” and “What is the defendant’s
defense?”
• Figure out what happened at the court(s) below and then determine what this
reviewing court’s decision is. Knowing the court’s decision in advance will help you
make sense of the case when you read it more thoroughly.
• Look for clues. Watch for language in the court’s opinion such as “It is critical to
note that,” “although we have previously held that,” and other signals that what

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 follows such expressions is key to the court’s decision.
• Look up all Latin words and any words you don’t understand.

Good case briefs share the following elements:

• They use complete sentences.

• They do not overquote from the opinion.
• They do not include unnecessary, distracting citations.
• They do not include the writer’s personal opinions.
• They are brief, ideally one page in length.

The most common elements to be included in a case brief are the following (although their
order of presentation may vary to some degree):

1. Name of case. Give the case name following Bluebook rules or as it appears in the
running head on the top of each page of the case.
2. Citations. All parallel citations should be included as well as the year of decision.
These citations will enable you and others to retrieve the case later if you need to
relocate it. Use correct citation form.
3. Procedural history. This is a brief summary of the holdings of any previous court(s)
and usually includes the disposition of the case by this court. A procedural history
describes how the case got to this court and how this court resolved the case. It will
be significant whether the prior decision is a trial court decision or an appellate
court decision. Consider briefly identifying the parties and stating the nature of the
action, the relief they were seeking, or the defenses they raised. Then proceed to
discuss what the court(s) below held and the final disposition by this reviewing
court. In many instances, the procedural history or background can be summed up
in one or two brief sentences.

Practice Tip

Determining Procedural History

Westlaw offers a new feature to enable you to view the procedural background of cases. When you access a
case on Westlaw, click on “History,” which will be displayed on the screen. You will be given a flowchart,

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showing the path a case has followed through the courts. These easy-to-understand timelines display in
graphical manner, with boxes and arrows, a case’s route through the court system, allowing you to grasp a
case’s procedural history visually. Although Lexis Advance does not show the procedural history of a case in a
flowchart format, it includes a brief description of a case’s subsequent and prior history when a case is
displayed on the screen.

4. Statement of facts. A case brief should include a concise summary of the facts of the
case. You need not include all facts but rather only the significant facts relied on by
the court in reaching its decision. Facts that affect the outcome of a case are called
“relevant facts” or “material facts.” Identify the parties by name and indicate
whether a party is a plaintiff, defendant, and so forth. The facts are more readable if
they are presented in a narrative rather than outline or “bullet” format. Discuss facts
in the past tense. A chronological presentation of the facts is usually the most
helpful to a reader. Thus, tell a story in plain English, giving enough facts that the
issue the court is being called upon to decide is apparent from reading these facts.
Although a chronological presentation is the most typical way facts are presented, if
the facts have no temporal relationship to each other, consider grouping the facts by
topic or by the claims or causes of action presented by the plaintiff. If certain facts
are disputed, note such. Some case briefs present the statement of facts before the
procedural history; this can be helpful if the procedural history is complex, and
putting the statement of facts first can help the reader better understand the
procedural history.
5. Issue(s). You must formulate the question(s) or issue(s) being decided by this court.
Focus on what the parties asked the court to determine. In some instances, courts
will specifically state the issues being addressed. In other instances, the issues are not
expressly provided, and you will have to formulate the issue being decided. Phrase
the issue so that it has some relevance to the case at hand. Thus, rather than stating
the issue in a broad fashion (“What is an assault?” or “Did the lower court err?”),
state the issue so it incorporates some of the relevant facts of the case (“Does a
conditional threat constitute an assault?”). Keep each issue or question to one
sentence in length. If you have trouble formulating the issue, locate the rule the
court announces and then convert this into question form.

In any event, the issue should be phrased so that it can be answered “yes” or

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 “no.” If there are several issues, number each one and place each at the left margin.
Do not number a single issue.
There are three ways issues can be phrased: a direct question, the “whether”
format, or the “under” format. A direct question might ask, “Is pointing an
unloaded gun at a person an assault?” The “whether” format would phrase the same
question as follows: “Whether pointing an unloaded gun at a person is an assault.”
The “under” format would result in the following phrasing: “Under California law,
is pointing an unloaded gun at a person an assault?” Generally, any of these formats
is acceptable, although some attorneys dislike the “whether” form of issue because it
results in a fragment rather than a complete sentence. Pick one format and use it for
all your issues.
6. Answer(s) or Holding(s). Provide an answer(s) to the question(s) being resolved by
this court. Rather than merely stating “yes” or “no,” phrase the answer in a complete
sentence and incorporate some of the reasons for the answer. For example, if the
issue is “Does a conditional threat constitute an assault?” rather than merely stating
“no,” state, “A conditional threat does not constitute an assault because a condition
negates a threat so the hearer is in no danger of present or immediate harm.” If you
have set forth three issues, you will need three separate answers. Each answer should
be no more than two or three sentences in length. Strive for one-sentence answers.
Do not include citations. A brief answer or holding such as “the court below did not
err in distributing the value of a celebrity’s goodwill” is not helpful to the reader.
Each answer should directly respond to the issues you have phrased.

7. Reasoning. The reasoning is the most important part of a brief. This is the section
in which you discuss why the court reached the conclusions it did. Were prior cases
relied upon? Did the court adopt a new rule of law? Is the decision limited to the
facts of this particular case, or is the decision broad enough to serve as binding
precedent in similar but not identical cases? Did the court discuss any social policy
that would be served by its decision? Fully discuss the reasons why the court reached
its decision and the thought process by which it arrived at this decision. Make sure
you apply the court’s reasoning to the facts of your case. Re-read your issue(s) and
answer(s) and then ensure that the reasoning is directly responsive to these and
answers the why question. Citations may be included in this section but are often
not necessary. Use your own words in summarizing and explaining the court’s
reasoning rather than overquoting from the case. This will help ensure that you
understand the rationale for the court’s decision. Don’t be concerned that there will

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 be repetition in your case brief. As you have seen, the brief answer or holding nearly
parrots the language of the issue. The same or similar language will reappear as part
of your reasoning section. A case brief is not meant to be a thrilling work of
literature. It is meant to help you develop your analytical skills and provide a
convenient summary of a case.
8. Decision. Include the actual disposition of this case, such as “The Idaho Supreme
Court affirmed the decision of the Court of Appeals.”

Practice Tip
Formulating Issues

To gain experience in formulating issues for case briefs and other court documents, review the briefs filed
with the U.S. Supreme Court, and examine the “Questions Presented.” The Supreme Court requires all
petitions for writs of certiorari and all briefs on the merits for petitioners to set forth the questions the Court
is asked to review. Review these questions to sharpen your skills at writing your own question and issue
statements. The briefs may be accessed through the Supreme Court’s website at
http://www.supremecourt.gov.

You may include an additional section in your brief summarizing concurring or

dissenting opinions.
Following is a suggested format for a typical case brief, briefing State v. Boyd, the case
shown as Figure 4-1.

State v. Boyd,

162 N.C. App. 159, 595 S.E.2d 697 (2004)

Procedural History
Defendant Boyd was convicted of conspiracy to sell a controlled substance but
acquitted of the crimes of sale of a controlled substance, contributing to the delinquency of
a minor, and employing and using a minor to commit a controlled substance offense. He
appealed his conviction and sentence. The Court of Appeals affirmed.

Statement of Facts
Defendant was convicted of conspiracy to sell crack cocaine arising out of a police
undercover operation. The evidence at trial showed that Defendant supplied the cocaine to
a minor, Hampton, who actually conducted the sale to the undercover officers. At the close
of the State’s evidence, Defendant’s attorney did not move to dismiss the conspiracy charge
but did move to dismiss all other charges. Counsel renewed all motions at the conclusion of
all evidence. The motions were denied. The jury convicted Defendant of the conspiracy
charge and acquitted him of the remaining charges. In sentencing the Defendant, the trial
judge found one aggravating factor, that Defendant involved a person under the age of 16

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in the commission of a crime.

Issues
1. May Defendant appeal his conspiracy conviction if he did not make a motion to
dismiss the conspiracy charge at trial?
2. If Defendant is acquitted of certain charges relating to a minor, may the minor’s
age be considered as an aggravating sentencing factor when Defendant is sentenced
for conspiracy to sell a controlled substance?

Answers

1. No. A defendant may not attack on appeal the sufficiency of evidence at trial unless
he makes a motion to dismiss at trial.
2. Yes. A trial court may consider any aggravating factors that it finds proved by a
preponderance of evidence that are reasonably related to the purposes of sentencing.

Reasoning
North Carolina’s rules of appellate procedure provide that to preserve an issue for
appeal, a defendant must make a motion to dismiss the action at trial. Defendant’s counsel
moved to dismiss all charges against Defendant except the conspiracy charge at the close of
the State’s case. At the close of all evidence, he could not renew a nonexistent motion.
Thus, the appellate court was precluded from reviewing the merits of Defendant’s
argument.
If a defendant is acquitted of a crime, it cannot be used as an aggravating sentencing
factor. In this case, however, Defendant was convicted of conspiracy to sell a controlled
substance; thus, Defendant and Hampton were conspirators. Moreover, the parties
expressly stipulated that Hampton was a minor. Thus, the trial court could consider
Hampton’s age as an aggravating sentencing factor when sentencing Defendant on the
conspiracy count.

Decision
The Court of Appeals affirmed the conviction and sentence.

The preceding brief follows a very standard format. A more thorough brief would
include the name of the author of the majority opinion, a reference to how many justices
were in the majority and how many dissented (for example, 2-1), a summary of any
dissenting and concurring opinions, a summary of each party’s contentions and legal
arguments, a discussion of social policies furthered by the decision, and a final section
including your comments and criticism of the case. In most instances, such a thorough
brief is not needed, and the format shown above should suffice for most purposes.
After you have gained experience in case briefing, you may be able to use a technique
some experts have referred to as “Technicolor briefing,” in which you use colored pens and

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highlighters to mark sections of cases as you read them. You will photocopy or print the
cases you need to brief, and annotate the critical sections in the margins. For example, use
“PH” to mark the procedural history section of the case, “I” to designate the issue to court
is deciding, and so forth. In law school, this technique is usually called “book briefing”
because you brief the cases in your casebooks by these notes rather than preparing a separate
brief. You may also use the features on your computer to highlight sections of cases. See
Figure 4-9 for a form for a case brief.
Develop a system of abbreviations to help you mark and annotate the cases you read.
See Figure 4-10 for a list of abbreviations commonly used by practitioners in note-taking.

Case Brief Assignment

Prepare a brief of the case DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015).

Figure 4-9
Case Brief Form

L. Citation Form

1. Federal Cases

a. Cases from the United States Supreme Court: Roe v. Wade, 410 U.S. 113 (1973).
b. Cases from the United States Courts of Appeal: Drakes v. Zimski, 240 F.2d 246 (3d
Cir. 2001).

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 c. Cases from the United States District Courts: Allen v. Carr, 315 F. Supp. 2d 207
(W.D. Tex. 2004).

2. State Cases

Local state rules often require citation to the official report followed by a parallel citation to
a regional reporter, as follows:
Baker v. Dolan, 281 Mich. 114, 204 N.W.2d 909 (1995).
The Bluebook requires legal professionals to follow all applicable local rules. Unless local
rules require parallel citations, under The Bluebook, the citation would include only West’s
regional reporter and not all parallel citations, as follows:
Baker v. Dolan, 204 N.W.2d 909 (Mich. 1995).

Figure 4-10
Common Legal Abbreviations Used by Practitioners

Internet Resources

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Writing Strategies

In discussing cases, it is not enough merely to summarize or repeat the court’s

holding. You must analyze the case and show the reader why and how it applies to
your situation.
By briefing cases, you will force yourself to concentrate on the critical elements of
a case: its procedural background, the facts, the issues, the reasoning, and the
holding. When you later discuss the case in a memo or court brief, you will be “pre-
programmed” to analyze the case properly by virtue of the training you acquired by
preparing case briefs.
In written projects, discuss cited cases in the past tense. Any discussion in a
project in the present tense (“the Defendant argues,” “a duty is owed,” “the Plaintiff
appeals”) will be interpreted as referring to your case, not a cited case on which you
are relying.

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 In discussing cases, you need not give all of the facts. Give sufficient facts,
however, so a reader can see why the case is controlling. If the facts are strikingly
similar to those in your case, recite them in greater detail to allow the reader
immediately to grasp why the result reached in the cited case governs your case.
Confront cases that are contrary to your position head-on. Assume the adversary
will locate these cases. You will minimize their impact if you discuss them yourself.
Emphasize why such cases are not controlling by distinguishing them from your case.
Show the reader that the facts and issues in such unfavorable cases are so different
from those in your case that they cannot be relied upon.
Use “location” to minimize the impact of unfavorable cases. Discuss them briefly
and only after you have set forth your strongest arguments. Discuss them in the
middle of a project rather than at the beginning or end, where they will draw more
attention.

Assignment for Chapter 4

1. Give the name of the case located at 248 P.3d 651 and give its parallel citations.
2. Review 652 S.E.2d 639.
a. Give the name of the case.
b. Review the case synopsis or background. Describe the procedural
background of the case.
c. What topic name and key number have been assigned to headnote 1?
d. Look up the topic name and key number in the Key Number Digest in the
back of the volume. What is the first case to which you are directed?
3. Use the Northwestern Reporter.
a. Give the name of the case located at 790 N.W.2d 225.
b. Give the parallel citation for the case.
c. What does headnote 5 discuss?
d. How does page 641 of the parallel Nebraska Appellate Reports begin?
4. Review 934 A.2d.
a. Give the citation to a Maryland court case in this volume in which the
plaintiff’s name is Mona Electric.
b. Locate this case. How many headnotes are in the case?
5. Briefly state the holding in the case located at 80 So. 3d 1084 (Fla. Dist. Ct. App.
2012).
6. Review 241 P.3d. What case in this volume construes the term “bad faith”?
7. Review 706 S.E.2d.
a. Who is the Chief Judge of the North Carolina Supreme Court for the period
covered by this volume?
b. Use the Table of Parallel Citations beginning on page vii of this volume.

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 What is the parallel citation for the case located at 707 S.E.2d 199?
8. Use the Federal Reporter.
a. What is the name of the case located at 929 F.2d 89?
b. Who or what is the named defendant?
9. Use the Federal Supplement.
a. Give the name of the case located at 119 F. Supp. 2d 1013.
b. Briefly describe the action.
10. Locate the case at 101 F. Supp. 2d 866. How many headnotes are in this case?
11. Use the Federal Appendix.
a. What is the name of the case located at 451 F. App’x 715?
b. What words or instructions are given before the case name?
12. Locate the case at 559 U.S. 1301.
a. In what capacity did the author of the opinion act?
b. Briefly describe the nature of this case.
13. Locate the case at 124 S. Ct. 521. How does page 37 of the parallel United States
Reports begin?
14. Locate the case at 174 L. Ed. 2d 490. How does page 580 of the parallel United
States Reports begin?
15. Locate the case at 516 U.S. 233. What type of opinion is this case?

Internet Assignment for Chapter 4

1. Access the U.S. Supreme Court website and locate “Opinions.”

a. Select “Slip Opinions — Earlier Terms” and review the Opinions for 2014.
Locate the case with the docket number 14-939.
i. What is the name of this case?
ii. What type of opinion was issued in this case?
iii. In which volume of the United States Reports will it be published?
b. Select “2013 Term In-Chambers Opinions” and review the case with the
docket number 13A1003.
i. What is the name of this case?
ii. Identify the Justice with whom this case was filed and in what capacity
it was filed.
iii. What relief was sought? Was the relief sought granted?
2. Access the U.S. Supreme Court website and review the Chief Justice’s Year-End
Report on the Federal Judiciary for 2015. What was the percentage decrease in
total cases filed in the U.S. Supreme Court in its 2014 term?
3. Locate California Rule of Court 8.1115(a). What does it provide?
4. Access Google Scholar and search for cases relating to the patentability of the
BRCA gene.

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 a. What is the first case to which you are directed?
b. How many cases have cited this case?
c. Give any parallel citations for this case.
d. Briefly, were the genes patentable?
5. Locate the most recent case in the U.S. Court of Appeals for the Second Circuit in
which the Authors Guild is the plaintiff. Briefly describe the nature of this case.
6. Access the site Washlaw (Washburn University School of Law). Select “Georgia”
and review decisions of the Court of Appeals. Locate the case with the docket
number A15A2240.
a. What is the name of this case?
b. Briefly describe the nature of this case.
c. What was the decision?

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 Chapter 5

The Use of Digests,

Annotated Law
Reports, and
Words and Phrases
Binding authority . . . cannot be considered and cast aside; it is not merely evidence of what the law is. Rather, case law
on point is the law.

Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)

A. Using Digests to Locate Cases

B. American Law Reports
C. Words and Phrases
D. Citation Form

Chapter Overview
This chapter will complete the discussion of the major primary authorities (statutes,
constitutions, and cases) by explaining the use of digests, which serve as comprehensive
casefinders. Additionally, you will be introduced to annotated law reports, which can
“speed up” the research process and provide you with an exhaustive overview of an area of
the law. These annotated law reports combine elements of both primary and secondary
sources and thus form a bridge between the primary sources of statutes, constitutions, and
cases, which have been discussed, and the secondary authorities of encyclopedias, law
reviews, treatises, and other sources, which follow. Finally, you will be provided with a
discussion of Words and Phrases, a set of books created by West, which can be used to
determine the legal meaning of certain words and phrases, and then direct you to primary
authorities supporting those interpretations.

A. Using Digests to Locate Cases

1. Introduction

It is improbable that an individual with whom you work will simply hand you a list of
citations and ask you to retrieve and photocopy or print the cases cited. It is far more likely
that you will be presented with a description of a research problem and be tasked with
determining the answer. For example, an attorney might describe a client’s current
problems with her landlord by posing the following scenario: The firm’s client rented a

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house from her landlord. Two months later the client noticed the roof was leaking and
notified the landlord repeatedly of this problem to no avail. A recent storm caused water to
leak through the roof, causing $20,000 damage to the client’s expensive furniture and rug.
You may be asked to research whether the landlord is liable for the damage and whether the
tenant may withhold rent from the landlord until the $20,000 damage amount is satisfied.
This common type of research assignment requires you to search for cases that are “on
point,” which will serve as precedents and provide an answer to the client’s questions. Of
course, if an area of the law is likely to be dealt with by statutes, you should remember to
consult initially your annotated code to review the applicable statutes, and then examine
the annotations following the statutes, which will direct you to cases that interpret the
statute.
You will recall that cases are usually published in chronological order. That is, there is
no one set of books called Landlord and Tenant Law that will contain all cases dealing with
landlords and tenants. Such cases are scattered throughout the numerous sets of books. For
instance, each volume in the Nevada Reports may contain a few cases covering this
particular subject matter. You cannot simply start with Volume 1 of the Nevada Reports or
some other set of reports hoping to eventually stumble upon the right case. Such a research
technique is not only inefficient and time-consuming, it may well be ineffective, as it is
possible you could examine the more than 125 volumes of the Nevada Reports only to
discover that Nevada has not yet considered this particular issue.
Legal research requires a much more systematic approach to locating pertinent cases,
and this systematic approach is aided through the use of sets of books called “digests.”
Although there are different types of digests, all of them function in a similar fashion:
Digests assist you by arranging cases by subject matter so that all of the assault cases are
brought together, all of the bribery cases are brought together, all of the contract cases are
brought together, and so on. These digests, however, do not reprint in full all of the assault
cases, but rather print a brief one-sentence summary or “digest” of each assault case and
then provide you with a citation so you can determine which cases you should retrieve and
examine in full. In this way, digests serve as guideposts, which help direct you to the
specific cases you need so you can research as efficiently and effectively as possible. Because
the digest entries are written by publishers (primarily West) and are mere summaries of
cases, the digest entries cannot be quoted from or relied upon. The cases the digests direct
you to, however, will serve as binding authority.

2. The American Digest System

Although there are different types of digests, the majority are published by Thomson
Reuters/West, which realized shortly after it introduced its National Reporter System that
legal professionals needed a method of finding the cases published therein. The most
comprehensive digest set published by West is the American Digest System, which will be
described here in detail. Once you understand how to use the American Digest System, you
will also understand how to use the other West digests because all digests are organized in

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substantially the same manner.
The American Digest System is an amazingly thorough set of books that aims at citing
and digesting every reported case so you can readily locate all cases in a given area of law,
such as corporations, trusts, negligence, or landlord-tenant law. In the American Digest
System, West brings together all cases relating to a legal issue from all of the units of the
National Reporter System. Thus, if you were researching the defenses to battery, you would
be able to locate cases from the Supreme Court Reporter, Federal Reporter, Federal
Supplement, North Western Reporter, Pacific Reporter, and others, all of which deal with
defenses to battery. You should think of the American Digest System as an index to all of
the cases in the entire National Reporter System. The American Digest System is therefore
most useful when you have an extensive research project and you desire to know how
several jurisdictions (both federal and state) have treated a specific legal topic.
West describes its combination of headnotes and topics and Key Numbers as part of
the “greatest time-saving system ever invented to help [researchers] find cases worthy of
further analysis.”

3. Organization of the American Digest System

To understand how to locate cases using West’s American Digest System, it is necessary to
understand how the System is organized. You will recall from Chapter 4 that when a
decision is issued by a court, it consists of a case name, a docket number, a date of decision,
names of counsel, and the opinion itself. West receives a copy of the case, scans or
keyboards it on Westlaw, and assigns it to its editors. These editors are attorneys who
thoroughly read the case and, through a 26-step process, draft the brief synopsis (which
appears after the case name and which concisely summarizes the case) and the headnotes for
the case. If the case discusses seven areas of law, it will have seven headnotes. If the case
discusses 12 areas of the law, it will have 12 headnotes. These headnotes are the brief
paragraphs that precede the opinion of the court. Each headnote is given a consecutive
number, a topic name (Insurance, Covenants, Deeds, Venue, for example) based on the
area of law the headnote deals with, and a “Key Number” (a pictorial design of a key and a
number). Thus, a typical headnote in a case published in any West set of court reports
looks like the following:

7. Gifts 22
Constructive delivery is sufficient where donor’s intention to make the gift plainly appears and the articles
intended to be given are not present or, if present, are incapable of manual delivery.

Such a headnote is the seventh one in the case, its topic is “Gifts,” and its Key Number is
22.
The case is now complete, consisting of the original elements as provided by the court
and the additional features (synopsis and headnotes) provided by West’s editors. The case
will be printed in an advance sheet, which is mailed to law firms, law libraries, and other
subscribers. The headnotes alone, however, are taken by West and published in a monthly

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pamphlet called the General Digest. Last month’s General Digest, therefore, contains all of
the headnotes of all cases published by West in its National Reporter System (North Western
Reporter, Pacific Reporter, California Reporter, Federal Reporter, and so on). The headnotes
are arranged alphabetically by topic name such as Abandoned and Lost Property,
Abatement and Revival, Abortion and Birth Control, and Absentees. Within each topic
name, the headnotes are arranged by Key Number, such as Absentees 1, Absentees 2, and
Absentees 3.
The monthly softcover issues of the General Digest are later brought together
(“cumulated”) and published in hardcover volumes. West then began bringing together and
publishing the hardcover volumes of the General Digest in ten-year groups called
“Decennials.” The word “decennial” is literally defined as a ten-year period. Thus, the First
Decennial contains all headnotes from all of the units of the National Reporter System for the
period 1897-1906. The Second Decennial contains all headnotes from all of the units of the
National Reporter System for the ten-year period 1906-1916. For obvious reasons, the
American Digest System is sometimes called the Decennial Digest System.
You should be aware that West has also created a set of books called the Century Digest
to cover the time period 1658 to 1896 (the date coverage of the First Decennial
commences). The Century Digest uses a classification scheme different from the Key
Number System used in the Decennials. It is unlikely you will use the Century Digest very
often, if ever, as it digests cases that are very old. West does, however, provide cross-
reference tables in the First and Second Decennial Digests so you can readily locate cases in
the Century Digest if you have a topic name and a Key Number. Figure 5-1 shows the time
period covered by each of the Decennials.
As you can see, starting in 1976, West began issuing the Decennials in two five-year
parts (and recently began issuing Decennials in three parts). This change was brought about
by the explosion in case law.

Figure 5-1
Coverage of Decennial Units

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 General Digest is the name of the set of books currently in use that updates the
Decennials. It is not necessary to memorize the time periods covered by each Decennial unit.
It is sufficient to understand the general structure of the Decennial units: Each Decennial
covers approximately a ten-year period and each Decennial will contain all of the headnotes
from all of the units of the National Reporter System for its particular time period. In fact,
the term “Decennial” may well be a term of art as West has adjusted its publishing schedule
to keep up with the rapid growth in the number of published cases.
If you possess the headnote presented earlier relating to constructive delivery of gifts
(Gifts 22), you can locate all American cases from 1658 until last month that relate to this
specific subject matter. You can accomplish this task by taking the following actions:

• Locate the Decennial volumes for a recent time period such as the Twelfth
Decennial, Part 2.
• Find the volume covering the letter “G” (for “Gifts”).
• Look up “Gifts” (using guide words at the top of each page).
• Locate Gifts 22 (presented in numerical order).

You will now be presented with all United States Supreme Court cases decided between
2010 and 2013 relating to constructive delivery of gifts, then all United States Court of
Appeals cases relating to this subject, all United States District Court cases, all Alabama

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cases, all Alaska cases, all Arizona cases, and so on. Each case will be described with a one-
sentence summary (the “digest”) and you will be provided a case citation, enabling you to
locate the case and read it in full if you determine the case may be helpful. The one-
sentence entries in the digest are the headnote paragraphs from the cases in West’s
reporters, now rearranged by subject matter.
After you have located cases in the Twelfth Decennial, Part 2, follow the same strategy
for the Twelfth Decennial, Part 1, then the Eleventh Decennial, Parts 1, 2, and 3, then the
Tenth Decennial, Part 2, and so forth. In this way you will be able to find all cases decided
in federal and state courts from 1658 (using the Century Digest) until last month (using the
General Digest, 14th Series), which relate to constructive delivery of gifts.

4. West’s Digest Topics

The fact that you can locate all cases on a similar point of law from 1658 until last month
arises from West’s remarkable consistency in assigning topic names and Key Numbers to
legal issues. In order to efficiently and systematically organize cases under topic names and
Key Numbers, West developed its own outline of the law. It should be noted that this
outline of the law was developed exclusively by West for its own purposes. You may or may
not agree with the organization scheme developed by West. You may believe additional
topic names should exist. West’s outline is not an official pronouncement of the subjects
discussed in cases. It has no judicial or academic authority. It is simply West’s
organizational blueprint for its Key Number System, representing its decision that there are
more than 400 topics of law that a case may discuss.
A partial list of West’s Digest Topics is shown in Figure 5-2. The list is also found at
the beginning of any West Digest volume.
A case may discuss one of these more than 400 topics in a variety of ways. For example,
cases may discuss infants in many different respects. The Key Numbers are assigned as
follows: Each Key Number relates to the manner in which a point of law is discussed. This
subtopic is represented by a number, the “key number.” Thus, if a case relates to the
prevention of cruelty to an infant, West will title the pertinent headnote Infants 15; if a
case relates to the effect of marriage of an infant (in a legal sense, an “infant” is simply
someone who has not yet attained the age of majority), West will title the pertinent
headnote Infants 10; and if a case relates to emancipation of an infant by a parent, West
will give the pertinent headnote the topic and Key Number Infants 9. Each topic name
and Key Number combination thus represents a specific point of law, and each provides
links to other similar cases.
It is unnecessary to commit to memory the list of topic names; it is sufficient if you
have a general understanding of West’s system. It may be easiest to understand West’s
system if you imagine that West possesses an immense chart with all of the topics and Key
Numbers listed on it. Every time a portion of any case in any unit of the National Reporter
System discusses prevention of cruelty to infants, the headnote will be given the topic

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 Figure 5-2
West’s List of Digest Topics (Partial)

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name “Infants” and the Key Number 15. The headnote will then be printed initially in the
monthly pamphlet General Digest and will later be printed in the hardbound copies called
Decennials. You will be able to locate other cases on this area of the law by taking this topic
name and Key Number (Infants 15) and looking it up in the various Decennial units. You
will then be directed to all cases, both federal and state, that discuss this issue and that were
decided within the relevant ten-year periods. According to West, “the beauty of the . . .
[s]ystem is that the key number assigned to a point of law is uniform throughout all of
West’s digests.”
You may have noticed that some of the Key Numbers have been subdivided, such as
Criminal Law 1169.1(5). This occurs as an area of the law expands and novel theories are
developed. West will categorize its Key Numbers, such as Criminal Law 1169, into
subdivisions to reflect the varying and developing ways in which this topic is discussed by
courts, as shown by the following list:

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Similarly, as new causes of action or new defenses arise and topics evolve, West will add
new topics, such as “Election Law” and “Lobbying.” Other topics and Key Numbers may
be eliminated or reclassified. If Key Numbers are changed, West will provide a “translation
table” to show the present Key Numbers with their corresponding former numbers. In this
way, West keeps current with case law as it expands and develops. Finally, some headnotes
have more than one Key Number because they relate to more than one legal topic. At
present, there are more than 100,000 individual key numbers.

5. Four Strategies to Find a Topic and Key Number

Until now, we have assumed that you knew a topic name and Key Number and looked it
up in the various Decennial units to locate cases. We will now assume that you are starting
your research project from “square one” and that the only information you have is the
description of the research problem, for example, the landlord-tenant issue described in the
beginning of this chapter. There are four strategies you can use to obtain a topic and Key
Number that you can use to locate on-point cases.

a. Descriptive Word Approach

Each of the Decennial units includes a volume (or volumes) titled “Descriptive Word
Index.” West has selected certain words and phrases and listed these alphabetically in its
Descriptive Word Indexes. You use these indexes exactly as you do the indexes for U.S.C.A.
and U.S.C.S. as described in Chapter 3. That is, you simply brainstorm by thinking of
words and phrases that describe the problem you are researching, such as landlord, tenant,
or lease. Remember to consider the Who, What, Where, When, Why, and How questions
discussed in Chapter 3 to assist you in developing a list of descriptive words or phrases.
Look up these words in any Descriptive Word Index, and you will be provided with a topic
and Key Number just as you were given a title and section when you located statutes in
U.S.C.A. or U.S.C.S. and just as another index would send you to a volume and page.
If you have difficulty thinking of words to use, think of synonyms (renter), antonyms
(owner), defenses a party might assert (consent, waiver), the type of relief a party might seek
(injunctive relief, damages, rescission of the lease), or the cause of action a plaintiff might
plead (breach of contract, negligence). These should assist you in thinking of words to look
up in the index. Just as you have seen with the indexes for U.S.C.A. and U.S.C.S., the
Descriptive Word Indexes in the American Digest System are very “forgiving.” Many topics
are indexed under more than one entry, making it easy for you to locate the all-important
topic name and Key Number.
When attempting to locate a topic name and a Key Number by using this Descriptive
Word Index method, you should use the Descriptive Word Index to one of the newer
Decennial units such as the Twelfth Decennial Digest, Part 2. If you cannot locate a topic
name and a Key Number in the Twelfth Decennial Digest, Part 2, try the Twelfth Decennial
Digest, Part 1, as it is possible that no cases discussed this particular legal issue during 2010-
2013, the time period covered by the Twelfth Decennial Digest, Part 2. You could also use

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one of the Descriptive Word Indexes for the General Digest. There is a cumulative
Descriptive Word Index in every tenth volume of the General Digest.
The Descriptive Word method is the easiest and most reliable way of locating a topic
name and a Key Number, and this should be the approach you use until you have become
thoroughly familiar with West’s Key Number System. In fact, West advises that this
method of search will generally prove most useful and should always be used first unless the
researcher knows the specific topic. See Figure 5-3 for a sample page from the Descriptive
Word Index to a digest, which demonstrates how to locate a topic name and a Key
Number through the Descriptive Word approach.

b. Topic Approach
You may recall that in locating statutes, the topic approach calls for you to bypass the
general index at the end of a set of statutes, and go directly to the appropriate title and
begin examining the statutes. The topic approach to locating a topic name and a Key
Number is exactly the same. Thus, if you were using the topic approach for the landlord-
tenant problem described herein, you would bypass the Descriptive Word Index and go
immediately to the “L” volume of a Decennial unit such as the Twelfth Decennial Digest,
Part 2, and look up the phrase “Landlord and Tenant.” Prior to the digest listing of the
headnotes (Landlord & Tenant 1, Landlord & Tenant 2, and so on) you will be given an
overview of the

Figure 5-3
Sample Page from Descriptive Word Index

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coverage of this topic, Landlord and Tenant, much like a book’s table of contents. All of
the Key Numbers digested under Landlord & Tenant will be identified in an index or
outline fashion, and you may then scan the entries to determine the appropriate Key
Number and proceed to look up and examine the headnotes listed or digested under
Landlord & Tenant. To select topics, you can review an alphabetical list of the more than
400 digest topics that appears in the front of any West Digest volume.
Just as the topic method should be used with caution to find statutes, it should be used
with caution to locate topic names and Key Numbers because you may miss other topics
and Key Numbers under which this area of the law may be digested. Because West’s
American Digest System has more than 400 topics, this method should be used only after
you have become thoroughly familiar with West’s Key Number classification system. Each
topic discussion begins with an overview of its coverage as well as an identification of
subjects included and subjects excluded, which will help ensure you are searching within
the correct topic. See Figure 5-4 for a sample page from a digest, showing a partial list of
Key Numbers within the topic Landlord & Tenant. Once again, you can see that if you
need to review cases relating to damage to a tenant’s property, West has organized these
under the topic name “Landlord & Tenant” and the Key Number 166.

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c. Table of Cases Approach
If you know the name of a case, you can look it up in an alphabetically arranged master
Table of Cases, which will provide you with the citations to the case (although not in
Bluebook form) and a list of the topics and Key Numbers under which it has been classified.
For example, if you have the name of the plaintiff Umans, you can use the Table of Cases in
a digest. When you look up this case, you will be given all citations to the case, the history
of the case (for example, whether it has been affirmed or reversed), and all of the topics and
Key Numbers under which it is digested or classified. See Figure 5-5.
Each Decennial unit and each volume of the General Digest contains its own
alphabetical Table of Cases. The Table of Cases is usually located after the last volume in a
Decennial set. More recent digest sets allow you ready access to cases whether you know the
name of the plaintiff or defendant (which may be helpful in locating other cases involving a
certain defendant).

d. “Case on Point” Approach

If you have already located a case on point, its headnotes will display applicable topic names
and Key Numbers. If one of these headnotes is relevant to your research, you can then use
that headnote to locate other similar cases by looking up your topic name and Key Number
in the various units of the Decennial Digest System. For example, review Figure 4-1, where
the case State v. Boyd, 162 N.C. App. 159, 595 S.E.2d 697 (2004), appears.

Figure 5-4
Sample Page from Atlantic Digest 2d

190
 Figure 5-5
Sample Page from Table of Cases to
Atlantic Digest 2d

191
Note headnote number 3, which is given the topic name Sentencing and Punishment and
the Key Number 98. If you read the Boyd case and determine that this section of the case
relating to sentencing and punishment is relevant to your research, you can take the topic
name and Key Number Sentencing and Punishment 98 and look it up in the various
Decennial units to locate other similar cases. This is helpful, for example, when you have
one great Ohio case but need to find a California case on the same topic. Alternatively, you
can sign on to Westlaw and search for other cases classified to the appropriate topic name
and Key Number.

6. Using Your Topic and Key Number to Find Cases

Once you have obtained a topic and a Key Number, such as Landlord & Tenant 166(1),
you merely look this up in the various units of the American Digest System and you will
unlock the door to cases from 1658 until last month, all of which relate to injuries to a
tenant’s property.
Because the Decennials are arranged alphabetically, you simply retrieve the “L” volume
in any of the Decennial units and look up “Landlord & Tenant 166(1).” Topics are listed
in alphabetical order, and Key Numbers within those topics are listed in numerical order,
making it easy for you to find the information you need. At this point, West will do more

192
than merely list the digest headnotes in a haphazard fashion. West has carefully arranged
the entries, giving you federal cases, first from the highest federal court, the United States
Supreme Court, through cases from the United States Courts of Appeal to the lowest
federal courts, the United States District Courts. After all of the federal cases have been
digested, you will be given the entries for state court cases. Again, West will order and list
the states alphabetically, making it easy for you to quickly locate cases from Arkansas,
Louisiana, Minnesota, or South Carolina. West’s listing of cases from South Carolina will
be in order of the South Carolina court hierarchy and then in reverse chronological order so
you will proceed from the newer South Carolina Supreme Court cases to the older South
Carolina Supreme Court cases and then from the newer South Carolina Court of Appeals
cases to the older South Carolina Court of Appeals cases. Consider browsing adjacent Key
Numbers to determine if another Key Number may be helpful. See Figure 5-6 for a sample
page from a digest showing the organization of cases.
In looking up your topic and Key Number in the Decennial units, you should start with
the most recent Decennial unit. If you cannot find the cases you need, proceed to the older
Decennial units. You should never exclusively rely on the brief summaries or digests of the
cases. Although they are usually very clearly and concisely presented, you must read a case
in full to understand it completely. Similarly, you should never cite a digest as legal
authority. Its sole function is to locate cases for you, not to serve as support for an assertion
you make.

Figure 5-6
Sample Page from Atlantic Digest 2d,
Showing Digests of Cases

193
 In your review of the various Thomson Reuters/West publications and case reporters,
you may have observed that there are diagrams or drawings of “keys” on the spines of many
books in the law library. This diagram indicates the volume is a participant in West’s Key
Number System.

Ethics Alert

Using Digests
Digests are wonderful sources to find cases; however, you may not cite to them, and you must read the cases
to which you are directed. Never quote from or rely on the digest or summary of a case; you must read the
case itself and analyze it. Only then may you cite it as authority.

7. Other West Digests

As you have seen, the American Digest System is the most comprehensive digest system, with
its coverage of all federal and state cases. It is entirely likely, however, that you may not
need such extensive coverage. In this regard, there are several specialized digests published
by West that will assist you in locating cases from a specific region, jurisdiction, or state, or

194
covering a certain topic. In fact, many law libraries now carry only the specialized digests
for their state or region. The following digests are kept up to date by annual cumulative
pocket parts.

a. United States Supreme Court Digest

This digest is published by West and classifies its headnotes according to the Key Number
System. As its name indicates, this set provides brief summaries, or digests, only to United
States Supreme Court cases. A Table of Cases is included.

b. Federal Practice Digests

There are several West digests that serve as casefinders for cases from all federal courts, for
example, the United States Supreme Court, the United States Courts of Appeal, and the
United States District Courts. Each digest covers a specific time period, similar to the
manner in which the Decennials each cover a ten-year period.

Federal Digest: Federal Courts (1754-1938)

Modern Federal Practice Digest: Federal Courts (1939-1961)
West’s Federal Practice Digest 2d: Federal Courts (1961-1975)
West’s Federal Practice Digest 3d: Federal Courts (1975-1984)
West’s Federal Practice Digest 4th: Federal Courts (1984-2002)
West’s Federal Practice Digest 5th: Federal Courts (2003-Date)

Thus, if you are interested only in recent cases from the Third Circuit, you could
consult West’s Federal Practice Digest 5th and West’s Federal Practice Digest 4th. Cases are
arranged in groups by court, circuits, and districts, making it easy for you to locate cases
from the United States Supreme Court, cases from the Third Circuit, or cases from the
United States District Court for the Eastern District of Pennsylvania. All of the Federal
Practice Digests include a Table of Cases.

c. Regional Digests
West has created regional digests for some of its regional geographic units.

Atlantic Digest — digests cases reported in the Atlantic Reporter

North Western Digest — digests cases reported in the North Western Reporter
Pacific Digest — digests cases reported in the Pacific Reporter
South Eastern Digest — digests cases reported in the South Eastern Reporter

Thus, if you were interested in locating cases from several neighboring states, you could
consult the North Western Digest, which would assist you in finding cases from Iowa,
Michigan, Minnesota, Nebraska, North Dakota, South Dakota, and Wisconsin. Again, the
Digest will arrange the cases for you so that under Criminal Law 1169.1(5) all of the digest

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headnotes for Iowa cases are grouped together, all of the digest headnotes for North Dakota
cases are grouped together, and all of the digest headnotes for Wisconsin cases are grouped
together.
You will note there are no current digests for the Southern Reporter, South Western
Reporter, and North Eastern Reporter. This should not be considered a drawback, however,
as cases from states within these reporters are included within the all-inclusive American
Digest System and also in their own respective state digests.

d. State Digests
West publishes digests for 47 of the states and the District of Columbia. Only Delaware,
Nevada, and Utah do not have a digest. Additionally, Virginia and West Virginia are
combined in one digest, as are North Dakota and South Dakota. Even though there is no
separate digest for Delaware, Nevada, or Utah, you may locate cases from these states in the
appropriate regional digest (Atlantic Digest or Pacific Digest) as well as in the comprehensive
Decennial units, which arrange the digests or summaries of the cases alphabetically by state.
The state digests are all similarly named (Alabama Digest, Missouri Digest, Tennessee
Digest), and each digests cases from a particular state according to West’s Key Number
System. Moreover, each state digest includes cases decided by the lower federal courts and
the United States Supreme Court that arose in that state jurisdiction, that were appealed
from that state, or that pertain to that state’s law. The state digests also include a Table of
Cases.
There is overlap and duplication in the digest entries. For example, a digest entry for a
2000 California case will be located in the California Digest, the Pacific Digest, and the
Eleventh Decennial Digest, Part 1. Which digest should you use? Start small. Generally, if
your issue involves California law, start with the California Digest. If you do not find
helpful cases, perhaps because the issue is one of first impression in California, expand your
search by using the Pacific Digest and then the Decennial units.

e. Specialized Digests
In addition to the digests for federal court cases, the regional digests, and the state digests,
West publishes various specialized digests, each of which digests cases relating to a specific
topic or from a particular court. The function of each specialized digest is fully described by
its name. Some of these specialized digests are as follows: Bankruptcy Digest, Federal Claims
Digest, and Education Law Digest.

Practice Tip

Digests

When researching, think small. Start with the smallest digest unit that will be helpful to you. For example,
when researching Oregon law, start with the Oregon Digest. If it is not helpful, then review the Pacific Digest,
and then the various Decennial units.

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8. Common Features of West’s Digests

a. Uniform Classification
All of West’s Digests are classified to West’s uniform topic and Key Number System. Thus,
once a legal issue is assigned the topic and Key Number Landlord & Tenant 166(1), later
cases that deal with this issue will also be digested under Landlord & Tenant 166(1),
whether they appear in a Decennial unit, West’s Federal Practice Digest 5th, the South Eastern
Digest, or the Wyoming Digest.

b. Descriptive Word Indexes

All of West’s Digests include Descriptive Word Indexes arranged in similar fashion that
provide you with topic names and Key Numbers, which you then look up in the pertinent
digest. The indexes use words describing facts, places, things, and legal principles from
actual cases.

c. Table of Cases
All of the West digests contain a Table of Cases by plaintiff, so you may look up a case by
the plaintiff’s name and obtain parallel citations, the topic names, the Key Numbers under
which it has been digested, and the subsequent history of the case. Additionally, some
digests also contain a Defendant-Plaintiff Table of Cases listing the defendant’s name first,
so if you know a case only by the defendant’s name, you will still be able to locate the case.
These tables are usually located after the last volumes in a set. Newer digest sets integrate
the two tables, allowing you to find cases by either the plaintiff’s name or the defendant’s
name.

d. Table of Words and Phrases

The digest sets (the United States Supreme Court Digest, the Federal Practice Digests, the
regional digests, the state digests, and the specialized digests) contain a Table of Words and
Phrases, which alphabetically lists words and phrases that have been construed or defined
by cases. Thus, if you look up the word “conspiracy” in the Colorado Digest, you will be
provided with citations to all of the cases decided in Colorado that define or interpret this
word.

e. Supplementation
The United States Supreme Court Digest, the Federal Practice Digests 3d, 4th, and 5th, the
regional digests, and the state digests are kept current by annual cumulative pocket parts
and supplemental pamphlets. The American Digest System, of course, is supplemented by
the General Digest. If a pocket part or supplement exists, you must consult it to locate more
recent cases and to determine if any new topics have been added. Additionally, the most

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current information is found in digest pages located in West’s reporters (in both the recent
hardbound volumes and their advance sheets). Each volume includes front or back of the
book Key Number Digest sections that catalog headnotes and Key Numbers for all of the
cases in that volume.

f. Cross-Referencing
Because West’s Key Number System is a truly integrated research approach, other West
publications will give you topic names and Key Numbers, allowing easy access into the
system. Thus, West’s encyclopedias (discussed in Chapter 6) Corpus Juris Secundum (C.J.S.)
and American Jurisprudence, Second Series (Am. Jur. 2d) routinely provide you with topic
names and Key Numbers. Similarly, West’s set American Law Reports (discussed later in this
chapter) directs you to relevant topic names and Key Numbers. Finally, the Key Number
System is also used on Westlaw, West’s online legal research system. Thus, this cross-
referencing by West continually helps you gain access to its digests to allow you to find all
cases on a similar point of law.

9. Other Digests

Although Thomson Reuters/West is the largest publisher of digests and although its Key
Number System provides easy access to all reported cases relating to a particular legal issue,
it is not the only publisher of digests. The best known of the non-West digests is the United
States Supreme Court Digest, Lawyers’ Edition 2d, published by Lexis. This digest uses its
own classification scheme to direct readers to cases in United States Supreme Court Reports,
Lawyers’ Edition because only West may use its copyrighted Key Number System. Use the
descriptive-word approach or table of cases approach to access this digest. Because this
digest is published by Lexis, it provides references to other Lexis publications.
There are also a few state digests published by companies other than West. These non-
West digests also use their own classification schemes. Nevertheless, the basic system is the
same: The researcher locates topics and subtopics and uses those to find citations to relevant
cases.

Practice Tip

Using the Key Number System Online

To locate cases on Westlaw using the Key Number System, you can search Westlaw’s Key Number Digest
Outline, browsing the list of more than 400 topics, until you find the right Key Number. Alternatively, you
can use a search box and enter keywords of interest to you, and Westlaw will suggest topics and Key Numbers
for you. On Westlaw, Key Numbers are displayed as follows: “233k1325.”

The topic name “Landlord & Tenant” is replaced with the topic number “233” on Westlaw. The Key
Number in the print versions of books is not always the same as that assigned on Westlaw. When using
Westlaw, you may easily use the drop down menus and continue pointing and clicking until you find the Key
Number of interest to you.

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 Topic Name and Key Number in Print: Landlord & Tenant 166

Topic Number and Key Number on Westlaw: 233k1325

The Final Wrap-Up

Using and Citing Digests

Use: Use digests to help you find all cases from your state, region, jurisdiction, or the
entire nation on a similar point of law.
Citation: Never cite to or quote from digests. Retrieve the cases you are directed to by the
digests, and cite to these.

Are the Digests Relevant Today?

Although there is a tendency among beginning researchers to log on to Lexis Advance and Westlaw whenever they
need to find cases to solve a research problem, a number of experts believe that the print digests will always be
needed. In fact, one review concluded “[a] print digest search followed by the application of relevant key numbers
in Westlaw is a powerful and efficient combination.” Judy Meadows & Kay Todd, Our Question: Is the Use of
Digests Changing?, 13 Perspectives: Teaching Legal Res. & Writing 113, 115 (2005). Thus, don’t make the
mistake of thinking that using print digests is “old school”; they remain excellent casefinders.

B. American Law Reports

1. Introduction
The American Law Reports (“A.L.R.”) is a Thomson Reuters/West product that publishes
selected appellate court decisions from all over the nation as well as comprehensive and
objective essays relating to the legal issues raised in a case. For this reason, A.L.R. forms a
logical bridge between the primary sources (cases, constitutions, and statutes), which have
been discussed, and the secondary sources (encyclopedias, law review articles, treatises, and
so on), which will be discussed in the next chapters. A.L.R. combines features of primary
sources (in that it publishes cases, at least until 2015) with features of secondary sources (in
that it publishes articles, called “annotations,” which explain and expand upon the issues
raised by the cases published in A.L.R.).
West’s lawyer-editors review both state and federal appellate court decisions from all
over the country and publish certain selected decisions that they believe are of significance
to legal professionals. You may recall that West’s American Digest System digests all reported
cases. A.L.R., on the other hand, does not have such a goal. Its aim is to publish only

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leading cases rather than cases of purely local interest or those that do not represent a new
trend in the law.
The significance of A.L.R. does not lie in the fact that it publishes cases. After all, if
A.L.R. selects a recent California Supreme Court case to be published, that case will already
be published officially in the California Reports and unofficially in both the Pacific Reporter
and California Reporter. The true value of A.L.R. lies in its scholarly and comprehensive
articles (the “annotations”), which comment on each case A.L.R. selects to publish. Often
the case that is published is of average length — perhaps seven or eight pages. The
annotation that explains and analyzes the issues raised in the case may exceed 150 pages.
Not all annotations are this long, although all are thorough and well researched.
For example, assume A.L.R. elects to publish an appellate court case relating to the
liability of a person for injuries to a babysitter sustained in the person’s home. A.L.R. will
also provide an exhaustive and objective analysis of the development of this area of law and
how courts in other jurisdictions are treating this subject. The editors may spend months
researching this legal issue and writing the annotation, which in many respects is a scholarly
research brief thoroughly examining this area of the law and looking at both sides of the
issue. A.L.R.’s thorough coverage includes cases from all jurisdictions that have examined
the issue, and then A.L.R. arranges these cases according to jurisdiction so you can easily
find the cases of interest to you. Each pre-2015 volume of A.L.R. includes about ten cases
and their respective ten annotations.
If you are researching a certain area of the law and an A.L.R. annotation has been
written regarding your topic, you should immediately retrieve the annotation and view it as
“free research,” as seldom, if ever, will you have the luxury of being able to devote as much
time to an analysis of a legal topic as the A.L.R. legal scholars have in their annotations. In
fact, the publisher of A.L.R. reports that A.L.R. is quoted from and cited more often than
any other secondary authority.

2. A.L.R. Organization

A.L.R. is published in ten series and consists of more than 1,000 volumes, as shown in the
following chart:

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 As you can see, until A.L.R. Federal (“A.L.R. Fed.”) was introduced in 1969, federal
court cases were published and analyzed in A.L.R., A.L.R.2d, and A.L.R.3d. The A.L.R.
Fed. series volumes follow the format of the other A.L.R. series: Significant federal court
cases are selected for publication, and annotations thoroughly analyze the legal topics raised
in the case and discuss the treatment of this topic by other federal courts.
A.L.R. is not published in advance sheets and the first volumes that appear on the
library shelves are hardbound. Note that beginning in 2015, A.L.R. stopped publishing
cases in the volumes for A.L.R.7th and A.L.R. Fed. 3d, noting that because cases are so
easily available online, it was electing to stop reprinting cases in its newest sets.

3. Features of A.L.R.
The following are features of the American Law Reports. Note, however, that not all features
are found in all of the ten units that make up A.L.R. The set was purchased by West from
Lawyers Co-op, and thus newer volumes in the A.L.R. sets direct you to relevant West
Digest topic names and Key Numbers and give you tips on using Westlaw, whereas earlier
volumes do not because Lawyers Co-op would never direct its users to a West publication.

Cases. All of the volumes in each A.L.R. series (except those for A.L.R.7th and A.L.R.

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 Fed. 3d) publish contemporary cases illustrating new developments or significant
changes in the law. A brief synopsis of the case (called “Summary of Decision”) is
provided together with headnotes summarizing the issues in the case.
Annotations. A complete essay or annotation analyzing the case and the issues therein is
presented. Before 1991 (when A.L.R.5th was introduced), the lead case precedes the
article or annotation; after this date (and until 2015 when A.L.R. stopped including
cases), all cases are printed at the end of each volume.
Research References. You will be directed to additional sources relating to the topic to be
discussed, including other A.L.R. annotations, law review articles, form books,
encyclopedias, and texts. Additionally, you will be given suggestions for drafting
electronic search queries so you can find additional information on Westlaw and
Lexis Advance, the computerized research systems. Finally, you are directed to
relevant West topic names and Key Numbers so you can gain access to West’s
Digests to find other similar cases.
Outline. An article outline is presented that shows how the annotation is organized so
you can easily locate and read the sections that may be of the most interest to you.
Index. An alphabetical word index is presented for each annotation, which references the
various issues and topics discussed in the annotation, enabling you to readily locate
the sections of the annotation that are relevant to the issues of most interest to you.
Table of Cases, Laws, and Rules. Because you may be more interested in the manner in
which the topic under discussion has been treated in some jurisdictions than in
others, you will be provided with a table showing you which sections in the
annotation discuss cases and statutes from individual states or circuits.
Scope Note. The annotation begins with a section titled “Scope,” which briefly describes
the matters discussed in the annotation and then refers to any related annotations
discussing the topic. You will also be informed what topics are not included in the
annotation.
Background and Summary. A concise and useful summary of the entire annotation is
presented, setting the stage for the extensive annotation that follows. Additionally,
annotations often contain “practice pointers,” which provide practical tips on how to
handle a case dealing with the subject matter under discussion.

See Figure 5-7 for features of A.L.R.

4. Finding A.L.R. Annotations

a. Index or Descriptive Word Approach

A multi-volume alphabetical index called A.L.R. Index exists that directs you to annotations
in all A.L.R. sets. Using this index is similar to using any other index. Use the descriptive
word approach and look up words or phrases that describe the problem or issue you are
researching, and you will be directed to the appropriate annotation. The A.L.R. Index is
another “forgiving” index allowing you to locate an annotation by using various words or

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phrases rather than requiring you to reduce your legal issue to one perfect word. For
example, if your research task is to determine whether an obscene movie constitutes a
nuisance, you simply look up the word “nuisance” in the A.L.R. Index, and you will be
directed to the appropriate annotation. See Figure 5-8 for a sample page from the A.L.R.
Index. After using the Index, check its pocket part to locate more recent annotations.
The A.L.R. Index also contains a Table of Laws, Rules, and Regulations directing you to
annotations that cite particular federal and state statutes, rules, and regulations. Thus, if
you are researching 42 U.S.C.A. § 248 (West 2013), you can look this up in the Table of
Laws, Rules, and Regulations, and you will be directed to any annotation that mentions or
discusses this statute.
West also provides a one-volume softcover index called Quick Index, which is easy to
use and directs you to annotations in A.L.R.3d through A.L.R.7th. The Quick Index does
not provide as much detail as the A.L.R.

Figure 5-7
Sample Pages from A.L.R. Annotation
Showing Features of Annotations

203
 Figure 5-8
Sample Page from A.L.R. Index

204
Index, but it is a useful starting place for many research problems. A similar index called
A.L.R. Federal Quick Index will direct you to annotations dealing with the federal law
collected in A.L.R. Fed., A.L.R. Fed. 2d, and A.L.R. Fed. 3d and is usually shelved after the
last volume in A.L.R. Fed. 3d.

b. Digest Approach
A 22-volume set called A.L.R. Digest classifies A.L.R. articles according to West’s Key
Number System, organizing areas of the law into more than 700 topics and presenting
them alphabetically. For example, if you look up the topic “nuisance” in the A.L.R. Digest,
you will be presented with brief summaries of the various annotations relating to this topic.
Because this digest is “synched” into West’s Key Number System, if you have a Key
Number, you can easily locate any companion annotation (and vice versa).

c. Miscellaneous Approaches
You will see in Chapter 6 that another of West’s publications, its encyclopedia Am. Jur. 2d,
often refers readers to A.L.R. annotations. Similarly, when you Shepardize a case either by
using conventional print volumes of Shepard’s Citations or by using Lexis Advance or check

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its validity through West’s electronic updating service called “KeyCite,” as discussed in
Chapter 9, you will be informed whether the case has been published in any of the A.L.R.
series. If A.L.R. has published a case you are interested in, this is a signal that an exhaustive
and analytical annotation will be provided on the general topic discussed in that case.
A separate volume called Table of Cases directs you to annotations published in
A.L.R.5th and A.L.R.6th that mention any cases. Thus, if you know a case name, you can
look it up in this alphabetically arranged table of cases to be directed to any page in
A.L.R.5th or A.L.R.6th that mentions it.
A.L.R. annotations are also available on Lexis Advance and Westlaw. Updates are added
weekly, making researching A.L.R. annotations timely and easy. Computerized legal
research is discussed in Chapter 11.

5. Updating A.L.R. Annotations

If a case was decided in 2001 and an A.L.R. annotation was prepared that year analyzing
that case, it is possible that a case may have been decided after 2001 that has modified or
limited the original case or that a newer annotation has been prepared that discusses the
changes in the law since 2001. West has developed systems to help you locate newer cases
or newer annotations relating to the topic you have researched. In fact, after you have
located an annotation, you must update it to determine if the annotation remains an
accurate interpretation of the law. The process of updating A.L.R. annotations varies,
depending on how old the annotation is.

a. Updating Older A.L.R. Annotations

To update an annotation in A.L.R. (namely, one written between 1919 and 1948), use the
A.L.R. Blue Book of Supplemental Decisions. To update an annotation in A.L.R.2d (namely,
one written between 1948 and 1965), use the A.L.R.2d Later Case Service.

b. Updating Newer A.L.R. Annotations

To update any annotation in A.L.R.3d through A.L.R.7th, A.L.R. Fed., and A.L.R. Fed.
2d and 3d, check the pocket part in each volume, which will direct you to more recent
annotations and more recent cases relating to the topic discussed by your annotation (see
chart in Section B.2 of this chapter).
To update an annotation, you may also use the Annotation History Table in the A.L.R.
Index. This table will inform you whether the annotation you have been researching has
been supplemented with new information or completely superseded by a newer annotation.
See Figure 5-9 for a sample page from the Annotation History Table.
Finally, you may e-mail West at west.alrlcs-rochester@thomson.com or call A.L.R.’s
Latest Case Service Hotline at 1-800-225-7488 to obtain the most recent information
regarding annotations.

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 The Final Wrap-Up

Using and Citing A.L.R. Annotations

Use: Use A.L.R. annotations to read comprehensive analyses of various topics and to
locate other primary and secondary sources.
Citation: You may cite to A.L.R. annotations in memos and court documents. Although
the annotations are a secondary source, they are credible and well written. A
better approach, however, is to allow the A.L.R. annotations to direct you to
binding primary authorities that you then cite in your documents.

Practice Tip

Pocket Parts
When using sets of books that are updated by pocket parts (such as A.L.R. 3d through 7th and the A.L.R.
Fed. series, and Words and Phrases), always check the pocket part. It is malpractice not to do so. Don’t forget
that some books are also updated by softcover supplements placed on the shelves next to them. Check these
too.

Figure 5-9
Sample Page from Annotation History Table

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 C. Words and Phrases

In the mid-1980s in Southern California, two young men attended a party at which one of
them consumed a great deal of alcohol. This individual, recognizing he should not drive,
asked his friend to drive him home and slid into the passenger side of the vehicle. Before
the driver could get into the car, however, the car began rolling down the hill on which it
was parked. The passenger grabbed wildly for the steering wheel and managed to move his
leg enough to apply the brake. Nevertheless, the car struck another vehicle, and the
passenger was issued a citation by the police officer who arrived at the scene for “driving
while under the influence of an alcoholic beverage,” a violation of the California Vehicle
Code.
The entire case depended on the interpretation of the word “driving,” for if the
passenger was not “driving,” he could not be in violation of the statute. The definition of
the word “driving” can obviously be found in any dictionary. How this word has been
defined and construed in a legal sense by case law can be found in a set of books consisting
of more than 100 volumes published by West called Words and Phrases. It arranges words
and phrases in alphabetical order from Volume 1 (“A — Abusus”) to Volume 46A (also
called Book 132, “Without Heirs — Zygoma”), making the set as easy to use as any

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dictionary. Words and Phrases aims at providing the definition of words and phrases as
interpreted by state and federal cases from 1658 to the present time. Words and Phrases, like
digests, is thus an excellent casefinder. It contains no narrative treatment as secondary
sources do, but rather focuses exclusively on locating cases. It is the last “bridge” to the
secondary sources to be discussed in Chapters 6 and 7.
In the case described above, a review of the definition of the term “driving” revealed
that “driving” required one to have control of a vehicle. The court hearing the case in
California determined that the passenger was not “driving” under the meaning of the
California statutes because he had no true ability to control the vehicle. The case was
dismissed.
Once again, West will do more than merely list citations for the cases defining words
such as “assessment,” “guardian,” or “petition.” Words and Phrases will provide you with a
brief summary of the cases that have defined these words so you may easily determine
which cases you should read in full. Definitions are also classified to West’s Key Number
System, so you may readily find other newer or related cases.
Words and Phrases is kept current by annual cumulative pocket parts. Thus, once you
have reviewed the cases in the main volume that define a word — for example, “guardian”
— examine the pocket part to determine if newer cases have interpreted or construed the
word “guardian.” See Figure 5-10 for a sample page from Words and Phrases.

Figure 5-10
Sample Page from West’s Words and Phrases

209
 The Final Wrap-Up

Using and Citing Words and Phrases

Use: Use Words and Phrases to help you find cases that have construed and defined
terms, words, and phrases, whether those are legal terms or everyday terms.
Citation: Never cite to or quote from Words and Phrases. Read the cases to which you are
directed, and rely on and cite to these.

D. Citation Form

Digests and Words and Phrases are used solely to locate cases. You may never cite to them.
You may, however, cite to an A.L.R. annotation:

Jay M. Zitter, Annotation, Liability for Injury on or in

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 Connection with Escalator, 63 A.L.R.6th 495 (2011).
George L. Blum, Annotation, Regulation of Digital Billboards,
5 A.L.R.7th Art. 8 (2015).

Internet Resources

Writing Strategies

In any research project, remember the key distinction between primary and
secondary authorities: If on point, primary authorities must be followed and are
binding, whereas secondary authorities are persuasive at best. Therefore, you should
always cite at least one primary authority to support each of your arguments.

211
 Secondary authorities such as A.L.R. annotations should be used only in conjunction
with primary authorities, namely, as “extra” support for a contention or to help you
find primary authorities.
Use some variety in the manner in which you discuss your authorities. If each
paragraph begins with the phrase “In [case name] or [authority] . . .” or if each
paragraph discusses one topic and always concludes with a citation, your writing will
have a rigid and structured appearance. Introduce citations, paragraphs, and
sentences in varying ways. This variety will enhance readability. Your project must
not only be right — it must be read.

Assignment for Chapter 5

Unless otherwise directed, give case names only rather than full citations.

1. Use the Table of Cases for the Eleventh Decennial Digest, Part 1.
a. Under which topic and Key Numbers is the case Senay v. BH Motto & Co.,
Inc. digested?
b. Give the citation to the case in which the defendant’s name is Gulf States Ins.
Co.
2. Use the Descriptive Word Index to the Eleventh Decennial Digest, Part 1.
a. Which topic and Key Number discuss copyright protection for maps?
b. Look up this topic and Key Number in the Eleventh Decennial Digest, Part 1.
Which 1996 case from the Southern District of Texas discusses this?
3. Use the Descriptive Word Index to the Tenth Decennial Digest, Part 2.
a. Which topic and Key Number discuss division of property (namely, pensions
and retirement benefits) in a divorce?
b. Look up this topic and Key Number in the Tenth Decennial Digest, Part 2.
Which 1993 Wyoming case discusses this general topic?
c. Which 1999 Wyoming case updates this general topic?
4. Use the Descriptive Word Index to West’s set Federal Practice Digest, 4th Series.
a. Which topic and Key Number generally discuss keeping and slaughtering of
animals as a nuisance?
b. Review this topic and Key Number. Which 2003 case from the Central
District of Illinois discusses the duty of ordinary care of a commercial hog
confinement facility to control the storage and disposal of waste in operation
of its facility?
c. Review the case. Which headnote discusses this specific issue?
5. Use the Words and Phrases volumes for West’s set Federal Practice Digest, 4th
Series. What is the most recent case from the Sixth Circuit, arising in Ohio (and
shown as “C.A.6 (Ohio)”) to construe the term “ineffective assistance of counsel”?

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6. Use West’s set United States Supreme Court Digest.
a. What is the most recent case that interprets the term “clearly established”?
b. Give the citation to the case Mayo Collaborative Services v. Prometheus
Laboratories Inc.
7. Use the Pacific Digest.
a. Generally, what topic and Key Number discuss whether larceny is grand or
petit?
b. Review this topic and Key Number. What 1984 Washington Court of
Appeals case discusses this topic?
c. Use the Words and Phrases volumes for this set. What 1998 Arizona
Supreme Court case construes the term “fundamental error”?
8. Use the Table of Words and Phrases for West’s California Digest, 2d Series.
a. What 1994 California Supreme Court case interprets the meaning of the
word “entrapment”?
b. Under what topic and Key Number is the case digested?
9. Use the Descriptive Word Index to West’s New York Digest, 4th Series.
a. What topic and Key Number generally discuss the defense of consent in a
civil action for assault and battery?
b. Review this topic and Key Number. Which 1996 case from the New York
Appellate Division stated that if medical treatment is rendered with consent,
then any alleged lack of informed consent is medical malpractice and not the
intentional tort of assault and battery?
10. Use the A.L.R. Quick Index and answer the following questions.
a. Which annotation deals with the validity of state stalking statutes?
b. Review the annotation.
i. Who is the author?
ii. Review the Research References. What Am. Jur. Proof of Facts 3d
reference are you directed to that discusses criminal pretrial involving
text messaging evidence?
iii. What is the most recent Missouri case that held that the term
“communicate” used in the state’s aggravated stalking statute was not
vague?
11. Use the A.L.R. Quick Index and answer the following question. What
annotation deals with the surveillance of a dressing room by a retailer or retail
store as an invasion of privacy?
12. Review the annotation at 6 A.L.R.7th, Article 1.
a. What is its title?
b. What section in the annotation discusses the Fourteenth Amendment?
c. What does Section 15 relate to or discuss?
13. Use the A.L.R. Federal Quick Index for A.L.R. Fed., A.L.R. Fed. 2d, and A.L.R.
Fed. 3d.
a. What annotation deals with the application of federal antitrust laws to

213
 collegiate sports?
b. Review Section 15 of the annotation. What case held that the NCAA rule
allowing its member schools to earn money from the sale of licenses to use
the student-athletes’ names, images, and likenesses violated federal antitrust
law?
14. Use the A.L.R. Table of Cases for A.L.R.5th and A.L.R.6th.
a. In which annotation is the case Jacobs v. Littleton discussed?
b. Review the annotation. What is the general subject matter of the annotation?
c. On which page of the annotation is the Jacobs case discussed?
15. Use West’s set Words and Phrases. What is the most recent case that construes the
meaning of the term “uninvited licensee”?

Internet Assignment for Chapter 5

1. Access the website for George Mason School of Law Library. Select “Guides and
Publications” and review the Dictionary for first-year students. What is a digest?
2. Access the website for the law library for the U.C.L.A. School of Law. Search for
the Legal Research and Writing Guide. Select “Digests.” When do you use a
digest?
3. Access the website for the Thurgood Marshall School of Law Library. Select
“Legal Research Guides — Pathfinders,” and review the information on A.L.R.
What do A.L.R. articles discuss?
4. Access the website for Thomson Reuters (“West”) at
http://legalsolutions.thomsonreuters.com/law-products.
a. Search for “Words and Phrases.” How is this set supplemented?
b. Search for “Atlantic Digest, 2d.” How does each topic begin?

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 Section II

Legal
Research
Secondary Authorities and
Other Research Aids

215
 Chapter 6

Encyclopedias, Periodicals, Treatises, and

Restatements
For centuries, the most important sources of law were not judicial opinions themselves, but treatises that restated the law,
such as the commentaries of Coke and Blackstone.

Hart v. Massanari, 266 F.3d 1155, 1165 (9th Cir. 2001)

A. Encyclopedias
B. Legal Periodicals
C. Texts and Treatises
D. Restatements
E. Citation Form

Chapter Overview
Section I of this text discussed the major primary legal authorities: statutes, constitutions,
and cases. Administrative rules and regulations, executive orders, and treaties are discussed
in Chapter 10. All other sources are secondary authorities. In general, the secondary sources
serve to explain, summarize, analyze, and locate primary sources.
If you suspect a legal question can be answered by a statute, you can and should begin
your research in one of the annotated codes by locating and reading the statute and then
examining the annotations following it to find cases that interpret and construe the statute.
Often, however, when presented with a legal issue, you may not know where to begin. In
these instances, many experts recommend that you start your research projects by using a
secondary source. Secondary sources provide you with analysis of an issue and then direct
you to the relevant primary authorities.
Always keep in mind that primary sources are binding on a court or tribunal. If on
point, these primary authorities must be followed. Secondary sources lack this mandatory
authority. Although they are often highly respected, the secondary sources are persuasive
only. A court may elect to adopt a position set forth in a secondary authority or may reject
it. Thus, your goal is always to locate relevant primary sources. The secondary authorities
will assist you in this task.
The secondary authorities discussed in this chapter are those most frequently used:
encyclopedias, periodicals, treatises, and Restatements. The following chapter will discuss
miscellaneous secondary authorities, including opinions of attorneys general, dictionaries,
directories, form books, uniform laws, looseleaf services, and jury instructions.

A. Encyclopedias

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1. Introduction

Just as The World Book encyclopedia is a reference work that alphabetically arranges topics
ostensibly covering all human knowledge, legal encyclopedias exist that alphabetically
arrange topics related to legal issues, from Abandonment to Mortgages to Zoning. Legal
encyclopedias are easy to use and serve as an excellent introduction to an area of the law. In
addition to providing summaries of hundreds of legal topics, encyclopedias will direct you
to cases through the use of footnotes. That is, as you read about an area of the law such as
corporations, deeds, or trusts, you will be referred continually to cases dealing with these
areas of the law. Generally, the narrative statements or summaries of the legal topics will
cover the top half of each page in the set, and the bottom half of each page will be devoted
to case and other citations that support the narrative statements of the law.
One of the hallmarks of encyclopedias is their noncritical approach, meaning that
encyclopedias explain the law as it is, without any critical comment or recommendations
for changes in the law. Many other secondary sources offer critical opinion and suggestions
for change in the law.
The treatment of legal topics in encyclopedias is general and somewhat elementary. For
this reason, encyclopedias are seldom cited in court documents such as briefs. They are
rather most useful for providing an overview of an area of law and sending you to cases that
will provide more thorough analysis. They give you the background you need on a legal
topic before reading cases. Encyclopedias are excellent casefinders (although the cases you
are sent to are often criticized for being older cases) and tools for introducing you to an area
of law. Moreover, they are readily available; even small law libraries usually have one, if not
both, of the general sets.
There are three types of encyclopedias: general or national sets, local sets, and special
subject sets.

2. General or National Encyclopedias

A general or national encyclopedia is a set that aims at discussing all of American law, civil
and criminal, state and federal, substantive and procedural. That is, a discussion of false
imprisonment will include a complete overview of this area of the law, including summaries
of the majority and minority views, and then send you to federal cases as well as various
state cases dealing with this topic.
There are two general or national encyclopedias: Corpus Juris Secundum (C.J.S.)
published by Thomson Reuters/West, and American Jurisprudence 2d (Am. Jur. 2d)
previously published by Lawyers Co-op and now also published by Thomson
Reuters/West.

a. C.J.S.
C.J.S. is an encyclopedia consisting of more than 160 dark blue volumes, which discusses

217
more than 400 different topics of the law. These topics are arranged alphabetically, making
it easy for you to locate the discussions on evidence, franchises, or trial.
C.J.S. is an extremely thorough and comprehensive set, which aims at providing you
with references to all cases that support any narrative statement of the law. The narrative
material is articulately presented and is easy to understand. The cases that support the
narrative statements are arranged in the footnotes alphabetically by state so you can readily
locate cases from your jurisdiction or from neighboring states. Often, the “leading case” in
an area of the law is summarized briefly for you.
Each topic begins with a thorough outline to provide you with quick access to the most
pertinent parts of the discussion. Each section within a topic begins with a boldface “Black
Letter” summary of the rule discussed in the section. By reading this preview of the section,
you can quickly determine whether you should proceed to read the section in full.
As its very name indicates (Corpus Juris Secundum, meaning “Body of Law Second”),
C.J.S. was preceded by an earlier set, Corpus Juris. Although some law libraries still
maintain Corpus Juris (C.J.), it is unlikely you will use this older set, and you should always
begin your research in C.J.S. rather than C.J.
C.J.S. contains a multivolume index, usually found after the last volume in the set, and
is kept current by annual cumulative pocket parts, which will inform you if the narrative
statement of the law found in the main volume has changed and will refer you to newer
cases supporting the text statement. C.J.S. also includes a Table of Cases so you can readily
find a discussion of a case if you know the case name.
Because C.J.S. is a West publication, it is a participant in West’s Key Number System.
As each discussion begins, in a section called “Research References,” West provides you
with the pertinent topic and Key Number to enable you to locate all cases on this area of
the law, particularly the most recent cases, through the use of West’s General Digest. See
Figure 6-1 for a sample page from C.J.S.

b. Am. Jur. 2d
American Jurisprudence 2d (Am. Jur. 2d) consists of more than 100 green volumes, which
discuss more than 400 areas of the law. Similar to the

Figure 6-1
Sample Page from C.J.S.

218
arrangement of C.J.S., Am. Jur. 2d arranges its topics (or “titles”) alphabetically, enabling
you to quickly locate the discussion you need. While C.J.S. historically has aimed at
directing you to all cases that support any legal principle, Am. Jur. 2d will direct you to a
representative cross-section of cases that support a legal principle. In fact, its editors have
prided themselves on “weeding out” irrelevant, redundant, or obsolete cases and selecting
the best cases that support the narrative summaries of the law. As previously stated in the
Foreword in volume one of Am. Jur. 2d, “[W]e do not devote pages to listing multiple
citations to mere platitudes which no court would deny or doubt.”
Many of the features of Am. Jur. 2d are similar to those seen in C.J.S. That is, the
narrative statements of the law are clearly and concisely presented in an easy-to-read
manner. The cases you are sent to in the footnotes are often briefly summarized for you.
Each topic begins with an outline to allow you to locate readily the parts of the discussion
of greatest interest to you.
Am. Jur. 2d is the successor to American Jurisprudence (Am. Jur.), which is still in
existence but seldom used due to the expanded coverage of Am. Jur. 2d. Am. Jur. 2d
contains a multivolume general index and, similar to C.J.S., is kept current by annual
cumulative pocket parts, which describe changes in the law and send you to newer cases
than those found in the main hardbound volumes. Like C.J.S., Am. Jur. 2d also includes

219
research references, which lead you to other West publications, including the valuable
A.L.R. annotations discussed in Chapter 5.
See Figure 6-2 for a sample page from Am. Jur. 2d.

c. Features Common to C.J.S. and Am. Jur. 2d

The following features are common to both C.J.S. and Am. Jur. 2d:

(i) Coverage. Both C.J.S. and Am. Jur. 2d discuss more than 400 topics of the
law, which are arranged alphabetically (Abandonment, Assault, Bail,
Contracts, Deeds, and so forth).
(ii) Table of Cases. Only C.J.S. includes an alphabetized Table of Cases (with
references to more than 1 million cases). There is no Table of Cases for Am.
Jur. 2d.
(iii) Table of Laws and Rules. Although there is some discussion of statutes in the
narrative discussions of the law, neither C.J.S. nor Am. Jur. 2d provides in-
depth analyses of statutes. Detailed discussion of all state and federal statutes
on each of the more than 400 areas of the law discussed would make the sets
too cumbersome and unwieldy to use. In general, Am. Jur. 2d emphasizes
statutory law more than C.J.S. Each set, however, includes a separate volume
usually called “Table of Laws and Rules,” which directs you to specific
sections within each set that discuss or cite federal statutes, various rules,
Code of Federal Regulations provisions, and uniform laws.

Figure 6-2
Sample Page from Am. Jur. 2d

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(iv) Text Treatment. The narrative statements of the law are presented concisely
in both sets. The style of writing is similar, and the discussion of the law is
straightforward. For this reason, it cannot be said that one set is clearly
superior to the other. Each set has its advantages, and your choice of which
set to use will be based largely on habit and personal preference. Although
the sets do have some distinguishing features, they are more alike than not,
and for most purposes you should research in either C.J.S. or Am. Jur. 2d,
but not both. Moreover, now that both sets are published by West, both
provide you with West topics and Key Numbers and give references to other
West resources.
(v) Indexing. Each set contains a multivolume general index usually located after
the last volume in the set, and each of the more than 400 topics or titles
begins with its own table of contents or index allowing you to locate quickly
the sections of the discussion of greatest interest to you.
(vi) Scope Notes. Each topic discussion in both sets begins with a “scope”
paragraph, which briefly outlines what will be discussed in the topic and
what specific subjects may be treated or discussed elsewhere in the set. These
“scope notes” enable you to determine rapidly whether you are researching

221
 the correct topic or whether you should direct your attention to some other
topic in the set.
(vii) Supporting Footnotes. Both sets support the narrative discussion of the law
with footnotes that provide citations to cases. You will first be sent to federal
cases and then to state cases, listed alphabetically by state to allow easy access
to the law of selected states and jurisdictions. When presented with a
statement of the law and numerous case citations that support it, there are
some techniques you can use effectively to select cases when time or budget
constraints prevent you from examining all cases. Select and read cases from
your jurisdiction before reading cases from other jurisdictions; review newer
cases before older cases; and review cases from higher courts before those
from lower courts. Do not misinterpret these guidelines as saying that “old
cases are bad.” Old cases are not bad; however, when presented with
numerous cases and when pressed for time, you should develop effective
research strategies, and these guidelines will help you research more
efficiently. After all, it may not be productive to review cases from 1980 only
to discover that the law substantially changed in 2014, rendering the earlier
case outmoded or an invalid statement of the law.
(viii) Supporting References. Both sets will refer you to other sources to enhance
your understanding of the law. C.J.S. has always included references to topic
names and Key Numbers and the new replacement volumes of Am. Jur. 2d
do as well. Both sets will refer you to pertinent and useful A.L.R.
annotations, form books, and law reviews.
(ix) Updating. Each set is kept current by annual cumulative pocket parts and by
replacement volumes when needed. For example, because the law relating to
internal revenue and federal taxation changes so often, both C.J.S. and Am.
Jur. 2d replace their tax volumes on an annual basis. Moreover, new topics,
such as “Terrorism” and “Energy” are often added to the sets, and these
additions necessitate replacement volumes.
(x) New Media. Both C.J.S. and Am. Jur. 2d are available on Westlaw. Lexis
Advance provides access only to Am. Jur. 2d.
(xi) Citation. Both sets are cited in the same manner: 1A C.J.S. Actions § 9
(2013). 1 Am. Jur. 2d Actions § 9 (2014).

d. Research Strategies for Using National Encyclopedias

There are several techniques used in locating the discussion of an area of law in C.J.S. or
Am. Jur. 2d. The most commonly used research techniques, the descriptive word approach
and the topic approach, are ones you are already familiar with and that you have used
before in locating statutes in the annotated codes and cases in the digests.

(1) Descriptive Word Approach

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 The editors at West have selected certain words and phrases that describe the topics
discussed in the encyclopedias and have listed these alphabetically in the multivolume
general indexes to C.J.S. and Am. Jur. 2d. To use this approach, simply think of words or
phrases that describe the issue you are researching. Look up these words in the volumes of
the general index for C.J.S. or Am. Jur. 2d, and you will be directed to the appropriate
topic and section. You should read the section to which you are referred for the background
information relating to your legal issue and then begin reading in full the cases cited in
support in the footnotes. Read adjacent sections as well to be sure you do not miss
important material. Be sure to supplement your research by checking the pocket part to
ensure that the narrative statement of the law is correct and to locate cases more recent than
those cited in the footnotes in the main volume. See Figure 6-3 for a sample page from an
index to Am. Jur. 2d.
Because volumes in C.J.S. and Am. Jur. 2d are replaced as needed, and because the
replacement volumes may add new sections and discussions, it is possible that the General
Index may send you to a section in an older volume that does not exist in a newer
replacement volume. In such a case, check Am. Jur.’s or C.J.S.’s Correlation Tables. These
tables will convert the old section number to the new section you should read in the
replacement volume.

(2) Topic Approach

Because the more than 400 legal topics discussed in C.J.S. and Am. Jur. 2d are arranged
alphabetically, it is often possible to use the topic approach successfully in locating a
discussion of the area of law in which you are interested. To use the topic approach, simply
think of the area of law related to your issue, for instance, Corporations, Landlord and
Tenant, or Partnerships, and immediately retrieve that volume from the shelf. You should
then examine the “scope note” to ensure that the specific issue you are interested in is
included in the discussion to follow. The next step is to review the outline of the topic
under discussion, which will refer you quickly to the appropriate section.

(3) Table of Statutes Approach

Because both Am. Jur. 2d and C.J.S. include a separate volume titled “Table of Laws
and Rules,” you can use this volume to look up specific statutes, administrative regulations,
or uniform laws in which you are interested, and you will be directed to the appropriate
volume, topic, and section within the encyclopedia set. The Table is usually shelved at the
end of the set.

(4) Table of Cases Approach

Because C.J.S. includes an alphabetical table of cases (found in softcover volumes
shelved after the main volumes in the set), you can readily locate a discussion of a case if
you know its name. Am. Jur. 2d does not include a table of cases, so this approach will not
work if you are using Am. Jur. 2d.

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e. The Am. Jur. Total Client-Service Library
Lawyers Co-op, the former publisher of Am. Jur. 2d, created a number of other sets of
books, which it referred to as the Total Client-Service Library (TCSL), which are now
published by West. These books are designed to be used with Am. Jur. 2d. Most relate to
litigation and trial practice. All of the sets are kept current by pocket parts or separate
stand-alone supplements, which provide new forms, checklists, and other pertinent
material. To access these sets, use the descriptive word approach, and look up words that
describe your issue in the General Index. You will then be directed to the appropriate
volume and section. All of these sets are available on Westlaw. These very practical sets
routinely refer you to Am. Jur. 2d and are as follows:

Figure 6-3
Sample Page from General Index Update to Am. Jur. 2d

(1) Am. Jur. Proof of Facts

This set of more than 200 volumes (Proof of Facts, Proof of Facts 2d, and Proof of Facts
3d) is designed to assist in the preparation for and proving of facts at trials, both civil and

224
criminal trials. The set is also available on Westlaw. The articles in Proof of Facts are kept
current by annual pocket parts and the addition of new volumes each year. Proof of Facts
provides practical and expert information regarding preparing cases for trial. Each article
provides background information regarding certain types of cases, for instance, personal
injury, employment discrimination, or medical malpractice litigation, and will then
succinctly set forth the elements of such a case, which must be proved to prevail at trial.
Sample interrogatories (written questions directed at parties in litigation) and other sample
discovery forms will be provided together with model questions for examining witnesses.
Articles include checklists, sample pleadings and motions, and other documents.

(2) Am. Jur. Trials

This set of books consists of more than 140 volumes that focus on trial tactics and
strategies. The articles in Am. Jur. Trials are authored by experienced litigators and judges
and provide a step-by-step approach to trial practice.
The first six volumes of the set, titled “Practice, Strategy, Controls,” are devoted to
matters common to all trials, such as fee agreements, investigating cases, locating witnesses,
discovery, settlement, jury selection, and closing arguments. Information is often presented
by easy-to-follow checklists, which outline steps to be taken in litigation matters.
The remaining volumes in Am. Jur. Trials are titled “Model Trials” and are devoted to
specific kinds of cases, such as elevator accident cases, dental malpractice cases, or contact
sports injury cases and will analyze in depth the strategy of conducting trials of these
specific types of cases, from the first meeting with a client through trial.
Following are examples of actual topics covered by Am. Jur. Trials: Disputed Paternity
Cases, Stockbroker Liability Litigation, and Litigating Identity Theft Cases.

(3) Am. Jur. Pleading and Practice Forms Annotated

This set of books consists of more than 70 volumes that provide forms for every stage of
state and federal litigation, including forms for complaints, answers, interrogatories, jury
instructions, motions, and orders. These forms are extremely useful and serve as excellent
“how to” guides for drafting forms. Practical checklists are included to remind you of items
to be included in various forms. If your state does not have its own sets of form books, this
set will provide several examples of litigation documents, which you can tailor to your
state’s requirements and a client’s needs. If you are asked to prepare a complaint or a set of
interrogatories, consult Am. Jur. Pleading and Practice Forms Annotated, which contains
numerous forms you can use as models. Case notes indicate the proper usage for each form,
and references to topic names and Key Numbers and other West resources, such as A.L.R.
annotations, help you expand your research. More than 40,000 forms are included in this
set. The set’s availability on Westlaw enables you to download the forms for easy editing on
your word processor.

(4) Am. Jur. Legal Forms 2d

225
 There are many documents prepared in the legal profession that are not litigation-
oriented. These documents are often used in connection with a client’s personal or business
needs, such as a will, a trust, a lease, or minutes of corporate meetings. Am. Jur. Legal Forms
2d provides more than 22,000 such forms together with checklists, tips, and advice for
preparing various forms and documents. For example, if you are drafting a lease, Am. Jur.
Legal Forms 2d will provide you with a list setting forth the elements required for a valid
lease. As is the case with Am. Jur. Pleading and Practice Forms Annotated, described above,
you should customize the forms you find to comply with the client’s needs and your state
statutes. Often, optional or alternative clauses are provided, allowing you to pick and
choose clauses to construct the best document for the client. A “caution” section is included
to help you avoid common errors in document drafting. Tax checkpoints and information
are also included. References to West’s Key Number System, A.L.R., and other West
resources are provided. See Figure 6-4 for a sample page from Am. Jur. Legal Forms 2d. The
set’s availability on Westlaw allows you to download the forms for easy editing and
drafting.

Ethics Alert
Using Encyclopedias

The discussion of a topic of the law in an encyclopedia can seem complete, leading some researchers to
conclude that reading the encyclopedia and consulting a few cases to which they are directed by the
encyclopedia completes their research task. Remember that encyclopedias are meant to be introductions to an
area of the law. Moreover, the cases to which you are directed are often somewhat older cases. Thus, you are
obliged to go beyond encyclopedias when you research, and use other materials, including periodicals,
Restatements, and, of course, the primary sources.

3. Local or State Encyclopedias

a. Introduction

You have seen that C.J.S. and Am. Jur. 2d are general encyclopedias that provide a national
overview of more than 400 areas of the law. It is possible,

Figure 6-4
Sample Page from Am. Jur. Legal Forms 2d

226
however, that you may not need such broad coverage of a topic and are interested only in
the law for your particular state. In this instance, you should consult an encyclopedia for
your state, if one is published for your state. Not every state has its own encyclopedia.
Generally, you will find encyclopedias published for the more populous states.
To determine if an encyclopedia exists for your state, check the online catalog in the
law library, ask a reference librarian, or simply look at the shelves in the law library devoted
to the law of your state.
Most of the local sets are published by West (either because West was the original
publisher of the set or acquired the set when it purchased Lawyers Co-op). The West sets
are arranged much like C.J.S. and include references to other West resources, including
A.L.R. annotations and other various West sets, such as Am. Jur. Legal Forms 2d. Many
include references to topic names and key numbers, allowing easy access into West’s
digests. A few sets are published by Lexis. If your state does not have a local encyclopedia,
use C.J.S. or Am. Jur. 2d and research your state’s law by looking for cases from your state
by examining the footnotes. See Figure 6-5 for a list of the local encyclopedias and their
publishers.

b. Features Common to State Encyclopedias

227
The following features are common to most state encyclopedias:
(i) Coverage. The discussion of the law presented will relate only to the law of a
particular state, and the cases you will be directed to will be from that state
and from federal courts that have construed that state’s law.
(ii) Arrangement. The various topics covered in a state encyclopedia are arranged
alphabetically. The narrative statements of the law are clearly presented, and
you will be directed to cases and other authorities through the use of
supporting footnotes.
(iii) Table of Cases. Many local sets contain tables that alphabetically list the cases
discussed or cited in the set. Thus, if you know the name of a case in your
state, you can readily locate the text discussion of it or the area of law with
which it deals by using the Table of Cases.
(iv) Table of Statutes. Although C.J.S. and Am. Jur. 2d refer you only to selected
federal statutes or uniform laws, many state encyclopedias contain a detailed
table of statutes, which will direct you to a discussion or reference of a statute
in which you are interested. Thus, if you are interested in Section 50 of the
California Probate Code, you simply look this up in the table of statutes and
you will be referred to any titles and sections in Cal. Jur. 3d where this
statute is discussed.
(v) Indexing. Most state encyclopedias have a multivolume general index usually
located after the last volume in the set.
Additionally, many encyclopedias provide an index or outline before each
topic begins.
(vi) Supplementation. State encyclopedias are supplemented or kept up to date in
the same manner as the national encyclopedias, C.J.S. and Am. Jur. 2d, that
is, by cumulative pocket parts and replacement volumes.

Figure 6-5
List of Local Encyclopedias

228
c. Research Strategies for Using State Encyclopedias
The research techniques used to access the state or local encyclopedias are as follows:

(i) Descriptive Word Approach. By selecting words and phrases that describe the
issue you are researching and then looking these up in the general index, you
will be directed to the appropriate topic and section.
(ii) Topic Approach. Think of the topic or area of law your issue deals with and
then retrieve this specific volume from the shelf. Examine the outline of the
topic preceding the narrative discussion of the law to determine the specific
section you should read.
(iii) Table of Cases Approach. If you are interested in a discussion of a particular
case from your state, look up the case name in the table of cases for your set,
and you will be referred to the topic and section that discuss it.
(iv) Table of Statutes Approach. If you are researching a particular statute in your
state, you can look it up in the table of statutes, and you will be directed to
the relevant topic and section in the encyclopedia.

Practice Tip

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 Encyclopedias

When using legal encyclopedias, start small. Use a set for your state (if one is available) before using either of
the national sets (C.J.S. or Am. Jur. 2d). Similarly, when presented with a list of cases in footnotes, read the
ones from your jurisdiction before reading those from other jurisdictions.

4. Special Subject Encyclopedias

The encyclopedias previously discussed, C.J.S., Am. Jur. 2d, and the local encyclopedias,
discuss hundreds of areas of the law. There are, however, a few encyclopedias that are
devoted to just one area of the law. For example, West’s Encyclopedia of Employment Law
consists of four volumes and discusses all aspects of employment law. Check the online
catalog at your law library to determine if an encyclopedia exists for a particular subject.
Many of these “encyclopedias,” however, are more accurately classified as treatises, as
discussed in Section C of this chapter. The best research strategy to employ when using a
special subject encyclopedia is the descriptive word approach. Either the encyclopedia will
contain a separate index volume or the index will be found in the last volume of the set.
The alphabetically arranged index will contain numerous words and phrases describing
topics discussed in the set and will refer you to the appropriate volume and section of the
set describing the area of law in which you are interested.

5. Summary of Encyclopedias

Encyclopedias provide excellent introductions to numerous areas of the law as well as easy-
to-understand summaries of the law. You must remember, however, to read the primary
sources you are directed to by the encyclopedias, as these mandatory authorities must be
followed by courts, and the encyclopedias are merely persuasive authorities, which may be
followed. If you are assigned a research project and you are uncertain where or how to
begin, begin with an encyclopedia. Be sure this is the beginning, however, and not the end
of your research, as the information presented to you in encyclopedias is generally
introductory rather than analytical. Encyclopedias generally tell you what the law is, not
what it should be. Although you may readily rely on encyclopedias to provide an accurate
overview of the law, you should not cite an encyclopedia as authority in any brief or project
you prepare unless there are no primary authorities or no other more creditable secondary
authorities, such as Restatements, treatises, or law review articles, on which to rely.
Although encyclopedias are helpful resources, they are not sufficiently scholarly to serve as
the sole support for an argument you advance. If you remember these guidelines,
encyclopedias will serve as excellent starting points for your legal research.

The Final Wrap-Up

Using and Citing Legal Encyclopedias

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Use: Use legal encyclopedias to “get your feet wet” and gain background information
about a topic. Encyclopedias provide a general overview rather than an
exhaustive treatment of a topic. Rely on the cases encyclopedias refer you to
rather than on the encyclopedia itself.
Citation: Do not cite to encyclopedias in any court documents or other legal writings
unless there are no primary authorities on which you can rely. A citation to a
legal encyclopedia is a signal to a reader that your argument is so weak that there
are no mandatory authorities that support your viewpoint.

B. Legal Periodicals

1. Introduction

Just as you might subscribe to a periodical publication such as Wired, People, or Sports
Illustrated, law firms, paralegals, law libraries, legal departments of businesses, and agencies
subscribe to a variety of publications that are produced on a regular or periodic basis and
which discuss a wide range of legal topics.
There are four broad categories of legal periodicals: publications of law schools;
publications of bar associations and paralegal associations; specialized publications for those
in the legal profession sharing similar interests; and legal newspapers and newsletters. All of
these publications are secondary sources. Although many of them, particularly the
publications of law schools, are very well respected and scholarly, they remain persuasive
authorities whose views may be followed rather than primary or mandatory authorities that
must be followed, if relevant.
The legal periodicals typically direct you to primary authorities (cases, statutes,
regulations, and constitutions) through the use of extensive footnotes or endnotes. In fact,
sometimes half of each article or page of a law school periodical consists of footnotes. The
footnotes will also cite other relevant secondary authorities and practice guides.
The periodical publications serve many functions. Some provide extensive analyses of
legal topics; some serve to keep practitioners current on recent developments in the law;
and some provide practical information relating to problems and issues facing those in the
legal profession.

2. Law School Publications

Most law schools produce a periodical publication generally referred to as a “law review,”
such as the Texas Law Review, University of Cincinnati Law Review, or William and Mary
Law Review, although some title their publications “journals,” such as the Emory Law
Journal, Rutgers Law Journal, and Yale Law Journal. These are typically published three or
more times each year, initially in softcover pamphlet form and later in hardbound volumes.

231
More than 100 law schools publish these reviews, which contain articles on a variety of
legal topics. Because the law reviews are published so frequently, they often provide topical
analysis of recent cases or recently enacted legislation.
The law reviews are edited by law students who have been selected to write for the law
review based on academic distinction or writing competitions. These editors are typically
second- and third-year law students who bear the primary responsibility for editing and
publishing the law review, although faculty members typically advise the students. Despite
the fact that the law reviews are principally the product of students, they have a high degree
of respectability due to the exacting and rigorous standards of the editors. Do not equate
these law reviews with the newspapers or newsletters produced at a college. The law reviews
provide scholarly analysis of legal topics and are routinely cited with approval by courts.
The law reviews differ greatly from encyclopedias, which are noncritical in their approach
and usually focus on merely explaining the law. The law reviews offer a critical approach
and often advocate reform and change in the law.

A law review usually has several sections:

(i) Articles. “Articles” are usually scholarly monographs or essays written by

professors, judges, or practicing attorneys. Often exceeding 40 pages in
length, an article examines a topic in depth. The topics explored are diverse
and may range from an analysis of the California Agricultural Relations Act
to a study of discrimination against handicapped persons to an examination
of the regulation of drones. Despite the fact that these articles are authored
by professors, judges, and attorneys, the students on the review’s board of
editors edit the articles, check the accuracy of the citations in the article, and
make suggestions for revisions. Shorter articles may be called “Essays.”
(ii) Comments and Notes. “Comments” and “Notes” are generally shorter pieces
authored by students. These shorter analyses typically examine diverse and
often cutting-edge legal topics, such as food safety measures or the regulation
of marijuana.
(iii) Case Comments/Recent Cases/Recent Developments. This section is also
authored by students and examines the impact of a recent case or newly
enacted legislation.
(iv) Book Reviews. Just as The New Yorker reviews recent works of fiction in each
issue, some law reviews contain a section that reviews books or texts relating
to legal issues, such as Hazardous Product Litigation, Handbook of the Law of
Antitrust, or Justice by Consent: Plea Bargains in the American Courthouse. A
critical analysis of the book is provided together with an identification of the
publisher and the price of the book.

Almost all law schools publish one of these general types of law reviews; that is, a review
containing articles on a variety of topics, such as corporate law, civil law, criminal law,

232
trademark law, and so forth. In addition to these general law reviews, many law schools also
provide other law reviews devoted to a specific area, such as international law or civil rights.
For example, Boston College Law School publishes the following reviews in addition to its
general law review, called the Boston College Law Review:

Boston College Environmental Affairs Law Review

Boston College International & Comparative Law Review
Boston College Journal of Law and Social Justice

Often law reviews are arranged alphabetically in a law library, so that the Akron Law
Review is followed by the Alabama Law Review, which is then followed by the Alaska Law
Review, and so forth, making the task of locating a law review easy and efficient. Law
reviews are cited as follows:

Article: Anne L. Alstott, Equal Opportunity and Inheritance Taxation, 121 Harv. L. Rev.
469 (2007).
Signed Student Note: Sylvia T. Parker, Note, Debtors’ Rights to Debt Counseling, 98 Tul.
L. Rev. 1604 (1988).

See Figure 6-6 for a sample cover of a law review.

Figure 6-6
Sample Cover from Law Review

233
3. Bar Association and Paralegal Association Publications

Each state and the District of Columbia have a bar association. Usually an attorney cannot
practice law in a jurisdiction without becoming a member of that state’s bar association.
The dues paid to the association often fund various legal programs such as services for
indigents, disciplinary proceedings, and the periodical publication of a journal for the
members of the bar. Some bar associations publish monthly journals while others publish
every other month. The ABA Journal is a very professional-looking publication that is sent
to members of the American Bar Association each month. In a newer trend, many bar
associations, such as the State Bar of California, provide their publications in electronic
form only.
These publications usually offer a very practical approach to practicing law in a
jurisdiction and feature articles on ethics; provide notices of changes in local court rules,
local cases, or local legislation; provide human interest biographies of judges or practitioners
in the state; publish lists of attorneys who have been suspended or disbarred from the
practice of law; and review books, software, and other materials of interest to practitioners.
These journals usually resemble nonlegal publications such as TIME Magazine. Their size
(8½” × 11”) is the same as the popular press publications, and they often feature a
photograph of a judge or lawyer on a glossy front cover. A table of contents is included as

234
well as a variety of advertisements for products and services aimed at the legal profession,
such as office furniture, software programs, seminars, and books.
The articles published in these bar association publications are far more practical in
their approach than the academic articles published in law reviews. For example, an article
in a law review relating to child support might well examine the development and evolution
of cases and legislation in that area of the law, analyze the social policies served by child
support, and advocate for reform, if needed. In contrast, an article in a bar association
publication might be titled How to Calculate Child Support and would provide no such
scholarly analysis, but rather would focus on the practical aspects of the process of
calculating the amount of child support a noncustodial parent should pay.
Just as there are state bar associations, many local jurisdictions will often have city or
county bar associations, such as the Bar Association of Montgomery County, Maryland.
Many specialized groups may form local associations, such as the Women’s Bar Association
of the District of Columbia. These associations may also produce periodical publications:
Some are pamphlets, and others are informal newsletters or flyers. Generally, these
publications are very practical and informal in approach. Articles relate solely to local
matters, such as changes to the local rules of court, and they often serve to inform the
membership of educational or social functions. Job postings are often included.
In summary, the publications of bar associations tend to focus on practical guidelines
for law practice. It is unlikely that you would conduct substantive research using these
publications. It is far more likely that your use of these publications will be aimed at
keeping you current on legal issues facing your jurisdiction.
Just as bar associations are composed of attorneys and produce a periodical publication,
there are associations composed of paralegals that produce periodical publications. For
example, the National Association of Legal Assistants publishes a bi-monthly journal called
Facts & Findings. Similarly, the National Federation of Paralegal Associations issues a
quarterly publication called the National Paralegal Reporter. Other periodicals and journals
exist for paralegals and are published independently of any association. One of the better
known publications is Paralegal Today, formerly titled Legal Assistant Today (see
http://www.paralegaltoday.com). These publications publish articles of interest to
paralegals, such as information on licensing and certification issues; articles offering
practical approaches to paralegal tasks such as interviewing, document control, and
discovery; and data on average salaries and benefits. Advertisements feature books, software,
and seminars. If you belong to a local paralegal association, you will see that its newsletter
will undoubtedly contain announcements of job vacancies. See Figure 6-7 for a sample
cover from a periodical for paralegals.
Similar in approach to the journals and periodicals published by bar associations, the
journals and periodicals published for paralegals share a practical focus and are oriented to
providing useful information to practicing paralegals.

4. Specialized Publications

235
Just as individuals who are interested in fashion might subscribe to Vogue and individuals
interested in sports might subscribe to Sports Illustrated, legal practitioners who have an
interest in a specialized area of the law might subscribe to a specialized periodical. Thus,
numerous journals and periodicals exist to provide practitioners who focus on a certain area
of the law with the information of most interest to them. The numerous specialized
periodicals vary in their approach, with some being more analytical and academic, such as
the SMU Science and Technology Law Review, which explores legal issues in intellectual
property, science, and technology, and others being more practical in approach such as the
Medical Trial Technique Quarterly, which contains useful articles on topics such as how to
cross-examine an expert cardiologist or how effectively to review medical records. Other
examples of specialized periodicals are the American Bankruptcy Law Journal, the
Entertainment and Sports Lawyer, the Elder Law Journal, and the Journal of Taxation.
Practitioners interested in keeping current with developments in these fields subscribe to
these publications.
Additionally, many periodicals are published for individuals who may share common
interests, such as the Journal of Catholic Legal Studies, the Women’s Rights Law Reporter, and
the National Black Law Journal. Some periodicals focus on the interplay between law and
other fields of endeavor, such as the Journal of Health Politics, Policy and Law and the
Journal of Law & Politics. These journals or periodicals focus on issues that have
implications for the legal field as well as some other field.

5. Legal Newspapers and Newsletters

In large cities such as New York and Los Angeles, you will find daily legal newspapers such
as the New York Law Journal and the Los Angeles and San Francisco Daily Journal. These
newspapers, published every weekday, contain the text of recent appellate cases from the
state, cover legislative issues, and contain articles of general interest to lawyers and
paralegals practicing in that jurisdiction. They usually contain extensive classified
advertisements and serve as a useful source of job announcements and vacancies.
Some legal newspapers do not restrict their coverage to any locality; they are national in
scope, such as the National Law Journal, which is published weekly. This weekly newspaper
for legal professionals includes articles on a variety of legal topics including ethics, law
school admissions, and criminal law matters. Additionally, recent state court and federal
court decisions are highlighted. Professional announcements such as those relating to law
firm mergers or formations and advertisements for career opportunities are included. Many
legal publications offer both print and online subscriptions. For example, The American
Lawyer, a monthly magazine, offers content in both conventional print form and online.
Legal materials available on the Internet are discussed in Chapter 12.
In addition to legal newspapers, more than 2,000 legal and law-related newsletters are
published in the United States. Some of these newsletters are one-page bulletins; others are
multiple-page newsletters; and others are looseleaf reporting services, which are stored in
ringed binders. Some newsletters offer only short articles, while others provide in-depth

236
analysis of legal issues. Examples of these newsletters include Jury Trials and Tribulations
(published twice per month and containing summaries of civil jury trials in Florida) and
Internet Litigation News (a monthly publication reporting on cases relating to litigation
about the Internet).

6. How to Locate Periodical Articles

Although each issue of a law review, bar association publication, specialized periodical, or
legal newspaper will contain its own table of contents, it would be extremely ineffective to
conduct research by retrieving each of these hundreds of publications and scanning its table
of contents in the hope that you will eventually stumble upon an article of interest to you.
To locate an article in a periodical publication, you must consult one of several published
indexes that will direct you to articles published in periodicals. There are several well-
known indexes you can use.

Figure 6-7
Sample Cover from Periodical for Paralegals

a. Print Indexes

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Many law libraries provide indexes in print that direct researchers to articles published in
journals and periodicals. The two best known print indexes are Index to Legal Periodicals &
Books (I.L.P.) and Current Law Index. Each set will direct you to about 900 legal periodicals
and journals. The sets are initially published in monthly or quarterly softcover pamphlets
that are later bound in hardbound volumes. They are usually located in the reference
section of a law library. To locate periodical articles in either I.L.P. or Current Law Index,
use one of the following methods:

• Subject Approach. Think of words that describe the topic you are interested in,
such as bankruptcy or divorce. Look up these words in the alphabetically arranged
index to be directed to published articles relating to this topic.
• Author Approach. If you happen to know that a certain author has written on a
topic, you may look up the author’s name to be directed to articles written by this
individual.
• Table of Cases Approach. If you wish to read articles that have discussed certain
cases, such as Bush v. Gore, you can look up this case in either set’s Table of Cases
to be directed to periodical articles written about this case.
• Table of Statutes Approach. If you are interested in whether any periodical articles
have analyzed a particular statute, you can look up the statute in either set’s Table
of Statutes, which will direct you to pertinent articles.
• Book Review Approach. If you are looking for a review of a certain book, use
I.L.P.’s Book Review Index to be directed to articles that have reviewed the book.

See Figure 6-8 for a sample page from I.L.P.

Although I.L.P. and Current Law Index are the most comprehensive indexes because
they send you to hundreds of periodicals, there are several other indexes that may assist in
your research efforts, including the following:

• Index to Foreign Legal Periodicals. This index will direct you to periodical articles
from countries other than the United States and the British Commonwealth.
Access is gained through an alphabetically arranged subject index (in English) or an
index by author name.
• Index to Periodical Articles Related to Law. Remember that I.L.P. and Current
Law Index will direct you only to legal publications. It is possible, however, that
articles related to legal topics may appear in the popular press such as TIME
Magazine or Wired. The Index to Periodical Articles Related to Law will direct you to
such articles through its alphabetically arranged index.

Figure 6-8
Sample Page from Index to Legal Periodicals & Books

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b. Electronic Finding Aids
Because the major print indexes, I.L.P. and Current Law Index, are cumulated on monthly,
quarterly, and annual bases, you may need to check several pamphlets and bound volumes
to find articles of interest to you. This is highly time-consuming; therefore, nearly all
researchers now use electronic or online versions of these indexes. These electronic indexes
are fully cumulative, meaning that you can search the entire coverage of the index with one
search query. Many of these online finding aids, however, require user accounts or are
restricted to their subscribers. Following are some of the more frequently used electronic
indexes that are used to find articles of interest.

• Index to Legal Periodicals & Books. The online version of I.L.P. is also called
“Index to Legal Periodicals & Books.” Researching using the online index is much
easier than using conventional print volumes because the online version is
completely cumulative. Once you type in the appropriate search terms (topic,
author name, and so on), you will be directed to all pertinent articles after 1982.
This online index is a subscription service, meaning that a law library must
subscribe to it and then typically only its members or students may access it.
• Current Index to Legal Periodicals. Many law schools and universities subscribe

239
 to Current Index to Legal Periodicals, which allows researchers to search for articles
in more than 600 legal publications. Researchers can customize the service so that,
for example, they will be notified any time a new article is published in Tax Law
Review or any time any journal publishes an article about copyright law. Current
Index to Legal Periodicals is available in both print and electronic form and
provides the most up-to-date access to journals and articles. This service is available
only to paying subscribers, although your law library may offer access to its
patrons.
• LegalTrac. LegalTrac is the online version of the print publication Current Law
Index. It indexes more than 1,500 legal publications together with articles found in
business and general interest periodicals. Many law libraries subscribe to LegalTrac,
allowing you desktop computer access, so you can easily search for and locate
articles since 1980 by subject matter, author name, and so forth.
• HeinOnline. Many law schools and universities subscribe to HeinOnline, which
provides the full text of more than 2,000 law-related periodicals. HeinOnline
provides exact page images of law review articles so that all charts and graphs
appear just as in their print counterparts. You may search by topic, author, or
citation. Access is typically limited to students and other registered users.
• Lexis Advance and Westlaw. Periodical articles are easily retrieved on both Lexis
Advance and Westlaw. You may locate articles by their citation (for example, 19
Berkeley Tech. L.J. 104), by author name, or by keywords and terms. You may
then directly link to articles of interest to you. After you locate an article, you may
then Shepardize it or KeyCite it to locate more recent articles and cases that cite
your article.
• University Law Review Project. The University Law Review Project is a free
service, available at http://lawstudents.findlaw.com, which offers links to hundreds
of law reviews and periodicals. The site allows searching for journal articles by
keywords inserted into a search box. The site also offers direct linking to numerous
school law reviews by topic. Thus, if you select Family Law, you will be given a list
of journals that discuss family law.
• Law Review Commons. The Law Review Commons
(http://lawreviewcommons.com) provides free access to more than 250 law reviews
and nearly 200,000 articles from 1852. You may browse by title of the journal you
are interested in, subject, topic area, or author.
• ABA Law Review Search. The website of the ABA (http://www.americanbar.org)
offers free access to more than 400 journals and law reviews, accessed either by
name of the journal or by keyword searching.
• Law Review Websites. Most law reviews now have their own websites and post
their most recent issues as well as the full text of older articles. Use a general search
engine to locate journals. For example, enter “Duke Law Journal” into Google’s
search box and you will be able to access all Duke Law Journal articles since 1951.

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c. Special Subject Indexes
There are numerous other indexes, some of which index articles related to specific legal
topics such as the following: Criminal Justice Periodicals Index; Index to Federal Tax Articles;
and Index to Canadian Legal Periodical Literature. These indexes typically are arranged
alphabetically by subject.

d. Other Finding Techniques

Often you may be directed to a particular law review or periodical article in the course of
your research. For example, following a statute in U.S.C.S. is a “Research Guide,” which
typically identifies various A.L.R. annotations and law review articles relating to the statute
you are researching. (See Figure 3-5.) These references to law reviews are found in U.S.C.A.
and other annotated codes as well. Similarly, when you Shepardize or KeyCite cases or
statutes, you will be directed to periodical articles written about them. Additionally, after
you locate a periodical article of interest to you, you can then Shepardize or KeyCite it and
be directed to later cases and other articles that have mentioned the article you have read,
leading to an ever-increasing collection of legal resources. Shepardizing and KeyCiting are
discussed in Chapter 9.

7. Summary of Legal Periodicals

All of the legal periodicals (law reviews, bar association and paralegal journals, specialized
periodicals, and newspapers and newsletters) are secondary authorities. A court is not
required to adhere to the view expressed in a periodical, though it may be persuaded to do
so. Periodicals range in approach from the scholarly law reviews to the more practical bar
association and paralegal association journals to brief bulletins and newsletters. Locating
periodical articles is best accomplished by using one of the separately published
comprehensive indexes such as the Index to Legal Periodicals or the Current Law Index. You
may use the descriptive word approach, the author approach, the table of cases approach, or
table of statutes approach to locate relevant articles. Consider using one of the electronic
finding aids mentioned previously or Lexis Advance or Westlaw to avoid having to examine
several print volumes.
Generally, if a periodical article has been written about a topic of interest to you, you
should view it as “free research,” because the article may well examine the area of law in
depth, comparing and contrasting cases in various jurisdictions and analyzing all facets of
the topic, thus reducing your research tasks. You can then Shepardize or KeyCite the article
to locate newer articles or cases that mention the article you have read. Although periodical
publications are not primary authorities, they are frequently cited (especially the
authoritative academic journal articles) in briefs and court documents to clarify and lend
support to primary authorities such as cases.

The Final Wrap-Up

241
Using and Citing Periodicals

Use: Use legal periodicals to obtain a thorough analysis of a legal topic. Many
periodicals (especially the law reviews) are highly regarded and will provide
extensive information about a subject you are researching. Legal periodicals can
provide a fresh and creative approach and are published more quickly than other
books so they can offer information on current developments in the law.
Citation: Although all periodicals are secondary sources, some are highly persuasive. As
you gain familiarity in reading cases, you will obtain greater insight into which
periodicals are the most credible. Use the print source Shepard’s Law Review
Citations or the online research systems Lexis Advance and Westlaw to direct
you to other articles and cases that cite your periodical. You may freely cite to
the academic law reviews and special subject journals. Avoid citing to bar
association publications, newspapers, and newsletters, which you should use to
keep current in your field.

C. Texts and Treatises

1. Introduction
Texts written by legal scholars that focus on one topic of the law are referred to as treatises.
Treatises comment upon and analyze an area of law. They are secondary sources. The
authors may be academics or practicing attorneys. Treatises vary a great deal in scope and
depth. A treatise may be a one-volume work on a fairly narrow legal topic, such as Law of
Water Rights and Resources, or an analysis of a newly emerging area of the law, such as
Animals and the Law: A Sourcebook, or an extremely well-known multivolume set on a
broader topic, such as the 19-volume set Collier on Bankruptcy, 16th Edition.
As you have seen, an encyclopedia typically examines hundreds of topics of law from
abandonment to zoning and provides introductory information on these topics. Treatises,
on the other hand, are devoted to one area of the law and usually examine it in depth. For
example, if you were to read all of the sections of C.J.S. on Contracts, you would be
presented with approximately 2,000 pages of material. If you were to review a well-known
treatise on contracts, titled Williston on Contracts, 4th, you would be presented with more
than 30 volumes and approximately 18,000 pages of material.
You may recall that encyclopedias are noncritical summaries of the law, meaning that
the information you are given merely summarizes the law relating to that topic. Treatises,
however, may be “critical” in the sense that they may boldly criticize case law or question
the logic of a judicial opinion. For example, the following language is found in 6 J. Thomas
McCarthy, McCarthy on Trademarks and Unfair Competition § 32:156 (4th ed. 2013): “In
the author’s opinion, the Third Circuit’s view is a peculiar, illogical, and unsupported

242
misreading of the § 33(b) [trademark] incontestability provisions.” Such a statement is far
different in tone from that of the encyclopedias, which merely present the law without any
such disapproving commentary.
The narrative statements found in a treatise are typically more analytical than those
found in encyclopedias. One feature treatises share in common with encyclopedias,
however, is that they serve as casefinders. The format of many treatises is also similar to that
of encyclopedias: Narrative discussions of the law are found on the top portion of each page
with citations to cases and other authorities located through the use of supporting footnotes
in the lower portion of each page. One particular type of treatise is called a “hornbook,” a
one-volume text devoted to one area of the law, such as contracts, torts, or real property.
Hornbooks are primarily designed for use by law students and offer broad and fairly
academic coverage of a topic. Cases discussed tend to be the landmark cases in the field.
Remember that texts and treatises come in many forms: from one volume to a
multivolume set; from analysis of very narrow topics, such as Standby and Commercial
Letters of Credit, to analysis of a broader topic, such as criminal law or corporations; from
recently published analysis of newer legal topics, such as Employer Health Care Plans After
the Affordable Care Act, to the extremely well-known and respected treatise, Prosser and
Keeton on Torts, which was first published in 1941 and is still the premier authority on
torts; and from volumes that are in hardbound form to looseleaf binders to softcover
pamphlets. Numerous treatises are now available in e-book form and on Lexis Advance and
Westlaw. See Figure 6-9 for a sample page from a treatise.
In fact, if you are unsure what “category” a law book falls in, it is probably a treatise.
No matter what kind of treatise it may be, however, it remains a secondary authority,
meaning that although a court may choose to follow a position advanced by a well-known
and highly regarded treatise such as Wigmore on Evidence, the court is not required to do so.
Courts have, however, cited numerous treatises with approval, and some treatises such as
Prosser and Keeton on Torts have been cited thousands of times, partly because of the caliber
of the authors. You should feel free to rely upon and quote from treatises in memoranda
and briefs that you prepare so long as you also have at least one “on point” primary
authority to support your position. If you are unsure as to the credibility of the treatise, you
can consult a source titled Who’s Who in American Law and review the author’s credentials.
Alternatively, you can look up the author’s name in the Index to Legal Periodicals & Books
or in the Current Law Index to determine if the author has produced other writings on this
topic, or you can ask the reference librarians in your law library for their opinions on the
expertise of the author and the treatise’s overall reputation in the courts. Finally, if the
treatise has been published in multiple editions, this is a signal it is widely accepted and
used.

Practice Tip

Books and Treatises

243
 Treatises are primarily found in conventional book or print format, although many are available on Lexis
Advance and Westlaw. They are not available on the Internet (as are cases, statutes, constitutions, and other
legal authorities).

2. Common Features of Treatises

Treatises usually share the following features:

(i) Format. Treatises are essentially “expert opinions” on one topic of the law.
The analysis of the law is presented in narrative form, and readers are usually
directed to cases and other authorities through the use of footnotes.
Generally, treatises are arranged by chapters and then by sections or
paragraphs within those chapters.
(ii) Index. An index to the treatise consisting of an alphabetical arrangement of
the topics, subjects, words, and phrases discussed in the treatise will be
located in the last volume of the set or as a separate index volume after the
last volume in the set.
(iii) Table of Contents. A table of contents will usually be presented in the front
of each volume showing how the discussion of this area of the law is arranged
by chapter.
(iv) Table of Cases. Most treatises contain an alphabetically arranged table of
cases so you may readily locate a discussion of a certain case.
(v) Table of Statutes. Many treatises contain a table of statutes so you can locate
the discussion of a certain statute.
(vi) Appendices. Many treatises include the text of statutes and regulations that
are relevant to the area of law covered by the treatise. For example, the
appendix to the treatise McCarthy on the Law of Trademarks and Unfair
Competition includes the full text of the United States Trademark Act.
(vii) Updating. Most treatises are maintained by the traditional method of
updating of legal books: an annual cumulative pocket part. If the treatise
consists of looseleaf binders, it will be updated by periodically issued
supplements placed in the binder or by replacement pages sent to the law
library on a periodic basis. The law library will be provided with a set of
instructions to, for example, “replace old page 41 with new page 41 and
discard old page 41.” Some treatises are kept current by a separate softcover
supplement, which will be placed next to the main volume(s) of the treatises.
Check the copyright year of any hardback volumes to make sure they are
current. You must always check the pocket part or supplement to determine
if the narrative statement of the law presented in the main hardbound
volume is still an accurate statement of the law and to locate cases and other
authorities more current than those found in the footnotes in the hardbound
volume.

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3. Using and Finding Treatises

Although encyclopedias serve as excellent introductions to a wide variety of legal topics, a

treatise serves as a more thorough examination of one area of the law. Although you are
discouraged from citing encyclopedias, you are encouraged to cite treatises, particularly
those with established

Figure 6-9
Sample Page from a Treatise

reputations. For a comprehensive analysis of a topic with thoughtful evaluation of case law,
consult a treatise.
If you are unsure whether a treatise has been written regarding the topic of law you are
interested in, you can try various strategies:

(i) Check the online catalog in your law library for your topic (bankruptcy,
contracts, trusts, and so forth). The catalog will list every treatise the library
contains relating to this topic and will direct you to the particular “stack”
where the treatise is located.

245
 (ii) You can also go directly to the shelves where the books relating to this area
of law are maintained. For example, all of the books relating to criminal law
are generally shelved together. By skimming the titles of the books in the
stacks and browsing these books, you may well discover an excellent treatise.
(iii) Ask the reference librarian for assistance. Even if your law library does not
contain the treatise you need, you may be able to obtain one via an
interlibrary transfer, that is, a “loan” from another library.
(iv) Because many treatises are in high demand, check the reserve room at your
law library, which may keep the most frequently consulted treatises on
reserve.

4. Research Strategies for Using Treatises

There are several alternative methods you can use to locate a discussion in a treatise on an
issue in which you are interested. Most of these are familiar to you.

(i) Descriptive Word Approach. This method simply calls for you to select a word
or phrase describing the issue you are researching and locate this word or
phrase in the index. The index will then direct you to the appropriate volume
or chapter, and then paragraph or section in the treatise. For example, if the
index directs you to 4:12, this is a signal for you to review Chapter 4, Section
12 of the set. As always, the descriptive word approach is the most reliable
research technique for beginning researchers.
(ii) Topic Approach. If you are relatively familiar with the treatise or subject
matter you are researching, you may elect to bypass the index to the treatise
and proceed directly to the table of contents. You would then scan the list of
chapter titles and subdivisions and proceed immediately to the appropriate
chapter.
(iii) Table of Cases/Table of Statutes Approach. If you are interested in locating a
discussion of a particular case, you can look up the case name in the
alphabetically arranged table of cases, which will direct you to that section of
the treatise that analyzes, evaluates, and discusses that case. Similarly, if your
treatise includes a table of statutes, it will direct you to text discussion of
specific statutes.
(iv) Other Approaches. It is possible that you may be referred to a treatise
through another source entirely. Thus, if you are reading a pertinent case on
an issue you are researching and the case comments favorably and relies upon
a treatise, you should then retrieve and examine the cited treatise. Similarly,
other sources (encyclopedias, periodical articles, and library references found
in U.S.C.A. and U.S.C.S.) may refer you to a treatise. See Figure 3-5 for a
reference in U.S.C.S. to a treatise on banking.

246
 The Final Wrap-Up

Using and Citing Treatises

Use: Use treatises to find detailed and usually scholarly information on one topic of
the law. A treatise will explain the law, provide commentary and practice tips,
and will refer you to other authorities, generally through the use of footnotes.
Use a treatise to obtain more in-depth analysis of a topic than that given by an
encyclopedia and to help you locate cases on point.
Citation: Many treatises are highly regarded. In fact, some are so influential that they are
known only by an author’s name, such as “Prosser” or “Williston,” and are given
great credence in their respective fields. You may freely cite to treatises so long as
you also cite to primary authority for your argument. Thus, cite a treatise to
lend additional support to your argument, not as the sole support for your
argument.

D. Restatements

1. Introduction

In 1923, a group of law scholars established the American Law Institute, which is
composed of judges, law professors, eminent lawyers, and other jurists. The Institute was
created in response to the ever-increasing volume of court decisions, which the members of
the Institute believed produced both uncertainty and complexity in the law. The Institute’s
solution to this mass of irreconcilable and ambiguous case law was to “promote the
clarification and simplification of the law . . . .”
To accomplish this task, legal scholars called “Reporters” were appointed by the
Institute for various subject matters such as torts, property, contracts, conflict of laws, and
agency. Individuals are selected for membership in the Institute on the basis of their
professional accomplishments and their commitment to improving the law. Membership is
currently limited to 3,000, with the United States Supreme Court Justices and chief judges
of all United States Courts of Appeal and highest state courts as ex officio members. Each
Reporter, together with his or her assistants and advisors, was assigned to one of these
topics of the law to analyze carefully the assigned subject matter and thoroughly examine
pertinent cases.

Figure 6-10
Chart of Restatements

247
 The Reporters then prepared and presented preliminary drafts, restating American
common law in a terse and nearly rule-like fashion, to the Institute. Various revisions to the
drafts were made, and ultimately the Institute directed the publications of various final
“Restatements,” such as Restatement of Torts, Restatement of Contracts, and Restatement
of Agency. Restatements do not exist for all areas of the law but only for selected topics. See
Figure 6-10 on the previous page for a chart of Restatements. Some of the Restatements
have been updated or newly created in a second or third series, such as Restatement
(Second) of Torts and Restatement (Third) of Foreign Relations Law of the United States.
All of the series of Restatements are subject to rigorous drafting and review, making them
highly credible and reputable. The Institute has several projects in draft status, including
the Restatement of Liability Insurance.
The goal of the Institute, to restate American case law in a clear and certain manner,
has largely been accomplished due to the authority and repute of the members of the
Institute. In addition to publishing Restatements (which express the law as it is and are
addressed to courts), the Institute produces “Principles,” such as Principles of Software
Contracts (which express the law as the Institute believes it should be and are addressed to
legislatures, agencies, and private parties), and “Model” acts or codes such as the Model
Penal Code, which are drafts of legislation aimed at legislatures that may then adopt the

248
model act or code as their state law. Model acts are discussed in Chapter 7.

2. Arrangement of Restatements

Each Restatement typically consists of two to six main volumes. Each volume is arranged in
chapters, and the chapters are arranged in titles and numbered sections. Each section relates
a principle of the law in clear straightforward language printed in bold typeface. These
Restatement sections are followed by “Comments” and “Illustrations.” The Comments
section provides general analysis of the legal principle previously given. The Illustrations
section exemplifies the legal principle by providing articulately written examples
demonstrating the application of the principle. The Reporter’s Notes then complete each
section by providing general discussion and explanations, together with references to cases
that support the Restatement position. Most Restatements include updating volumes called
“Appendix” volumes that direct you to cases that have cited Restatement sections (during
specified time periods). Recent volumes include cross-references to West’s Key Number
System and A.L.R. annotations.
The Restatements are updated by pocket parts, cumulative annual supplements,
Appendix volumes, and the Interim Case Citation service, which are semiannual pamphlets
providing Restatement citations more recent than those covered in the current pocket part.
See Figure 6-11 for a sample page from Restatement (Second) of Contracts.

3. Research Strategies
To locate a pertinent Restatement provision, you can use either the descriptive word
approach or the topic approach. To use the descriptive word approach, consult the
alphabetically arranged index to the pertinent Restatement, generally found in the last
volume of the Restatement set. Look up words or phrases that describe your research
problem and you will be directed to the appropriate section of the Restatement.

Figure 6-11
Sample Page from Restatement (Second) of Contracts
Copyright 1981 by the American Law Institute

249
 To use the topic approach, simply scan the table of contents located in the first volume
of any Restatement volume. By quickly viewing the table of contents you will be sent to the
pertinent chapter.
Because there is an alphabetical Table of Cases for the newer Restatements, you can use
this to locate pertinent Restatement sections. The Table of Cases is usually located in the
Index volume for the relevant Restatement. Look up case names in the Table of Cases and
you will be directed to particular Restatement sections that mention or cite those cases.
Alternatively, you may be directed to a Restatement section in the course of your
research. For example, a case you may be reading may refer to a Restatement section. In
this instance you should review the section mentioned.
Be sure to check the pocket parts, supplements, and Appendix volumes for the section
you are researching to determine if the Restatement section has been modified or limited
and to locate newer cases supporting the Restatement section.
Finally, the Restatements are available on Lexis Advance and Westlaw.

Practice Tip

Restatements

250
• At present, there is no one index to all of the Restatements. To conduct research in the Restatements, you
must know which is the pertinent Restatement for your research task.
• The American Law Institute has now published A Concise Restatement of Torts (3d ed.), A Concise Restatement
of the Law Governing Lawyers, and A Concise Restatement of Property, one-volume softcover books that include
the most critical information from their respective Restatements and which are meant to be especially helpful
for students. Check to see if your library has any of these concise Restatements.

4. Effect of Restatements

The Restatements are a secondary source. Courts are not required to adopt or follow the
Restatement positions. Nevertheless, the Restatements have been cited in cases more than
180,000 times. In fact, to determine if a Restatement section you are interested in has been
cited by a court, you can consult the pocket parts and Appendix volumes of the individual
Restatements. For more recent cases, you can also review Shepard’s Restatement of the Law
Citations, which will direct you to federal and state cases, as well as other authorities, that
have cited Restatement provisions. Finally, if you are viewing a Restatement provision on
Lexis Advance or Westlaw, you may Shepardize or KeyCite the provision to be directed to
cases and other authorities that have mentioned it or interpreted it.
Many legal experts believe the Restatements are the most highly regarded of all of the
secondary authorities, and you are encouraged to rely upon them and cite to them in
research projects you prepare. In fact, in ordering citations to secondary authorities, only
the uniform and model codes are cited before the Restatements, according to The Bluebook
(Rule 1.4(i)), which provides rules for citation form. This preeminence of the Restatements
in The Bluebook order of listing secondary materials confirms their authority.

The Final Wrap-Up

Using and Citing Restatements

Use: Use Restatements to obtain clear and concise statements of the law as well as
comments upon and illustrations of those rules of law. Make sure you read the
cases the Restatements direct you to, especially those in your jurisdiction.
Citation: Although the Restatements are a secondary authority, they are probably the
most highly regarded of the secondary authorities. Thus, you should feel free to
cite to them in your research memos and projects.

E. Citation Form

Encyclopedias:
44 C.J.S. Insurance § 121 (2007).
76 Am. Jur. 2d Trusts § 42 (2005).

251
Periodicals:
John M. Golden, Principles for Patent Remedies, 88 Tex. L. Rev. 505 (2010).
Treatises:
Susan L. Baker, Federal Sentencing Guidelines § 12:06 (2d ed. 2011).
Restatements:
Restatement (Second) of Torts § 13 (Am. Law Inst. 1965).

Internet Resources

Some law school websites offer useful guides and tutorials for performing legal research
using secondary sources. Use the following sites:

Encyclopedias

Encyclopedias are not available on the Internet. The legal encyclopedia Am. Jur. 2d is
available on Westlaw and Lexis Advance. C.J.S. is also available on Westlaw. State
encyclopedias are also available on both Lexis Advance and Westlaw.

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Treatises

Due to their voluminous content, treatises are not available on the Internet. Although
numerous articles and law-related discussions are available on the Internet, there has been
no effort to put comprehensive treatise collections on the Internet, likely due to authors’
reluctance to have their materials distributed globally with a concurrent loss of royalty
revenue. Numerous treatises are available on Lexis Advance and Westlaw.

Periodicals

Following are Internet addresses that will allow you to retrieve various articles relating
to law.

Restatements

The Restatements are not available on the Internet. All of the Restatements currently in
print are, however, available from Thomson Reuters/West and on Lexis Advance and
Westlaw. Additionally, the website of the American Law Institute (http://www.ali.org) lists
the Restatements currently in print and discusses the status of Restatements under
consideration and in the drafting or revising process.

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Writing Strategies

Writing is neither as mechanical nor as precise as mathematics. You cannot write

by formula, assuming that “one primary authority plus one secondary authority
equals one winning argument.” In fact, constructing a writing using such an
approach will result in a rigid and choppy project.
There is no easy answer to the question, “How many authorities are enough?”
For some straightforward issues, a reference to one statute may be sufficient.
Complex issues will require more in-depth analysis and expanded discussion of
authorities.
Vary the authorities you rely upon. If your entire writing consists of references
only to the Restatements, the reader will assume you are a lazy researcher who is
uninterested in thoroughly researching the issues and content to rely upon one
source. Thorough analysis calls for a combination of primary and secondary sources.
If you are relying upon primary sources as well as secondary sources to discuss an
issue, analyze the primary authorities first. After you have shown the reader why the
statutes, regulations, cases, or constitutional provisions control, enhance your
discussion by providing additional support from a periodical, Restatement,
annotation, or treatise.

Assignment for Chapter 6

1. Use Am. Jur. 2d.

a. Which title and section generally deal with spite fences?
b. Review the section. What topics and Key Numbers relate to this area of law?
c. Which 1937 South Dakota case defines “spite fence”? Give case name only.
2. Use Am. Jur. 2d.
a. Which title and section deal with the sale or gift of intoxicating liquors to
intoxicated persons?
b. Review the section. Is being “under the influence” for the purposes of a
state’s motor vehicle code synonymous with being “visibly intoxicated”?
Answer the question and cite a case (give case name only) that supports your
answer.
3. Use the Am. Jur. 2d Table of Laws and Rules. Which topic and sections of Am.
Jur. 2d discuss 17 U.S.C.A. § 105?
4. Use C.J.S.
a. Use the Table of Cases. Under which topic and section is the case Porter v.
Sullivan discussed?

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 b. Give a short summary of the definition of the word “guardian.”
c. Which topic and section generally discuss the assignment of future patents?
d. Read the section in Part c. above. May a person assign a patent before it is
issued?
e. To which Topic and Key Number are you directed by the section in Part c.
above?
5. Use Am. Jur. Proof of Facts (3d).
a. Give the citation to an article relating to diagnosing diabetes.
b. Locate the article. Which 2004 Maryland Court of Appeals case discusses
gestational diabetes in a pregnancy involving triplets?
6. Use the Index to Legal Periodicals & Books (Volume 101, Number 11, for August
2008). Cite an article written by John Fee in 2007.
7. Use the Subject Index for Current Law Index for September 2008 and give the
citation to a 2008 article relating to the use of performance enhancing substances
by baseball players.
8. Give the title and author of the Spring 2011 article located at Volume 71 (No. 3)
of the Louisiana Law Review 787.
9. Locate the article at Volume 63 (No. 4) of the Duke Law Journal 823 for January
2014.
a. Give the title and author of the article.
b. How many footnotes are in the article?
c. Review page 881. What conclusion is made with regard to criminal trials in
federal courts?
10. Locate the treatise Collier on Bankruptcy (16th ed.).
d. What section(s) generally discuss domestic support obligations as priority
claims in bankruptcy matters?
e. Review the first section to which you are directed. What priority are such
claims in Chapter 7 cases?
f. Use the Table of Cases for this treatise. Give the citation to In re Toro-Arcila.
11. Locate the treatise Nimmer on Copyright.
a. Use the Table of Cases and give the citation for Midler v. Ford Motor Co.
b. Use the Index to the set. What volume and section relate to filtering of scenes
in motion pictures for DVD releases under the Family Movie Act of 2005?
c. Review the section in part b. above. What scene was deleted from the movie
Top Gun?
12. Locate the Restatement (Second) of Contracts.
a. What section discusses the time that acceptance of an offer takes effect?
b. Review the Comments to this Restatement section. Does the sender of a
letter have the power to stop delivery and reclaim a letter sent through the
mail?
c. Review the cases interpreting this section. Which 2011 Montana case held
that the mailbox rule did not apply because an offer explicitly stated that

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 “payment” had to be “received” to constitute acceptance of an offer? Give
case name only.

Internet Assignment for Chapter 6

1. Access the website for the law library for Harvard Law School. Select or search for
“Research Guides.” Review the guide relating to Secondary Sources. Why are
secondary sources a good place to start your research?
2. Access the Law Review Commons. Select the University of Michigan Law Journal.
Search for an article published in 2014 in the Michigan Law Review relating to
the scope of precedent.
a. Who is the author of this article?
b. How many pages long is the article?
c. Review the discussion on page 182 relating to the difference between a
holding and dicta. What does the author say is the distinction between
binding holdings and dicta?
3. Access the Washington and Lee Law School study on the most cited periodicals at
http://lawlib.wlu.edu/LJ/index.aspx. Sort the table by “Journal Cites,” and review
the information for 2014.
a. What were the three most cited law reviews?
b. What law review is listed tenth?
c. How many times was the Virginia Law Review cited?
4. Access the website for the American Law Institute. Select “Publications.”
a. Review the list of all Restatements. Review the information relating to the
Restatement (Second) of Trusts. In which volume are breaches of trust
discussed?
b. Select “Publication FAQs.” What are the Appendix Volumes?

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 Chapter 7

Miscellaneous Secondary Authorities

Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may
say with any certainty what some statutes may compel or forbid.

Rose v. Locke, 423 U.S. 48, 50 (1975)

A. Attorneys General Opinions

B. Legal Dictionaries and Thesauri
C. Directories
D. Form Books
E. Uniform Laws
F. Looseleaf Services
G. Jury Instructions
H. Summary
I. Citation Form

Chapter Overview
The previous chapters discussed the most frequently used secondary authorities: A.L.R.
annotations, encyclopedias, periodicals, treatises, and Restatements. There are, however,
several other authorities and tools that are used by legal researchers. These include opinions
of attorneys general, dictionaries, directories, form books, uniform laws, looseleaf services,
and jury instructions.
These sources summarize and explain the law as well as assist you in locating primary
sources. The sources discussed in this chapter are often more practical in their approach and
content than encyclopedias, periodicals, treatises, and Restatements. For example,
dictionaries help you find the meaning of a word in its legal sense; form books provide
information so you can effectively draft complaints, contracts, and other legal documents;
and looseleaf services provide an “a” to “z” approach to understanding certain specialized
areas of the law.
At the conclusion of this chapter you will be familiar with all of the print tools you will
need in order to locate answers for most research questions.

A. Attorneys General Opinions

1. Introduction

An attorney general is the chief legal officer in a government. The United States Attorney

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General is appointed by the President and is confirmed by the United States Senate. The
U.S. Attorney General is the head of the Department of Justice and serves as a member of
the President’s cabinet and is the only cabinet member without the title “Secretary.” Each
of the 50 states and the District of Columbia also has an attorney general. In most states,
the attorney general is elected by the voters. As the chief law enforcement officer, an
attorney general issues written opinions on a variety of legal topics, including the
interpretation of statutes and the duties and operations of government entities. These
opinions typically are written in response to questions by legislators, the executive branch,
or other government officials. The U.S. Attorney General has delegated responsibility for
preparing formal opinions to the Department of Justice’s Office of Legal Counsel; thus,
recent opinions are almost always issued by the “O.L.C.”
Additionally, the U.S. Attorney General represents the United States in legal matters
generally and gives advice and opinions to the president and to the heads of the executive
departments of the government when requested. The U.S. Attorney General may appear in
person to represent the government before the United States Supreme Court in cases of
exceptional importance.
Any large law library in your area will collect the opinions of the U.S. Attorney
General. However, your law library will likely collect only the opinions of the attorney
general from your state and will not have any of the attorneys general opinions from other
jurisdictions.
The opinions of attorneys general are secondary authority because they are not cases,
constitutions, or statutes. Thus, a court is not required to follow an opinion of an attorney
general. Because, however, these opinions are written by the chief legal advisor to the
executive branch, whether federal or state, and are usually followed, they are highly
persuasive, and you should feel free to rely upon them and cite them in briefs and
memoranda that you write because courts view them as respectable and creditable
commentaries on case law and legislation.

2. Research Strategies

Most sets of opinions of attorneys general will have an index, which you can use by the
descriptive word approach; that is, by selecting words that describe the issue you are
researching, looking up these words in the alphabetically arranged index, and then being
directed to the appropriate opinion. Unfortunately, these indexes are often not well
maintained and may be out of date.
It is more likely that you will be directed to a pertinent attorney general opinion by
another source you are using. For example, if you are researching a particular statute in
U.S.C.A. or U.S.C.S., you will be provided with a reference to any attorney general
opinion that has interpreted or construed this statute. Similarly, when you are researching a
state statute in your state’s annotated code, you may be directed to a state attorney general
opinion analyzing this state statute. Additionally, as you will see in Chapter 9, when you
Shepardize or KeyCite a case, you will be directed to any attorneys general opinions that

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have mentioned this case.
Finally, many opinions are now available on the Internet. The Office of Legal Counsel
drafts legal opinions of the United States attorney general. Many of these can be found at
its website at http://www.justice.gov/olc/opinions-main. Searching is by date and title or by
volume number.
Similarly, the vast majority of states now offer their attorneys general opinions through
their respective websites. Access the site of the National Association of Attorneys General at
http://www.naag.org to link to your state’s attorneys general opinions.

B. Legal Dictionaries and Thesauri

Just as you would use a standard dictionary to determine the spelling, pronunciation, and
meaning of a word with which you are unfamiliar, you can use a legal dictionary to
determine the spelling, pronunciation, and meaning of a legal word or phrase with which
you are unfamiliar. Thus, if you need to know the meaning of a word in its legal sense,
such as “negligence,” or the translation of a Latin phrase such as damnum absque injuria
(“harm without injury in the legal sense”), or the meaning of a phrase such as “watered
stock,” you should consult a legal dictionary, which is an alphabetical arrangement of legal
words and phrases. Many legal dictionaries will not only provide the definition of a word
but will then give you a citation to a case or scholarly source in which the word was
defined. So if you look up the word “mistrial” in a legal dictionary, you will not only be
given its meaning but often will be directed to an authority that defines the word
“mistrial.” This is another example of a secondary source not only explaining the law but
also directing you to primary sources. Remember that when you define a word in a research
project, cite to the case defining the word rather than the dictionary if the case is relevant
and on point.
Perhaps the best known of the legal dictionaries is Black’s Law Dictionary (10th ed.
2014), a one-volume book published by West, which has been in existence since 1891.
Black’s not only includes more than 50,000 definitions but also provides a guide to
pronunciation, a chart showing the composition of the United States Supreme Court from
1789 to date, definitions of legal maxims, a Table of British Regnal Years listing the
sovereigns of England for the last 900 years, the text of the United States Constitution, and
an extensive table of legal abbreviations. Black’s Law Dictionary is available in hardcover,
paperback, on Westlaw, and as an app for iPhones. A new edition is released every several
years.
Another of the well-known legal dictionaries is the Wolters Kluwer Bouvier Law
Dictionary, derived from a famous 1853 dictionary and “resurrected” in 2012. This
dictionary uses plain English to define various terms and is available in conventional print;
an abridged version is available as a free app from the iTunes store. See Figure 7-1 for a
sample entry from Wolters Kluwer Bouvier Law Dictionary (2012).
There are numerous other legal dictionaries that you can use, including specialized

259
dictionaries such as Bryan A. Garner’s A Dictionary of Criminal Law Terms, which provides
definitions of criminal law terms. Most legal dictionaries are located in the reference section
of the law library, and you should make a point of browsing the shelves in the reference
section to discover which dictionaries are available.
You may recall that the set Words and Phrases will provide you with definitions of words
and phrases. Its coverage, however, is limited to words and phrases that have been defined
in cases, and therefore you will not be able to find a word in Words and Phrases unless it has
been the subject of court action. Moreover, because Words and Phrases is a multivolume set,
it is more unwieldy than the more standard one-volume legal dictionaries such as Black’s
and Bouvier’s. One of the advantages of Words and Phrases, however, is that it is
supplemented by pocket parts, easily allowing for the addition of new words that enter the
legal field. Black’s and Bouvier’s are similar to other traditional dictionaries and are not
supplemented on an annual basis.
Many legal dictionaries such as Black’s publish an abridged softcover version at a
moderate price. These dictionaries are excellent resources for beginning researchers.
A legal thesaurus provides synonyms and antonyms for legal words and terms. When
writing a letter, memorandum, or legal document, you may become tired of using the same
word or may need to think of another way of expressing a legal term. A thesaurus will help
you select the right word you need. One of the best known of the legal thesauri is Burton’s
Legal Thesaurus by William C. Burton, which provides more than 8,000 legal terms,
synonyms, and definitions. For example, if you wish to find another word for “abandon,”
the thesaurus will suggest “disclaim,” “forfeit,” “relinquish,” and other terms.
A recent trend is publication of glossaries of legal terms on the Internet. For example,
the website Law.Com offers a legal dictionary at http://dictionary.law.com. As of the date
of this text, most online glossaries are not particularly comprehensive. They may, however,
be helpful in providing you with a quick understanding of a legal term or Latin phrase. The
full text of Bouvier’s well-known legal dictionary, A Law Dictionary (6th ed. rev. 1856), is
available at http://www.constitution.org/bouv/bouvier.htm.

Figure 7-1
Sample Page from Wolters Kluwer
Bouvier Law Dictionary (2012)

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 The Final Wrap-Up

Use and Citation of Attorneys General Opinions, Dictionaries, and Thesauri

Use: Use attorneys general opinions as strong persuasive authorities that often clarify and interpret statutes and
regulations. Although they are secondary authorities, they are highly credible. Use dictionaries and thesauri
to obtain a quick or alternative definition of an unknown legal term.
Citation: Cite freely to attorneys general opinions because of their renown and highly persuasive nature. You may cite
to dictionaries and thesauri, but consider citing instead to the primary authorities to which these sources
may direct you.

C. Directories

1. Introduction

A directory is simply a list of lawyers. Some law directories, such as the extremely well-
known and highly regarded Martindale-Hubbell Law Directory, aim at listing all lawyers
admitted to all jurisdictions. Other directories are more limited in coverage and may list

261
only lawyers in a particular geographic region or locality. Still other directories focus on law
schools, law libraries, or courts. Law directories are usually kept in the reference section of a
law library.

2. Martindale-Hubbell Law Directory

The best known law directory in the United States is Martindale-Hubbell Law Directory, in
existence for more than a century. At present, most major United States law firms pay to be
listed in Martindale-Hubbell. The set is published annually in hardbound volumes and is
organized alphabetically by state. For example, a volume will cover multiple states, such as
Alabama, Alaska, Arizona, Arkansas, and California. Within each state listing, law firms
and attorneys are identified alphabetically by city name and then by law firm or attorney
name. Each firm that has an entry will list its attorneys and provide brief biographical
information about them. Moreover, the firm’s address, phone number, website,
representative clients, and practice areas will be noted. By reviewing Martindale-Hubbell,
you may be able to target your résumé to a law firm that focuses on a field of law in which
you are interested. Legal professionals also use Martindale-Hubbell to refer clients to other
firms if a conflict of interest arises or if a firm cannot represent a client.
Because numerous directories are now available online, at no cost, many law firms have
ceased purchasing or electing to be listed in Martindale-Hubbell, and its popularity and use
in print have declined. It is generally found in the reference section of your law library.
The set also includes profiles of lawyers and firms from numerous foreign countries and
profiles of attorneys working in corporate legal departments. Although the print set
formerly included state digests (giving some of the laws from each state), since 2007, these
state digests are no longer available.

Practice Tip

Martindale-Hubbell
Don’t ever go on a job interview without doing some homework about your potential employer by using
Martindale-Hubbell, an online directory, or the employer’s website. Find out something about the firm and
mention it during your interview to showcase your research skills and professional savvy. Comment about the
firm’s new European office, its practice areas, or some other item to demonstrate your familiarity with
directories as well as your level of interest in the firm.

3. Local Directories

Directories may be available for a particular region or locality. For example, some local bar
associations may publish a booklet listing members of the association. Some local
directories provide only the attorney’s name, address, and telephone number, while others
may provide brief biographical sketches and even photographs of the lawyers listed in the
directory.

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4. Specialized Directories

A number of directories provide lists of attorneys who concentrate in specialized practice

areas or contain information relating to a certain specialized topic. Examples include the
following:

Directory of Corporate Counsel (a directory of personnel of the law departments of

corporations, both for-profit and not-for-profit, in the United States).
Federal-State Court Directory (a directory of general information about federal and state
courts and their personnel).

5. Internet Directories
Much of the attorney information found in the conventional hardbound print volumes of
Martindale-Hubbell can also be located through the Internet at the site Martindale.com at
http://www.martindale.com or Lawyers.com at http://www.lawyers.com. The sites provide
free access to comprehensive listings of more than 1 million lawyers. Searching is easily
accomplished by name, firm, location, or legal field of interest.
Another excellent free legal directory on the Internet is provided by FindLaw, West’s
legal website. Access http://lawyers.findlaw.com to search for attorneys by name or practice
area. You may also search for corporate and government attorneys. Yet another Internet
directory is Chambers and Partners at http://www.chambersandpartners.com, which
identifies law firms and attorneys throughout the world.
Law firm websites also display directories for their attorneys, listing their names,
practice fields, education, honors, and achievements.

D. Form Books

1. Introduction

One of the typical tasks performed by paralegals is drafting legal documents. Some of the
documents may be for use in litigation, such as forms for complaints, answers, notices of
depositions, or interrogatories. Other forms may relate to transactional aspects of law
practice, such as leases, partnership agreements, or corporate bylaws. Seldom, if ever, do
attorneys or paralegals draft documents “from scratch.” Generally, they rely on forms or
models, which have proven useful in other instances.
If you are asked to draft a legal document, there are several alternatives you can pursue.
The office you work in may have a central form file, which contains forms for commonly
used documents. These form banks are typically located in the firm’s computer databases.
In such a case you would review the form provided and modify it to suit your needs.
Alternatively, you can ask another paralegal, a secretary, or an attorney if any individual
client files might have a comparable form you can use as a guide. If these strategies are not

263
helpful, you can consult a form book (sometimes called a “practice set”).
A form book is a single volume or, more typically, a multivolume set that contains
forms for use in the legal profession. Some sets of form books contain forms that can be
used in any aspect of legal practice and include litigation forms as well as forms used in
practice areas not related to litigation. Other books provide forms related solely to one state
or to one area of the law. An example of such a specialized set of form books is Murphy’s
Will Clauses: Annotations and Forms with Tax Effects, a multivolume set containing
numerous forms used in connection with drafting wills, trusts, and other estate-related
forms.

2. Well-Known Form Books

Some of the better known sets of form books are as follows:

American Jurisprudence Legal Forms 2d. This set consists of more than 60 alphabetically
arranged volumes of forms and provides forms for contracts, wills, and leases as well
as for hundreds of other topics.
American Jurisprudence Pleading and Practice Forms Annotated. This set consists of more
than 70 volumes of forms and provides more than 40,000 forms relating to
litigation, such as forms for complaints, answers, discovery procedures, motions for
change of venue, motions for new trial, and orders.
Bender’s Federal Practice Forms. This multivolume set contains litigation forms for use in
federal practice, both civil and criminal.
Current Legal Forms with Tax Analysis by Rabkin and Johnson is a multivolume set of
forms for non-litigation practice.
Federal Procedural Forms. This set consists of more than 25 volumes and provides forms
for use in federal practice.
Bender’s Forms of Discovery by Lexis is a multivolume set of forms related solely to
discovery matters such as interrogatories, depositions, requests for production and
inspection, and medical discovery.
West’s Legal Forms. This set of books, consisting of more than 40 volumes, contains a
variety of forms for general law practice, such as bankruptcy forms, forms for
purchase and sale of real estate, and forms relating to business organizations,
including partnerships and corporations.

Some publishers have produced sets of form books devoted strictly to forms for use in
that state. For example, a set commonly used in California for business or transactional
matters is Lexis’s California Legal Forms: Transaction Guide. If your state does not have a set
of books containing forms specifically tailored for your state, use one of the “general” sets of
form books, such as West’s Legal Forms or Am. Jur. Legal Forms 2d, which are designed to
provide forms for use in any state. You may also encounter a set of form books for one
specific legal topic, such as trademark forms, bankruptcy forms, and so forth.

264
 There are also form books prepared strictly for paralegals: Personal Injury: Paralegal
Forms and Procedures by Joyce Walden, which contains sample correspondence, forms,
checklists, and pleadings related to personal injury practice; Paralegal Discovery: Procedures
and Forms, Third Edition, by Pat Medina, relating to drafting discovery documents and
case management; and Paralegal Litigation: Forms and Procedures, Third Edition, by Marcy
Fawcett-Delesandri, which includes forms, checklists, and procedures for drafting litigation
documents.
Another source of forms is treatises, which often contain sample documents and forms.
For example, one of the best known treatises on bankruptcy, Collier on Bankruptcy, 16th
Edition, contains six volumes of forms to complete its thorough analysis of bankruptcy
practice. Finally, some state annotated codes contain forms. See Figure 7-2 for samples of
forms.
The Internet offers thousands of legal forms. As with many offerings on the Internet,
however, it is unknown who authored the forms or whether they have been subjected to the
rigorous checking and editing that accompany print publications. Thus, they should be
used with extreme caution. Such forms may nevertheless provide a useful starting place.
References to Internet sites offering forms are provided at the end of this chapter. Internet
legal research is discussed in Chapter 12.
Some states now offer various forms on their official websites. For example, all states
now provide comprehensive forms banks for organizing, maintaining, and dissolving
business entities (such as corporations, limited partnerships, and limited liability
companies). The forms can be downloaded and printed for free (or can be completed and
submitted electronically) and are generally available on the home page for the state’s
secretary of state.
Similarly, many courts now offer free forms on their websites. For example, the
California Judicial Council offers hundreds of downloadable and electronically fillable
forms, from notices of appeal to petitions for changes of name (access
http://www.courts.ca.gov/forms). Access your state’s judicial site (see Table T.1.3 of The
Bluebook) and see if forms are offered. Alternatively, access the website Justia at
http://www.justia.com and select “Legal Forms” to see if your state offers free judicial
forms.

Ethics Alert

Using Form Books and Metadata

Drafting a legal form requires more than finding a good form and then filling in the blanks. You are required
to research the area of law and then modify any preprinted form to comply with the law. Use an annotated
form book; it will direct you to primary authorities that endorse use of the language given in the form and
provide additional critical references. Because the law changes frequently, using an outmoded form from one
of your form files may be malpractice.

In addition, documents created at law firms often contain metadata, or information describing the history,
management, and tracking of an electronically created document. For example, if you change the name

265
“Smith” in an older contract that you are now drafting for “Jones,” metadata enables a reader to discover that
the document was originally prepared for Smith (and when it was prepared). Metadata also reveals who
received documents, comments and deletions made during the drafting process, sequences of changes, delays
in sending a document, and other critical information. Many law firms now use sophisticated “scrubbing”
programs to eliminate metadata and protect confidential client information. Check your law firm’s policies on
metadata mining and scrubbing, and be scrupulous about maintaining confidential client information. Check
also your state’s ethics code relating to metadata mining; some states prohibit mining because it is prejudicial
to the administration of justice and may be an attempt to intrude on another’s confidential relationship with
his or her client.

Figure 7-2
Sample Page from Virginia Forms — Criminal Procedure

266
3. Locating Form Books

To locate form books, check the online catalog in your law library, browse the shelves, or
consult your law librarian. Often form books are located near other related books. For
example, sets of books containing forms for use in criminal law practice are often located in
the “criminal law” section of the law library or the stack that also contains treatises on
criminal law and case books devoted solely to criminal law cases. Thus, the easiest way to
locate form books is often to browse the stacks devoted to a certain legal topic. Similarly,
form books for use in a state are usually located with the cases and statutes for that state.

4. Research Strategies

When you have located a set of form books that is pertinent to the legal issue you are
researching, you can locate the form you need by either the descriptive word approach or
the topic approach.
To use the descriptive word approach, locate the index to the set, generally found in the
last volume of the set. The index is alphabetically arranged. You should look up words or
phrases that describe or relate to the form you are drafting (contract, trust, complaint,
bylaws, venue) and you will then be directed to the appropriate volume and page for the

267
form you need.
To use the topic approach, scan the chapter headings and subheadings in the set. You
can then examine the particular form that seems most appropriate.
One of the useful features of many form books is that they are annotated. This means
that you will be referred to cases that have approved or supported language used in the
form. Moreover, many form books provide analysis and commentary on use of the forms
and practical aids such as checklists, providing tips to consider in drafting a certain type of
form.
Most form books are kept current by pocket parts. Therefore, after reviewing a form,
check the pocket part to determine if language used in the form has been revised or if new
annotations and comments have been provided.
One of the recent developments in form books is for the publisher to put the forms on
disc for use with various software programs or to offer them electronically. For example,
West offers Am. Jur. Legal Forms 2d and Am. Jur. Pleading and Practice Forms on Westlaw,
allowing you to locate forms quickly with a word search, export forms directly to your word
processor, and then customize, copy, and print them with a few keystrokes.

5. Summary

Form books provide an excellent starting point for drafting legal documents. You should
not view drafting documents as merely an exercise in finding a form and then “filling in the
blanks.” Carefully review the form to ensure it is appropriate for the document you need to
prepare. Feel free to revise the form to make it fit your purposes so long as these revisions
are consistent with the law in your jurisdiction. Often you may combine features or
elements of several forms to create the best document. Be alert to forms prepared by others
in your office as well as other firms, and start collecting your own set of forms of
documents and pleadings you believe are well drafted and effective. In sum, exercise
discretion in using form books. “Cut and paste” until you have a form that is best suited to
your needs.

The Final Wrap-Up

Use and Citation of Directories and Form Books

Use: Use directories to locate information about lawyers and law firms. Use form books to help you draft forms
for both litigation and transactional matters and to give you ideas about how to phrase and structure certain
agreements
Citation: Do not cite to directories or form books. These books are in the nature of finding and practice tools rather
than research tools.

E. Uniform Laws

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1. Introduction

You have seen that the Restatements were produced as a result of concern by legal scholars
that case law was overly complex and uncertain. Slightly before the time that the American
Law Institute (the “Institute”) was formed to produce the Restatements, legal scholars
became concerned over the great disparity in state statutes on areas of the law that could be
treated similarly or uniformly among the states.
The result of this concern was the formation of the National Conference of
Commissioners on Uniform State Laws (also called the Uniform Law Commission) in
1892. The Commission is composed of more than 300 practicing attorneys, judges, law
professors, and other legal scholars who are usually appointed by the governor of each state
and meet on an annual basis to draft proposed legislation on various areas of the law. These
proposed laws, which are the result of considerable time and effort, are then presented to
the legislatures of the 50 states with the hope and expectation that the state legislature will
pass the Commission’s version of the law on that particular legal topic. The Commission
can only propose uniform laws. No uniform law is effective until a state legislature
specifically enacts it.
For example, after studying statutes relating to partnerships from various states, the
Commission drafted its proposed set of partnership statutes, titled the Uniform Partnership
Act, and began persuading the various state legislatures in the 50 states to adopt the
Uniform Partnership Act in place of their divergent partnership statutes. Once a state
adopts a uniform law, it is then a primary authority in that state. Until they are adopted,
however, uniform laws have no such legal effect and thus assume the characteristics of
secondary authority. Once adopted, a uniform law is published in the state’s annotated
codes together with other statutes in that state. After printing the text of the uniform law,
the state code will usually provide the text of the Commission’s comments about the law
and an explanation as to how the state version of the uniform law differs from the original
version drafted by the Commission. Cases interpreting the uniform law will follow.
Some states, after holding hearings, debates, and other legislative proceedings, just as
for any other state law, will adopt the uniform act “as is.” Other states may reject the act,
while others may revise the act, adding certain provisions and omitting others. Thus,
although the goal of the Commission is to produce a statute that will be uniform from state
to state, the end result is a statute that nearly always has some variation from state to state.
Nevertheless, many of an act’s provisions will be retained intact or with only minor
revisions so there will be resulting overall uniformity among the states that adopt a uniform
act.
The Commission has approved more than 100 uniform laws, ranging from perhaps the
best known, the Uniform Commercial Code (relating to commercial practices and sales),
which took ten years to complete and has been adopted in whole or in part by every state,
to the Uniform Adoption Act, to the Uniform Simultaneous Death Act.
The Commission also drafts proposed legislation known as “Model Acts.” Although a
uniform law is one whose adoption is urged in every state by the Commission, a model act

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is one for which uniformity among the states is not as necessary or desirable. An example is
the Model Punitive Damages Act, intended to address the need for consistency in awards of
punitive damages throughout the nation. Although the Model Punitive Damages Act serves
as a source to which states can look to for guidance in drafting their own laws relating to
punitive damages, it is unlikely that all states will adopt identical statutes in this area
because the manner in which wrongdoers are punished and damages are awarded is a
matter of greatest concern to the jurisdiction where the wrong is committed. In sum, model
acts are intended as guidelines that states can borrow from or modify when drafting their
own legislation whereas uniform acts are intended to be adopted exactly as written. The
Commission often works with the Institute in developing uniform and model legislation.
For example, the two worked together to prepare the UCC, and the Institute drafted the
Model Penal Code.

2. Research Strategies

Uniform Laws Annotated. To locate the text of the more than 100 uniform laws and the
model acts, you can consult West’s Uniform Laws Annotated. This multivolume set
not only provides the text of uniform laws and model acts but also provides official
comments of the drafters explaining the intent and purpose of each uniform law, a
list of the states that have adopted each particular uniform law, the date the law was
adopted, brief descriptions of how various states have modified the uniform law,
annotations or brief summaries of cases interpreting the uniform law, references to
topics and Key Numbers to enable the reader to access West’s Key Number System,
and references to other authorities, such as C.J.S., which discuss that area of the law.
The set is kept current by pocket parts and supplements. See Figure 7-3 for a sample
page from the Uniform Laws Annotated.
Although Uniform Laws Annotated thus provides an overview of all uniform legislation, it
lacks a comprehensive general index or table of contents. The uniform laws and
model acts are, however, grouped together by general subject matter. For example,
estate, probate, and related laws are found in books 32 through 37 of the set. Thus,
browsing the spines of the volumes will direct you to the correct uniform law.
Additionally, a pamphlet published regularly in conjunction with Uniform Laws
Annotated, titled Uniform Laws Annotated Directory of Acts, lists all uniform laws
alphabetically and will direct you to the location of the law in Uniform Laws
Annotated. In effect, this directory serves as an index to Uniform Laws Annotated.
The directory also lists each state and the particular uniform laws it has adopted. See
Figure 7-4 for a sample page from Uniform Laws Annotated Directory of Acts.

Am. Jur. 2d and C.J.S. The one-volume “Table of Laws and Rules” in Am. Jur. 2d and
C.J.S. will refer you to sections in each of the encyclopedias that discuss uniform
laws.
Westlaw and Lexis Advance. The text of all uniform and model acts is available on

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 Westlaw and Lexis Advance.
Internet. All uniform laws are available on the Internet. The Commission posts all final
acts on its website at http://www.uniformlaws.org. The text of all acts is given,
together with a summary of each act, comments, and legislative facts about the
adoption of an act in the various states. See also Internet Resources at the end of this
chapter.

3. Use of Uniform Laws

If you are researching a state statute that has been adopted as a uniform law and there are
no cases interpreting it, you should review the Official Comment to the uniform law and
cases from another state that has also adopted the uniform law. As you will recall from
Chapter 1, although cases

Figure 7-3
Sample Page from the Uniform Laws Annotated

Figure 7-4
Sample Page from Uniform Laws Annotated

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 Directory of Acts

from one state are never binding in another state, cases from another state interpreting
uniform laws may be highly persuasive inasmuch as such cases would be interpreting
statutory provisions that are similar or identical to those enacted in your state.
A uniform law or model act drafted and approved by the Commission is secondary
authority. The official comments of the drafters related to the background, purpose, and
effect of a uniform law are also secondary authority, and although these comments provide
credible insight into the goals of a uniform law and the ills it is designed to remedy, they
need not be followed by a court. Once a uniform law or model act is adopted by your state
legislature, however, it is primary authority that must be followed in your state.

F. Looseleaf Services

1. Introduction
You have seen that law books are usually published in a hardbound version or in softcover
pamphlets, supplements, or advance sheets. Yet another method of publication is

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“looseleaf,” meaning a ringed binder (or a book with removable covers and pages stacked
on posts) with individual looseleaf sheets of paper, which are easily removed and replaced.
These are the looseleaf services. The major looseleaf publishers include CCH (part of
Wolters Kluwer), Bloomberg BNA, and Matthew Bender (now part of Lexis).
The looseleaf services are a variety of treatise and may consist of one volume or several
volumes devoted to one topic of the law, such as labor law, securities, environmental law, or
bankruptcy. In general, looseleaf services are used for areas of the law that are subject to
frequent change or that are highly regulated, such as taxation law. To publish information
relating to taxation in hardbound sets of books would not be efficient or cost-effective, as
the hardbound volumes would be out of date almost as soon as they were placed on library
shelves. Even frequent updating by pocket parts will not keep pace with our changing tax
laws. Therefore, the looseleaf service binder sets are purchased by law firms and law
libraries. As changes occur in the law or as new cases are decided, the publisher will send
packets of replacement pages to the subscriber with an instruction to remove and destroy
certain pages in the set and replace them with the new pages provided by the publisher —
an updating technique called interfiling. In this manner, the books are kept current to
reflect accurately the status of the law without being cost-prohibitive to the subscriber.
Some looseleaf services are updated as frequently as once a week.
Many of the looseleaf services are devoted to rules and regulations promulgated by our
federal agencies, such as the service titled Occupational Safety & Health Reporter. These will
be discussed in greater detail in Chapter 10. Several of the looseleaf services, however,
report on areas of the law for which no particular agency is responsible but for which there
is general interest, such as criminal law or family law. There are hundreds of looseleafs
covering nearly every legal topic.
A typical looseleaf service will include primary and secondary authorities. Primary
authority will be found in the statutes or regulations governing a certain area of the law
(which are set forth in full text) as well as in court decisions, which may be included in full
or in summary or digest form. Secondary authority is found in the commentary and
discussion of this topic and of recent developments in this area of the law as well as practice
tips and notices of upcoming seminars or meetings of legal professionals or proposed
legislation related to this area of law. The looseleafs thus function to provide a complete
treatment of an area of the law, bringing together all information on a legal topic in one set.
Some experts call the looseleafs “mini-libraries” because they are comprehensive collections
of current legal materials devoted to one area of the law and brought together in one
source.
Although a treatise may appear in binder or looseleaf form (such as the seven-volume
binder set, McCarthy on Trademarks and Unfair Competition), a true looseleaf service is
distinguishable from such a treatise because the looseleaf service will contain primary
authority, such as cases, statutes, and administrative regulations, as well as secondary
authority. A treatise usually includes only comment and analysis of an area of the law with
no cases (although statutes may be included in an appendix to the set).
You should feel free to cite a looseleaf service in a memorandum or brief that you

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prepare. Often, however, the looseleaf services function more as “finding” tools, which
provide general background information on a certain area of law and direct you to the
primary authorities (regulations, statutes, and cases) in the field, which you would then cite.

2. Arrangement of Looseleaf Services

There is no one uniform pattern for arrangement of looseleaf services. Different publishers
arrange the discussion of the law in different ways, and each service is different from the
others. Often the best way to determine the arrangement of the service to enhance your
research efforts is simply to invest 20 to 30 minutes in reading the editor’s introduction to
the service and then browsing through the set to familiarize yourself with its features and
structure.
In general, however, looseleaf services will consist of multiple ringed binders, each of
which has several sections, divided by colorful marked tabs. For example, one tab is usually
marked “How to Use.” This section provides an overview of the service and guidelines for
using the set. Other tabs may be marked “Topical Index,” “Table of Cases,” “State Laws,”
“Federal Laws,” “Cumulative Index,” and “New Developments.”

3. Research Strategies
To determine if a looseleaf service exists for an area of the law you are researching, for
instance, labor law, consult the online catalog in your law library or ask the reference
librarian. Alternatively, you could locate the stacks in the law library that contain labor law
materials and simply browse the shelves to determine if a looseleaf service exists. You can
also check a publication called Legal Looseleafs: Electronic and Print, which provides
information on more than 2,600 looseleafs, treatises, and periodicals and will also inform
you if the looseleaf is available on the Internet.
Each looseleaf service will have a general index, which will alphabetically list the topics
and subjects discussed in the service. Use the descriptive word approach to locate words in
the index that describe your research issue. The index will then refer you to the appropriate
paragraph or section. Some looseleaf sets have more than one index, so be sure you always
check the most current index as well as the “standard” topical index. Alternatively, you can
use the table of cases to locate cases reported or discussed in the set. Review the cases to
which you are directed.
Note that references in the index are seldom to pages. It is typical of looseleaf services
that paragraph or section references are used rather than references to pages, as this
facilitates the addition of new replacement sheets in the set. Many looseleaf services also use
subsections and decimals such as a reference to “¶ 10060.101” to accommodate the
insertion of new pages. Thus, it may take you a bit of time to become accustomed to the
organization of the looseleaf services. Invest the time it takes to understand how to use
looseleaf services because these mini-libraries provide a comprehensive discussion of
relevant legal topics.

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 G. Jury Instructions

1. Introduction

At the conclusion of a trial, a judge will “charge” the jury by providing it with instructions
for reaching a decision. Preparing instructions for the jury is done by attorneys and
paralegals. For many years, new jury instructions were developed for each trial. Often the
instructions were erroneous statements of the law, and an appellate court would order a
new trial due to the improper instruction. For example, if judges were free in criminal trials
to develop their own definitions for “reasonable doubt,” convictions of criminal defendants
would be based upon differing standards.
Recognizing the duplication of effort required in preparing jury instructions for each
trial and the waste of time and excessive cost involved in new trials due to erroneous
instructions, a movement for pattern or form jury instructions emerged. Just as there are
forms for leases and contracts, there are now form books that contain jury instructions.
The form jury instructions are typically drafted by committees of legal scholars or bar
associations who study cases and then prepare accurate, brief, and easily understood
instructions regarding the law. A new development is the drafting of jury instructions in
“plain English” to improve jurors’ comprehension. In many states, the standard jury
instructions are so highly regarded that rules of court for the state recommend or require
that the trial judge read the applicable instruction. In other instances, jury instructions may
be modified to state the law accurately. For example, in 2003, after six years of study,
California adopted new civil jury instructions (the Judicial Council of California Civil Jury
Instructions) after determining that the state’s then-existing instructions were “simply
impenetrable to the ordinary juror.” The newly drafted instructions are in “plain English”
so they are readily understandable to the average juror. Their use is not mandatory but they
are designated “official” instructions, meaning that they are to be used unless a judge
determines that a different instruction would more accurately state the law and be
understood by jurors. All of the California jury instructions (both civil and criminal),
together with commentary, directions for their use, and references to primary and
secondary authorities supporting their use are available on the Internet at
http://www.courts.ca.gov/partners/juryinstructions.htm.
Paralegals often play a major role in preparing jury instructions. Although the primary
role of a jury instruction is to provide an accurate statement of the law for a judge to
communicate to a jury, a secondary role is to provide research sources. Many sets of jury
instructions not only provide the actual text of an instruction but also follow it with
commentary directing you to cases, statutes, or treatises that support the language used in
the instructions or provide additional information relating to that area of the law. This
commentary is an excellent secondary authority source. Moreover, the instruction itself is a
source of useful information for researchers. For example, if you were writing a
memorandum on a contract matter and needed to list the elements of a cause of action for

275
breach of contract, a jury instruction will likely set them forth. That is, when you read the
jury instruction relating to contracts, you will see language similar to the following:

Ladies and Gentlemen, if you find from your consideration of all the evidence that there was an agreement
between the parties, that the parties were legally capable of entering into the agreement, that the defendant
without justification or excuse breached the agreement, and that this breach was the cause of damage to the
plaintiff, then you should find the defendant liable for breach of contract.

By analyzing the statement, you can easily see that a cause of action for breach of
contract arises when three elements exist: an agreement between competent parties; an
unjustified breach of the agreement by one party; and damage caused by the breach. Thus,
jury instructions serve to provide a quick summary of the key elements of many areas of the
law, including contracts, fraud, negligence, infliction of emotional distress, assault, and
battery.

2. Research Strategies

To locate the jury instructions in your law library, check the online catalog or ask a
reference librarian for assistance. Some law libraries keep the materials on trial practice in
one section, and in such instances you may be able to locate the jury instructions in that
section. Nearly every state has its own sets of jury instructions for both civil and criminal
cases. All federal circuits have model or pattern criminal jury instructions and most have
approved instructions for civil cases as well.
If there is no set of jury instructions specific to your state, consult the set Am. Jur.
Pleading and Practice Forms, Annotated. As you will recall from Chapter 6, this multivolume
set contains thousands of forms and documents for use in all phases of litigation and also
contains standard jury instructions. For federal cases you may consult a set titled Modern
Federal Jury Instructions, which provides jury instructions for both civil and criminal cases.
Some sets are available in both conventional bound volumes, as e-books, and on Lexis
Advance and Westlaw.
When you have located the books containing jury instructions, consult the general
index to the set. As is typical of indexes, it is usually found at the end of the last volume of
the set and lists alphabetically the topics covered by the set.
Use the descriptive word approach and locate words describing the issue you are
researching, such as burglary, misrepresentation, or trespass. You will then be directed to
the instructions used in such cases. Most sets of jury instructions are updated by pocket
parts. See Figure 7-5 for a sample jury instruction.
As discussed earlier, many states and courts now offer their jury instructions on the
Internet. Search your state’s judicial website (see Table T.1.3 of The Bluebook) or review the
article “Reference from Coast to Coast — What Is the Law — Finding Jury Instructions”
at http://www.llrx.com/columns/reference53.htm, which includes links to jury instructions
for several states. Use http://www.uscourts.gov to link to federal courts for their jury
instructions.

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 Practice Tip
Jury Instructions

Don’t forget to use jury instructions to obtain a quick answer to a straightforward research question. If you
need to know the elements of a fraud cause of action or what a plaintiff must prove to prevail in a sexual
harassment case, check your state’s jury instructions for a quick and concise statement of the law and then a
reference to a leading case on the topic.

Figure 7-5
Sample Jury Instruction

5.01 ESSENTIAL ELEMENTS OF A CLAIM

Plaintiff claims that Defendant violated a law called the “Equal Pay Act.” This law is
designed to prevent wage discrimination by employers based on sex. To succeed on this
claim, Plaintiff must prove three things by a preponderance of the evidence:

1. Plaintiff did work that was “substantially equal” to male employees at

[Defendant’s workplace];

2. Plaintiff and a male employee did their jobs under similar working conditions;

3. Defendant paid Plaintiff less money than a male employee doing substantially equal
work.

Committee Comments

See 29 U.S.C. § 206(d); Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1973); Fallon
v. State of Illinois, 882 F.2d 1206, 1208 (7th Cir. 1989); EEOC v. Madison Cmty. Unit Sch.
Dist. No. 12, 818 F.2d 577, 580-583 (7th Cir.1987). (2009 rev.)

The Final Wrap-Up

Using and Citing Uniform Laws, Looseleaf Services, and Jury Instructions

Use: Use uniform laws adopted in your state as you would any state statute. If your state has no cases interpreting
its particular uniform law, review cases from other jurisdictions as these may be highly persuasive. Use
looseleaf services to locate current primary and secondary sources for highly regulated areas such as tax and
securities. Use jury instructions when preparing for trial or to find a quick answer to a research question.
Citation: Cite freely to uniform laws. Remember that if adopted by your state, they have the force and effect of any
statute. Looseleaf services are highly regarded and enjoy credible reputations, so they may also be freely
cited. Cite jury instructions only when submitting them to a court before it charges a jury in a civil or
criminal case.

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 H. Summary

All of the sources discussed in this and the preceding chapter are secondary authorities,
meaning that although you may refer to these sources and cite them in memoranda or
briefs, courts are not required to follow them. Although secondary authorities are often
highly reputable, they remain persuasive at best and lack the force of the primary
authorities of cases, constitutions, statutes, and administrative regulations. Keep in mind
that some of the secondary authorities such as Restatements and law review articles are
highly regarded and often cited, while others, such as encyclopedias, are viewed as
elementary in approach and are seldom cited. One of the best indications of the strength of
a secondary source is found in Rule 1.4(i) of The Bluebook, which provides the following
hierarchical order when string-citing numerous secondary authorities: uniform and model
acts; Restatements; treatises and books; works in journals, such as law review articles;
annotations; magazine and newspaper articles; working papers; unpublished materials; and
electronic sources. Encyclopedias are not listed. All of the secondary authorities do an
excellent job of providing commentary on the law and typically direct you to the primary
authorities that you should rely upon and cite in your memoranda and briefs. A summary
of the secondary sources is provided in Figure 7-6.

I. Citation Form

You should never cite to a directory. Other secondary sources are cited as follows:
1. Attorneys General Opinions:
Validity of Statutory Rollbacks, 33 Op. O.L.C. 123 (2009)
2. Dictionaries:
Mistrial, Black’s Law Dictionary (10th ed. 2014)
3. Uniform Laws:
Unif. P’ship Act § 103 (Unif. Law Comm’n 1997)
4. Looseleaf Services:
In re Stevens Textiles Co., 4 Bankr. L. Rep. (CCH) ¶ 16,041 (Bankr. D.N.J.
Mar. 10, 2003)
5. Jury Instructions:
2 John S. Siffert, Modern Federal Jury Instructions § 12.04 (1984)

Figure 7-6
Chart of Secondary Sources

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279
280
281
282
Internet Resources

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Jury Instructions

There is no one site to locate jury instructions. Some states, however, post their state-
specific jury instructions on their home pages. To locate home pages, access
http://www.justia.com, then select “U.S. States” and then select the particular state in
which you are interested. The following sites may be helpful as well.

Writing Strategies

284
 There is a great temptation in using secondary sources such as Black’s Law
Dictionary or form books to use the very language you are provided. Although the
use of a definition from a legal dictionary or the use of certain language given in a
form book may be technically correct, it may result in “legalese.” Legalese produces a
document that is difficult for the reader to understand because its meaning is buried
in a sea of redundant phrases and archaic word forms.
When discussing the secondary sources explained in this chapter, be on the alert
for the following signs of legalese:

Assignment for Chapter 7

1. Use Black’s Law Dictionary (10th ed. 2014).

a. What is the definition of “check-kiting”?
b. Review the definition. To which case are you directed?
c. What does the legal maxim ignorantia juris non excusat mean?
2. Use the current volumes of Martindale-Hubbell Law Directory.
a. Scott L. Shapiro is an attorney with the Reno, Nevada law firm Downey
Brand LLP. Where and when did he receive his J.D. degree?
b. An attorney named Serena Picca is with the Milan, Italy law firm Palmer
Studio Legale. Where did she receive her law degree? What languages does
she speak?
c. Use the section entitled “Corporate Law Departments.” Who is the Executive
Vice President, Corporate and Legal Affairs, and General Counsel for Kraft
Foods Inc. and subsidiaries? What is his e-mail address?
3. Use Am Jur. Pleading and Practice Forms Annotated.
a. Which general form relates to a complaint against a nursing home and staff

285
 for negligent care arising out of ulcerous bedsores?
b. Review the form. What does Paragraph Five allege?
c. To which topic and Key Number are you directed?
4. Use Am. Jur. Pleading and Practice Forms Annotated.
a. Which form provides a complaint by a bicyclist for another’s failure to yield
the right of way to the bicyclist?
b. Review the complaint. What does Paragraph Five allege?
c. What is the first Am. Jur. reference to which you are directed?
5. Use West’s Legal Forms, 3d, 4th, and 5th. Which form is for approval of minutes
of a stockholders meeting?
6. Use Uniform Laws Annotated (West’s Master Edition).
a. Has Massachusetts adopted the Uniform Child Custody Jurisdiction Act?
b. If your answer in part a. above is affirmative, give the citation to the
Massachusetts statute.
c. Has Alaska adopted the Uniform Child Custody Jurisdiction Act?
d. Review the Act. What is the general topic of Section Four?
e. Review Section Four. Generally, must notice and opportunity to be heard be
given to any person who has physical custody of the child?
f. In what way did Ohio change the official text of this section?
7. Use West’s Federal Jury Practice and Instructions, Civil and Criminal (6th ed),
authored by O’Malley, Grenig, and Lee.
a. What instruction is used to instruct a jury on the elements of the crime of
arson?
b. Review the instruction. What is the first element of the offense?

Internet Assignment for Chapter 7

1. Access the website of the Department of Justice Office of Legal Counsel at

https://www.justice.gov/olc. Review the opinions for 2014.
a. Which Memorandum Opinion was issued on July 15, 2014?
b. Who requested the Opinion?
c. What conclusion was reached?
2. Access Law.com’s legal dictionary. Briefly, give the definition of “de facto.”
3. Access the website U.S. Courts at http://www.uscourts.gov. Select “Court Forms.”
Access Civil Form JS 44. What information does Section III require?
4. Access the website for the California State Courts at http://www.courts.ca.gov.
Select the form for “Form Interrogatories — General.” What does Question or
Interrogatory 4.0 relate to?
5. Access the website Martindale.com. An attorney named Marcus P. Mears is with
the Oklahoma City law firm Cunningham & Mears. Where did Mr. Mears attend

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 law school, and when was the firm established?
6. Access the website for the Uniform Law Commission. Access the Uniform Trade
Secrets Act.
a. Is the Act enacted in Florida?
b. What is the statute of limitations for bringing an action for misappropriation
of trade secrets?
7. Access the website for the U.S. Court of Appeals for the Eighth Circuit. Select
“Jury Instructions (Civil).” Review the definitions under the Family and Medical
Leave Act. Is a nurse-midwife a “health care provider” under the terms of the Act?

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 Chapter 8

Legal Citation Form

Competence in legal citation is expected . . . and an ability to generate accurate citations is viewed as a proxy for . . .
attention to detail.

Ian Gallacher, Cite Unseen: How Neutral Citation and America’s Law Schools Can Cure Our Strange Devotion to
Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law, 70 Alb. L. Rev. 491, 492 (2006)

A. Introduction to Citation Form

B. Citation Manuals
C. The Bluebook
D. Bluebook Citation Rules and Examples for Primary Authorities
E. Bluebook Citation Rules and Examples for Secondary Authorities
F. ALWD Citation Manual
G. Special Citation Issues
H. Tips for Effective Cite Checking
I. Quick Reference for Citations

Chapter Overview
Paralegals are routinely assigned the task of “cite checking.” Cite checking consists of two
components: verifying that citations given in a project are accurate and in compliance with
rules for citation form (sometimes called “Bluebooking”) and then verifying that the
authorities cited in a project are still “good law.” The guidelines and rules relating to the
form of citations will be discussed in this chapter, and the method of ensuring that
authorities relied upon are still correct statements of the law, usually called “Shepardizing”
or “KeyCiting,” will be discussed in the following chapter.
This chapter will review the history of The Bluebook, the best known guide to citation
form, and will provide examples of citations for the primary authorities of cases,
constitutions, and statutes as well as the secondary authorities of encyclopedias, legal
periodicals, treatises, Restatements, and other authorities. Moreover, this chapter will
provide information on more intricate citation tasks, such as punctuation, quotations, and
the use of signals such as id. and supra. Note that although numerous examples of citations
are provided in this chapter, most are fictitious and are provided solely for the purpose of
illustrating citation rules. Note also that the use of italic type is interchangeable with
underscoring. References to Bluebook rules are given in parentheses. Note that many
examples of citation form are found in other chapters. For example, illustrations of citation
form for administrative and international materials and court rules are found in Chapter
10, which discusses those subjects. Finally, for simplicity, pinpoint references to the exact
pages on which material appears are often not included in examples until quotations are

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discussed in Section G.4 of this chapter.

A. Introduction to Citation Form

You may have already observed that legal writings are filled with references to cases,
statutes, annotations, and numerous other authorities. The reason for this is that statements
about the law must be attributed to their sources. You cannot simply make an assertion
such as stating that a trial by jury is waived unless it is requested by a party. Such
statements must be supported by legal authority; namely, by primary authorities or
secondary authorities. These supporting authorities appear as “citations” or “cites” within
the body of your work. Moreover, these citations must appear in a standard and consistent
format so that any judge, attorney, paralegal, or other reader, upon viewing your citation,
will be able to retrieve the legal authority you cited and verify that you have accurately
represented the status of the law.
Because citations communicate information to a reader, it is essential that legal
professionals communicate using the same “language” or citation form. You should be able
to prepare a legal argument and present it to any court in the United States with confidence
that a reader will be able to locate the authorities you cite. If legal professionals cited cases,
statutes, and other authorities in varying ways, this would not only impede communication
but also would dilute the strength of their arguments. When you present a persuasive
argument, you do not want to distract the reader from the argument by using disfavored or
incorrect citation form.
Newcomers to the legal field often inquire what will happen if citation form is incorrect
in a brief or other document. Improper citation form has an effect similar to spelling errors
in writing: It results in a loss of respect for the author and causes readers to question the
integrity and analysis of an argument. Many readers will conclude that if an author cannot
be depended upon to cite or spell correctly, the author likely cannot be depended upon to
conduct thorough legal analysis.
Recently, courts have been complaining that too many briefs are riddled with citation
errors. See, e.g., Edison Mission Energy, Inc. v. FERC, 394 F.3d 964, 969 n.1 (D.C. Cir.
2005) (noting that failure to indicate relevant pages in citations in briefs is sanctionable
under the Federal Rules of Appellate Procedure); Hurlbert v. Gordon, 824 P.2d 1238,
1245-46 (Wash. Ct. App. 1992) (stating that counsel’s errors in briefing and poor citation
form made it impossible for the court to find information in the record, hampering the
work of the court and justifying the imposition of monetary sanctions against counsel).

B. Citation Manuals

1. Introduction

Citation manuals provide the rules for citing legal authorities. Just as writers routinely

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consult dictionaries and style guides to ensure their writings are correct, legal writers
consult citation manuals to ensure that references to legal authorities are in proper form.
The oldest and best known citation manual in the United States is The Bluebook: A
Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 20th ed. 2015). It is
the citation manual you will be expected to be familiar with and use once you are
employed. Thus, the focus in this chapter is on Bluebook citation form.

2. Overview of The Bluebook

The best known guide to citation form is a small wire-bound publication known as The
Bluebook, which is now in its twentieth edition. Its front and back covers are bright blue,
and it is the most commonly used guide to citation form. The Bluebook was originally
produced in the 1920s by the editorial boards of the Columbia Law Review, the Harvard
Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal. As time
has passed, the editors of these law reviews have updated The Bluebook, and the twentieth
edition was published in mid-2015 by the same consortium. A new edition is released every
four or five years. Questions and comments about The Bluebook can be addressed to The
Harvard Law Review Association, Gannett House, 1511 Massachusetts Avenue,
Cambridge, Massachusetts 02138.
Unless you are specifically directed to use some other system of citation rules or unless
your jurisdiction has its own system of citation, follow The Bluebook because it is the best
known and most widely accepted citation system. If local citation rules exist for your
jurisdiction, they must be followed.
Law students, paralegals, and practitioners have long bemoaned the organization of The
Bluebook, its dearth of sufficient examples, and its lack of articulate explanation of certain
citation rules. Although each edition of The Bluebook attempted to respond to such
criticisms, each new edition seemed to create as much confusion as it resolved. The
fifteenth edition, released in 1991, however, reorganized The Bluebook, making it easier to
use and of more benefit to practitioners, who often believed The Bluebook devoted far too
much attention to citation form for various obscure publications and far too little attention
to citation problems commonly encountered by practitioners. Similarly, the new twentieth
edition of The Bluebook is more user friendly than previous editions and has expanded its
section called the Bluepages, which includes numerous examples and is designed to assist
practitioners with citation form.
In sum, there are few jurisdictions that require use of Bluebook form. For example, the
rules of the United States Supreme Court impose requirements for nearly every aspect of
documents submitted to the Court, from size of paper used to font size for footnotes, yet
are silent on citation form. Use of The Bluebook is simply expected and traditional.
In early 2008, The Bluebook made its content available online. Users pay a modest
subscription fee for access to the online Bluebook, which affords several advantages,
including the following:

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 • Online searching makes it easy to locate needed information. Users can search by
keywords or phrases to locate pertinent citation rules and examples.
• Just as one can mark up and annotate a print copy of The Bluebook, users can add
their own notes to their online Bluebooks, and these notes are fully searchable.
• Group collaboration tools allow several users from the same law firm or practice
group to add notes to their online Bluebooks so they can communicate needed
information to each other about citation formats.
• The online Bluebook can be accessed from any location at any time.

Additional information, including updates to The Bluebook and video tours are available at
The Bluebook’s website at http://www.legalbluebook.com.

Practice Tip

There’s an App for That!

An App (written by this author) called Cite-Checker: Your Guide to Using The Bluebook is available from
iTunes. The Android version of the App is now available at the Google Play store for Android devices. This
inexpensive App provides an overview of Bluebook rules as well as examples and a quiz.

3. Other Citation Manuals

In addition to The Bluebook, there are several other guides to citation form, including the
following:

• ALWD. In 2000, the Association of Legal Writing Directors introduced a new

citation manual, now in its fifth edition: ALWD & Coleen M. Barger, ALWD
Guide to Legal Citation (5th ed. 2014). This manual, referred to as ALWD
(pronounced “all wood”), provided a user-friendly alternative to The Bluebook.
After the first edition of ALWD was published in 2000, each edition steadily crept
closer to Bluebook citation format, and with the publication of the fifth edition in
2014, it is identical to The Bluebook in all critical respects. Thus, the focus of this
chapter is on The Bluebook because that is the citation manual used in nearly all law
firms and the one you will be expected to have “on the job.” Nevertheless, although
ALWD’s rules are now identical to those of The Bluebook, ALWD often does a
better job of explaining those rules and providing examples. Thus, you may wish to
refer to ALWD if some Bluebook rules are confusing to you.
• Maroonbook. The official guide to citation for the University of Chicago Law
Review is the University of Chicago Manual of Legal Citation (5th ed. 2016), usually
called the Maroonbook, and used primarily in the Chicago metropolitan area. The
Maroonbook is far easier to use than The Bluebook. In fact, it is so concise (fewer
than 100 pages) and it leaves so many decisions about citation form to the
discretion of the writer that it has failed to attract widespread interest beyond the

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 Chicago area. It is available online at
https://lawreview.uchicago.edu/page/maroonbook.
• Introduction to Basic Legal Citation. Professor Peter W. Martin of Cornell Law
School offers his Introduction to Basic Legal Citation (2015), a free online guide to
citation form, which is available at https://www.law.cornell.edu/citation. It is not a
different or new citation manual but rather complies with Bluebook rules; however,
it provides simpler and clearer explanations of The Bluebook’s citation rules. It also
provides numerous examples, tips, and guidance. The site also offers several video
tutorials on citation form.
• The Indigo Book. The newest entrant into citation form is a citation manual that
arrived in 2016, The Indigo Book: A Manual of Legal Citation (2016). It is available
exclusively online at https://law.resource.org/pub/us/code/blue/IndigoBook.html.
The Indigo Book is not the same as The Bluebook but it does follow its rules and is
thus compatible with the new twentieth edition of The Bluebook. It is available for
free and has no copyright restrictions on it, meaning you can freely use, copy, and
distribute it. It is approximately 200 pages long and includes numerous examples,
tips, and practical guidance, with clear and straightforward explanations of
Bluebook rules.
• Universal Citation Guide. In 1999, the American Association of Law Libraries
(“AALL”) published its Universal Citation Guide to create a set of universal citation
rules for American legal authorities, whether those authorities appear in print or
electronic form. The Universal Citation Guide (now in its third edition) is discussed
later in this chapter.
• State or Local Guides. Several states have their own citation guides and manuals.
For example, legal professionals in Texas and California use their own formats and
there is significant variation from one local jurisdiction to another. Texas’s manual,
the Texas Rules of Form (13th ed. 2005), is usually called the “Greenbook.”
California encourages the use of a specific manual published by West, the
California Style Manual (4th ed. 2000), in citing authorities in appellate briefs, Cal.
R. Ct. 8.204 advisory cmt., although use of The Bluebook is acceptable as well, Cal.
R. Ct. 1.200. State-specific or local court rules may require yet different citation
formats. Always follow your firm or office practice.

Practice Tip

Citation Form
In citing legal authorities, do not rely on the way books and cases refer to themselves. For example, many
volumes of U.S.C.S. include an instruction similar to the following: “Cite This Volume: 11 USCS §____.”
Yet this form is incorrect according to The Bluebook, which provides the following correct form: 11 U.S.C.S. §
1220 (LexisNexis 2009), with periods in U.S.C.S., a space after the section symbol, and a reference to the
publisher and year. Similarly, many courts in California use the incorrect abbreviation “C.A.” rather than the
correct abbreviation “Cal. Ct. App.” to refer to cases from the California appellate courts.

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 Thus, always rely on the appropriate Bluebook rules rather than the citation forms you may observe in books
or case reports or on Lexis Advance or Westlaw screens.

C. The Bluebook

1. Organization of The Bluebook

Although it would be unnecessarily time-consuming to read The Bluebook, you should

become familiar with its overall arrangement and read at least the Bluepages section in the
front of the book. The Bluebook is composed of six major sections:

Preface. The Preface provides a summary of the changes initiated in the twentieth edition
of The Bluebook.
Introduction. The Introduction discusses the structure of The Bluebook and general
principles of citation.
Bluepages. The Bluepages section was added in 2005 and is a how-to guide for basic legal
citation form. It is designed for use by legal practitioners and includes numerous
useful examples. It also includes two tables, one showing abbreviations for use in
court documents and one providing references to local citation rules. References in
this chapter to Bluepages will be shown as “B.”
General Rules of Citation and Style. This section, printed on white paper, provides general
standards of citation and style used for legal writings and then sets forth 21 specific
rules of citation for primary authorities (cases, constitutions, and statutes) and
secondary authorities (books, periodicals, foreign materials, and so on). References in
this chapter to Rules will be shown as “R.”
Tables. The Bluebook contains 16 tables, which are printed on white paper with blue trim
for easy access, describing how cases and statutes from federal courts and each state
court are cited and providing abbreviations for court documents, geographical terms,
months, and various periodicals.
Index. An alphabetically arranged Index is found at the end of The Bluebook. When you
have a question or concern regarding citation form, use the descriptive word
approach to access the Index, which will refer you to the pertinent page.

Practice Tip

Bluebook Updates

Although a new edition of The Bluebook is released only every few years, a new printing of that edition is
released on several occasions throughout an edition’s lifetime. The Bluebook will state its printing information
(such as “Second Printing 2016”) opposite the title page. A new printing may correct minor errors or typos or
provide updated information or examples. Thus, if you have purchased a “First Printing” and your colleagues
have a “Fourth Printing,” there could be minor differences between your Bluebooks. Thus, you should
periodically access the website for The Bluebook at http://www.legalbluebook.com and select “Bluebook

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 Updates.” This page will list changes in recent printings so that you can update your Bluebook and correct any
errors. Pagination will not change with a new printing.

2. Typeface Conventions

Perhaps the single most important fact you should know about The Bluebook is that almost
all of the examples given in the Whitepages of The Bluebook show how to cite authorities as
if you were writing an academic work or law review article. Because your cite checking
work as a paralegal will in all likelihood relate to authorities cited in court documents and
legal memoranda, you must convert the examples you are given by The Bluebook that relate
to law review format to the format suitable for practitioners.
The Bluebook includes a special section on light blue paper near the front of the book
called the Bluepages, which shows you how to adapt the examples you find in the body of
The Bluebook to the format needed for court documents and memoranda. For example, if
you were citing a text in a law review article, it would appear as follows:

1 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 3:1

(4th ed. 2013).

On the other hand, if you were to cite this same text in a court document or a legal
memorandum, it would appear as follows:

1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 3:1 (4th ed. 2013).

The obvious difference between these two citation forms is that the first, used for law
reviews, uses a style of large and small capitals for the author’s name and treatise title,
whereas the second format, used by practitioners, uses initial capital letters only. It is
customary for law reviews to use large and small capitals for constitutions, state statutes,
authors and titles of books, periodical titles, and some other materials. This format,
however, is not used by practitioners or in nonacademic legal documents. Although prior
editions of The Bluebook clearly instructed practitioners, “[l]arge and small caps are never
used,” the current twentieth edition offers more flexibility and provides that for
practitioners “LARGE AND SMALL CAPS are not required (but may be used for stylistic
purposes).” (B2). Always follow local rules and your office practice, but in general, the basic
rule is that practitioners do not use LARGE AND SMALL CAPS. Thus, when you see an
example given in The Bluebook such as the reference to the Florida Law Review as “FLA. L.
REV.,” you will need to adapt the format to that used by practitioners, namely, “Fla. L.
Rev.”
Many experts believe that the use of large and small capitals in academic writings is a
holdover from the time law review articles were manually typeset. Because documents
prepared by practitioners were typed rather than typeset, and typewriters could not change
fonts to make one capital letter larger than another, practitioners never used large and small
capitals (even though the advent of word processing has made this possible). Thus, every

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time you encounter an example in The Bluebook, ask yourself, “Could this format be
reproduced on an old-fashioned typewriter?” If not, it is a signal to you that the form is for
law reviews, not for practitioners’ documents. This dual system of citation (the use of large
and small capitals for academic writings and the use of ordinary roman type capital and
lowercase letters by practitioners) has continued to exist long past any need for it. Because
word processors can readily use a large and small capital format, practitioners could adopt
that method of citation, and the dual citation system could be scrapped. Why do two
separate systems continue to exist, each with its own rules and requirements? No one
knows.
Other useful guides to showing you the differences in citation form between law review
format and the style used for court documents and legal memoranda are on the inside front
and back covers of The Bluebook. The inside front cover is titled “Quick Reference: Law
Review Footnotes” and gives you several examples for citation form for use for law review
footnotes. The inside back cover is titled “Quick Reference: Court Documents and Legal
Memoranda” and gives you the same examples for use in legal writings for practitioners.
Be sure to refer often to the inside back cover. Do not become confused and assume
that because an example appears in the body of The Bluebook it is correct. It may well be
correct — but only for law review footnotes. After viewing an example in the body of The
Bluebook, check the Bluepages and the inside back cover of The Bluebook and adapt the
typeface for use in a court document or legal memorandum. Remember that practitioners
typically do not use large and small capitals.
Another difference you will note between citations shown on the inside front cover (for
law review footnotes) and those shown on the inside back cover (for use by practitioners) is
that full case names are neither underscored nor italicized in law review footnotes and yet
they are always underscored or italicized by practitioners. In fact, hundreds of examples
throughout the Whitepages in The Bluebook show full case names in ordinary roman type
(without underscoring or italicization). Do not become confused by the examples shown in
the Whitepages throughout The Bluebook. Unless you are preparing footnotes for a law
review article, case names will always be underscored or italicized.

3. Revisions to the Twentieth Edition of The Bluebook

The twentieth edition of The Bluebook retains the same basic approach to citation form as
earlier editions. Nevertheless, it does contain some changes. Although these changes are
discussed in detail in the preface to The Bluebook and throughout The Bluebook, and in this
chapter, some of the more significant changes are as follows:

• Bluepages. Entries in the Bluepages have been renumbered to correspond with

entries and rules in the Whitepages. Thus, for example, rules for citing cases are
covered by Rule 10 in the Bluepages and by Rule 10 in the Whitepages. This
renumbering makes it easier to use The Bluebook.
• Typeface. As discussed above, for practitioners, likely the biggest change is that

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 they are now allowed to use LARGE AND SMALL CAPITAL typeface if they wish (“for
stylistic purposes”).
• String Cites. The Bluebook now states that when citing several authorities, if
“certain authorities are considerably more helpful or authoritative than the other
authorities, you may list the more helpful authorities first.” Previously, one could
list only the most helpful authority (singular) first. This rule change thus seemingly
allows practitioners to list authorities in their string citations the way they prefer
rather than being required to follow the rigid hierarchy of Rule 1.4.
• Restatements, Uniform Acts, and so forth. When citing to Restatement
provisions, Uniform Acts, Sentencing Guidelines, and ABA Model or Professional
Rules of Conduct, one must now include parenthetically the abbreviation for the
institutional author with the year.
• The Internet. Rule 18 has been expanded and updated. Examples are given for
citing to social media, including Twitter, Facebook, and Instagram. The Bluebook
no longer uses the term available at (previously used to introduce a URL used as a
parallel citation). Citation forms are given for citing Internet sources using archival
tools.
• Tables. New terms have been added to Bluepages Table BT.1 and Tables T.6, T.8,
T.14, and T.15. Bluepages Table BT.2 (providing references to local rules that
govern citation form) has been expanded.
• Table T.13. Table T.13 no longer provides a detailed list of abbreviations for the
titles of periodicals. It has been divided into two parts: Table T.13.1 contains a list
of abbreviations for various institutions (such as “Stan.” for “Stanford”); Table
T.13.2 then lists abbreviations for common words in periodical titles (such as
“Rev.” for “Review”). Users must now use these two tables to construct their own
references to periodicals and journals, being careful of spacing.
• International materials. Citation forms for a number of new intergovernmental
organizations are given, including citation formats for reports and documents of
the International Monetary Fund.

D. Bluebook Citation Rules and Examples for Primary Authorities

1. Cases

a. Introduction
A typical case citation includes the following components:

• Case name
• References to the set(s) of case reports that published the case and the page on
which the case begins (and, as discussed later, a pinpoint citation to the specific
page on which material appears)

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 • A parenthetical that includes the court and jurisdiction and the year of decision
• The subsequent history of the case and other parenthetical information, if any
(B10.1)

Thus, a typical citation to a case cited in a court document in Oregon is as follows:

Smith v. Jones, 329 P.2d 411, 414 (Or. 1979).

b. Case Names
The Bluebook contains numerous rules regarding case names in citations. Carefully review
Bluepages B10.1.1 and Rule 10.2 in The Bluebook for a full discussion of these rules. Some
of the more common guidelines you should be aware of are as follows:

(i) For individuals, cite only the last names of the parties.

Note, however, that many corporations use an individual’s name as part of the business
name. In such a case, include the full name of the business entity.

(ii) If more than one party is listed, omit all but the first party on each side.

(iii) If several actions have been consolidated into one decision, cite only the first
listed action.

(iv) Omit any indication of multiple parties when citing published cases.

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(v) Omit indications of legal status or other descriptive terms.

(vi) Do not abbreviate “United States” (or the name of any state) in a case name
if it is the entire name of a party, and omit the phrase “of America.”

(vii) For criminal cases decided by your state, cite as follows:

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If the case was not decided by a court in your state (if, for example, the case was later
appealed from the Kansas Supreme Court to the United States Supreme Court), cite as
follows:

(viii) Omit the second “business signal” such as “Inc.,” “Co.,” or “Corp.” if the
case name already contains one business signal.

(ix) Omit prepositional phrases of location unless they follow the word “City”
or a similar word.

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 (x) Omit all geographic designations that follow a comma.

(xi) When a case name appears in a textual sentence, for example, when it
appears as a grammatical component of a sentence, abbreviate only the
following words in a case name and widely known acronyms (such as FBI,
CIA, and NLRB) (B10.1.1; Rule 10.2.1(c)):

When a citation appears or stands alone by itself, rather than functioning as a

grammatical, needed component of a sentence, always abbreviate any word in the case
name that is listed in Table 6 of The Bluebook (B10.1.1, Rules 10.2.1.(c) and 10.2.2). The
word is abbreviated even if it is the first word in a case name.
Note, however, that if one of the eight words listed above (for example, “Bros.”) begins
a party’s name, it may not be abbreviated.

Examples

Textual Sentence: In Franklin Hospital Guaranty Co. v. Southern Division Ltd., 780 F.
Supp. 91, 97 (W.D. Tex. 1990), the court held that fraud requires a material
misrepresentation.

Explanation: Because the citation appears as part of a textual sentence and is needed to
make sense of the sentence, abbreviate only “Co.” and “Ltd.”

Stand-alone Citation: Fraud requires a material misrepresentation. Franklin Hosp.

Guar. Co. v. S. Div. Ltd., 780 F. Supp. 91, 97 (W.D. Tex. 1990).

Explanation: Because the citation “stands alone” and is not needed to make sense of the
sentence, you may abbreviate any of the words in Table T.6.

This rule is one of the least understood rules in The Bluebook and requires you to focus

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on the location and use of a citation before you determine which words can be abbreviated
in a case name. For simplicity, use this rule: If a case name in a citation appears as a textual
part of a sentence (meaning the citation is needed to make sense of the sentence), you may
abbreviate only widely known acronyms and the eight well-known and commonly used
abbreviations provided in Rule 10.2.1, such as “Co.” and “Inc.” On the other hand, if a
citation stands alone in a clause or after the end of a sentence and is not needed to make
sense of a sentence, you must abbreviate any of the more than 180 words listed in Table
T.6, even if they are the first word in a party’s name. Why? Many experts believe that
because readers are unused to seeing abbreviations in the middle of sentences, to abbreviate
any words other than very commonly used words such as “Inc.” would be distracting. On
the other hand, if a citation stands by itself, for example, after a declaratory sentence,
readers will not be disconcerted by seeing abbreviations such as “Indem.” or “Sur.”

(xii) Generally, omit the word “The” as the first word of a party’s name.

(xiii) Entities that are widely known (for example, NAACP, SEC, FCC, FDA)
may be referred to as such in case names, without periods.

The Bluebook (R. 6.1 (b)) gives only a few examples of such entities. Generally, however, if
an entity is referred to in spoken language by its initials rather than its full name (for
example, one usually says, “He was investigated by the FBI” rather than “He was
investigated by the Federal Bureau of Investigation”), it may be used in its abbreviated form
without periods.

(xiv) The “v.” in a case citation stands for “versus” and always appears in
lowercase form. Although you may see some other form for “versus” in a
pleading such as a complaint or answer, when referring to published cases
always use a lowercase “v” followed by a period.

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 (xv) Always underscore or italicize the name of a case in a citation, including the
“v.,” and any procedural phrases such as “In re.” Either underscoring (also
called “underlining”) or italicizing is appropriate (B “Introduction”). Years
ago, underscoring was most popular, as few typewriters were capable of
producing italics. With the advent of word processors, which are capable of
italicizing, the use of italics became the norm. In fact, some courts, such as
those in Illinois, mandate the use of italics for case names rather than
underscoring, because underscoring is now the standard method of showing
a link to an Internet reference. A few legal writers, however, continue to
prefer underscoring because it is very noticeable and dramatic on a white
sheet of paper. Moreover, the examples given in the Bluepages section of The
Bluebook show underscoring. Note these rules for underscoring:
• The line should be unbroken.
• The line should be placed underneath the entire case name, including
any periods.

Whichever method (namely, underscoring or italicizing) you select, be consistent. Check

your firm or office practice for preferences.

(xvi) The case name should always be followed by a comma. The comma is not
underlined, underscored, or italicized.

Practice Tip

Case Citations
• Note that the correct legal abbreviation for “second” is 2d and the correct legal abbreviation for “third” is 3d,
rather than 2nd or 3rd, which are commonly encountered in nonlegal writings.
• Note that the first page given in a case citation is the page on which a case begins and is not introduced with

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 an abbreviation such as “p.” which is often used in nonlegal writings.

c. Parallel Citations

(1) Old Bluebook Rule

For many years, Bluebook citation rules required that all citations to all state court cases
include all parallel cites; that is, references to the official report and the unofficial
reporter(s) that published the case. The parallel citations were provided as a courtesy to the
reader because the writer would not know if the reader had access to the official reports or
the unofficial reporter(s). The writer would thus provide all citations so the reader could
easily locate the cited case no matter which set of books or case reports the reader used.

Example
Liston v. Alpha Co., 129 Va. 109, 381 S.E.2d 12 (1980)

This requirement of providing all parallel cites made citation form awkward and
difficult for the writer because the writer would have to obtain all parallel cites and then, if
quoting from a certain page in the text, would have to indicate the exact page the quote
appeared on in each case report. For California and New York cases (and older Illinois
cases), which may have three parallel cites, this rule made the difficult task of citation form
even more complicated.

(2) Current Bluebook Rule

Bluebook Rule 10.3.1 and Bluepages 10.1.3 govern parallel citations for state court
cases. The Bluebook now makes it clear that you need only include a parallel citation if court
rules require such. Note that when court rules do require parallel citations, the official
citation is given first, followed by the unofficial parallel citation(s). Remember, however,
that about one-half of the states no longer publish their cases officially, and cases from
those jurisdictions will have only one citation.
Unless court rules require parallel citations, cite to the relevant regional reporter (for
example, Atlantic Reporter or Pacific Reporter) if the case is in that set, and then indicate the
name of the court and its geographical jurisdiction (using the abbreviations found in Table
T.1.3) parenthetically with the year of decision. There is, however, one exception to this
rule: Do not include the name of the court if the court that decided the case is the highest
court of the state. For example, the highest court in nearly all states is called the supreme
court, and Table T.1.3 in The Bluebook indicates that for all states’ highest courts, the
appropriate abbreviation indicates the name of the state and no other information is given.
Thus, Table T.1.3 states that “Cal.” indicates a case from the California Supreme Court
and “Ohio” indicates a case from the Ohio Supreme Court. Cases from those states’
appellate courts are indicated by the following abbreviations (again, respectively, as shown

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in Table T.1.3): “Cal. Ct. App.” and “Ohio Ct. App.”
Thus, consider the following correct examples:

• Green v. Hall, 68 Mich. 2d 802, 310 N.W.2d 604 (1979)

[This is how the Green case would be cited if a court rule required parallel
citations.]
• Green v. Hall, 301 N.W.2d 604 (Mich. 1979)
[This is how the Green case would be cited in any other instance, including in a
court document for a court that does not have local rules requiring parallel
citations, in a letter to a client, or in an internal office memorandum. Because
Table T.1.3 of The Bluebook tells us that the abbreviation for the Michigan
Supreme Court is “Mich.,” upon encountering this citation, a reader knows the
case is from the Michigan Supreme Court.]
• Taylor v. Fletcher, 401 Mich. App. 190, 304 N.W.2d 18 (1981)
[This is how the Taylor case, a case decided by the Michigan Court of Appeals,
would be cited if a court rule required parallel citations.]
• Taylor v. Fletcher, 304 N.W.2d 18 (Mich. Ct. App. 1981)
[This is how the preceding case from the Michigan Court of Appeals would be
cited in any instance other than for a court whose rules require parallel citations.]

Although The Bluebook rule does not require parallel cites in an internal law office
memorandum, many practicing legal professionals will include the parallel cite knowing
that if the memorandum later becomes the basis for a brief submitted to a court that
requires parallel citations, such as a motion for change of venue, the parallel cite would be
required for that document. Thus, including it in an earlier memo will save time later by
eliminating the need to return to the law library to track down the parallel cite. Follow your
firm or office practice.
As you will recall from Chapter 4, 23 states and the District of Columbia no longer
publish their cases officially, and cases from those jurisdictions appear only in the relevant
regional reporter. If you are citing a case from one of these states decided after the date
official publication ceased, the correct citation form will refer the reader only to the
regional reporter and will include information about the court that decided the case
parenthetically as follows:

Gray v. Donoghue, 704 P.2d 118 (Colo. 1999).

Davis v. Green, 709 P.2d 328 (Colo. App. 2001).

To determine which states no longer publish officially and when those states
discontinued their official publications, consult the chart in Chapter 4 herein or Table
T.1.3 of The Bluebook, which alphabetically lists all 50 states and provides information
about correct citation form for each state.
Several jurisdictions (Delaware, the District of Columbia, Maine, Montana, New

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Hampshire, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming) have
no intermediate appellate courts. In those jurisdictions, all citations are to the state’s highest
court, usually called the supreme court, and the parenthetical would always display only the
abbreviation of the state (such as “Wyo.”) and never any abbreviation that would indicate
an appellate court.
Finally, in a few states (including Arizona, Hawaii, Idaho, South Carolina, and
Wisconsin), cases from the state supreme court are or have been published in the same
volumes as those from the lower intermediate court of appeals. For example, the set Idaho
Reports includes cases from the Idaho Supreme Court and the Idaho Court of Appeals.
Citations to cases from these states may thus need parentheticals identifying the deciding
court. For example, when citing a case from the Idaho Court of Appeals (assuming local
rules require parallel citations), show this as follows: Cruz v. Harley, 94 Idaho 861, 729
P.2d 14 (Ct. App. 1993). Without the parenthetical, the reader would assume the case is
from the Idaho Supreme Court. If the case is, in fact, from the Idaho Supreme Court, the
parenthetical need only include the date; it need not include any reference to “S. Ct.” Allow
the reader to assume it is from the highest court in Idaho. In sum, if the name of the
reporter unambiguously indicates the jurisdiction and the court, omit that information in
the parenthetical.
Do not indicate the department, division, county, or district in citing a case from an
intermediate state court unless that information is of particular importance (R. 10.4(b)).

Preferred: Crandall v. Brown, 291 So. 2d 481 (La. Ct. App. 1981)
Disfavored: Crandall v. Brown, 291 So. 2d 481 (La. Ct. App. 1st Cir.
1981)

Practice Tip

State Cases: The Bluebook

Rule 1: If the name of the reporter set is the same as the name of the jurisdiction, you need not give the name of
the court in the parenthetical with the date.

Example: 113 Cal. 3d 118 (1999)

Explanation: You need not include “California Supreme Court” in the parenthetical with
the date because Table T.1.3 of The Bluebook tells you that the name of the
reporter is identical to the court abbreviation (namely, “Cal.”) and by
looking at the citation, the reader can tell what court decided the case
(namely, the California Supreme Court).

Rule 2: You must include the name of the court in the parenthetical with the date if a reader cannot tell what
court decided the case from reading the citation.

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Example: 790 P.2d 989 (Or. 1997)
Explanation: In reviewing the citation, “P.2d” doesn’t tell the reader what court decided
the case, so the parenthetical must indicate such. The “Or.” in the
parenthetical tells the reader implicitly that the case is from the Oregon
Supreme Court. Otherwise, the parenthetical would have indicated “Or. Ct.
App.”

d. Recent Cases

(1) Official Cite Unavailable

West typically publishes its cases a bit quicker than the official publishers. If you wish
to cite to a very recent case and the official report is not yet available, you may cite as
follows:

Hunter v. Hoffman, ___ Conn. ___, 17 A.3d 704 (2016)

The “blank” lines serve as a signal to a reader that an official citation will exist but it is
not yet available. This form is not permitted or recognized by The Bluebook but is
commonly used by practitioners.

(2) Slip Form

When a case is not yet reported and is available only in slip or looseleaf form, give the
case name, the docket number, the court, and the exact date (Rule 10.8.1(b)).

(3) Cases Available on Electronic Media (B10.1.4; Rule 10.8.1)

A case may be cited to a widely used electronic database such as Lexis Advance or
Westlaw only if it is not reported (meaning that it is not published in print reporters).
Provide the name of the case, docket number (exactly as it appears), identification of the
database (found on your Lexis Advance or Westlaw screen), name of court, and the full
date of the most recent disposition of the case. If screen or page numbers have been
assigned, they should be preceded by an asterisk. The Bluebook also provides a format for
cases found on Bloomberg Law, the newest entrant in computer-assisted legal research.

Examples

Gruber v. Edwards, No. 14-829, 2016 U.S. Dist. LEXIS 20104, at *3 (D. Utah Oct. 1,
2016)
McKnight v. Walter, No. 14-10426, 2016 U.S. App. LEXIS 42216, at *4 (4th Cir. Apr.

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 14, 2016)
Thomas v. Bowman, No. 15-CV-6040, 2016 WL 65102, at *4 (S.D. Cal. July 17, 2016)
Neely v. Younger, No. 15-4091 (KDF), 2016 WL 46723, at *3 (Cal. Ct. App. May 7,
2016)
Porter v. Lyndley, No. 2014-1338, 2015 BL 81840, at *3 (9th Cir. Feb. 28, 2016).

(4) Cases Available on the Internet (Rule 18.2)

Although there are now hundreds of thousands of cases available on the Internet, The
Bluebook requires the use and citation of traditional printed sources when they are available,
unless there is a digital copy of the source available that is authenticated, official, or an exact
copy of the printed source. Typically, an authenticated document will have a certificate or
logo showing that the document is unaltered. An official document is one that has been
designated as official by some legislative mechanism. An authenticated, official, or exact
copy of a case may be cited as if to the print source (meaning that no URL information
need be given). Because nearly all cases appear in traditional print form within a matter of
days after they are decided, this Bluebook rule seems to suggest that citing to the Internet
would be exceptional, for example, only for newly released decisions.
The Bluebook provides information on citing cases, statutes, books, and journals to
Internet locations. Examples of each of these will be found in Section G.9 of this chapter.

e. Abbreviations in Case Citations

Do not assume that you know the correct abbreviations for Colorado, Idaho, or Oklahoma.
Although you may know the correct abbreviation for a state for purposes of addressing a
letter, The Bluebook contains some surprising designations for commonly known
geographical terms, such as “Fla.” for Florida, and “Ohio” for Ohio. Review Table T.10.1
in The Bluebook to determine the required abbreviations for the 50 states and for some
cities. Similarly, rely upon Table T.7 for abbreviations for court names and on Table T.12
for the correct abbreviations for months of the year.

f. Spacing (Rule 6.1(a))

The print in The Bluebook is very small, and it can be difficult to simply look at the
examples given and determine the appropriate spacing in a citation. Therefore, you must
memorize three spacing rules given in Rule 6.1 of The Bluebook:

• Do not put a space between adjacent single capital letters. For purposes of this rule,
the abbreviations for “2d,” “3d,” “4th,” and so forth are viewed as single capitals.

Examples

N.W.2d

307
 S.W.
P.2d
F.3d
U.S.
A.L.R.5th

Each of the examples given here shows adjacent single capital letters. Therefore, do not put
spaces between them.

Practice Tip

Superscripts
Ordinals are numbers that show a series, such as “first” and “fourth.” In legal citations, the ordinals are
replaced by their appropriate abbreviations, for example, “1st” and “4th.” Many word processing programs
automatically force abbreviations such as “st” and “th” above other text in superscript, as in “1st” and “4th.”
The Bluebook shows ordinal abbreviations “set on line” as follows: “1st” and “4th” so their presentation will be
consistent with “2d” and “3d,” which are always set on line with other text.

In some Microsoft Word versions, you may disable the automatic superscript setting by consulting your
“tools” menu bar (select “Tools,” then “AutoCorrect,” then “Auto Format As You Type,” and then uncheck
the superscript feature). Alternatively, immediately after a superscript is inserted on your page, click on the
“undo” arrow (the backward facing arrow on your menu bar), which will correct the superscript and set the
abbreviations on line. Bluebook Rule 6.2(b) forbids the use of superscripts.

Correct: 1st, 4th, 8th

Incorrect: 1st, 4th, 8th

• Multiple letter abbreviations are preceded and followed by a space:

Examples

So. 2d
F. Supp. 3d
L. Ed. 2d
Cal. 4th
Conn. App. Ct.
S. Ct.

Each of the examples given above includes a multiple letter abbreviation. Therefore, put
a space before it and after it.

• In abbreviations of the names of legal periodicals, close up adjacent single capitals

except when one or more of the capitals refers to an institutional entity. In this case

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 separate the capital(s) referring to the entity from other adjacent single letters with
a space (Bluebook Rule 6.1 (a)).

Example

B.U. L. Rev.

Because the “B.U.” in this abbreviation refers to an institutional entity, namely, Boston
University, the capital letters for this entity are separated from the other adjacent single
letter. To format citations to law reviews and journals, use Tables T.13.1 and T.13.2.
Note that Table T.13.2 shows the abbreviation as “REV.,” using large and small
capitals, as would be used for law review typeface style. Practitioners should always follow
the rules on typeface conventions and convert the large and small capitals to ordinary type,
specifically “B.U. L. Rev.”
With regard to presentation of citations within your project, The Bluebook does not
offer any guidelines whatsoever. Most experts suggest that you “break” your citation from
one line to the next at a “natural” break point, that is, one that is pleasing to the eye and
doesn’t strike the reader as awkward in appearance.

g. Federal Cases (B10.1.3; Table T.1.1)

(1) United States Supreme Court Cases

Despite the fact that cases from the United States Supreme Court are published in
permanent hardbound volumes in three different sets of books (U.S., S. Ct., and L. Ed.),
The Bluebook rule (T.1.1) is to cite only to the official set, United States Reports (U.S.).
This rule of requiring a single citation to U.S. and ignoring the sets S. Ct. and L. Ed. is
the reason “star paging” was developed, namely, to allow a reader to read a case in S. Ct. or
L. Ed. and yet cite to the official United States Reports. (See Chapter 4 for discussion of star
paging.)

You may recall that the United States Reports have only had that title since 1875 and that
before that date, the volumes were named after the individual primarily involved in editing
the set (for example, Dallas, Cranch, Wheaton, Peters). Thus, if you see an awkward-
looking case citation such as Carter v. Lee, 4 U.S. (2 Dall.) 16 (1798), you should simply
recognize that this is a very old case.
If you cannot cite to U.S. because the official report is not yet available, cite to S. Ct.,
L. Ed., or U.S.L.W., in that order.

Examples

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 Hogue v. Davidson, 241 S. Ct. 902 (2016).
Hogue v. Davidson, 289 L. Ed. 2d 101 (2016).
Hogue v. Davidson, 63 U.S.L.W. 1226 (U.S. May 19, 2016).

Remember that under Bluebook rules you should never give a parallel cite for cases from the
United States Supreme Court.

(2) United States Courts of Appeals Cases

There are no official citations for cases from the United States Court of Appeals;
therefore, cases will be cited only to West’s Federal Reporter (F., F.2d, or F.3d). The reader
will need to know the circuit that decided the case. Not only will circuit information
confirm the case on point (for example, arguments submitted to the Eighth Circuit Court
of Appeals should rely on precedents from the Eighth Circuit), some circuits may have
established reputations in deciding certain kinds of cases. Thus, this information must be
provided to the reader in the parenthetical with the date. Bluebook Rule 10.4 clearly
requires that every case citation must indicate which court decided the case unless this
information is unambiguously conveyed by the name of a reporter (such as is the case with
United States Reports or California Reports). The information must appear in the
parenthetical before the date. Thus, because a reference to “F.2d” tells a reader only that a
case is from one of the United States Courts of Appeal, the parenthetical must identify the
particular circuit, as follows:

(3) United States District Court Cases

There are no official citations for cases from the United States District Courts;
therefore, cases will be cited only to West’s Federal Supplement (F. Supp., F. Supp. 2d, and
F. Supp. 3d). For the same reasons that readers need to know which circuit court decided a
case, readers need to know which district court decided a case. Thus, identify the district
court (but not the division of the district court).

See Figure 8-1 for Bluebook abbreviations for our more than 90 district courts.

Practice Tip

Abbreviations for District Courts

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 Creating the abbreviations for the nation’s more than 90 district courts is relatively easy.

• The abbreviation for “district” is “D.”

• The abbreviations for the geographical divisions of the courts are as follows:
• “N.” for “Northern” (thus, N.D. stands for “Northern District”)
• “S.” for “Southern”
• “E.” for “Eastern”
• “W.” for “Western”
• “M.” for “Middle”
• “C.” for “Central”
• Indicate the geographical division of the court, following the spacing rules given above.
• Indicate the state abbreviation using Table T.10 of The Bluebook.
Examples: D. Alaska
S.D. Cal.
D.D.C.
M.D. Pa.

Figure 8-1
Abbreviations for U.S. District Courts

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h. Subsequent History (B10.1.6; Rule 10.7)
Whenever you cite a case you are required to provide its subsequent history. Do not,
however, give history relating to:

312
 • denials of certiorari or denials of similar discretionary appeals unless the case (not
the denial of certiorari) is less than two years old or the denial of certiorari is
particularly relevant; or
• history on remand or any denial of a rehearing unless it is particularly relevant.

The rule instructing writers to omit history relating to denials of certiorari (unless the
case is less than two years old or the denial of certiorari is particularly relevant) is ignored by
some practitioners who prefer always to note that “cert” has been denied. Consult your firm
or office to determine its policy.

Note that if any subsequent history occurred in the same year as the lower court case was
decided, give the year only once, in the last parenthetical (R. 10.5(d)).

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A list showing the appropriate abbreviations for subsequent history such as “reversed,”
“affirmed,” “modified,” “rehearing granted,” all of which must be underlined or italicized,
is provided in Table T.8 of The Bluebook. You will be informed of the subsequent history
of a case when you Shepardize or KeyCite it. Shepardizing and KeyCiting are discussed in
Chapter 9.

i. Prior History (Rule 10.7)

There is no ethical obligation to give the prior history of a case. The Bluebook states only
that you should give prior history of a case if it is significant to the issue you are discussing
or if the case you are citing does not fully describe the issues (such as a memorandum
opinion) and therefore you are relying on the lower court case for a full analysis of the
issues involved in the case.
This citation rule is logical and eliminates needless citations. For example, virtually all
United States Supreme Court cases arrive at the Supreme Court from some other court and
thus have a prior history. Some, in fact, have three or even four prior histories. To include
these citations would be confusing and unnecessary because the decision by the United
States Supreme Court is the one that is determinative under our system of stare decisis, as
discussed in Chapter 1.

j. Parenthetical Information (B10.1.5; B1.3; Rules 1.5, 10.6, and 10.7)

Generally, there are three types of parentheticals that follow a citation: weight of authority
parentheticals tell the reader something about the strength of the authority; quoting or
citing parentheticals indicate that your authority itself quotes or cites another authority; and
explanatory parentheticals explain something about the authority.

• Weight of Authority Parentheticals. Weight of authority parentheticals include

information relating to the court’s “vote” and dissenting and concurring opinions. If you
are relying upon or quoting from any part of an opinion other than the majority opinion,
you must so indicate in your citation. A reader will always assume that you are relying upon
the majority opinion unless you indicate otherwise. Although it is acceptable to cite a
dissent or a concurring opinion, remember that only the majority opinion is binding.
Dissents and concurring opinions are persuasive only.

Similarly, if you wish to give more information about the weight of the case (for
example, 7-2 decision, author of opinion) do so parenthetically as follows:

Parker, Inc. v. Simpson, 504 U.S. 66 (1989) (7-2 decision).

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 • Quoting or Citing Parentheticals. If the citation you rely on quotes from another
case, present that information as follows:

Costello v. McCarty, 490 U.S. 102, 106 (1985) (quoting Lyons v. Wagner, 488 U.S. 66, 75 (1983)).

• Explanatory Parentheticals. Note that explanatory parentheticals should begin with

a present participle (a verb plus an “ing” ending, as in “explaining” or “holding”), although
they may consist of a quoted sentence or a short statement. Parentheticals should precede
any references to prior or subsequent history (Rule 1.5(b)).

Aldrich v. Baxter, 560 U.S. 120 (2013) (holding that the doctrine of equivalents applies).

Bluebook Rule 1.5 requires that parentheticals be given in a certain order, namely,
weight parentheticals, quoting or citing parentheticals, explanatory parentheticals, and then
subsequent history parentheticals.

k. Different Case Name on Appeal (Rule 10.7.2)

You may recall that if a case is instituted by a plaintiff, Jones, against a defendant, Smith,
and Smith loses the case and appeals, some courts reverse the order of the parties and refer
to the case on appeal as Smith v. Jones. If the parties’ names are merely reversed on appeal,
retain the original order, here, Jones v. Smith.

l. Order of Preference for Citations

Bluebook Rule 10.3.1 provides an order of preference for citing cases: Generally, if a case is
not available in an official or preferred unofficial reporter or as a neutral or public domain
citation, cite to another unofficial reporter, to a widely used computer database (such as
Lexis Advance or Westlaw), to a looseleaf service, to a slip opinion, to an Internet source, or
to a newspaper, in that order of preference.

2. Statutes

a. State Statutes (B12.1.2; Rule 12; Table T.1.3)

Citations to state statutes must include the abbreviated name of the code; the section
number(s) of the statute; and parenthetically the year of the code, as follows: Miss. Code
Ann. § 9-9-16 (2014). The “year of the code” is not the year the statute was enacted but
the year that appears on the spine of the volume, the year identified on the title page, or the
latest copyright year, in this order of preference (Bluebook Rule 12.3.2).
You may recall from Chapter 3 that some states (generally, more populous states such
as California, New York, and Texas) have codes that classify statutes by title, such as an
Agriculture Code, a Civil Code, or an Evidence Code. If your state organizes its statutes in
such a manner, you must indicate the name of the title. Otherwise, if you refer to “Cal. §

315
301,” the reader does not know whether to review Cal. Civ. Code § 301, Cal. Evid. Code §
301, or Cal. Prob. Code § 301. Most states and the District of Columbia do not organize
their statutes by subject matter, and therefore you follow the standard statute citation rule
and identify the name of the code; the section number; and the year.
Cite to the official code, if possible. If you cannot cite to the official code, cite to the
unofficial or privately published code, but then indicate the publisher parenthetically with
the year. If you cite a statute to an electronic database (because the official or unofficial
code or privately published session laws are not available), give parenthetically the name of
the database (Lexis or Westlaw) and information relating to the currency of the database as
provided by the database itself (Rule 12.5).

Example
Cal. Evid. Code § 52 (West, Westlaw through 2015 Sess.).

Table T.1.3 of The Bluebook lists all 50 states alphabetically and gives instruction on
how to cite statutes from every state. For those states such as California, New York, Texas,
and the others that classify their statutes by subject matter, be sure to properly abbreviate
the subject matter according to Table T.1.3. For example, in Texas, the abbreviation for
the Family Code is “Fam.,” and the abbreviation for the Property Code is “Prop.”
Examples for states that do not have subject matter codes:

Examples for states that organize their statutes by subject matter:

Cal. Fin. Code § 1951 (West 2014).

La. Code Crim. Proc. Ann. art. 905.4 (2012).
N.Y. Educ. Law § 293 (McKinney 2013).

Remember that the examples given in The Bluebook show large and small capitals, for
example, “TEX. LAB. CODE ANN. § 81.001 (West 2015),” the format used for law reviews.
As a practitioner, you will need to adapt the style as follows: “Tex. Lab. Code Ann. §
81.001 (West 2015).”

b. Federal Statutes (B12.1.1; Rule 12; Table T.1.1)

You will recall from Chapter 3 that all federal statutes are published officially in the United

316
States Code (U.S.C.) and unofficially in United States Code Annotated (U.S.C.A.), published
by Thomson Reuters/West, and United States Code Service (U.S.C.S.), published by Lexis.
The elements of a citation for a federal statute are the number of the title, name of set,
section number, and year of the code. Once again, the “year of the code” is not the year the
statute was enacted but rather the year that appears on the spine of the volume, the year
shown on the title page, or the most recent copyright year of the volume, in that order.
Cite federal statutes to the current official code (U.S.C.) if possible. If you cannot cite
the federal statute to the official code because it is not available at your law firm or local law
library, cite to the unofficial codes (U.S.C.A. or U.S.C.S.). Cite to the actual set in which
you located the statute. That is, do not merely drop the “A” of U.S.C.A. to produce an
official cite. When you cite to the unofficial codes, you must identify the publisher in the
parenthetical before the year of the code.

Examples

U.S.C. 42 U.S.C. § 12406 (2012).

U.S.C.A. 42 U.S.C.A. § 12406 (West 2014).
U.S.C.S. 42 U.S.C.S. § 12406 (LexisNexis
2013).

If a statute is commonly known by a popular name or such information would assist

the reader, you may include the popular name as follows (do not include “The” as the first
word of a statute name):

Norris-LaGuardia Act § 161, 29 U.S.C. § 221 (2012).

c. Miscellaneous Rules Regarding Citation of Statutes

(1) Spacing
A space should appear between the signal for the section (§) and the number of the
statute because the section sign is an abbreviation or replacement for the word “section.” A
space should also be placed before the parenthetical, as follows: 41 U.S.C. § 352 (2012).

(2) Internal Revenue Code (B12.1.4; Rule 12.9.1)

There are special rules for citing to Title 26 of the United States Code, entitled “Internal
Revenue.” For Internal Revenue statutes, you may drop “26 U.S.C.” and replace it with
“I.R.C.”

317
 (3) Pocket Parts and Supplements (Rules 3.1 and 12.3.1(e))
If the statute appears only in a pocket part or supplement, indicate as follows:

Alaska Stat. § 8.08.085 (Supp. V 2016).

17 U.S.C. § 101 (Supp. III 2015).

If the original statute appears in the hardbound volume and an amendment to it

appears in a pocket part or supplement, cite as follows:

17 U.S.C. § 102 (2012 & Supp. I 2016).

(4) Multiple Sections (Rule 3.3(b))

Because of the often awkward numbering system used for statutes, you must be precise
when referring a reader to a group of statutes. For example, if you referred a reader to
Tenn. Code Ann. § 1764-66 (2014), the citation is ambiguous. The reader is unsure
whether to read sections 1764, 1765, and 1766 or whether there is one particular statute
identified as section 1764-66.
Although you are required in references to page numbers to drop repetitious digits, do
not do so for statutes. If you wish the reader to review sections 1764 through 1766 indicate
as follows:

For clarity, follow these rules:

• When referring a reader to one section, use one section symbol (§).
• When referring a reader to more than one section, use two section symbols (§§),
and do not drop any digits.
• When referring a reader to more than one section, do not use the term “et seq.,” a
Latin term for “and the following.” Such a reference is too imprecise, as it does not
tell the reader when to stop reading. For example, the citation 28 U.S.C. §§ 4201
et seq. (2012), strictly interpreted, tells the reader to read the thousands of statutes
in the United States Code following section 4201 of title 28.

(5) Section Reference (Rule 6.2(c))

In a “stand-alone” citation, use the symbol “§” for the word “section.” Most word
processors include this symbol, so if it is available, use it. However, spell out the word
“section” in a narrative discussion of a state statute, but use the symbol § when discussing

318
federal statutes, as follows: “The court’s interpretation of section 1110 of the Iowa Code
was confined to an analysis of the meaning of the term ‘compensation,’ which is far
different from the approach in 7 U.S.C. § 1204.” (R.6.2(c); R.12.10(c)).

(6) Publisher (Rule 12.3.1(d))

Although you may be tempted to omit the parenthetical identification of publisher
and/or year in citing statutes, and although practitioners commonly omit such information,
The Bluebook is unambiguous in requiring such information.

Practice Tip

Citing Statutes
Although The Bluebook clearly requires a parenthetical after any citation to a statute (which parenthetical
must include the year of the code and the publisher, unless the set is an official one), practitioners around the
country routinely strike the entire parenthetical in citing both federal and state statutes.

Bluebook style: 11 U.S.C. § 509 (2012).

Practitioner style: 11 U.S.C. § 509.

Note also that individual volumes in U.S.C.A. and U.S.C.S. are replaced only when necessary. Thus, different
volumes in a set may have different years in the parenthetical.

3. Rules (B12.1.3; Rule 12.9.3)

Cite rules of evidence and procedure and court rules without any section symbol or date, as
follows:

Fed. R. Civ. P. 56(a).

Fed. R. Crim. P. 12.
Fed. R. Evid. 210.
Sup. Ct. R. 33(a).

4. Constitutions (B11; Rule 11)

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a. State Constitutions
The correct form for citing a state constitution is shown on the inside back cover of The
Bluebook and in the Bluepages. Note that you do not include a date unless the provision
you are citing has been repealed, amended, or superseded.

Correct: Cal. Const. art. XXII.

b. United States Constitution

Cite current provisions of the United States Constitution without dates.

Correct: U.S. Const. art. III, § 2, cl. 1.

U.S. Const. amend. I.

The Bluebook (R.8) requires capitalization of parts of the United States Constitution
when they are discussed in textual sentences.

Correct: First Amendment

Equal Protection Clause
Fifth Amendment

E.Bluebook Citation Rules and Examples for Secondary Authorities

Examples for citing secondary authorities will be discussed in the order in which those
authorities were discussed in Chapters 6 and 7.

1. Annotations (Rule 16.7.6)

For A.L.R. annotations give the author’s full name, identify the item as an “Annotation,”
give the title of the annotation (underlined or italicized), the reference to the volume and
page (or article number) of A.L.R. in which it can be found, and the year it was written.
A.L.R. annotations are cited as follows:

Jack W. Shaw, Jr., Annotation, Exhibition of Obscene Motion Pictures as Nuisance, 50 A.L.R.3d 969 (1998).

Christina Bacon, Annotation, What Constitutes Fair Use of Internet Materials, 5 A.L.R. Fed. 3d Art. 6 (2015).

2. Encyclopedias (B15.1; Rule 15.8(a))

Because the encyclopedias are weak secondary sources and are used primarily to give you
introductory explanations of the law and to help you locate cases, you should not cite

320
encyclopedias in support of a contention unless you have no primary authorities or stronger
secondary authorities. The correct citation form is as follows:

1 C.J.S. Abandonment § 14 (2001).

1 Am. Jur. 2d Abandonment § 14 (2004).
6 Cal. Jur. 3d Contracts § 221 (2008).

Be sure to include and underscore or italicize the topic name in your citation
(Abandonment, Contracts, Deeds). Otherwise a citation to 1 C.J.S. § 14 (2001) leaves the
reader wondering whether to read Abandonment section 14 or Administrative Law section
14, both of which are found in Volume 1 of C.J.S.

3. Periodical Materials (B16; Rule 16)

For periodical articles, give the author’s full name (as he or she does), the title of the article
(underscored or italicized), the reference to the periodical in which it appeared (abbreviated
according to Table T.13 in The Bluebook), the page on which the article begins, and the
date of publication. Be sure to convert the law review format form of large and small capital
letters you see in Table T.13 to ordinary typeface. Follow these guidelines when citing
periodical articles:

• Note that the form for citing periodical articles differs when the author is a student.
(See Rule 16.7.1.)
• Give the author’s name as he or she does in the publication.
• If there are two authors, list both in the order in which they appear on the title
page, and separate the names with an ampersand (&).
• If there are more than two authors, either identify the first author’s name followed
by the signal “et al.” or else list all of the authors.
• Do not abbreviate words or omit any articles in the title.
• Italicize or underscore the title of the article.
• Note that there is a comma following the title of the article.

Examples

Law Review Articles (Bluebook Rule 16). Steven A. Peterson & Brian T. Carr, Plea
Bargaining in Federal Courts, 68 Loy. L. Rev. 1421 (2005).
Student-written Works. Elizabeth A. Brandon, Comment, Philosophy of Law, 48 Ariz.
L. Rev. 123 (1998).
Bar Association Publications. Lori B. Andrews, Surrogacy Wars, Cal. Law., Oct. 2009,
at 42.
Special Subject Publications. Andrew P. Neil, Thrift Regulations, 16 Inst. on Sec. Reg.
411 (2010).
Legal Newspapers. Joan M. Cheever & Joanne Naiman, The Deadly Practice of Divorce,

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 Nat’l L.J., Oct. 12, 2015, at A1.

4. Books, Texts, and Treatises (B15; Rule 15)

For texts and treatises, give the volume the material appeared in (if there is more than one
volume to the set), the author’s full name as the author gives it, the title of the text (as it
appears on the title page), the page/paragraph/section that the reader should review, and in
parentheses the edition (for any edition after the first edition) and year of publication, as
follows:

2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 18:18 (4th ed. 2013).

If the book has two authors, give the full names of both in the order they are listed on
the publication, separated by an ampersand (&). If there are more than two authors, you
may give the first author’s name, followed by “et al.,” or you may list all authors. Always
give the full name of any editor or translator, followed by “ed.” or “trans.” in the
parenthetical.
Note that there is no comma after the title of a book, text, or treatise, although a
comma is given after the title of a periodical article.

5. Restatements (B12.1.3; Rule 12.9.4)

Restatements should be cited to the title of the Restatement, the edition being referred to,
the section the reader should review, and, parenthetically, the publisher and the year of
publication.

Restatement (Second) of Torts § 312 (Am. Law Inst.1976).

Restatement (Second) of Agency § 24 cmt. a (Am. Law Inst.1979).

6. Uniform Laws (B12.1.3; Rule 12.9.4)

If you are referring to a uniform law as adopted by a state, use the standard statutory
citation form for that state, as follows:

Cal. Com. Code § 2-216 (West 2012).

If you are referring to the actual uniform law adopted by the Uniform Law
Commission, cite as follows:

U.C.C. § 2-216 (Am. Law Inst. & Unif. Law Comm’n 1977).

If you are referring to the set Uniform Laws Annotated, cite as follows:

Unif. Commercial Code § 2-216 (amended 1988), 10 U.L.A. 109 (1992).

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7. Dictionaries (B15.1; Rule 15.8)

Dictionaries should be cited to the word being defined, name of the dictionary, and,
parenthetically, the edition and year of publication, as follows: Ex parte, Black’s Law
Dictionary (10th ed. 2014).

8. Attorneys General Opinions (Table T.1.2)

Cite opinions of attorneys general by title of opinion (if desired), the volume, title of set,
first page of opinion, and year, as follows:
State attorneys general opinions:

Pharmaceutical Standards, 64 Op. Md. Att’y Gen. 104 (1995).

United States Attorneys General Opinions:
Use of Technical Advisers by Board of Contract Appeals, 47 Op. Att’y Gen. 16 (1983)
or
Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114 (1993).

9. Looseleaf Services (B19; Rule 19)

Cite looseleaf services by volume, title of the service (using appropriate abbreviations as
shown in Table T.15), publisher, section/subdivision/paragraph, and date, as follows:

1 Bus. Franchise Guide (CCH) ¶ 3202 (Aug. 8, 2010).

To cite cases in looseleaf services, cite as follows, unless the case is also published in an
official reporter in which case you should cite to it.

Anderson v. CFFC Franchise Corp., 2 Bus. Franchise Guide (CCH) ¶ 8904 (S.D.N.Y.
Jan. 10, 2012).

F. ALWD Citation Manual

1. Introduction

As discussed earlier, the ALWD citation manual was created in 2000 and drew a great deal
of interest because of its user-friendly format, generous spacing and use of color, and
numerous examples. Moreover, until its fifth edition in 2014, ALWD did not use the
confusing “large and small caps” format used by The Bluebook and showed all citations in
ordinary roman type (or italics).
In many instances, the ALWD format for citations was identical to Bluebook format.
For example, the format for lower federal court cases, most statutes, constitutions, journals
and periodicals, and encyclopedias was identical. Rules for spacing and most short forms
were identical. The ALWD citation manual may be obtained at most school bookstores or

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from Wolters Kluwer at http://www.wklegaledu.com. Moreover, a great deal of useful
information about ALWD, other examples, citation exercises, and other resources are
available at the ALWD website at http://www.alwd.org.

2. Differences Between The Bluebook and ALWD

In many instances the ALWD format for citations was identical to Bluebook format.
Nevertheless, there were differences. For example, The Bluebook abbreviated the word
“Central” as “Cent,” whereas ALWD presented it as “C.” The biggest difference, however,
was that The Bluebook required LARGE AND SMALL CAPITALS for law review citations and
academic writing whereas ALWD showed all citations in ordinary roman type (or italics).
As each edition of ALWD was released, it crept closer to Bluebook citation format. Its
fifth edition, released in 2014, now mimics Bluebook rules in every critical instance and
now requires the use of LARGE AND SMALL CAPITALS for law review citations. Some experts
were disappointed with this “capitulation” and “surrender” as they termed it; others
welcomed the change, believing that having two separate citation systems and manuals was
confusing and inefficient.
At present, the only key differences between The Bluebook and ALWD are as follows:

• Block quotations. The Bluebook shows blocked or indented quotations as fully

justified (meaning each line within the block begins and ends at the same location,
as shown in this text). ALWD uses a “ragged” right edge for indented quotations.
• Omitted paragraphs in quotations. The Bluebook shows the omission of an entire
quoted paragraph by inserting and indenting four periods (“. . . .”) on a separate
line. ALWD uses an ellipsis, with each of the three periods separated from the next
by five to seven spaces, centered, on a separate line.
• Court name abbreviations. The Bluebook uses the following abbreviations: F.
App’x, Colo. App., and N.J. Super. Ct. Law Div. ALWD uses different
abbreviations for these courts: Fed. App’x, Colo. Ct. App., and N.J. Super. Ct. L.
Div.
• Bluebook twentieth edition changes. ALWD’s current fifth edition is synched to
the prior nineteenth edition of The Bluebook; thus, some changes that occurred in
the twentieth edition of The Bluebook (such as omitting the phrase available at
before a URL) are not yet reflected in ALWD.

So, what is the bottom line? The Bluebook remains the primary citation guide in the
United States (again, however, it may be superseded by local rules). You may use ALWD to
find easy-to-understand explanations and examples of Bluebook rules, but The Bluebook is
the citation manual used in nearly all law schools, law firms, and courthouses.

Practice Tip

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 Westlaw and Lexis Advance Citation Assistance

Westlaw provides assistance with citations. For example, you may elect either to italicize or underscore case
names, to include parallel citations, or to select Bluebook citation form (which is the default approach) or a
jurisdiction-specific citation form, such as California or Texas citation form. Look for the “Preferences”
button at the bottom of your screen, and then select “Citations.” Set your preferences. Then whenever you
highlight text, select “Copy.” When you drop this text into any document, the citation will be formatted
according to your preferences. You may have to tweak the citation a bit, but significant help is given.

Lexis Advance offers similar assistance. When you copy text or a citation, you will be given a new screen called
“Copy Citation to Clipboard,” which allows you to set your preferences (Bluebook format, California format,
including parallel citations, and so forth). Then select “Copy and Close.” You may now drop this copied
material into other documents. Again, you will have to tweak the citation a bit to ensure it complies with
Bluebook rules.

Although significant citation help is thus given by Lexis Advance and Westlaw, as citation expert Professor
Peter W. Martin cautions, none of the major research systems “can be relied upon to produce primary law
citations that fully comply with The Bluebook.” Thus, be sure to double-check your citations for accuracy.

G. Special Citation Issues

1. Introduction

Learning the various citation rules can be difficult, and the task is made even more
complicated by the work of integrating citations into your legal writing. While citations for
law review and other academic articles appear in footnotes, citations in other legal writings
such as legal memoranda or court documents usually appear in the body of your narrative
text (although footnotes are often used as well). Because you will typically be preparing or
checking cites appearing in text, the information presented in this chapter relates to citing
in text. Citations do not exist alone. They appear as part of sentences that must be correctly
punctuated, as support for quotations, and together with certain signals that give readers
information about the level of support the citation provides for the assertion of law you
have made. This section of the chapter will address these special citation issues such as
punctuation, quotations, signals, and short form citations you can use when you have once
cited an authority in full and now wish to refer to it again. Bluebook examples provided will
be shown in the form used by legal practitioners.

2. Punctuation (B1)
There are three punctuation marks that may follow a citation: a period; a comma; or a
semicolon.

a. Citation “Sentences”
Citations appear in legal writings in two ways: as complete “sentences” or as clauses set off
by commas within a sentence. If you have made an assertion about the law, it must be
supported by legal authority. You cannot make a statement about the law without

325
attributing it to the appropriate authority. If the statement that you have made about the
law is a sentence, the citation that follows the sentence will appear as though it were a
“sentence” itself, and it will end with a period.

Example
Landlords are required to provide written notice to tenants before commencing actions for eviction. Williams Co.
v. Sanders Elec. Enter., 428 P.2d 102, 106 (Alaska 1996).

In this example, a statement about the law was made in a complete sentence. The
citation that supports this legal assertion also appears as a “sentence” in that it starts with a
capital letter and ends with a period. The citation informs the reader that the entire
preceding sentence is supported by the case Williams Co. v. Sanders Elec. Enter. Note that
the words “Electrical” and “Enterprise” have been abbreviated because the citation stands
alone.

b. Citation “Clauses”
Authorities that support (or contradict) only a portion of a sentence appear in a citation
format set off by commas, which immediately follow the statement they support (or
contradict). End a citation clause with a period if it is the last clause in the sentence.

Example
It has been held that landlords must provide notice to tenants before commencing eviction actions, Williams Co. v.
Sanders Elec. Enter., 428 P.2d 102, 106 (Alaska 1996), although the amount of time provided by the notice may
vary, Hill v. Irwin, 432 P.2d 918, 921 (Alaska 1997).

This example informs the reader that Williams Co. v. Sanders Electrical Enterprise
requires landlords to give notice to tenants and that Hill v. Irwin provides that the length of
time set forth in the notice may vary. Note that because the Williams case cite is not needed
to make sense of a sentence or clause, it is viewed as a stand-alone cite rather than as part of
a textual sentence. Thus, words such as “Electrical” and “Enterprise” are abbreviated.
Check your office or firm practice, however, because some attorneys would treat the
Williams citation as one appearing in a textual sentence and would not abbreviate
“Electrical” or “Enterprise.”
Do not place a citation in parentheses or brackets. Try to vary your placement of
citations. If your writing consists of a series of sentences each of which is followed by a
citation, your project will be choppy. Besides varying citations so that some appear as
sentences and some appear as clauses, another technique used by many legal writers to
achieve variety and interest in their writing is occasionally to use citations in introductory
clauses.

Example

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 According to Williams Co. v. Sanders Electrical Enterprise, 428 P.2d 102, 106 (Alaska 1996), landlords must
provide written notice to tenants before commencing actions to evict those tenants.

or

One of the first cases to address the issue of default notices was Williams Co. v. Sanders Electrical Enterprise, 428
P.2d 102, 106 (Alaska 1996), which held that landlords must provide written notice to tenants before
commencing actions to evict those tenants.

These phrases provide a different technique for introducing citations and add interest
to a project. Again, however, do not fall into the lazy habit of always introducing your legal
authorities in the same manner. Occasionally students start each and every paragraph in a
project with the phrase “In Williams v. Sanders . . .” or “In Hill v. Irwin . . . .” The reader,
on looking at the page, is presented with a series of paragraphs each of which commences
with the word “in” followed by a case citation, giving the project a rigid look and a style
lacking in interest and variety.

3. String Citing (B1.2; Rule 1.4)

a. Introduction
Another manner in which citations appear in legal writing is in “strings” or groups of
several citations. If you cite more than one authority in support of a proposition, separate
each citation from the next by a semicolon and a space and follow the last citation with the
appropriate punctuation mark, usually a period.

Example
Courts from all over the country are in agreement in requiring landlords to provide notice to tenants before
commencing actions to evict those tenants. Samson v. Oak Tree, Inc., 761 P.2d 118, 122 (Cal. 2004); Allen v.
Carwood, 421 A.2d 181, 184 (N.J. 2001); Fulton v. Garden Bldgs., Ltd., 388 S.W.2d 200, 207 (Tex. 2003).

In general, “string citing” is disfavored. Courts prefer that you select the best authority
that supports a proposition and cite it rather than cluttering your writing with citations that
do not add anything. In certain situations, however, string citing is acceptable. Thus, as
shown in the preceding example, if you need to demonstrate to a reader the breadth and
variety of authorities that are in agreement, or if your state has no authorities for a certain
issue and you wish to persuade the court to adopt a view espoused by several jurisdictions,
you may wish to string cite.

b. Order of Citations in String Cites

The Bluebook (Rule 1.4) provides that if one authority or several authorities are
considerably more helpful or authoritative than the others, they should be placed first.
Except in this situation, you should list the citations in the following order (see Bluebook
Rule 1.4 for complete list):

327
 (a) Constitutions (list United States Constitution first, then state constitutions,
alphabetically by state).
(b) Statutes (list federal statutes first by ascending order of U.S.C. title, then state
statutes alphabetically by state).
(c) Cases (list federal cases first, ordering by United States Supreme Court, United
States Courts of Appeal, United States District Courts, then state cases,
alphabetically by state and from highest court to lowest court).
(d) Secondary authorities (in this order: uniform and model codes, Restatements,
books, law review articles, annotations, and electronic sources, including Internet
sources).

If you have several cases from the same state — for example, Missouri — cite from
highest court to lowest court and within each group from newer cases to older cases.
If you have several cases from the United States Courts of Appeal (or the United States
Supreme Court or the United States District Courts), cite by date, giving the newer cases
first within each grouping.

Example
Landlords must provide notice to tenants before commencing actions for eviction. Alan v. Anderson, 421 F.2d 101,
106 (4th Cir. 1985); Darwin v. Balboa Gardens, 415 F.2d 222, 226 (8th Cir. 1984); Swanson v. Trudeau, 399
S.E.2d 14, 17 (Ga. 1988); McNenly v. Trainor, 346 S.E.2d 606, 609 (Ga. 1981); Harrison v. J.T. Alton, Inc., 394
S.E.2d 102, 104 (Ga. Ct. App. 1986).

4. Quotations (B5; Rule 5)

a. Introduction
You may find in the course of legal writing that you wish to quote directly from a case,
treatise, law review article, or other legal authority. Your decision to quote a legal authority
rather than merely summarize or paraphrase it may stem from your desire to emphasize a
certain point or perhaps your determination that the judge’s or author’s manner of
expressing a legal principle is so articulate that you wish to present the material in its
original form rather than weaken its force by summarizing it. Quoting from legal
authorities is certainly acceptable so long as it is not overdone and so long as the citation is
in correct form.
You must always indicate the exact page a quote appears on to allow a reader to review
the original source and ensure that you have correctly reproduced the material and have not
altered the meaning of the quotation by omitting or adding material. This reference to the
exact page on which the quoted material appears is usually called a “pinpoint cite” or
“pincite,” as you are pinpointing the reader’s attention to a specific page, or perhaps a “spot
cite” or “jump cite,” as you are asking the reader to “jump” from the first page of a legal
authority to a specific spot within that authority.
The reference to quoted material is placed immediately after the page on which the case

328
or article begins, separated by a comma.

Examples

Case: Goodman v. Gray, 429 F.2d 109, 114 (7th Cir. 1979). This informs the reader
that the case begins at page 109, and the quoted material is found at page 114.
Article: Susan L. Hoffman, The Juvenile’s Right to Counsel, 47 N.C. L. Rev. 411, 446
(1985). This informs the reader that the article begins at page 411, and the quotation is
found at page 446.

If local court rules require you to give parallel citations, you must inform the reader on
which page a quote occurs in each parallel cite. In some instances, you will have to locate
the quote in several sources.

Example
“A landlord must provide a notice to a tenant before commencing an action to evict the tenant.” Tapper v. Savage,
201 Mich. 191, 196, 299 N.W.2d 47, 52 (1986).

If the quote spans more than one page, provide the inclusive page numbers but separate
them by a hyphen. Retain the last two digits but omit any other repetitious digits. Bluebook
(R. 3.2(a)).

Example
320 F.3d 1071, 1074-76

If you are citing from individual scattered pages from a source, indicate the separate
pages as follows: (Bluebook R. 3.2(a)).

Example
Bailey v. Pridewell, 412 F.2d 109, 114, 121 (9th Cir. 1978).

Always include a pincite whether you are quoting directly from material or you are
paraphrasing. This practice is a courtesy to readers to enable them to locate easily that
portion of the authority you are discussing. If your research is accurate and the legal
authority does in fact say what you claim it does, there is no reason not to provide a
reference to a specific page. This is the position suggested by The Bluebook (R. 3.2(a)),
which states that when referring to “specific material” within a source, one should include
both the page on which the source begins and the pinpoint.
If a point is continually made throughout a source, use passim, a Latin word meaning
“everywhere” and interpreted as “scattered here and there,” as follows: (Bluebook R. 3.2(a)).

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Example
Taft v. Alpert, 429 S.E.2d 616 passim (W. Va. 1998).

If your specific material appears on the first page of a source, repeat the page number
(Bluebook B10.1.2 and R.3.2(a)), as follows:

Example
Allison P. Page, Statutory Construction, 46 BYU L. Rev. 109, 109 (2008).

b. Indicating Quotations in Text

The Bluebook rules regarding quotations conform to the rules regarding quotations that you
have been familiar with since high school, that is, that shorter quotations appear in the text
of your writing whereas longer quotations are indented.

(1) Non-Indented Quotations (B5; Rule 5.1(b))

Quotations of 49 or fewer words should appear in the body of your text without
indentation. Indicate the beginning and ending of the quotation by quotation marks (“/”).
If your quote then relies on or incorporates other quoted material, indicate such by single
quotation marks (‘/’). Commas and periods must be placed inside the ending quotation
mark. Other punctuation marks such as question marks or exclamation points appear
inside the ending quotation mark only if they are part of the matter quoted.

Example
In one recent case, the court ruled that the defendant could properly be found to have been carrying a knife for use
as a dangerous weapon and held as follows: “Although appellant was attempting to check the knife when arrested,
his statements permitted the inference that he was prepared to use it, should the occasion arise, but prior to
entering and, after retrieving the briefcase, immediately upon leaving the Longworth Building.” Monroe v. United
States, 598 A.2d 439, 441 (D.C. 2011).

(2) Indented Quotations (B5; Rule 5.1(a))

Quotations of 50 words or more should be indented (typically 10 spaces), left and
right, and appear without quotation marks. This “block” quote should be single-spaced. A
reader is alerted to the fact that material is being quoted by the indentation itself. Separate
the block quote from the text below and above it with a blank line. If your quotation
quotes from some other source or authority, indicate such with quotation marks (“/”). That
is, retain all punctuation marks and quotation marks as they appear in the original quote.
This is quite different from a non-indented quote, which requires you to use single
quotation marks (‘/’) when it is quoting from another source. The Bluebook requires that
block quotations be fully justified (meaning that each line of type begins and ends at the
same space, as is the case in this textbook).

330
 To determine whether you should indent a quote and place it in block form, you must
count the words in the quote. Although this is somewhat time-consuming, it must be done.
There are, however, a few word processing programs, such as SpellCheck, that will count
the words in a quote for you.
Some legal writers indent quotes of fewer than 50 words to emphasize the indented
material and make it stand out from the remainder of the narrative. Avoid this practice, as
it not only violates Bluebook rules but has been overdone, with the result that some readers
“skip over” short indented material. Your writing should be sufficiently forceful in itself
without resorting to “tricks” to draw emphasis.
One of the mistakes most commonly made by legal writers relates to placement of the
citation that supports the quote. The citation does not appear within the block indentation.
Placement of the citation within the indention would indicate that it is part of the quote.
The citation should be placed at the left margin on the line of text that follows the quote.

Correct:
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX

Monroe v. United States, 598 A.2d 439, 441 (D.C. 1991).

Incorrect:
XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX
XXXXXXX Monroe v. United States, 598 A.2d
439, 441 (D.C. 1991).

After you have placed your citation at the left margin, continue your narrative. If you
begin a new paragraph, skip to the next line (or skip two lines if you are double spacing)
and indent as usual to show a new paragraph is beginning.

c. Alterations of Quotes (Rule 5.2)

Anytime you alter a quote in any way, whether by pluralizing a word, inserting a word,
capitalizing a word that was not capitalized in the original quote, or some other alteration,
you must always alert the reader that you have changed the quote. When you change a
letter from lowercase to uppercase, or vice versa, enclose it in brackets. Similarly,
substituted words or letters or other inserted material should be bracketed. If a letter has
been omitted, indicate such with empty brackets — for example, “boy[ ]” for “boys.”
If the original quote was, for example, “The factfinder must consider circumstances
surrounding the use of the dangerous weapon,” you would indicate an addition to the

331
quoted material as follows: “The factfinder must consider circumstances surrounding [the
possession and] use of the dangerous weapon.”
If a mistake or misspelling has occurred in the original material, indicate such by
following the mistake by the word sic, a Latin word meaning “thus; so; in such manner.”
For example, if the original quoted material provides, “Defendants was convicted in the
Superior Court,” indicate the error in the original as follows: “Defendants was [sic]
convicted in the Superior Court.”

d. Adding Emphasis (Rule 5.2)

If the material you are quoting is emphasized in the original by italics, underscoring, or
otherwise, retain the original emphasis but do not otherwise indicate such. Thus, do not
state “emphasis in original.” By including the italicized or underscored word or phrase in
the quotation, the reader will assume this emphasis occurred in the original. If, on the other
hand, you wish to emphasize something that was not so emphasized in the original, you
must indicate your alteration of the quote by a parenthetical explanation.
For example, assume the original quote is as follows:

“We refuse to hold that merely possessing a dangerous weapon is a violation of the statute.” Franklin v. James, 681
F.2d 102, 106 (8th Cir. 1988).

If you wish to emphasize any of the words or phrases in the original material, do so as
follows:

“We refuse to hold that merely possessing a dangerous weapon is a violation of the statute.” Franklin v. James, 681
F.2d 102, 106 (8th Cir. 1988) (emphasis added).

e. Omitting Citations (Rule 5.2)

It is possible that the quotation you wish to include is peppered with other citations,
resulting in a quote that is disrupted by these intervening cites, weakening the force and
effect of the quotation. To eliminate these intrusive citations (or footnotes) and yet remain
faithful to the original quoted material, simply indicate to the reader that you have omitted
citations.

Example

The court relied on numerous precedents in refusing to hold that “merely possessing a dangerous weapon was a
violation of the statute.” Franklin v. James, 681 F.2d 102, 106 (8th Cir. 1988) (citations omitted).

If readers wish to review the other cases whose citations have been omitted, they may
easily do so by locating page 106 of the case Franklin v. James.

f. Use of Ellipses (Rule 5.3)

332
If you omit a word or phrase from quoted material, you must indicate this omission by the
use of an ellipsis, three periods separated by spaces from each other and set off by a space
before the first period and after the last period. An ellipsis signals that words have been
omitted from the middle of a quotation or the end of a quotation. Do not use an ellipsis to
begin a quotation. If you have altered a word or omitted words at the beginning of a
quotation, indicate such by changing the first letter of the word now beginning your quote
from a lowercase letter to an uppercase letter and enclosing it in brackets. This will signal
the reader that you have altered the beginning of a quote.
For example, assume your quote is as follows:

“In order to prove a violation of the statute, the prosecution must prove defendant’s clear intent.”

If you wish to omit the first part of the quote, do so as follows:

“[T]o prove a violation of the statute, the prosecution must prove defendant’s clear intent.”

g. Omissions from the Middle of a Quote

To indicate that you have omitted language from the middle of a quote, use the ellipsis,
three periods separated by spaces and set off by a space before the first and after the last
period:

Example

“In order to prove a violation . . . the prosecution must prove . . . intent.”

h. Omissions from the End of a Quote

To indicate that you have omitted language from the end of a quote, use three periods
separated by spaces followed by the final punctuation of your quote, typically a period.

Example
“Although Appellant was attempting to check the knife when arrested, his statements permitted the inference that
he was prepared to use it . . . .”

i. Using Quoted Language as a Phrase

When using quoted language as a phrase or clause incorporated into your sentence rather
than as a full sentence, you need not use an ellipsis.

Example

Justice O’Connor stated that malice and recklessness “will give rise to punitive damages.”

333
j. Paragraph Structure
If you have indented a quote of 50 or more words and this quote commenced a paragraph,
indent further to let the reader know that your quote is from the beginning of a paragraph.

Example

XXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXX.

If you continue to quote another paragraph, skip a line and once again indent the second block quote to indicate it
commenced a paragraph.

Only indent your block quote(s) if the original quote began a paragraph. Quotations
from the middle of paragraphs appear in block style with no additional indentations.
If you are quoting one paragraph of 50 words or more and then wish to omit or skip an
entire paragraph and then continue quoting another paragraph of 50 words or more, use
four indented periods on a new line to signal that you have omitted an entire paragraph.

Example

XXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXX.

....

. . .XXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXX.

To signal an omission at the beginning of a second or subsequent paragraph, use and

indent an ellipsis (even though you may never use an ellipsis to begin a quotation in text).

5. Citation Signals (B1.2; Rule 1.2)

Legal writers often use certain citation signals as a shorthand method of indicating to the
reader the manner in which an authority supports or contradicts an assertion. If a citation

334
does anything other than directly state a proposition, identify the source of a quotation, or
identify an authority referred to in text, a signal indicating such should be used before the
citation. The Bluebook recognizes four categories of signals: those that show support; one
that suggests comparison; those that show contradiction; and one that indicates
background material. These signals can be very confusing, and often there are only very
subtle shadings of difference between one signal and another. Moreover, the use of signals
is complicated by the fact that their use and meaning have shifted from one edition of The
Bluebook to the next. See Figure 8-2.

(i) No signal. If, after having made an assertion, the author immediately cites a
legal authority and provides no signal, this indicates that the legal authority
directly states the proposition, identifies the source of a quotation, or
identifies an authority referred to in the preceding text.
(ii) E.g. The signal e.g. is used to show an example, meaning that the authority
you cite is merely an example of several authorities that directly state the
same proposition but are not cited. The signal e.g. may be used with other
signals. The Bluebook follows the signal e.g. with a comma.
(iii) Accord. The word accord is used after one authority has been given and
indicates that two or more authorities agree with the first.

Example

“Landlords are required to provide notice to tenants before commencing actions to evict tenants.” Li v. Carr, 420
U.S. 20, 29 (1994); accord Smith v. Jones, 681 P.2d 104, 107 (Cal. 1990); Ivey v. McMullen, 670 P.2d 13, 18 (Cal.
1985).

(iv) See. The Bluebook states that the signal see is used when the citation clearly
supports the proposition. See is used when the proposition is not directly
stated by the authority you rely upon but obviously follows from it. The use
of see has shifted over time. See Figure 8-2.

Figure 8-2
The Evolution of Citation Signals in The Bluebook

335
(v) See also. This signal is used to show that an authority provides additional
material that supports a proposition. The Bluebook encourages you to use a
parenthetical explaining the relevance of the authorities.
(vi) Cf. The signal cf., meaning “compare,” is used to indicate legal authority
supporting a proposition that is different from the main proposition but that
is analogous to the main proposition. The Bluebook strongly recommends
that when using this signal, the writer explain parenthetically how the cited
authority supports the proposition.
(vii) Contra. The signal contra indicates contradiction and is used when the
cited authority directly states the contrary of the proposition you have made.
Like “no signal” and see, the use of contra has shifted over time, and, in fact,
was omitted entirely from the sixteenth edition of The Bluebook. It was
revived in the seventeenth edition.
(viii) But see. The Bluebook provides that this signal is used when the legal
authority you cite clearly supports a proposition contrary to the main
proposition.
(ix) But cf. The signal but cf. is used when the legal authority you cite supports a
proposition analogous to the contrary of the main proposition. The Bluebook

336
 strongly recommends a parenthetical explanation as to the relevance of the
authority you cite.
(x) See generally. The signal see generally indicates that the legal authority you
cite provides helpful background material related to the proposition. The
Bluebook recommends an explanatory parenthetical.

These signals are given before your citation. They may or may not be capitalized,
depending on the context in which they are used. Capitalize a signal beginning a citation
sentence, and do not capitalize a signal that is part of a sentence. The signals are
underscored or italicized unless they are used as verbs in ordinary sentences, and an
unbroken line is used for signals composed of two words, such as see generally.
Most individuals find these signals confusing and very difficult to distinguish.
Typically, they are used more often in academic legal writing, such as law review articles,
which provide a complete analysis of an issue, including cases in support of a proposition
and cases in contradiction to a proposition, rather than in court documents and legal
memoranda, which often use citations with no or few introductory signals.
Because the meaning of the various signals can be so nuanced, The Bluebook
recommends that when you use most signals, you include a parenthetical explanation after
the cited source to describe the meaning and force of the authority. Generally, The
Bluebook requires that explanatory phrases begin with a present participle (a verb plus an
“ing” ending, as in “explaining” or “holding”) and a lowercase letter unless the
parenthetical is a full quoted sentence. Note that The Bluebook (R.1.3) has fairly
complicated instructions on how to order and punctuate these signals when more than one
is used in a string citation.

6. Short Form Citations

Once you have cited an authority in full, to save time you may use a short form on
subsequent occasions when you refer to it in your writing. The Bluebook (B10.2) provides
that a short form may be used if it will be clear to the reader which citation has been
shortened, the earlier full citation appeared in the same general discussion, and the reader
will be able to locate readily the earlier full citation.

a. Cases (B10.2; R. 10.9)

Assume your full citation is Singer v. Bryant, 219 N.E.2d 409, 411 (Ind. 1987). Once you
have given this full citation, you may use any of the following short forms:

Singer, 219 N.E.2d at 412.

219 N.E.2d at 412.
Id. at 412.

For cases in which a parallel citation is required, such as Lowell v. Allen, 204 Ga. 102,

337
104, 68 S.E.2d 19, 21 (1976), you may use any of the following short forms:

Lowell, 204 Ga. at 107, 68 S.E.2d at 23.

204 Ga. at 107, 104 68 S.E.2d at 23.
Id. at 107, 68 S.E.2d at 23.

The Bluebook also provides that if you have given a full case citation and later refer to
the case in the same general discussion, you may use one of the parties’ names without
including any further citation (Bluebook Rule 10.9(c)).

Example

In Lowell, the court also discussed punitive damages.

Note that in most instances, you will probably place a citation to the Lowell case at the
end of the sentence, including the pincite to the page that supports the assertion.
Generally, use the plaintiff’s name in a short form unless the plaintiff is a common
litigant such as the United States, “People,” or some government agency, in which case use
the more distinctive defendant’s name. Thus, a later reference to United States v. Smith
should use Smith.

b. Statutes (B12.2; R. 12.10)

Once you have given a full citation to a statute, you may later use any short form
(including id.) that clearly identifies the statute.

c. Constitutions (B11 and Rule 11)

Do not use any short form other than id. for constitutions.

d. Books and Periodical Materials (B15.2; B16.2; Rule 15.10; Rule 16.9)
As discussed below, The Bluebook requires you to use id. or supra to refer to these materials
after you have given a full citation to them.

7. Use of Id., Supra, Infra, and Hereinafter

a. Id. (B10.2; Rule 4.1)

(1) Introduction

338
 Id. is an abbreviation for ibidem, a Latin word meaning “in the same place.” You may
recall using ibid. or id. in high school or college term papers to avoid having to repeat
information in a footnote and to signal the reader that your material originated from the
same source as that indicated immediately before.
Id. functions the same way in legal writing. A short court document or legal
memorandum may rely almost exclusively on one case, which you discuss over the course of
several pages. To avoid having to repeat and retype the citation each time you make an
assertion, you may use the signal id. to refer the reader to the immediately preceding
authority. Note that although the signal ibid. is acceptable in some writings, it is not
acceptable in legal writing. Only id. may be used.
Id. may be used for any legal authority. That is, id. may be used to direct a reader to a
preceding case, statute, treatise, law review article, or other legal authority. Id. will be
capitalized if it “stands alone” or begins a sentence, or it will be introduced with a lowercase
letter if it is part of a citation clause or sentence. If underscoring, underscore the period in
id. If italicizing, italicize the period in id.
If you have cited a case or some other authority and you then wish to direct the reader
to that immediately preceding citation, use id.

Example

In order to prove a violation of the statute, the government must demonstrate only that the defendant carried a
dangerous weapon and intended to carry that weapon. Monroe v. United States, 598 A.2d 430, 439 (D.C. 1991).
There is no requirement that a defendant evidence a specific intent to use the weapon for a wrongful purpose. Id.

The use of the signal id. in the example indicates to the reader that Monroe v. United
States is the source of the assertion that there is no requirement that the government prove
that a defendant had a specific intent to use a weapon for an unlawful purpose. The reader
is directed to page 439 of Monroe.

(2) “Id. Plus”

Use id. alone if you wish to direct the reader to the exact source and page/section/paragraph
as the preceding citation. If, however, you wish to direct the reader to the preceding source,
but to a different page/section/paragraph within that source, use “id. plus” the change:

Example

“A landlord is required to provide written notice to a tenant before instituting an action to evict the tenant.” Jasper
v. Schick, 692 P.2d 106, 109 (Wash. 1984). This notice must be hand-delivered to a tenant at least thirty days
before the action is commenced. Id. at 114.

The reader has been directed to Jasper v. Schick but to a different page within that
source.

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Examples

First reference to a case: Daly v. Chu, 661 F.2d 918, 920 (10th Cir. 1986).
Next reference: Id. or Id. at 921.
First reference to a statute: 42 U.S.C. § 1604 (2012).
Next reference: Id. or Id. § 1606.
First reference to a treatise: 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 18:18
(4th ed. 2013).
Next reference: Id. or Id. § 18:22.
First reference to a law review article: Carolyn L. Gray, Tariff Restrictions, 40 Mo. L. Rev. 161, 166 (1982).
Next reference: Id. or Id. at 169.

Note that under Bluebook rules when you are directing a reader to a different page you
use “Id. at ____.” When, however, you direct a reader to a different section or paragraph,
you simply use “Id. § ____” or “Id. ¶ ____.” The Bluebook expressly states that the word
“at” is not used before a section or paragraph symbol (Rule 3.3).

(3) Parallel Citations

Remember that local rules may require parallel citations for cases. This requirement
makes the use of id. somewhat more complicated because you must use the following form:

Note that only the official citation is replaced with id. The regional reporter citation is
repeated.

(4) The Use of Id. in Footnotes

The signal id. may be used to refer to an immediately preceding authority within the
same footnote or to an immediately preceding footnote when that preceding footnote
contains only one authority. If the preceding footnote contains more than one source, later
use of id. does not tell the reader which of the preceding sources is being referenced, and
thus it may not be used (Bluebook B10.2 and R. 4.1).

b. Supra (B15.2; B16.2; Rule 4.2)

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 (1) Introduction
Supra means “above” and refers a reader to a preceding authority (although not an
immediately preceding sources, for which you should use id.) for the information desired.
For example, if you are searching an index for entries related to tenants, you may find the
following:

Tenant. See Landlord, supra.

This is an instruction that the information you need is arranged and presented under
the heading “Landlord,” which appears “above” or earlier in the volume, rather than being
arranged under the heading “Tenant.”
Often in legal writing you may refer to one authority, for example, a treatise, then refer
to various other authorities and then wish to refer to the treatise again without repeating
the entire citation. In this situation you cannot use id. because there are citations that
intervene between your first reference to the treatise and your current reference to it. In this
instance, use supra, which informs the reader that you have given the citation previously in
your project, although it was not given immediately preceding.
The Bluebook is quite clear that you may not use supra when referring to most primary
authorities (cases, constitutions, statutes, most legislative materials, or regulations) “except
in extraordinary circumstances,” such as when the name of the authority is very long
(Bluebook Rule 4.2). If you have referred to a case, constitution, or statute and then
discussed other authorities and then wish to refer again to the case, constitution, or statute,
you may not use supra. You must use an appropriate “short form” citation, discussed
previously in Section G.6, supra. The signal supra is nearly always used with an author’s
name, as follows: McCarthy, supra.
This prohibition against using supra to refer to previously cited cases is violated by some
practicing attorneys and paralegals. Before embarking on such a violation, determine what
the common practice is in your firm or agency.
Supra does not “stand alone” like id. It must appear with other identification, usually
the last name of an author, or, if there is no author, the title of a work.

Examples

To indicate a variation, use “supra plus” the variation, such as Gray, supra, at 166. If
you are underscoring, underscore the word supra but not any punctuation following it.
The examples given in The Bluebook for practitioners show a comma after supra when

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the “supra plus” form is used to refer a reader to a book or article such as Gray, supra, at
166 (B15.2).

Examples of Short Forms

in a Brief or Court Document

(2) Internal Cross-References (Rule 3.5)

It is possible that you may have cited a book or treatise very early in your project and then wish to refer to it many
pages later. If your only direction to the reader is “Gray, supra,” the reader may have to thumb through several
pages of your document to find the original citation. As a courtesy to the reader you may wish to include a
reference to the specific page in your project on which the original citation appeared. Use “p.” or “pp.” to direct
your reader to the earlier page in your project on which the full citation originally appeared.

Examples

Gray, supra p. 3

Gray, supra p. 3, at 168. (This signal directs the reader to page 168 of the article written
by Carolyn L. Gray and informs the reader that the full citation appears on page 3 of your
project.) Follow supra with a comma when you direct a reader to the page or section of the
previously cited legal authority. No comma is used after supra when you refer a reader to a
previous page or section within your own project.

c. Infra
Infra is a Latin word meaning “below” or “beneath.” It is used to direct a reader to material
that will appear later in a project. For example, if you were directed to review some chapter
appearing after this one, the signal would be “See infra Chapter 10.” Infra is the direct
opposite signal of supra and you should follow the guidelines discussed previously for supra

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in using infra. Note that neither supra nor infra may be used to refer to the primary
authorities of cases, constitutions, statutes, most legislative materials, or regulations.
As you can imagine, infra is not used very often in documents or memoranda prepared
by practitioners. It makes little sense to state a legal principle and then give the reader the
following citation: Gray, infra (meaning that you will be giving the full cite to the article by
Carolyn L. Gray later in the project). It is more likely that your use of infra will relate to
directing a reader to a later section in your document. In this case, use the following form:
See infra Section V.

d. Use of “Hereinafter” (Rule 4.2(b))

If an authority would be difficult to identify repeatedly due to an extremely long name or
title, you may identify it in full the first time you cite it and then inform the reader that
thereafter you will be referring to it by a shorter name or form.

Example
First citation: Proposed Amendments to the Federal Fair Franchising Practices Act of 1992: Hearing on H.R. 5961
Before the H. Comm. on Energy & Commerce, 102d Cong. 41 (1992) [hereinafter Franchising Hearing]
Later citations: Franchising Hearing, supra.

8. Capitalization in Court Documents and Legal Memoranda (Rule 8)

The Bluebook requires that in titles and headings of documents you should capitalize the
initial word, the word following a colon, if any, and all other words except articles (a, an,
the), conjunctions (for, and, nor, but, or, yet, so), and prepositions of four or fewer letters
(of, up, to). Additionally, capitalize the following:

• Act — when you are referring to a specific act of a legislature, as in “the Lanham
Act.”
• Circuit — when you use the word with a circuit name or number, as in “the
Eighth Circuit.”
• Court — when you name any court in full, as in “the California Supreme Court
affirmed.”
— whenever you refer to the United States Supreme Court.
— in a court document when referring to the court that is receiving the
document, as in “this Court is respectfully urged to grant Plaintiff’s motion.”
• Party designations — when referring to the parties in a matter that is the subject of
the court document, as in “In this case, Plaintiff asserts that Defendant’s argument
to this Court misstates the law.”
• Judge, Justice — when referring to a specific named judge or justice, as in “Justice
Smith” or any reference to any of the Justices of the United States Supreme Court,
as in, “The Justices were unanimous in their decision.”
• State — when it is part of the full title of the state, such as “State of Florida”; when

343
 the wording it modifies is capitalized, as in “the State Attorney General”; or when
referring to a state as a litigant, such as “the State argues for conviction.”

9. Electronic Sources, Databases, and the Internet (Rule 18)

a. Introduction
More and more materials are published on Lexis Advance, Westlaw, and the Internet,
requiring special forms for materials found through these media. The twentieth edition of
The Bluebook generally continues to disfavor citing to these sources.
Rule 10.8.1 provides that when a case is unreported but available on a widely used
electronic database (such as Lexis Advance, Westlaw, or the newest competitor in the field,
Bloomberg Law), one may cite to that database. Thus, if a case is available in conventional
print form, one may not cite to Lexis Advance or Westlaw.
Similarly, as to the Internet, Rule 18 requires the use and citation of traditional printed
sources unless there is a digital copy of the source that is authenticated (by the use of a logo
or certificate showing that it has been verified by a government entity as unaltered and
complete), official (meaning it has been designated as official by some entity), or an exact
copy of the printed source (such as a PDF document that preserves the pagination of the
original source).

Practice Tip
What Does “Available” Mean?

The Bluebook does not allow you to cite to electronic sources (such as Lexis Advance, Westlaw, and the
Internet) unless material is not “available” in traditional print sources. What does “available” mean? Does it
mean available to the legal community in general? Does it mean available in your office? No one knows.
Bluebook Rule 18.2.1 suggests that “unavailable” means the material is so obscure that it is practically
unavailable.

Most cases are available in print form within days or weeks. Thus, it would seem that the window of
opportunity for citing solely to most electronic sources (especially cases and statutes) is quite narrow: Cite to
an electronic source only during the period of time it takes for the print source to “hit the shelves,” which is
typically quite short (or when the material will not appear in print form, such as when a case is unreported).

b. Citing to Lexis, Lexis Advance, and Westlaw (B10.1.4; Rules 10.8.1 and 12.5)
To cite cases that appear on Lexis, Lexis Advance, or Westlaw, give the case name, full
docket number, database identifier, pincite, and in parentheses give an identification of the
court and full date.

Examples
Walsh v. Comey, No. 15-348 (JEB), 2015 U.S. Dist. LEXIS 80326, at *4 (M.D. Pa. June 22, 2015).
Valencia v. Welch, No. 13-70414, 2016 WL 402886, at *3 (9th Cir. Jan. 2, 2016).

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Short Forms
Walsh, 2015 U.S. Dist. LEXIS 80326, at *3.
Valencia, 2016 WL 402886, at *6.

To cite statutes, cite as if citing to a print source and in parentheses give the name of
the database and information regarding its currency.

Examples
35 U.S.C.S. § 262 (LEXIS through Pub. L. 114-114).
15 U.S.C.A. § 1125 (Westlaw through Pub. L. 114-114).

c. Citing to the Internet (B18 and Rule 18)

There are seven general rules for citing to the Internet.

(1) Authenticated, Official, and Exact Copies

Remember that if a source exists on the Internet or in electronic form and is
authenticated, official, or an exact copy of a printed source, it may be cited as if to the
original print source; no URL information is needed or added. For example, the site FDsys
(https://www.gpo.gov/fdsys) specifically states that all material on the site is authentic.
Thus, if you locate a statute on that website, cite it just as you would a statute found in
U.S.C., as follows: 17 U.S.C. § 106 (2012).

(2) Direct Citations

Internet citations are no longer categorized as “direct” or “parallel.” All citations are
treated as direct; thus, the signal available at (previously given before a URL used as a
parallel citation) no longer exists.

(3) Parallel Citation to the Internet

If the cited information is available in a traditional print source, but that source is so
obscure as to be “practically unavailable,” or if a parallel citation to an Internet source
would substantially improve access to the cited material, cite first to the traditional source
and then add the Internet URL immediately after it (and do not use the phrase available at
to introduce the Internet citation).

(4) Print-Like Sources

If online material shares the characteristics of a print source, such that it could be fully
cited according to some other Bluebook rule (for example, Rule 16 relating to periodicals or
Rule 15 relating to reports), cite as if citing the print source and then add the URL to the
end of the citation (even if it is unknown whether the source is available in print).

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Examples

(5) Archived Sources

Websites and links often disappear without notice. To avoid this “link rot,” many
writers save or store links in a permanent archive such as Perma.cc (https://perma.cc),
operated by Harvard and used by many legal scholars, or Internet Archive Wayback
Machine (https://archive.org/web/). Citations to Internet materials are thus stored, and
readers are directed to the preserved page. The Bluebook now shows how to cite to such
archived materials by enclosing the archival site in brackets. See Chapter 12 for a further
discussion of link rot.

Example

Toni Messina, Criminally Yours: Indicting a Ham Sandwich, Above the L. (Feb. 8, 2016, 1:30 PM),
http://abovethelaw.com/2016/02/criminally-yours-indicting-a-ham-sandwich [http://perma.cc/4P7X-DTX].

(6) Formats for Social Media

The Bluebook shows examples for citing to social media, such as Twitter, Facebook, and
Instagram.

Example

Bernie Sanders (@ BernieSanders), Twitter (Feb. 8, 2016, 8:15 AM), https://twitter.com/BernieSanders?lang=en.

(7) Direct Citations to Internet Sources

If an Internet source cannot be cited according to the rules given above, it should be
cited per Rule 18.2.2. Generally, one identifies the author of the material; title of the
article, post, or material cited; the homepage or main page title of the website (using
abbreviations from Tables T.10 and T.13); date; time (for blogs and other “dynamic” sites
that are updated frequently); and URL.

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Example

Lyle Denniston, The Immigration Case Made Simple, SCOTUSblog (Feb. 5, 2016, 12:10 AM),
http://www.scotusblog.com/2016/02/the-immigration-case-made-simple.

As to dates in Internet citations, give the date exactly as it appears on the website (using
the abbreviations for the months of the year found in Table T.12). If there is no date given
on the website, use “last updated” or “last modified” dates in a parenthetical after the URL,
if those references appear on the website. If there is no date given at all, use a “last visited”
date in a parenthetical after the URL. Rule 18.2.2(c).

Practice Tip

Truncating Long URLs

If a URL is long or unwieldy, rather than giving directions to the reader on how to access the material you
cite, consider using a truncator service such as TinyURL (http://tinyurl.com) or Bitly (https://bitly.com).
Both services allow you to paste a long URL into a box and convert it to a much shorter form. Truncating a
URL may help ensure you do not exceed character counts imposed by court rules for documents submitted to
them.

10. Citing to Court and Litigation Documents (Bluebook B17)

Legal writers frequently cite to various court records, transcripts, appellate records, and
other materials in briefs submitted to courts. The Bluebook provides guidance on citing to
these materials. Following are some general guidelines:

• Abbreviate titles of court documents unless such would be confusing to the reader.
Use Bluebook BT.1 for a list of acceptable abbreviations. Generally, you may omit
prepositions and articles unless they are needed for clarity. For example, display
“Plaintiff’s Motion to Dismiss” as “Pl.’s Mot. Dismiss” and “Defendant’s Motion
for Summary Judgment” as “Def.’s Mot. Summ. J.”
• The Bluebook permits (but does not require) citations to court documents to be
enclosed in parentheses. Be consistent.
• Use the examples shown in Bluepages Rule 17 and displayed on the inside back
cover of The Bluebook,
• Give a date for the cited document if more than one document shares the same
title, the date is relevant, or the date is needed to avoid confusion.
• Use a pinpoint when citing court documents, being as precise as possible. For
example, for depositions, give the page and line numbers as shown in the following
example:

Example

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 Defendant has denied he was driving at an excessive rate of speed. Def.’s Br. Summ. J. 18. His denial is also
supported by various witnesses, Hunter Dep. 44:14-18, and by the record below, R. at 43:1-6.

11. Public Domain Citations (R. 10.3.3)

Current citation rules mandate citation to conventional print sources, the majority of
which are published by Thomson Reuters/West, requiring legal professionals to purchase
West sets even though cases and other materials are easy and inexpensive (or free) to access
on the Internet. Thus, many legal professionals and consumers advocate the
implementation of what is usually referred to as a neutral, public domain, or universal
citation system, meaning that the citation looks the same whether the reader has accessed
the case by conventional print format, through Lexis Advance or Westlaw, or on the
Internet.
These groups argue that citation rules requiring citation to West sets, such as the Pacific
Reporter, Federal Reporter, or the Federal Supplement, give West a near monopoly and
discourage other legal publishers from entering the market, which would ultimately lead to
increased competition with resulting lower costs for consumers. In fact, both the American
Bar Association and the American Association of Law Libraries as well as numerous
professionals support the development of a neutral citation scheme, namely, the Universal
Citation Guide (3d ed. 2014), mentioned earlier.
According to The Bluebook, and as of the writing of this text, the following states have
adopted a neutral citation format: Arkansas, Colorado, Illinois (since 2011), Louisiana,
Maine, Mississippi, Montana, New Mexico, North Dakota, Ohio, Oklahoma,
Pennsylvania (for Superior Court cases), South Dakota, Utah, Vermont, Wisconsin, and
Wyoming. No federal court has adopted a public domain format for citations.
The following universal citation example tells the reader that the case Renville v. Taylor
was the 217th case decided by the highest court in North Dakota in 2007, and the reader is
specifically directed to paragraph 14 in that case. (Note that courts assign paragraph
numbers when the case is released to the public; page references are not used in public
domain citations.) The remaining part of the citation is a parallel citation to West’s
Northwestern Reporter, Second Series.

Example

Renville v. Taylor, 2007 ND 217, ¶ 14, 607 N.W.2d 109, 114.

Finally, note that most of the states that have adopted a public domain citation format
are those that no longer publish officially. In fact, to save costs, Illinois ceased publishing its
cases in print in 2011. Its cases are available solely in electronic form from the courts’
websites and from Lexis, Lexis Advance, and Westlaw. Moreover, although neutral citation
form engendered a great deal of discussion when states first started adopting it (in about
1994), the movement appears to be slowing, with only Arkansas, Colorado, and Illinois

348
adopting a neutral or public domain citation format since 2003. Nevertheless, under The
Bluebook, you must use neutral citations when required by court rule. Follow T.1.3 of The
Bluebook. The website of the American Association of Law Libraries
(http://www.aallnet.org) provides additional information on universal or public domain
citation format. Search for “Universal Citation.”

Practice Tip

Citing Obscure Sources

If you are citing a little-known source and can find no help in The Bluebook, find out how other people do it.
Log onto Lexis Advance or Westlaw, access the database for articles or journals, and search for articles that
have cited your authority. You may find an article that cites your source, and you can mimic its presentation.

Ethics Alert
Finding Local Rules

The Bluebook provides that any local rules relating to citation form will “trump” or supersede its rules. Thus,
you have an ethical obligation to find and follow these local rules. To find specialized, local citation rules:

• Access the website http://www.uscourts.gov for links to all federal court websites, which post their local rules.
• Review each state’s judicial website, identified in Table T.1.3 of The Bluebook, for state and local rules.
• Review The Bluebook’s Bluepages Table BT.2, which identifies court rules relating to citation form.
• Call the clerk of the court to which you are submitting a document, and inquire whether any local rules dictate
the form for citations.
• Consult a law librarian.

H. Tips for Effective Cite Checking

Whenever you are presented with a cite checking assignment, there are several practical tips
you should consider to ensure you perform your task accurately and efficiently.

(i) Ask the individual who assigned the project to you when the deadline is so
that you can be sure you do the cite checking in a timely fashion. Often, cite
checking is one of the last tasks performed in legal writing projects, and you
may need to start working immediately on the project so that it can be filed
in a timely manner.
(ii) Highlight all citations in the document as soon as it is given to you and
while you are fresh, so that you will readily be able to find citations and
check them even after several hours have passed and your energy level is low.
It is harder to locate citations when they are italicized than when they are
underscored. Thus, highlighting italicized citations will help you find these

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 citations when your energy levels are flagging.
(iii) If the document is being filed with a court, you must obtain a copy of the
court rules so that you can determine whether the court requires a specific
citation form. Some courts insist that documents follow non-standard
citation form. For example, some courts in California require that papers
submitted show citations in the following format, even though it is
unsupported by The Bluebook or any other guideline: Atwell v. Jay (1998)
142 Cal.3d 109. If court rules dictate a specific format, you must adhere to
that format. To obtain a copy of the rules of the court, call the court clerk
and inquire. Alternatively, most states and courts publish their court rules on
the Internet. For rules for the United States Supreme Court, access
http://www.supremecourt.gov. For lower federal courts, access
http://www.uscourts.gov. For state court websites, Table T.1.3 of The
Bluebook provides a reference to each state’s judicial website. Bluebook Table
BT.2 references some helpful local rules and several jurisdiction-specific
manuals that provide guidance on local citation practices. If no court rules
exist with regard to citation form, use Bluebook form unless directed
otherwise.
(iv) You will quickly learn that some writers are more exacting than others. It is
possible that the document you are cite-checking contains complete citations
and you need only compare each cite against The Bluebook to ensure
compliance with Bluebook rules. It is equally possible that the document you
are given has several omissions and you need to go to the law library or log
on to Lexis Advance or Westlaw to obtain dates of decisions, pages of quotes,
and so forth. Therefore, as you review the document, use different colored
pens, sticky flags, or different symbols to indicate which cites have been
checked and are accurate, which need further information supplied, and
those for which you have questions. Determine if the author of the
document has any preferences as to format, such as preferring underscoring
of case names and signals rather than italicizing. Similarly, determine if the
author has any special conventions as to format you should follow in lieu of
Bluebook format. In the absence of instruction, assume Bluebook rules govern.
(v) When you find an error, make the correction by interlineating or crossing
out the error and inserting the correct information. You may wish to note in
the margin which Bluebook rule governs your correction as authors can be
notoriously defensive about recognizing errors, and you should be ready to
support and defend your correction. Because you may not be preparing the
final version of the document, write legibly so that support staff can correctly
insert your edits.
(vi) Because the document may be evolving as you work on it, and other
attorneys and paralegals may be continuing to edit the document, make sure
each version is clearly marked with the date and the time it is printed. This

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 will help you ensure you are working on a current version, not one
superseded by a later version.
(vii) If the document contains quotations, check each one for accuracy.
Quotations must be faithfully reproduced. If alterations and omissions are
made, make sure those are indicated by brackets and ellipses. You must also
verify that citations include pinpoints.
(viii) Pay attention to short form citations, and verify that the author’s use of
short forms id. and supra are correct. Because the document may be subject
to revising and editing at the eleventh hour, you must always check the
accuracy of signals in the final version of the document.
(ix) Make sure that you look beyond the body of the document and also check
the citations in any appendices, footnotes, table of contents, or index of
authorities.
(x) Be consistent. If you underscore case names, underscore book titles and
signals such as id. and supra. If you italicize case names, italicize book titles
and signals.
(xi) Allow Lexis Advance and Westlaw to help you locate pinpoints, verify the
spellings of case names, and check the accuracy of quotations. Remember,
however, that only you can determine when to use a short form, when you
may abbreviate words in a case name, and when to use a citation signal.
(xii) After the document is resubmitted for revision and correction, review to
ensure that your corrections were incorporated.
(xiii) Validate all primary authorities listed in the document, either manually or
online, using Shepard’s on Lexis or Lexis Advance or KeyCite on Westlaw
(see Chapter 9).

Practice Tip
What to Do if Your Corrections Are Overruled

In many instances, attorneys are thrilled that you are detailed enough to catch errors in their citation form. In
other instances, they may become defensive. In still other instances, they may simply say, “I don’t care what
The Bluebook requires, I want to cite the case this way.”

What should you do if you know your cite checking is correct but the attorney overrules you? Give in. The
author of a document always has the right to control authorship. You have done what you were asked to do,
namely, correct citation errors, and you were overruled. If you find that certain attorneys are routinely
submitting briefs with numerous citation errors, and you are concerned that the firm’s reputation for accuracy
may be impaired, raise the issue with your paralegal coordinator or mentor and ask for help.

It is possible that the author might wish you to do more than simply correct errors in
citation format and might ask that you confirm the accuracy of the author’s conclusions.
Thus, if the author has cited Jones v. Smith, 421 A.2d 91, 94 (Pa. 1986), for the
proposition that a landlord is required to provide notice to a tenant before commencing an

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action to evict the tenant, you will have to review this case to verify that it does in fact
support the author’s conclusion. Similarly, checking citation signals such as see, cf., and
accord requires that you read the cited source to confirm the author has used the correct
signal. This extensive type of cite checking is less common than the usual cite checking
assignment, which typically requires you only to correct errors in citation form and then to
Shepardize or KeyCite.

I. Quick Reference for Citations

1. Cases

Following are examples of the most commonly cited authorities showing Bluebook form
(for practitioners).

(i) State Cases

Sidley v. Steinman, 201 N.C. 118, 429 S.E.2d 16 (1984) [if local rules require parallel
citations].
Sidley v. Steinman, 429 S.E.2d 16 (N.C. 1984) [in all other instances].

(ii) Federal Cases

United States Supreme Court:
LaPointe v. Sullivan, 98 U.S. 396 (1984).
United States Courts of Appeals:
Lawrence v. Mather, 691 F.2d 114 (8th Cir. 1984).
United States District Court:
Blakely v. Yost, 742 F. Supp. 908 (D.R.I. 1986).

2. Statutes

(i) State
Ga. Code Ann. § 10-1-440 (West 1998).
N.Y. Gen. Bus. Law § 308 (McKinney 2008).

(ii) Federal
17 U.S.C. § 101 (2012).
17 U.S.C.A. § 101 (West 2009).
17 U.S.C.S. § 101 (LexisNexis 2008).

3. Constitutions

State: N.M. Const. art. III.

United States: U.S. Const. amend. X.

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4. Encyclopedias

68 C.J.S. Trusts § 302 (1988).

54 Am. Jur. 2d Trusts § 114 (1989).

5. Law Review Articles

Allan A. Sanders, The Juvenile’s Right to Counsel, 46 Colum. L. Rev. 891 (1988).

6. Texts and Treatises

6 Joy N. Hildebrand, Securities Review § 421 (2d ed. 1991).

7. Restatements

Restatement (Second) of Contracts § 112 (Am. Law Inst. 1992).

8. Dictionaries

Dividend, Black’s Law Dictionary (10th ed. 2014).

9. Cases Located on Westlaw and Lexis or Lexis Advance

Daley v. Fisher, No. 15-CIV-1024, 2016 U.S. Dist. LEXIS 32665, at *4 (E.D. Tex. Oct. 4, 2016).
Harris v. Carter, No. 14-2444C, 2016 WL 43225, at *7 (4th Cir. Jan. 9, 2016).

10. Summary of Special Citation Issues

(i) Quotations: Always give the page of a quotation. As a courtesy to readers,
always include a pinpoint cite even for material paraphrased. Quotations of
fewer than 49 words should appear in text with quotation marks. Place
periods and commas inside quotation marks. Quotations of 50 words or
more should appear indented or in “block” form without quotation marks
and fully justified. Retain the original paragraph structure of a block
quotation.
(ii) Short forms: Once you have cited a case in full you may use a short form.

(iii) Id.: Use id. or “id. plus” to refer a reader to the immediately preceding cite.
(iv) Supra: Use supra to refer the reader to a previous cite that is not the
immediately preceding cite. Supra may not be used to refer to cases,

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 constitutions, statutes, most legislative materials, or regulations. Supra must
appear with the name of an author or title of a work.

11. Internet Citation Form

Article available solely on the Internet: Ryan E. Grant, E-Discovery Special Report, Nat’l L.J. (June 28, 2016,
11:04 AM), http://www.nationallawjournal.com/home/id=1202750923025.

Internet Resources

Citation Software Programs

At this time, there is no absolutely reliable way to put your citations in proper Bluebook
form other than for you to do the task the old-fashioned way: manually. Nevertheless, there
are some automated tools that assist with cite-checking, including the following:

• Lexis for Microsoft Office integrates Microsoft Outlook with legal research content
from Lexis Advance. Once the program is downloaded onto your computer, you

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 will be given a new ribbon or toolbar at the top of your screen. After you have set
your citation preferences (for example to Bluebook style), the “Check Cite
Format” button allows you to find citations in your document and then check
them against the style you have selected. It also checks quotations for accuracy and
will create tables of authorities. Lexis’s Brief Suite products will extract citations
from your document and provide some cite-checking assistance, such as ensuring
that case names, parallel citations, and pincites are presented correctly and
consistently. At the time of the writing of this text, this product was only available
for Lexis.com (and not for Lexis Advance) and had not been updated in several
years.
• Thomson Reuters/West’s tool, Drafting Assistant (previously called CiteAdvisor),
creates tables of authorities and assists with citation form by checking your
citations and suggesting the correct citation format according to The Bluebook or
state rules as well as verifying quotations.
• Recall that Lexis Advance and Westlaw both offer citation assistance when you are
conducting online research. Both allow you to copy a citation to your clipboard
and will format the citation (to some extent) according to your preferences. One
troublesome issue is that neither of these programs can determine if material you
quote from or rely on is from a dissent or concurring opinion. You will be given
the pincite to where your material or quote appears, but you will not be informed
that the citation is to a dissent or concurring opinion, which is a serious weakness.
• RefWorks, EndNote, Zotero, and Juris-M (an offshoot of Zotero) may provide
some help in formatting citations, but they are designed more for academic and
scholarly writing than legal writing. Thus, they are of more help in organizing your
research than in legal citation form.
• CiteGenie (http://www.citegenie.com) is a citation tool in its beta stage. You must
download and install the software. Its maker cautions that in some instances “it
does stumble.”
• BlueLine (http://bluelinelegal.com) checks quotes for accuracy and checks citations
against Bluebook form for some elements of your citation. It is more of an editing
tool than a drafting tool.

Although many of these systems and tools are helpful, all presuppose some familiarity
with The Bluebook; otherwise, how would one be able to select the “correct” citation when
several options are given?
In conclusion, as citation expert Professor Peter W. Martin has commented, “none of
the major research services (including not only Westlaw and Lexis, but Bloomberg Law,
Fastcase, and Casemaker) can be relied upon to produce primary law citations that fully
comply with The Bluebook. . . . And all researchers need to be aware that the citations of
statutes or regulations these systems generate will often be seriously incomplete.” Moreover,
none of these systems can determine when you should use a signal, when you should
include a parenthetical, and other similar decisions that require the use of discretion and a

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through grounding in Bluebook principles. Thus, use these systems, but always verify that
your citations are in appropriate Bluebook or locally required format.

Writing Strategies

When citing authorities in a brief, avoid “string citing” (citing more than one
authority to support a contention). Too many citations clutter your project and
disrupt the flow of your narrative. Moreover, in certain instances, string cites must be
in a specific order according to The Bluebook, making string citing even more
difficult.
Similarly, avoid overusing footnotes in writing projects. Upon encountering
footnotes, most readers either will stop reading the narrative while they jump to the
footnote or will skip over the footnote entirely. Neither result is desired; the first
causes a disruption of your argument, while the second renders your research
ineffective. Some experts contend that if something is not significant enough to be
included in the main body of a text, it should be omitted, and thus there is never a
need for footnotes.
To some extent, the overuse of quotations may also result in the reader skipping
over them. Use quotations sparingly, in those situations in which what the court has
said is so authoritative and persuasive that paraphrasing the statement would dilute
its impact. Judicious use of quotations adds drama and variety to your project.
Overuse of quotations may cause the reader to wonder if you have taken the easy way
out by simply reproducing another’s words rather than analyzing those words.

Assignments for Chapter 8

CITATION FORM

There is at least one thing wrong with each fictitious citation below. Correct the citations
using the current edition of The Bluebook. You may need to supply missing information
such as dates and volume numbers. Punctuation is not needed after the citations. Assume
you are preparing a memorandum in your office, and unless otherwise indicated, assume
that the citations appear in textual sentences rather than as stand-alone citations. There is
no need to include “pinpoints,” unless otherwise directed.

1. Owen Murphy v. the Food and Drug Administration, a U.S. Supreme Court case
decided in 2009, at page 120 of volume 560.

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2. Hardy Manufacturing Co. Inc. vs. Henry and Anna Young, a case from the
Fourth Circuit Court of Appeals decided in 2011, at volume 899 of the
appropriate reporter, page 334.
3. For the preceding case, show that the U.S. Supreme Court reversed the decision in
2013.
4. California Retirement Board vs. McGuire, a 2008 case, reported at volume 11 of
the Federal Supplement, Third Series, at page 209, with a quotation on pages
214-215, decided by the Southern District of California.
5. Show that the Ninth Circuit Court of Appeals affirmed the decision in 2008.
6. Jon Jackson versus Techna Corporation, a 2001 Kansas Court of Appeals case, at
volume 988, page 155.
7. City of Kansas, Missouri versus Norton Brothers, a 2002 Kansas Supreme Court
case published at volume 990, page 14.
8. Reynolds Limited versus Kyle Wardley, a 2005 Michigan Supreme Court case at
volume 303, page 112. Assume that a court requires parallel citations.
9. George Franklin versus Blue Light Association, a 2011 Connecticut Appellate
Court case at volume 488, page 16. Assume that a court requires parallel citations.
10. Title 35, section 262 of the United States Code.
11. Title 35, section 262 of the United States Code Annotated.
12. Sections 114 through 120 of California’s Corporations Code.
13. Section 10-12-422 of the official code of Georgia.
14. Federal Rule of Civil Procedure 12(b)(6).
15. Restatement, Third, of Unfair Competition, section 82.
16. Volume 3 of Ryan T. Edwards’s 2012 treatise “Fraud Actions,” Section 201,
second edition.
17. A law review article authored by Sally T. O’Brien and Neil R. Adams, entitled
“Due Process in Union Disciplinary Actions,” published in the George
Washington Law Review, volume 14, page 586, with a quotation on pages 599-
601.
18. Show how to cite the definition of “assault” in Black’s Law Dictionary.
19. Show that the Supreme Court case discussed in Question 1 was decided 7-2 and
held that damages assessed under the faithless servant rule are subject to
apportionment.
20. Show how to cite page 130 of the Supreme Court cases in Question 1 as a short
form (assuming you cannot use id.).
21. Show how to cite section 303 of the treatise in Question 16 as a short form
(assuming you cannot use id.).
22. Show that Justice Anthony Kennedy dissented in the Supreme Court case in
Question 1.
23. Show how to present the following case name if you were presenting it in a
textual sentence: New York v. Eastern Regional Board of Communication
Distributors, Incorporated.

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 24. Show how to present the following case name if you were presenting it in a
“stand alone” citation. New York v. Eastern Regional Board of Communication
Distributors, Incorporated.
25. Your original quotation reads as follows: “A waiver of sovereign immunity must
be unequivocally expressed in statutory text.”
a. Show how to emphasize the word “unequivocally.”
b. Show how to omit the words “of sovereign immunity.”
c. Show how to omit the phrase “in statutory text.”
d. Show how to add the word “valid” before the word “waiver.”
26. Show how to cite an article found on the National Law Journal’s website,
entitled “Senate Hearing Sparks Debate,” written by C. Ryan Barber and posted
March 2, 2016.

MEMORANDUM ASSIGNMENT

There are numerous errors in the citations in the following passage. Correct the citations
using the current edition of The Bluebook. You may need to supply missing information.
To survive a motion to dismiss, a Plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. Inc. v. Twombly, 550 U.S. 544 (2007).
A claim is facially plausible when the plaintiff pleads facts that allow the court to draw “the
reasonable inference that the defendant is liable . . . for the misconduct alleged”. John
Ashcroft v. Iqbal, 556 US 662, 678 (2009) (emphasis in original). There must be more than
a “sheer possibility that a defendant has acted unlawfully.” Id. 680. While courts do not
require heightened fact pleading of specifics, a Plaintiff must allege facts sufficient to raise a
right to relief above the speculative level. Bell Atlantic, supra, at 550.
In deciding whether the plaintiff has stated a claim upon which relief can be granted,
this court must accept the plaintiff’s allegations as true and draw all reasonable inferences in
favor of the plaintiff. See Usher v. City of Los Angeles, California, 828 F.2nd 556, 581 (9th
Cir. 1987). However, this court is not required to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences. In re Gilead
Sciences Shareholder Litigation, 536 F.3rd 1049, 1055-1056 (9th Cir. 2008); Charles A.
Wright and Arthur R. Miller, Federal Practice and Procedure, vol. 4, § 12:01 (5th Ed.
2005).
Defendants have also argued that the complaint should be dismissed for lack of
standing under article III of the Constitution and the Copyright Act, 17 U.S.C. §101, et
seq. Slater Motion at ¶ 14. To demonstrate standing under the constitution’s case or
controversy requirement, a plaintiff must show that it has suffered an injury in fact and that
is concrete and actual or imminent, not conjectural or hypothetical. Laidlaw Environmental
Services v. U.S., 528 U.S. 16, 20-1 (2000); Wright and Miller, supra at § 32.01. As always,
the starting point for interpreting a statute is the language of the statute itself. Consumer
Products Safety Commission v. GTE Sylvania, Incorporated, 447 U. S. 102, 108 (1980).
In this case, the Copyright Act purposefully left “works of authorship” undefined to

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provide for some flexibility. Garcia vs. Google, Co., Inc., 786 F.3d 733, 741 (9th Circ.
2015). Here, the act does not plainly extend the concept of authorship or statutory
standing to animals. To the contrary, there is no mention of animals anywhere in the act.
In fact, the supreme court and the ninth circuit have repeatedly referred to “persons” or
“human” beings when analyzing authorship under the act. Aalmuhammed v. Lee, 202 F.3rd
1227, 1241 (2000). Moreover, to qualify as a work of “authorship,” a work must be created
by a human being; works that do not satisfy this requirement are not copyrightable. Id. at
p. 1247.
Thus, in light of the plain language of the Copyright Act, past judicial interpretations
of the act’s authorship requirement, and guidance from the Copyright Office, the plaintiff
has no standing to bring this action.

Internet Assignment for Chapter 8

1. Access the website for The Bluebook. Select “Introduction.” What are the three
major parts of The Bluebook?
2. Access The Indigo Book: A Manual of Legal Citation.
a. Review Rule 16. What is the first “Indigo Inkling” that you are given?
b. Review Rule 29. What is the supra short form for the book by Graham C.
Lilly?
3. Access Professor Peter W. Martin’s Introduction to Basic Legal Citation. Select
“Placing Citations in Context.”
a. Review the information on Quoting. How are changes to a quote shown?
b. Review the information on Short Forms. What is the short form for the case
United States v. Wilson?
4. Access the Style Manual for the Supreme and Appellate Courts of Illinois. Review
Section III.A(5) relating to italicizing case names. Why is underscoring not used in
lieu of italics for case names?

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 Chapter 9

Updating and Validating Your Research

The process of “Shepardizing” a case is fundamental to legal research and can be completed in a manner of minutes,
especially when done with the aid of a computer.

Meadowbrook, LLC v. Flower, 959 P.2d 115, 120 n.11 (Utah 1998)

A. Using Shepard’s in Print Form

B. Electronic Updating of Legal Authorities

Chapter Overview
Before you may cite any primary authority in any document you prepare, you must ensure
it is still “good law.” This is an inflexible rule of legal research. Updating and validating
your authorities was traditionally conducted manually (using a set of books called Shepard’s
Citations), but is now nearly exclusively conducted electronically on Lexis or Lexis Advance
(using Shepard’s Citations) or Westlaw (using its system called KeyCite).

A. Using Shepard’s in Print Form

Very few people validate their authorities manually — using print rather than electronic
sources — because validating electronically is quicker and provides more current
information. In fact, few law firms or law libraries still subscribe to Shepard’s in print,
relying exclusively on electronic updating. Nevertheless, a thorough grounding in the way
the conventional print versions of Shepard’s work may enhance your understanding of the
techniques and value of online updating. See Appendix A for a discussion of using the print
volumes of Shepard’s to update cases and other authorities.

B. Electronic Updating of Legal Authorities

1. Introduction to Electronic Updating

For nearly 100 years, legal researchers updated their legal authorities by using the
conventional print versions of Shepard’s. Electronic updating, however, provides more up-
to-date validation of legal authorities and is easily accomplished. There is no need to learn
quirky abbreviations. Negative history, such as reversal of a case, appears in plain English.
Electronic updating eliminates the worry that you do not have all of the print volumes in a
set of Shepard’s. Updating and checking your adversary’s citations are easily accomplished.

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Finally, references are available online far more quickly than the print versions of Shepard’s
are published, thus giving you the most recent treatment of your authorities. Consequently,
updating electronically is the preferred method for nearly all legal professionals. In fact, few
law firms and law libraries subscribe to the print volumes of Shepard’s, and all updating is
accomplished electronically, through the use of Shepard’s online (offered by Lexis and Lexis
Advance, and usually called “Shepardizing”) or through Thomson Reuters/West’s online
product, KeyCite, and usually called “KeyCiting.” You may also use mobile devices such as
iPhones to Shepardize or KeyCite, so you may check the validity of your authorities on a
moment’s notice.

2. Shepardizing Online

a. How to Shepardize Cases Using Lexis Advance

Assume the case you are updating is Commissioner v. Estate of Hubert, 520 U.S. 93 (1997).
There are two ways to check the status of Hubert on Lexis Advance. (Note that Lexis
Advance is replacing Lexis’s earlier online research platform called “Lexis,” and thus the
focus of this chapter is on the newer platform Lexis Advance.)

• If you are viewing Hubert on your screen, select the Shepard’s signal indicator
displayed on your screen. If you place your cursor over the indicator, you will be
given a brief summary of the later treatment of your case. In this instance, you are
informed: “Caution: Possible negative treatment is indicated.” On the side of the
screen, you will be given an overview of the later treatment of Hubert (for example,
a note that Hubert has been cited by other cases 21 times, twice positively). (See
Figure 9-1.)
• If you are not currently viewing Hubert on your screen but are instead perhaps
validating a written brief that mentions Hubert, simply type “shep:” and your
citation into the Red Search Box that is always displayed on your screen. In this
instance, you would type “shep: 520us93.” Note that you do not have to use
correct citation form to retrieve your results.

You are now ready to interpret your results. You will be informed, in plain English,
whether Hubert has been distinguished, criticized, followed, and so forth. If you are
interested in one of these references, click on it and you will be immediately linked to that
reference, thereby eliminating the need for you to run around the library collecting
references that distinguish, criticize, or follow Hubert.
Shepard’s uses Signal Indicators to inform you at a glance of the status of your case.
These signal indicators or legends appear at the top of the authority you are viewing on the
screen. The following signal indicator graphics are used:

Figure 9-1
Reviewing Shepard’s Results Online

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362
 • Red Stop Sign. This signal warns that your case has strong negative history or
treatment (such as being reversed).
• Letter “Q” in an Orange Square. The validity of your case has been questioned by
other authorities.
• Yellow Triangle. This caution signal indicates that your case may have some
negative history or treatment (such as being criticized).
• Green Plus Sign. Your case has positive history (such as being affirmed or
followed).
• Letter “A” in a Blue Circle. Your case has been analyzed in a neutral manner (such
as being explained by a later case).
• Letter “I” in a Blue Circle. Other citation information is available for your case
(such as a law review article that mentions your case).
• Red Exclamation Point in a Red Circle. A statute is subject to strong negative
treatment.

These signals make Shepardizing online extremely easy because they tell you at a glance
whether your citation is in trouble or whether it is cleared for your use. Note, however, that
a red stop sign does not necessarily mean that your case is no longer good law; it simply
means that your case has received strong negative treatment that you need to analyze.

b. Features of Shepard’s
There are a variety of different tabs and options you may select when you Shepardize on

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Lexis Advance. Generally, you can select four different tabs (see Figure 9-2):

• Appellate History. This tab displays the litigation trail of your case. Select the
“Map” button to see your case’s path through the courts in a graphical and easy-to-
understand display. You will also be informed how your case was affected by prior
and subsequent cases.
• Citing Decisions. If you select the “Citing Decisions” tab, you will be given a list
of all the cases that mention your case. You may now use the “Narrow by” filters to
select the most relevant decisions. For example, you may elect to view cases from a
specific court, view cases that discuss specific headnotes, or view cases during a
specific time period. Shepard’s will do more than merely list cases for you. You will
be given parallel citations, a mini-preview of what these cases said about your case,
and “Depth of Discussion” bars, showing you at a glance how thoroughly your case
was discussed by a later case (namely, whether it was fully analyzed or perhaps cited
only in passing).
• Other Citing Sources. If you select the “Other Citing Sources” tab, you will be
directed to treatises, law reviews, Restatements, court documents, and other sources
that mention your case.
• Table of Authorities. If you select “Table of Authorities,” you will be given a list of
the cases that your case cited or relied on (because if those cases are being
“weakened,” then your case may also be suspect).

Still other tools enhance your results, including the following:

• Timeline. Most screens display a colorful “Timeline,” a diagram that will show you
when your case was discussed (for example, that from 2001-2005 your case was
actively discussed but that there was no discussion of your case after 2006).
• Alerts. Shepard’s “Alert” feature allows you to run regularly scheduled updates for
the authorities you rely on. You will be automatically notified by e-mail every day,
week, or month if there have been any further changes to, or mentions of, your
authorities. This automatic updating feature ensures that you receive the most up-
to-date information about the cases, statutes, and other authorities you rely on.
• Search Within Results. When you are viewing the results of your Shepardizing,
you can type words or phrases (for example, you could search for “indemnify”) into
a search box and Shepard’s will direct you to the specific authorities in your list that
include these terms.
• Saving Your Results. You may save your Shepardizing results to a research folder,
so you can return to them later.

c. Shepardizing Statutes and Regulations

Shepardizing statutes or regulations online is nearly identical to Shepardizing cases online.

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To Shepardize 29 U.S.C. § 185 (2012), follow these steps:

• Sign on to Lexis Advance and enter “shep: 29 USC 185” into the Red Search Box.
Alternatively, if you are viewing the statute or regulation on your screen, simply
select and click on “Shepardize this document.”
• You will be provided with three options:
• You may select “Legislative history” to review documents relating to the
development and background of your statute. You will also be informed if pending
legislation affects your statute.
• Select “Citing Decisions” to be directed to cases discussing your statute. Use the
“Narrow by” filters to restrict your results to cases from certain courts and within
certain time frames.
• “Other Citing Sources” will direct you to law reviews, Restatements, treatises, court
documents, and other sources that mention your statute.

d. Shepardizing Other Authorities

You may Shepardize not only cases, statutes, and other primary authorities, but you may
also Shepardize numerous secondary sources, such as law review articles, Restatements, and
court rules. Thus, for example, if you Shepardize Restatement (Second) of Trusts § 13
(Am. Law Inst. 1965), you will be sent to cases and other authorities (such as law reviews)
that mention this Restatement provision. Thus, in this instance, you are not Shepardizing
to ensure the Restatement provision is still “good,” but rather to expand your research
efforts and find additional sources and materials that discuss this Restatement provision to
enhance your understanding of it.

e. Automatic Citation Validation for Lexis Advance

One of the most significant advances in validating citations is the availability of software
programs that automatically check whether your legal authorities are still good law. Assume
your research project cites 20 cases. Keying in 20 separate entries and then reading the
results for these 20 cases can be time-consuming.
Recall from Chapter 8 that “Lexis for Microsoft Office” is a suite of document tools
that integrates Microsoft Office with Lexis Advance. Once the program is downloaded onto
your computer, a new ribbon or toolbar will appear on your screen when you are working
in Microsoft Office. Assume you are viewing your own or your adversary’s brief. Simply
click the button “Get Cited Documents,” and all the documents cited in that brief will be
placed into a virtual “stack.” Shepard’s signal indicators will be highlighted, and you can
sort these references by Shepard’s signals to be informed, for example, that two cases in that
brief have been cited negatively, two were cited positively, and so forth.
Lexis Advance also offers BriefCheck, which will Shepardize your citations and generate
a report indicating the validity of your citations, tagging problem areas for your review.
Access BriefCheck from Lexis Advance’s pull-down menu. Lexis Advance also offers

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QuoteCheck to verify quotations in your document.
Shepard’s offers a similar automated program, Brief Suite, to collect all citations in a
document and check their validity. At the time of the writing of this text, this product was
available only for Lexis.com (and not for Lexis Advance) and had not been updated in
several years.

3. KeyCite

a. How to KeyCite Cases Using Westlaw

KeyCite is West’s service that electronically updates and validates your legal authorities.
Although there are some differences between online Shepardizing and KeyCiting, the
services are probably more alike than different.
Like Shepard’s online, KeyCite uses signal indicators or graphics to convey immediate
information to you about the status of your case:

• Red Flag. A red flag warns that your case is no longer good law for at least one of
the issues it discusses (such as being reversed or overruled).
• Yellow Flag. A yellow flag warns that the case has some negative history, such as
being criticized or limited.
• Blue Striped Flag. An appeal has been filed with regard to your case.

Assume you want to KeyCite the Hubert case. There are three approaches you may take:

• If you are not currently viewing Hubert on your screen but are instead perhaps
validating a written brief that mentions Hubert, type “kc” or “keycite” and your
citation into the Global Search Box that is always displayed on your Westlaw
screen, as follows: “kc 520 us 93.” Note that you need not use correct citation form
to access your results.
• If you are viewing Hubert on the Westlaw screen, a KeyCite status flag will be
displayed at the top of your case. This flag tells

Figure 9-2
Reviewing Shepard’s Results Online – Citing Decisions

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 you at a glance Hubert’s status. Click the flag or signal to access KeyCite. In
addition, the most serious or negative result will be displayed on the screen with
Hubert, in this instance, a reference to the fact that a later case declined to extend
the ruling in Hubert. (See Figure 9-3.)
• If you are viewing Hubert on your screen, click one of the five tabs (discussed
below) that appear in a toolbar across the top of your screen.

b. Features of KeyCite
You are now ready to review your results. At the top of the screen on which Hubert is
displayed, you will be given a toolbar display that summarizes all KeyCite content and
allows you to link to one of five specifics tabs, as follows:

• Filings. If you wish to access court documents that mention Hubert, select
“Filings.” Note in Figure 9-3 that you are told that there are 16 filings that
mention Hubert.
• Most Negative Treatment. By selecting this tab, you will be directed to the most
serious and adverse results relating to Hubert.
• History. Select the History tab to be given a visually arresting and clearly displayed
graph indicating the path Hubert followed through the court system (and allowing
you to link to each stage of this case’s life cycle).
• Citing References. Select “Citing References” to link to cases, texts, law review
articles, and more that mention Hubert. See Figure 9-4. You may elect to look at

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 all 578 references that cite Hubert or you may elect to view only cases, only
secondary authorities, and so forth. You may apply narrowing filters and restrict
your results by time (for example, selecting to view only cases decided in the past
six months that cite Hubert) by court, and so forth. Next to each cited reference in
your list is a “Depth of Treatment” bar, indicating how in depth that authority
discusses Hubert (for example, whether there is an extended discussion or merely a
brief mention of Hubert); the more green bars displayed, the more extended the
discussion of Hubert.
• Table of Authorities. Hubert itself cited 31 authorities. This Table of Authorities
feature allows you to reevaluate the authorities on which Hubert relied; if their
authority is weakened, then Hubert may also be suspect. This product is identical
to Lexis Advance’s product (which shares the same name) and is useful for finding
weaknesses in cases relied on by your adversary.

In addition to these five tabs continually displayed on your screen, KeyCite offers several
other useful features, including the following:

Figure 9-3
KeyCite Screen Showing Commissioner v. Estate of Hubert

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 Figure 9-4
KeyCite Screen Showing Results – Citing References

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 • Quotation Marks. If KeyCite displays quotation marks (”) after an authority, it
means that the case or other authority directly quotes from Hubert. (See Figure 9-
4.)
• Headnote References. Hubert’s headnote references are clearly displayed. Thus, if
you see a “2,” you know that this case discusses the point of law discussed in
headnote 2 of Hubert.
• KeyCite Alerts. The Alert service automatically monitors the status of Hubert and
notifies you of any changes in its treatment. You can elect to be notified daily,
weekly, and so forth, by e-mail message, ensuring that you always have the most
current information about Hubert.
• Saving Results. You can move your KeyCite results into a research folder and save
them for later or e-mail the results to yourself or others.

c. KeyCiting Statutes and Regulations

KeyCiting statutes or regulations online is nearly identical to KeyCiting cases online. To
KeyCite 29 U.S.C. § 185 (2012), follow these steps:

• Sign on to Westlaw.
• Type in your citation (kc 29 usc 185 or 6 cfr 9.1) in the open field and click the
Search icon. Alternatively, if you are viewing the statute on your screen, simply
select one of the four tabs displayed at the top of your screen, as follows:
• Notes of Decisions. Select this tab to view cases that have interpreted or

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 mentioned your statute or regulation.
• History. Select the “History” tab and then “Validity” to view cases and proposed
legislation that may negatively affect your statute. You may also review various
versions of your statute and access legislative history materials relevant to your
statute, such as committee reports and floor testimony. Select “Graphical
Statutes” to view a timeline showing you the enactment history of the statute
and allowing you to link to prior versions of the statute, conference reports,
proposed legislation that may affect your statute, and other pertinent legislative
materials.
• Citing References. Nearly identical to “Citing References” for cases, this feature
links you to cases, trial court orders, regulations, administrative decisions, texts,
and journals that mention 29 U.S.C. § 185.
• Context & Analysis. Select this tab to view other statutes, practice aids, treatises,
law review commentaries, and more that mention 29 U.S.C. § 185.

You may also limit your results by selecting specific jurisdictions that have issued cases
citing your statute, selecting documents mentioning your statute during specific time
periods, and so forth. KeyCite provides status flags for statutes as well as cases, using a red
flag to warn you that a statute has been amended, repealed, or held unconstitutional and a
yellow flag to indicate that the statute has been limited or is subject to pending legislation.
The process for updating regulations is nearly identical. You may also monitor changes to
your statute or regulation by selecting KeyCite Alert.

d. KeyCiting Other Authorities

Identical to Lexis Advance, Westlaw also allows you to update other legal authorities,
including the Restatements, A.L.R. annotations, law review articles, court rules, and
encyclopedias such as C.J.S. and Am. Jur. For example, if you are interested in a law review
article and want to determine if any other sources have cited your law review article, select
the “Citing References” tab at the top of your screen that is shown when your law review
article is displayed on your screen. You will now be directed to other authorities (cases,
treatises, and more recent law review articles) that have cited your law review article. Just as
is the case when Shepardizing, you are not updating these sources to ensure they are still
good law (the pocket parts of various sources such as A.L.R. will tell you that), but rather
updating to expand your research and to see if any more recent cases, law review articles, or
other sources are helpful.

Practice Tip
History and Treatment

The difference between the history of a case and the treatment of it is readily illustrated by comparing reversed
(relating to the history of a case) with overruled (relating to the treatment of a case). A reversal refers to the later

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 treatment of your case by a higher court discussing that very case. An overruling refers to how a case is treated by
some entirely different case, perhaps years later. For example, Brown v. Board of Education, 347 U.S. 483 (1954)
overruled the much earlier case of Plessy v. Ferguson, 163 U.S. 539 (1896).

e. Automatic Citation Validation for Westlaw

Similar to Brief Suite, Lexis’s package of tools that complements its online Shepardizing
service, Westlaw has also developed several tools that enhance its KeyCiting service.
Thomson Reuters/West’s new suite of productivity tools is called Drafting Assistant,
and it is designed to help legal professionals conduct research and draft their legal
documents. Although there are numerous components in Drafting Assistant, the one most
relevant to our discussion of updating your legal authorities is its software program called
WestCheck, which automatically extracts citations from your document, checks their
validity, and produces a printed report with the results of the check. The advantage of using
WestCheck rather than KeyCite is that WestCheck automatically “reads” your document
and validates your citations, thus saving you the time of keying in each citation you wish to
check. WestCheck also reviews your quotations for accuracy through its tool called
“QuoteRight.”
The process is easily accomplished. Once the software is “loaded” onto your computer,
you merely open your brief or other document that contains the citations you wish to check
and then click the Drafting Assistant and then the WestCheck toolbar buttons on your
screen to verify and monitor the status of the citations in your document. It WestCheck
also inserts KeyCite status flags and creates hyperlinks from the citations in a document you
create to the full-text document in Westlaw. Remember from Chapter 8 that Drafting
Assistant also checks the format of the citations in your document (against Bluebook or
state-specific rules) and suggests corrections in citation form. It will also create a Table of
Authorities in your document to show readers where in your document you have discussed
the cases and other authorities you have cited.

4. Comparing Shepardizing Online with KeyCiting

Most schools and large law firms provide access to both Lexis Advance and Westlaw,
understanding that their legal professionals develop distinct preferences. It is impossible to
make absolute statements as to pricing and costs (because most firms have negotiated
pricing schedules). Additional fees will be charged by your law firm to the client for your
time in performing the updating and reviewing results. Because fees are roughly equivalent,
a decision whether to Shepardize online or KeyCite is not usually based on cost. Note that
either system allows you to check the validity of your sources without using perfect
Bluebook citation form.
Beginning researchers often wonder, “Which service is better?” Both offer many of the
same features: rapid and easy citation validating; the use of easy-to-understand, colorful
graphics (signs and flags) to tell you at a glance that your citation is in trouble; the ability to
limit or narrow your results; and the ability to immediately link to an authority that

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mentions your case or statute. Both services offer continuous monitoring and automatic
citation updating so that you need not key in individual citations.
In sum, the use of Shepard’s online or KeyCite is usually a matter of habit, convenience,
or preference. Additionally, because deciphering the reports generated by Shepard’s online
or KeyCite can be somewhat difficult (primarily because so much information is given on
each screen), legal researchers tend to stick with one service after they have become familiar
with its formatting and layout. Note, however, that at least one expert who has compared
Shepard’s online and KeyCite recommends that citations be checked in both databases
because in his samples, between 10 and 37 percent of the references were missed if the
citation was checked in only one system. William A. Taylor, Comparing KeyCite and
Shepard’s for Completeness, Currency, and Accuracy, 92:2 Law Libr. J. 127, 134 (2000),
http://www.aallnet.org (use the search box to locate the article). More recent studies
confirm that for the best results, researchers should use both Shepard’s and KeyCite
(although the realities of law office time and expense constraints will likely dictate the use
of one system only).

5. Other Electronic Citator Services

Although Lexis Advance and Westlaw are the giants in computer-assisted legal research
systems, other systems provide citation updating, including Fastcase and Casemaker. These
companies generally aim their services at smaller firms or sole practitioners and charge
reasonable fees (or make their services available through state bar associations), and they
offer much smaller databases than Lexis Advance or Westlaw. Fastcase’s citation updating
service is called Authority Check, and Casemaker’s is called CaseCheck+. Their use is
similar to that of Shepardizing online or KeyCiting, but, in general, they offer fewer
enhancements and features for customization. In some instances, they merely list other
cases that cite your case without analyzing in what manner your case has been cited or
treated. The newest significant entrant into computer-assisted legal research, Bloomberg
Law, also offers a citator service, BCite, to determine if your case is still good law. These
services are discussed further in Chapter 11.

Ethics Alert

Duty to Update and Validate Cases

A number of cases have reminded legal professionals of their ethical duty to update and validate the cases they
cite. In Gosnell v. Rentokil, Inc., 175 F.R.D. 508, 510 n.1 (N.D. Ill. 1997), the court sternly admonished the
attorneys involved as follows:

“It is really inexcusable for any lawyer to fail, as a matter of routine, to Shepardize all cited cases (a process
that has been made much simpler today than it was in the past, given the facility for doing so under Westlaw
or LEXIS). Shepardization would of course have revealed that the ‘precedent’ no longer qualified as such.”

6. Summary

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Updating and validating your primary authorities is the second component of cite-checking
(the first being to place citations in proper Bluebook or local format). Although the
foremost function of updating is to check the status of your primary authorities, a related
important function is to allow you to tap into additional legal research, because both
Shepard’s (in print form or online) and KeyCite will direct you to cases, periodicals,
attorneys general opinions, treatises, annotations, and other sources that mention the
authority you are updating.
The determination of when to perform your updating task is a matter of individual
discretion, although updating early in the research process will not only alert you to an
invalid or weakened case, statute, or regulation but also enhance your efforts by directing
you to additional research sources.
Nearly all legal professionals update electronically rather than by using Shepard’s
Citations in print form. The print forms of Shepard’s Citations are nearly relics. Shepard’s
online and KeyCite provide easy and very recent validation of legal authorities. Moreover,
their new software programs (Lexis for Microsoft Office and Drafting Assistant,
respectively) offer automatic updating, eliminating the necessity of keying in any citations.
Because both Lexis Advance and Westlaw are available on handheld mobile devices such as
iPhones, legal professionals can access and then Shepardize or KeyCite cases on the go.
Once you have Shepardized or KeyCited a few times, you will quickly get the hang of it
and will find that it is an easily accomplished task. Do not assume that because
Shepardizing and KeyCiting are easy and routine, they are unimportant. On the contrary,
updating is one of the most critical aspects of legal research, and no project is complete
until every reference to a case, statute, constitutional provision, or regulation has been
updated and validated. It is legal malpractice to fail to validate your primary authorities.

Internet Resources

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Writing Strategies

Be sure to update any citations in an adversary’s written project. It is possible

that while the cases cited may still be “good law,” they may have lost some of their
strength by being criticized or questioned. You will then be able to point this out in
your project or response as follows: “Although Plaintiff relies upon Caldwell Co. v.
Baldwin Emporium Inc., 688 F. Supp. 101, 106 (S.D.N.Y. 2005), that case has been
subject to increasing criticism . . . .”
Similarly, if a case cited by an adversary is limited to its own particular facts,
point this out to the reader: “The case relied upon by Plaintiff, Ellers v. McGrath,
692 F. Supp. 946, 951 (D. Mass. 2006), has been specifically limited to written lease
agreements, Warren v. Chesterton, 719 F.2d 101, 104 (1st Cir. 2008). Because the
present case involves an option to purchase real property and not a written lease,
Plaintiff’s reliance on Ellers is misplaced.”

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 Use updating as a way of enhancing your own writing. If a case you rely on is
followed by a later case, bring this to the reader’s attention: “In Satterly v. Jespersen,
718 F.2d 906, 909 (9th Cir. 2002), the court [noted with approval] or [endorsed] or
[followed] the test for defamation set forth in Handler v. Jacobson, 689 F. Supp. 614,
617 (C.D. Cal. 2000).”

Assignments for Chapter 9

In the following assignments, you will Shepardize cases, statutes, and other sources using
Shepard’s (available in print and online through Lexis Advance) and KeyCite (available
online through Westlaw). Provide the answers as these sources give them to you. You need
not use Bluebook form.

RESEARCH ASSIGNMENT USING PRINT VOLUMES

OF SHEPARD’S

Use Figure A-1 in Appendix A to answer the following questions.

1. What is the most recent case that follows 101 P.3d 140?
2. Which case questions 101 P.3d 140?
3. What is the oldest case that explains 96 P.3d 141?
4. Give the citations for the denial of certiorari for 101 P.3d 509.
5. Which Ninth Circuit cases discuss 96 P.3d 194?
6. Which Loyola Law Review discusses 96 P.3d 141?

RESEARCH ASSIGNMENT USING SHEPARD’S ON

LEXIS ADVANCE

Unless otherwise directed, Shepardize using Lexis Advance. You need not use Bluebook
citation form in your answers.

1. Locate the case at 560 U.S. 605.

a. What are the parallel citations for this case?
b. Select the Shepard’s icon or signal. What icon are you given and why?
c. Select and review the Citing Decisions. What is the oldest case from the First
Circuit that mentions your case? What headnote of the original case is
discussed in this case from the First Circuit?
2. Locate the case at 445 F. Supp. 2d 101. Select the Shepard’s icon for this case.
Select the 2008 case that has subsequent negative history. What effect did the
2008 case have on your case?

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 3. Locate 11 U.S.C.S. § 109. Select “Shepardize this document.”
a. By how many authorities is this statute cited?
b. How many Third Circuit cases cite this statute?
c. Select the 2012 U.S. Supreme Court case that cites this statute. On which
page is it cited?
4. Locate 691 A.2d 1107.
a. What is the parallel citation for this case?
b. What Shepard’s icon or signal are you given for this case?
c. Select “Shepardize this document” and then “Other Citing Sources.” What
content is listed?
5. Shepardize New Jersey Stat. Ann. § 15A2-8.
a. How many cases have cited this statute?
b. Select the most recent law review article that cites this statute. Where in the
law review article is this statute cited?
6. Locate 125 Cal. App. 3d 111. Select “Shepardize this document” and “Citing
Decisions.”
a. How many California court cases cite your case?
b. Select or narrow by “California.” Review the Depth of Discussion bars. How
many cases discussed your case? Mentioned it? Cited it?
c. What headnote in your case is the most frequently cited?
7. Use the all-in-one Red Search Box and enter “shep: 83 S. Cal. L. Rev. 1231.”
a. Who is the author of this law review article?
b. Select “Shepardize this document.” What is the most recent case that cites
your law review?
c. Retrieve this case that cites your law review. Where in the case is your law
review article cited?
8. Locate Arizona Rule of Evidence 301. What 2014 case mentions this rule of
evidence? (Give the case name only.)
9. Locate the Restatement (Second) of Contracts § 159. Select “Shepardize this
document.” What is the name of the most recent case that cites § 159 cmt. b?
10. Locate 347 U.S. 483.
a. What is the name of this case?
b. Select Table of Authorities. How many authorities did this case cite? What
case did it overrule? (Give case name only.)

RESEARCH ASSIGNMENT USING KEYCITE ON WESTLAW

1. Locate 369 F. Supp. 2d 233. What signal flag is displayed on the screen? Why?
2. Locate D’Alessio v. New York Stock Exchange, 258 F.3d 93.
a. What status flag is displayed?
b. Select the flag. Locate the first reference to which you are directed. Give the
name of the case and Westlaw’s comment to you about this case.

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 c. Which headnote of D’Alessio does the case in Question 2(b) above cite?
3. Locate 149 F.3d 1368.
a. What status flag is displayed?
b. Select the “History” tab. What was the citation for this case in the District of
Massachusetts in 1996?
c. When was certiorari denied for this case?
d. What U.S. Patent Number was at issue in this case?
4. Locate 461 F.3d 433.
a. Select “Citing References” and then “Cases.” Review the Depth of Treatment
bars. How many cases analyze your case with four treatment bars?
b. Select “Secondary Sources.” To which A.L.R. annotation are you directed
(give the citation only)?
5. Locate 560 U.S. 1.
a. Locate the author of the opinion and select. Where was the author born and
who nominated him to the U.S. Supreme Court?
b. Select “History.” Give the citation for this case in the district court and in the
intermediate appellate court. What happened to this case after the U.S.
Supreme Court decision?
6. Locate 862 N.E.2d 209.
a. Select “Citing References.” How many trial court documents cite this case?
b. Select “Table of Authorities.” How many authorities did the case published
at 862 N.E.2d 209 cite?
7. Locate 735 S.E.2d 772.
a. Give the parallel citation for this case.
b. Select “Citing References” and then “Secondary Sources.” Which 2015 law
review article mentions this case?
c. Select the law review article. Where in the law review article is your case
cited?
8. Locate 35 U.S.C.A. § 102. How many Citing References refer or cite to this
statute?
9. Locate Colo. Rev. Stat. § 8-4-101. What status flag is displayed? Why?
10. Locate California Corp. Code § 17704.09. Select “History.”
a. Select “Graphical View.” Review the information for the current text of the
statute. When was this statute effective?
b. Review “Versions.” Briefly, what information are you provided by
“Versions”?
11. Locate Am. Jur. Adjoining Landowners § 88. How many Citing References are
you given? What types of authorities are these?
12. Locate Restatement (Third) of Trusts § 27.
a. How many authorities cite this provision?
b. Which authority has the most negative history? (Give case name only.)
13. Locate 95 Minn. L. Rev. 2180.

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 a. To how many Citing References are you directed?
b. Sort these Citing References by date. Which is the oldest law review article
that cites your law review article?
c. Select the law review article from Question 13(b). Where is your original law
review article cited?
14. Locate 55 A.L.R.6th 1. Select “Table of Authorities.” How many sources does
your A.L.R. annotation cite?
15. Locate 562 U.S. 44. Select “Citing References” and then “Cases.” What is the
first case listed (a 2015 case) that quotes from 562 U.S. 44?

COMPARISON OF SHEPARDIZING ONLINE AND KEYCITING

Use Lexis Advance and Westlaw.

1. Shepardize and then KeyCite 91 F.2d 898. What status signals are you given on
Lexis Advance and KeyCite? Why?
2. Shepardize and then KeyCite 21 U.S.C. § 335.
a. To how many cases does each service direct you?
b. To how many law review articles does each service direct you?
3. Shepardize and then KeyCite Virginia Code Ann. § 13.1-692.1.
a. To how many cases does each service direct you?
b. Access the law review articles to which you are directed by the services. Are
they the same?
4. Shepardize and then KeyCite 18 U.S.C. § 242. What status signals are you given?
Why?
5. Shepardize and then KeyCite 268 S.E.2d 873.
a. To how many cases does each service direct you?
b. Are these cases the same?
6. Shepardize and then KeyCite 43 Cal. App. 4th 1224.
a. To how many law review articles does each service direct you?
b. Are they the same law review articles?
c. Does each service indicate on which page in the law review articles your case
is cited?
d. Which service directs you to an A.L.R. annotation?
e. Which service directs you to Cal. Jur. 3d?

Internet Assignment for Chapter 9

1. Access the law library for UCLA’s School of Law and select the Research and

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 Writing Guide at http://libguides.law.ucla.edu/researchandwritingguide. What
does it mean to “validate” your research?
2. Access Lexis’s guide to Shepardizing at
http://www.lexisnexis.com/documents/pdf/20120111042317_large.pdf. In what
five ways may you narrow your results?
3. Access Thomson Reuter’s guide to KeyCiting at
https://info.legalsolutions.thomsonreuters.com/pdf/wln2/L-356347.pdf. What is
the function of “Graphical KeyCite”?

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 Chapter 10

Special Research Issues

The only thing that was authoritatively adopted for sure was the text of the enactment; the rest is necessarily speculation.

United States v. R.L.C., 503 U.S. 291, 308 (1992) (Scalia, J., concurring)

A. Legislative History
B. Executive Materials
C. Administrative Law
D. International Law
E. Municipal Research
F. Rules of Procedure and Court Rules
G. Citation Form

Chapter Overview
Most legal research problems can be solved by examining and analyzing the conventional
sources of primary authorities and secondary authorities. There are, however, a few types of
legal research tasks that lie outside those usual approaches to legal research and that involve
sources arranged and published differently from the typical primary and secondary
authorities.
This chapter will examine these special research issues and will provide information on
legislative histories, presidential documents, administrative law, international law, local and
municipal law, and court rules. Although research in many of these unique areas will not be
required often, should you need to do any especially thorough research project or should
you be employed by a firm concentrating on international or administrative law, you will
use the research techniques described herein. A brief introduction to these specialized tasks
is needed so you will be able to conduct research efficiently and effectively in these areas if
you are asked to do so. Note that administrative regulations, executive orders, treaties,
municipal ordinances, and court rules are all primary law, as are the cases that interpret
them.

A. Legislative History

1. Introduction to Federal Legislative History Research

If a statute you are researching is unclear, adverse to the position you wish to advocate, or
lacks cases interpreting it, you may wish to examine the various documents that reflect the
activity of the legislature that enacted the statute to help you determine the intent of the

381
legislature. This process is referred to as preparing or compiling a legislative history.
Although a well-constructed argument relating to a legislative history and the
legislature’s intent and purpose may be useful and instructive to a court, a court is not
required to adopt an interpretation of a statute based upon the legislature’s intent in
enacting the law. In fact, many courts view legislative history arguments with skepticism or
even hostility. Typically, courts will not examine the legislative history of a statute if the
meaning of the statute is clear or “plain” from a reading of it. Only when a court cannot
determine the plain meaning of a statute will it resort to reviewing the legislative history of
the statute.
Alternatively, you may be monitoring a piece of legislation as it progresses in order to
better assist clients or your employer. This section will first discuss legislative histories for
federal statutes and then legislative histories for state statutes. You may wish to review
Chapter 3, which discusses the process by which legislation is enacted. In brief, a bill is
introduced, referred to a committee, which hears testimony and issues a report, and then
the bill is voted on after debate. This procedure is then duplicated in the second chamber of
a legislature.
Review the following published guides, available on the Internet, for background on
legislative histories, the process of compiling one, and links to other sources:

• Carol D. Davis, Tracking Current Federal Legislation and Regulations: A Guide to

Basic Sources, Congressional Research Service, http://www.fas.org/sgp/crs/98-
461.pdf (last updated Jan. 13, 2005).
• Richard J. McKinney & Ellen A. Sweet, Federal Legislative History Research: A
Practitioner’s Guide to Compiling the Documents and Sifting for Legislative Intent,
Law Librs.’ Soc’y of Wash., D.C., Inc., http://www.llsdc.org/federal-legislative-
history-guide (last revised July 2015).
• Law Librs.’ Soc’y of Wash., D.C., Inc., Legislative Source Book,
http://www.llsdc.org/sourcebook (last revised Feb. 15, 2016).

2. Documents Composing Federal Legislative History

There are four types of documents you might analyze in the process of compiling a
legislative history: bills, transcripts of committee hearings, committee reports, and debates.
Each one of these documents may help you achieve your goals of determining the purpose
and intent of a statute.

• Bill Versions. By examining the various versions of a bill as it passed through

Congress, you may be able to draw some inferences about Congress’s intent.
Additionally, the bill may include a preamble or introductory section explaining its
intent and purpose.
• Transcripts of Committee Hearings. When individuals testify before
congressional committees, their testimony is recorded and transcribed in booklet

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 and electronic form. Many courts view this testimony with skepticism because
although some of those testifying are neutral parties, others are well-paid lobbyists.
• Committee Reports and Prints. After the committee concludes its hearings, it will
issue a report with its recommendations and its reasons therefor. Committee
reports are viewed as considerably more credible than transcripts of committee
hearings. Committee prints consist of reports and studies prepared by consultants
or staff members and may include statistical material or legislative analysis.
• Debates. If debate is held on a bill, the remarks of the speakers are published in the
Congressional Record, a publication prepared for each day that Congress is in
session. These remarks may reflect the intent of the legislature when it enacted a
statute.

3. The Process of Compiling a Legislative History: Three Approaches

There are three approaches you may take in compiling a legislative history: You may gather
the materials in conventional print format; you may use electronic sources (both free and
subscription services); or you may be able to locate a prepackaged or compiled legislative
history.

a. Using Conventional Print Sources to Compile a Legislative History

Many researchers have difficulty compiling a legislative history because the documents are
diverse and are seldom located together. Often you will be required to search many sources.
This is especially true because a statute may have been enacted one year and then amended
on several occasions thereafter. You may have to compile a legislative history for each
version of the statute. Moreover, the material is voluminous. During the first session of the
114th Congress (2015), 5,060 measures were introduced in the House, and 2,823 were
introduced in the Senate. Do not be shy about asking a reference librarian for help.
Reference librarians are aware that conducting legislative history research can be difficult
and that few researchers are familiar with the various sources to be used. There are,
however, two steps you can take to gather the documents you need.

(1) Step One: Getting a Public Law Number

After you read a statute in U.S.C., U.S.C.A., or U.S.C.S., you will be provided with
historical notes giving information about the enactment of the statute. For example,
immediately following a statute in U.S.C.A., you will be provided with information such as
the following:

Pub. L. 110-406, § 7, Oct. 13, 2008, 122 Stat. 4293.

In the section immediately beneath the statute, called “Historical and Statutory Notes,” you are directed to “see
2008 U.S.C.C.A.N. 3372.”

Thus, U.S.C.A. gives you the public law number of your statute (namely, Public Law

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110th Congress, 406th law), the date of its enactment, and its citation in United States
Statutes at Large. For newer statutes, West also refers you to its publication United States
Code Congressional and Administrative News (USCCAN), a monthly pamphlet that includes
public laws, legislative history for selected bills, some committee reports, presidential
signing statements, and other material. Once you have a public law number, you can access
USCCAN and many other sources.
If U.S.C.A. directs you to USCCAN, immediately review the materials you are directed
to because they are generally excellent sources of legislative intent and nearly always include
committee reports and presidential signing statements. Although only U.S.C.A. sends you
directly to the pertinent legislative material in USCCAN, both U.S.C. and U.S.C.S. will
provide you with the public law number for the statute you are researching.

Practice Tip

Using USCCAN to Obtain a Public Law Number

If for some reason you do not have or know the public law number for a particular statute but you know the
general subject matter of a statute, you should use the subject matter index for USCCAN for the
congressional session during which the statute was enacted. Look up the subject matter of the statute
(environment, crimes, social security) and you will be given the public law number and other important
legislative information pertaining to this statute, which you can then use to locate legislative history materials
in USCCAN.

(2) Step Two: Using a Public Law Number to Obtain Legislative Documents
Once you have obtained the critical public law number, you can locate the documents
that make up a legislative history by using any one of three key sources: USCCAN,
Congressional Information Service, or Congressional Index.

• Using USCCAN. Once you have a public law number, access USCCAN’s Table
of Legislative History (now called Table 6, but previously called Table 4) and look
up your public law number. Table 6 will give you the original bill number (for
example, H.R. 289), references to committee reports to examine, and dates of any
debates. USCCAN also provides you with official committee reports, conference
reports, statements by legislative leaders on major bills that explain the background
and purpose of the legislation, and presidential signing statements. Read these
materials to determine legislative intent. USCCAN is likely the most frequently
used print source for legislative history research.
• Using Congressional Information Service. Congressional Information Service (CIS),
originally part of the Lexis family but now owned by ProQuest LLC, is published
in monthly pamphlets, which are ultimately cumulated in three bound volumes for
each year: an Index volume, which allows you to look up materials by subject
matter (such as Social Security), by bill number, or by witness; an Annual Abstracts

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 volume, which contains summaries or “abstracts” of the bill, testimony given at
hearings, and committee reports; and the Annual Legislative History volume,
which arranges laws by their public law number. Unfortunately, this set ceased
publication in print in 2009 (although much of its material is available on Lexis
Advance).
• Using Congressional Index. Congressional Index consists of looseleaf binders for
each congressional session. Each binder contains an index to all public laws
introduced in a session. This set will direct you to the specific documents you need
to examine but does not itself reproduce them. You can access the set by public law
number, name of the law, subject matter, or the name of the sponsoring legislator.

b. Using Electronic Sources and the Internet to Compile a Legislative History

The ability to conduct research electronically has had a significant effect on the way in
which legislative history research is conducted. It is no longer necessary to run around a law
library collecting documents. Using Lexis Advance, Westlaw, Congress.gov (Congress’s
database), or FDsys, researchers can easily find the documents they need by searching by
bill number or keywords and then quickly link to related documents, enabling them to
assemble a legislative history far more easily than in the past.

• Lexis Advance. The computerized legal research system Lexis Advance offers easy
access to legislative information. Perhaps the most efficient way to find legislative
history on Lexis Advance is simply to type the name of your statute (or its bill
number or Statutes at Large number) into the search box displayed on your first or
welcome screen. For example, if you begin typing “Affordable Care Act” in the
search box, Lexis Advance will auto-suggest the name of this legislation (namely,
Patient Protection and Affordable Care Act). Select the search icon and then select
“CIS Legislative History.” You will now be able to link to everything you need: a
summary of the legislation, bill versions, committee reports, transcripts of
committee hearings, and more. Thus, as long as you know the name of your
legislation, its bill number, or its Statutes at Large citation, you will be given a full
and complete “package” relating to your legislation. Alternatively, you may select
“Statutes & Legislation” from your first or welcome screen and continue selecting
the items of interest to you (such as “Bill Text” or “Congressional Record”). Use the
drop down menus and type in the keywords that describe the legislation you are
researching and you will be linked to the pertinent documents.
• Westlaw. Westlaw, Thomson Reuters/West’s computerized legal research system,
operates nearly identically to Lexis Advance. Select “Legislative History” from your
home or welcome screen. You will now be given the opportunity to access the
Congressional Record, USCCAN, congressional testimony, and more. Even more
important, you can select “Arnold & Porter Legislative Histories” to access
“prepackaged” or compiled legislative histories for various well-known statutes,

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 such as the Family and Medical Leave Act or the USA Patriot Act. These compiled
legislative histories provide “one stop shopping” with the ability to directly link to
all the documents you need relating to these Acts. Moreover, when you view a
statute on Westlaw, you may select “History” and then “Graphical Statute” to link
to legislative history documents, including bill versions, committee reports, and
debates. This feature allows nearly instantaneous access to legislative history
documents.
• ProQuest Congressional. ProQuest Congressional (the successor to LexisNexis
Congressional) is the electronic version of CIS, discussed previously. This database
provides broad and current coverage of legislative documents, allows you to track
pending legislation, and provides links to a vast array of materials. Your law library
or law firm may subscribe to this fee-based service, allowing you access to the
database so you can conduct legislative history research. Much of ProQuest
Congressional is available on Lexis Advance.
• Congress.gov. Unlike Lexis Advance, Westlaw, and ProQuest Congressional,
which are fee-based subscription services, Congress.gov (https://www.congress.gov)
is a free service provided by the Library of Congress. It offers a wealth of
information, including historical documents such as the Constitution, links to
House and Senate directories, committee schedules, and links to other legislative
activities. More importantly, Congress.gov offers easy access to many documents of
legislative history. When you access Congress.gov you may search by keywords (for
example, “Patent Reform Act”), bill number (for example, 114-31), or public law
number. You will then be given access to the exact text of the bill or public law, a
summary of it, and its status (such as when it was introduced or referred to a
committee). You can search within multiple Congresses in a single search, making
it easier for you to locate legislative materials when you do not know in which
congressional session legislation was introduced. Once you locate the bill you are
interested in, you will be directed by hyperlinks to committee reports, transcripts of
some committee hearings, the Congressional Record (since 1995), and other
documents. (See Figure 10-1 for a sample page from Congress.gov.)

Practice Tip
To obtain the text of newly enacted public laws, subscribe to PENS (Public Law Electronic Notification
Service) at http://listserv.gsa.gov/archives/publaws-l.html, which will notify you by e-mail of recently enacted
public laws.

• FDsys. The Government Publishing Office offers numerous official publications

through its comprehensive and easy-to-use Internet site, called Federal Digital
System or FDsys, located at https://www.gpo.gov/fdsys. FDsys offers bills,
calendars, committee prints, transcripts of select committee hearings, committee

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 reports, the Congressional Record, and other documents. Coverage dates vary, but
most documents are available since about 1993. You may search by particular
congressional session (for example, looking at documents from the 114th
Congress), by keywords (for example, searching for “affordable health care”), or by
citation (for example, searching for “Public Law 114-109”). Documents provided
on FDsys are verified as “authentic,” meaning they may be cited as if to a
conventional source, with no need to give a URL. Bluebook R. 18. Remember that
FDsys is being replaced by GovInfo (https://www.govinfo.gov), in its beta version
at the time of the writing of this text. GovInfo will include all of
the information found in FDsys but will have improved search capabilities. See
Figure 12-1 for a screen shot of FDsys’s home page screen.
See Figure 10-2 for a blueprint for obtaining the documents needed for a legislative history.

Figure 10-1
Sample Page from Congress.gov

Practice Tip

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Online Legislative History Research

Although FDsys and GovInfo offer the ability to locate thousands of legislative history documents, their
databases are relatively current, meaning that you cannot obtain older documents from these services.
Nevertheless, the fact that you cannot perform legislative history research for older statutes using these free
services is not a significant drawback, because legislative history is usually performed for newer statutes. Once
a statute has been in existence for a few years, there will likely be judicial analysis of the statute and cases
discussing it, rendering the use of a legislative history far less important.

Figure 10-2
A Blueprint for Obtaining Documents
Needed for Legislative Histories

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c. Using Compiled Legislative Histories
A compiled legislative history is a “prepackaged” legislative history, namely, one that has
already been compiled for the statute in which you are interested, thereby eliminating the
need for you to perform the task of legislative history research yourself. Generally, compiled
legislative histories exist for legislation that is well known or of public importance.
USCCAN, Lexis Advance, and Westlaw all offer several compiled legislative histories,
especially for significant legislation. About 30 legislative histories are available for well-
known legislation, such as the USA Patriot Act, by the Law Librarians’ Society of
Washington, D.C., at http://www.llsdc.org/sourcebook. The Department of Justice also
provides several compiled legislative histories at https://www.justice.gov/jmd/ls/legislative-
histories.

4. Alternative Methods of Obtaining Legislative History for Federal Statutes

Because compiling a legislative history can be difficult and usually requires you to locate
and use numerous sets of books or websites, and because there may not be a compiled or
prepackaged legislative history for your statute, there are some alternative methods you
might use for legislative history research.

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 • Reference Assistance. Law librarians are well aware of the complex nature of
gathering the documents needed to compile a legislative history and will not be
surprised if you ask for help. Some law libraries have worksheets for you to use that
provide a step-by-step approach and clear instructions for compiling a legislative
history.
• Commercial Services. There are several commercial services that will assist you in
obtaining documents or in monitoring legislation. Check a local legal directory or
conduct a Google-type search to obtain information about private companies that
will obtain government documents for you for a fee. Following are two well-known
companies:
• StateNet, part of the LexisNexis family and a leader in the field of providing
legislative information, will provide legislative materials for Congress and all 50
states. The telephone number is (800) 726-4566, and the website is
http://www.lexisnexis.com/en-us/products/state-net.page.
• Legislative Intent Service, a well-known company established in 1974, will
obtain federal or state legislative histories. This service also provides expert
analysis of materials obtained. Call (800) 666-1917, or visit the website at
http://www.legintent.com.
• Congressional Assistance. Members of Congress employ office staff and assistants
whose job it is to perform a variety of tasks, including responding to requests for
information by constituents. Call the office of your congressional representative
and ask for copies of the bill, the committee report, or other pertinent materials.
Check the House and Senate rosters in Congress.gov to locate your representative.
• Law Reviews and Annotations. It is possible that a law review or A.L.R.
annotation has already performed the task of legislative history research for you.
That is, a law review or other periodical publication may contain a thorough
analysis of the statute you are researching and already may have examined the bill,
the transcripts of the committee hearings, the committee reports, and the debates
and may summarize this legislative history for you. The best way to determine if an
article or annotation discusses your statute is to Shepardize or KeyCite your statute.
(See Chapter 9.) Alternatively, you could examine the “Table of Laws, Rules, and
Regulations” in A.L.R.’s Index to Annotations. This table will direct you to
annotations in A.L.R. that cite or analyze statutes.

Practice Tip
Legislative History Research: Three Easy (and Free) Steps
There are many places for you to locate the documents that make up a legislative history. Consider simplifying the
process by following these three steps:
1. Obtain a public law number by looking at the end of your statute in U.S.C.A. or U.S.C.S.
2. Look up the public law number (or a keyword or phrase related to the statute) through Congress.gov
(https://www.congress.gov), FDsys (https://www.gpo.gov/fdsys), or GovInfo (https://www.govinfo.gov).

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 3. Read and analyze the pertinent documents, linking to other related documents as needed.

To learn how to obtain a bill number, review the article “How to find bill numbers” provided by the United States
Senate at http://www.senate.gov/reference/common/faq/how_to_numbers.htm.

5. State Legislative History

a. The Process of Compiling a State Legislative History

The process of compiling a legislative history for a state statute is substantially similar to
that for federal statutes. Unfortunately, collecting the actual documents involved can be
frustrating because many of them are not published, and some are available only at the state
capitol.
Just as is the case with federal statutes, after you have read a state statute, carefully
examine the historical notes following it to determine the derivation of the statute. For
instance, you may be presented with information such as the following:

Derivation Stats. 2013, c. 141, p. 621

This would indicate the statute was enacted in 2013 and was initially published at Chapter
141 of the state’s session laws and can be found at page 621 of the session laws for 2013.
Consult your law librarian to determine if a legislative service exists for your state. Such
a legislative service will operate similarly to USCCAN, CIS, or Congressional Index in that it
will provide you with a bill number for your state statute and information regarding the
committee that considered the bill.
Once you have a bill number or the name of the committee that considered the bill,
you can contact the chairperson of the committee or a legislative staffer at your state
capitol, and ask for copies of the pertinent documents. Although the bill and its versions
will be available, the proceedings of committee hearings are rarely transcribed, committee
reports are rarely published, and debates are rarely reported. Thus, in many states, the only
documents available to you in preparing a legislative history are the various versions of the
bill as it proceeds through the state legislature.
To determine what documents are available in your state, consult the following:
William H. Manz, Guide to State Legislation, Legislative History, and Administrative
Materials (7th ed. 2008). This source provides a state-by-state outline of the legislative and
administrative documents available in print and electronically for each of the 50 states and
the District of Columbia.

b. Alternative Methods of Obtaining Legislative History for State Statutes

Due to the difficulties in compiling a legislative history for state statutes, you may find that
the following alternative methods of legislative history are the most effective.

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• Compiled Legislative Histories. Some well-known state statutes may already have
been the subject of a legislative history. Your law librarian may assist you in
locating these.
• Commercial Services. There may be private companies that will perform state
legislative history for you. Because many of the documents are available only at the
state capitol, these private companies are often located in the capital city of a state.
Due to the difficulty of compiling a legislative history for a state statute, making
arrangements with a private company to obtain the needed documents may well be
the most effective way of obtaining a complete legislative history. Often the fees
charged by these companies are moderate, and you may be provided with the
documents you need within a matter of days.
To determine if such a company exists in your state, check with a reference
librarian, consult a directory of legal services, call directory information at the
capital city, or contact an attorneys’ service.
Following are two fee-based commercial services that provide state legislative
history information and documents:
• Legislative Intent Service will obtain either federal or state legislative histories. Call
(800) 666-1917 or visit http://www.legintent.com.
• StateNet, part of LexisNexis, will provide legislative materials for all 50 states. Its
website is http://www.lexisnexis.com/en-us/products/state-net.page.
• Web-based Tutorials. There are a number of websites that will greatly assist you in
compiling legislative history for state statutes. Following are some of the best:
• The Law Librarians’ Legislative Source Book (http://www.llsdc.org/state-
legislation) links to state laws and regulations and includes valuable website links
and phone numbers.
• A research guide and bibliography to finding state legislation is offered through
Cornell University Library at http://guides.library.cornell.edu/stateleg?hs=a.
• The website of the National Conference of State Legislatures
(http://www.ncsl.org) is a gateway to state legislative sites, allowing direct
linking to the legislative site in each state.
• Indiana University’s website (http://law.indiana.libguides.com/state-legislative-
history-guides) links to each state’s legislative history materials.
• Reference Assistance. Be sure to ask your law librarian for assistance or to
determine if a worksheet or checklist is available to assist in compiling a legislative
history.
• Lexis Advance and Westlaw. Both Lexis Advance and Westlaw provide bill text
and bill tracking for all U.S. jurisdictions. Westlaw’s timeline feature “Graphical
Statutes” is available for many jurisdictions, including California, New York, and
other larger states, and provides direct linking to legislative history documents such
as bill text and reports.
• Legislative Assistance. Contact your state legislators or representatives and ask for
assistance or for copies of documents.

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 • Law Reviews and Annotations. Shepardize or KeyCite the particular statute you
are researching to determine if it has been the subject of any law review article,
A.L.R. annotation, or attorney general opinion. If Shepard’s or KeyCite directs you
to any of these sources, review them because they may provide a convenient
summary of the information you need.

Internet Tutorials on Legislative History Research

There are three excellent tutorials that provide guidance on compiling legislative histories. They are located at the
following sites:

• Boston College Law Library’s Federal Legislative History Materials: (http://lawguides.bc.edu/legislativehistory)

• Georgetown Law Library’s tutorials and guides:
(http://www.law.georgetown.edu/library/research/tutorials/lh/index.cfm and
http://guides.ll.georgetown.edu/legislative_history)
• Law Librarians’ Society of Washington D.C. offers excellent legislative history materials in its Source Book:
(http://www.llsdc.org/sourcebook).

6. Tracking Pending Legislation

You may need to track and monitor pending legislation for clients who must keep abreast
of emerging laws and regulations that could affect their business. Clients must prepare for
changes before a measure becomes a law. For example, assume your client wishes to
monitor pending legislation relating to campaign finance reform. The process of bill
tracking to monitor the progress of proposed legislation is different from reviewing the
legislative history for statutes already enacted. Following are some sources that will help you
monitor pending legislation (with the fee-based services listed before the free services):

• Congressional Index (discussed earlier in this chapter) describes action on a bill and
provides weekly updates, allowing you to track when action is taken on pending
legislation. Your law library will likely have this set.
• ProQuest Congressional (formerly called LexisNexis Congressional) provides bill
tracking.
• Lexis Advance and Westlaw also provide bill tracking. Their Alert services deliver
periodic updates to your e-mail account about legislation you are tracking. Lexis
Advance offers a new feature, a graphical “thermometer” that tells you at a glance
the likelihood of the legislation advancing to the next stage. For example, you will
be informed, “Low chance to pass next stage.”
• LexisNexis’s StateNet, the commercial service described earlier, provides bill
tracking and e-mail alerts for pending federal and state legislation.
• Congress.gov will provide automatic alerts by e-mail to you when new activity
occurs on pending legislation in which you are interested.
• GovTrack (https://www.govtrack.us) is a free service that allows you to track

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 pending federal legislation and will provide you with e-mail updates about the
legislation you are monitoring.
• Scout (https://scout.sunlightfoundation.com) is another free service that allows you
to track pending federal and state legislation. You may create alerts to be notified
by either e-mail or text message of any new action on legislation you are following.
• Many states automatically provide you with e-mail updates on the status of
pending legislation. For example, in California the legislature provides a bill status
updating service to keep you informed as bills you are interested in move through
the legislature. The free tracking service (located at http://leginfo.legislature.ca.gov)
automatically e-mails you when there are changes in the bill or changes in its status.

Ethics Alert
Tracking Legislation

If a client retains your firm to monitor pending legislation that affects the client, you have an ethical duty to
monitor the legislation on a periodic basis and notify the client of the progress of the legislation. Because
legislation tracking is so easily accomplished, and you can readily arrange to have status updates delivered to
your e-mail account, it will be legal malpractice to “drop the ball” when you are tracking pending legislation.

7. Summary of Legislative History Research

The primary purpose of compiling a legislative history is to aid a court in interpreting an

ambiguous statute that has not yet been the subject of judicial interpretation. If there are no
cases interpreting a statute, you may wish to compile a legislative history to present to a
court as evidence of what the legislature intended the statute to accomplish.
The use of legislative history to interpret statutes is often criticized. Perhaps one of the
most vocal critics was United States Supreme Court Justice Antonin Scalia. Justice Scalia
stated that using legislative history is “not merely a waste of research time and ink [but] a
false and disruptive lesson in the law.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993)
(Scalia, J., concurring). Moreover, former Justice Stevens once remarked that the use of
“frankly partisan statements” by lawmakers can and should in no way be viewed as
reflective of some consensus in Congress. Many judges believe that when courts go beyond
the plain meaning of a statute by relying on legislative history they exceed their function as
interpreters of the law and are in danger of making law, which is the exclusive province of
legislatures.
Keep in mind that, at best, a legislative history is a secondary source. It is not a case,
constitution, regulation, or statute, which are binding on a court and which therefore must
be followed. A court may elect to follow the findings of a committee report or the
comments of the sponsor of the legislation in determining the purpose or effect of the
statute. Some courts, however, are reluctant to rely on legislative history and view many of
the documents as the product of a political process rather than a careful and reasoned
analysis of the statute. That is, remarks made at committee hearings or at debates may be

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the result of political bias or may be made by legislators who are not totally familiar with
the legislation. In such cases, over-reliance on legislative history may be misplaced.
Nevertheless, if you have no other argument to advance, you should definitely perform the
research needed for a legislative history, present it to the court as clearly and persuasively as
possible, and hope for the best. With no other guidance to interpret an ambiguous statute,
a court may be persuaded to rely upon legislative history as evidence of the purpose or
intent of a statute.

Practice Tip
Hierarchy of Legislative History Documents

Although there is some disagreement, most experts conclude that the documents making up legislative history
can be ranked in the following order, from strongest to weakest:

• Conference and committee reports are usually viewed as the strongest evidence of legislative intent because
they reflect the view of experienced members of Congress after careful study of the bill and analysis of
testimony at hearings.
• Versions of the bill (and its amendments) as it progresses through the legislature are considered highly
persuasive.
• Statements by a bill’s sponsors may show evidence of legislative intent (whether made at a hearing or during
debate).
• Floor debates by those other than a bill’s sponsors are somewhat weak because legislators may use the
opportunity to debate for any number of political or personal reasons.
• Statements made by various individuals (other than bill sponsors) at committee hearings are weak evidence of
legislative intent because many are made by paid lobbyists or persons with political agendas.

B. Executive Materials

1. Introduction

The traditional view of the three branches of our government is that the legislative branch
makes our laws, the judicial branch interprets our laws, and the executive branch enforces
our laws. The executive branch, however, does issue certain directives and documents that
affect all of us, although they are of varying legal effect.

2. Proclamations

A proclamation is a statement issued by the President that often has no legal effect.
Proclamations are often issued for ceremonial, public relations, or public awareness reasons.
For example, Presidential Proclamation No. 6459 declared a certain week to be Lyme
Disease Awareness Week, and Presidential Proclamation No. 9311 declared February 2016
to be American Heart Month. Although usually used for ceremonial purposes,
proclamations can be used for more substantive statements (such as President Lincoln’s
Emancipation Proclamation of 1862). See Figure 10-3 for a sample Presidential

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Proclamation.

Figure 10-3
Sample Presidential Proclamation

Presidential proclamations often have no legal effect because they do not command or
prohibit any action, and no punishment or liability accrues as a result of any “violation” of
a presidential proclamation. Proclamations are published in a number of sources:

• USCCAN.
• Federal Register, the daily weekday newspaper published by the Office of the
Federal Register.
• Title 3 of C.F.R. (the annual codification of the Federal Register).
• Compilation of Presidential Documents, which contains all messages and statements
released by the White House.
• U.S.C.S. advance pamphlets.
• United States Statutes at Large, the bound volumes containing all public and private
laws passed by the United States Congress.

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 • Lexis Advance and Westlaw.

Title 3 of C.F.R. (since 1996) and Compilation of Presidential Documents (since 1993)
are both available for free, on the Internet, at FDsys at https://www.gpo.gov/fdsys.
Searching can be done by inserting keywords in search boxes, by date, or by browsing
through tables of contents.

3. Executive Orders

An executive order generally has more legal effect than a proclamation. Executive orders are
issued by a president to direct government officials and agencies. These executive orders
have the force of law (unless, of course, a court rules to the contrary) and require no action
by Congress. An example of an executive order is Executive Order No. 13354 for the
establishment of a National Counterterrorism Center. Executive orders can be located in
the same sources as proclamations, including through FDsys at https://www.gpo.gov/fdsys,
except they are not located in United States Statutes at Large.
As discussed above, FDsys also provides Title 3 of C.F.R. and the Compilation of
Presidential Documents on its website, and both of these sets include executive orders.
State governors also issue proclamations and executive orders. They can often be found
on the state’s or governor’s home page. Access http://www.washlaw.edu/ and select your
state.

4. Compilation of Presidential Documents

One of the best sources for materials relating to the executive branch is the Compilation of
Presidential Documents. This publication of the Office of the Federal Register includes a
wide variety of presidential materials, including addresses and remarks, appointments and
nominations, reorganization plans, statements made at bill signings, interviews with news
media, and executive orders and proclamations. These materials are available online with
daily updating coverage since 1993 at https://www.gpo.gov/fdsys. You may search by date,
proclamation or executive order number, or keywords. See Figure 10-4 for a sample page
from the Compilation of Presidential Documents.

C. Administrative Law

1. Introduction to Federal Administrative Law

In the first half of the twentieth century, it became evident that Congress’s lawmaking
ability could not keep pace with the demands of modern society. As a result, Congress
delegated certain tasks to agencies, each created to administer a body of law. For example,
the use of airwaves to communicate information by radio led to the creation of the Federal
Communications Commission in 1934.
You will recall that the typical view of our system of government is that each of the

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three branches of government (legislative, judicial, and executive) exercises one function
(making law, interpreting law, and enforcing law, respectively). The administrative agencies
are an apparent contradiction to this principle of separation of powers in that the agencies
act quasi-legislatively (like a legislature) in enacting their own rules and regulations and also
act quasi-judicially (like a court) in settling disputes and enforcing their rules. Most
agencies are technically part of the executive branch of our government.
Despite these seeming sweeping powers, there are some constraints on the agencies’
powers: Congress, in creating an agency, typically enacts legislation directing how the
agency should operate and also exercises some oversight and supervision of the agency to
ensure it properly fulfills its function and does not exceed its authority as set forth in the
enabling statute that created the agency. The Administrative Procedure Act (5 U.S.C. §§
500-559, §§ 701-706 (2012)) is the federal law under which the agencies create and
enforce rules.
Each agency administers or regulates a body of law. For example, the Federal Aviation
Administration (FAA) regulates aviation, the Federal Communications Commission (FCC)
regulates communication, and the National Labor Relations Board (NLRB) regulates labor
practices. Note that agencies have different titles, with some being referred to as
“Administrations,” some referred to as “Boards,” and others “Agency,” “Commission,”
“Service,” or “Corporation.”
Although you may be under the impression that these agencies are far removed from
you and exercise only a minor role in your daily life, in actuality these agencies affect you
every day in numerous ways. For instance, every time you access the Internet or watch
television, the FCC is playing a role. For every item of food you eat or aspirin you take, the
FDA (Food and Drug Administration) is playing a role. Perhaps the

Figure 10-4
Sample Page from Daily Compilation of
Presidential Documents

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most pervasive agency and the one that affects you in a dramatic way each and every day is
the IRS (Internal Revenue Service), a branch of the Department of Treasury.
The individuals who head the agency as well as members of their staffs are usually
experts in the area of law that the agency regulates, such as aviation, communication, or
securities. Most agency heads are selected by the President, are approved by the United
States Senate, and serve for a specified term of office.
Because legal practitioners tend to specialize and because administrative law research is
highly technical, it is possible that you will never need to conduct administrative law
research. On the other hand, you may work for one of the administrative agencies or for a
company that engages in a highly regulated field, such as the environment, franchising, or
securities. You may be employed by a law firm that specializes in communications law or
labor law. In such instances, you will likely become highly familiar with the agencies, their
rules and regulations, and the books that publish administrative law. In any event, all legal
professionals should be able to conduct competent legal research in the field of
administrative law to respond to client or employer needs.
You will need to become familiar with the terminology of administrative law in order to
conduct research efficiently in this field of law. The term “administrative law” refers to the
body of law created by administrative agencies in the form of rules, regulations, decisions,

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and other related actions. While the product of a legislature is a “law” or “statute,” the
product of an administrative agency is a “rule” or “regulation.” These terms are
synonymous. 1 C.F.R. § 1.1 (2015). Rules or regulations are issued by an agency to
implement and carry out the policies and tasks assigned to the agency by the enabling
statute. Proposed rules are subject to review by Congress. Violation of a rule or regulation
can subject one to punishment just as can violation of a statute. Administrative agencies are
often referred to as “regulatory” bodies due to the fact that the function of each agency is to
administer or regulate a body of law. Agency rules and regulations are primary law. Some
government agencies, such as the Department of Labor, issue advisory opinions in response
to questions by requesters. The advisory opinion will generally state whether it is legally
binding.

2. Publication of Federal Administrative Law

Until 1936, there was no official publication of the rules and regulations of administrative
agencies. For example, although radio stations were subject to the regulations of the Federal
Communications Commission (FCC), the regulations were published sporadically, making
it nearly impossible for those companies regulated by the agencies to determine if they were
in compliance with the agency’s regulations. Moreover, agencies would each publish their
own regulations in separate publications.
This confusing situation reached a climax with the famous case Panama Refining Co. v.
Ryan, 293 U.S. 388 (1935), in which the defendant company was prosecuted for violation
of an administrative regulation. It was not until the case reached the United States Supreme
Court that it was discovered that the regulation Panama Refining Company was accused of
violating had been revoked before the original prosecution was commenced.
To rectify this situation, the United States Congress enacted the Federal Register Act,
which provided for the publication of the Federal Register. The Federal Register is a
pamphlet published in print and electronic form on weekdays and distributed by the
United States Government Publishing Office. No agency rule will have legal effect unless it
is first published in the Federal Register. Thus, the Federal Register provides an organized
system for making agency regulations available to the public. It contains four types of
documents: presidential documents; rules and regulations; proposed rules; and notices. The
Federal Register does more than merely recite the language of the agency regulations. It
provides a summary of the regulation, its effective date, a person to contact for further
information, and background material relating to the regulation. See Figure 10-5 for a
sample page from the Federal Register.
Because each daily issue of the Federal Register is roughly the same size as an issue of
TIME Magazine, and it is published daily, resulting in publication of approximately 80,000
pages each year (covering about 3,500 final rules issued each year), researching the Federal
Register is a daunting task. Therefore, just as our federal statutes published in the United
States Statutes at Large were better organized or codified into the 54 titles of the United
States Code (U.S.C.), so also has the Federal Register been codified to better enable

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researchers to access administrative regulations. In fact, the Federal Register has been
codified in 50 titles in a set entitled Code of Federal Regulations (C.F.R.). These 50 titles
represent the areas subject to federal regulation and many correspond to the titles of U.S.C.
For example, Title 29 of both U.S.C. and C.F.R. is “Labor,” while Title 27 of the U.S.C. is
“Intoxicating Liquors” and Title 27 of C.F.R. is “Alcohol, Tobacco Products and
Firearms.” Each of the 50 titles in C.F.R. is divided into chapters. Chapters are further
subdivided into “parts” covering specific regulatory areas. Within each part are sections.
C.F.R. is a softcover set revised annually with one-fourth of the volumes in the set
issued on a quarterly basis. Thus, revision of the set is staggered with one-fourth of the set
updated or revised each calendar quarter. Titles 1 through 16 are issued each January 1;
Titles 17 through 27 are issued each April 1; Titles 28 through 41 are issued each July 1;
and Titles 42 through 50 are issued each October 1. The volumes of C.F.R. are always
issued in softcover pamphlet form. Each year the pamphlets are published in a color
different from the previous year’s pamphlets (except Title 3, containing various presidential
materials, which is always white or black) so you can readily locate the issues for the year
you need. For example, the 2015 edition of C.F.R. was green, while the 2014 edition was
purple. See Figure 10-6 for a sample page from C.F.R.

Figure 10-5
Sample Page from Federal Register

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 Figure 10-6
Sample Page from C.F.R.

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3. Research Techniques for Administrative Law

a. C.F.R.
There are several methods or indexes you can use to locate information in C.F.R. In many
instances you will be directed to the pertinent reference in C.F.R. after you read a federal
statute in U.S.C.A. or U.S.C.S. Carefully examine the notes that follow the wording of
federal statutes in U.S.C.A. or U.S.C.S. to see if you are directed to sections of C.F.R.
C.F.R. contains an index volume entitled “C.F.R. Index and Finding Aids.” This one-
volume index is revised annually and can be accessed by subject matter (pesticides, wildlife
management) or by the name of an agency (Agricultural Marketing Service, Central
Intelligence Agency). The index will direct you to one of the 50 titles of C.F.R. and then to
the part within that particular title.
The C.F.R. Index and Finding Aids volume also contains a table entitled “Parallel
Table of Authorities and Rules” (Table I). If you know the citation to the enabling statute
that created the agency or by which authority the agency issues its regulations, you can look
up this citation in Table I. Because of the similarity in the organization between C.F.R. and
our federal statutes, this research approach is easy and effective. You will then be directed to
the appropriate title and part of C.F.R. A list of all 50 C.F.R. titles, chapters, and parts is

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also found in this index, together with an alphabetical list of agencies. See Figure 10-7 for a
sample page from the C.F.R. Index.
West also publishes a separate Index to C.F.R. called West’s Code of Federal Regulations,
General Index, which is designed to provide access to C.F.R. by subject matter (for example,
port safety) or by geographic location (for example, Appalachia or Boston). You will be
directed to a title and part of C.F.R.
The National Archives and Records Administration also provides indexes to the Federal
Register and a thesaurus of indexing terms for C.F.R. online at http://www.archives.gov.

b. The Federal Register

Because C.F.R. is issued annually it will not contain newly promulgated rules and
regulations, which are published in the Federal Register. To access the Federal Register, use
the Federal Register Index, which is issued monthly in cumulative form, with the last
monthly issue becoming an annual index. Thus, the Federal Register Index for June contains
all of the information for the previous five months. Entries in this Index are arranged
alphabetically by agency (Agriculture Department, Air Force Department, and National
Science Foundation).

Figure 10-7
Sample Page from C.F.R. Index

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At the back of each issue of each daily Federal Register is a section called “Reader Aids.”
This section lists any C.F.R. parts affected during the month that issue was published and
provides general information for customers needing service and assistance.
Additionally, a number of tutorials are provided through the Office of Federal
Register’s website at https://www.federalregister.gov/learn/tutorials.

4. Updating C.F.R. Regulations

Because agency rules and regulations are revised or revoked so frequently and because new
regulations may become effective every day, you must always check the current status of
any regulation you have found. Updating C.F.R. regulations is a bit harder than updating
statutes because C.F.R. contains no pocket parts; it is updated by the Federal Register and
requires a two-step process.

a. Step One: Review the List of C.F.R. Sections Affected

To bring any regulation up to date, consult a publication titled List of C.F.R. Sections
Affected (“LSA”). LSA is a monthly softcover (and electronic) cumulative publication
designed to inform researchers of amendments or changes in any regulation found in
C.F.R. By looking up the C.F.R. title and section you are researching, you will be provided

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a short explanation such as “amended” or “revised” and you will then be directed to the
appropriate page of the Federal Register on which the amendatory language or other change
is found. See Figure 10-8 for a sample page from LSA.

b. Step Two: Review C.F.R. Parts Affected

After you have used LSA (which will update the regulation only through the end of last
month), you must further check a regulation by determining its status as of today’s date.
This is accomplished by reviewing the section titled “Reader Aids” at the back of the most
recent issue of the Federal Register. Each issue of the Federal Register includes a section
within “Reader Aids” titled “C.F.R. Parts Affected,” which will inform you of any changes
to any C.F.R. regulations for the period after the most recent issue of LSA. Just as with
LSA, you will be directed to the particular page of the Federal Register that contains the
revisions to a regulation. If you do not locate any entries for your C.F.R. title and part in
either LSA or C.F.R. Parts Affected, this means there are no revisions to your regulation
during the periods covered.

Figure 10-8
Sample Page from LSA

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5. Electronic and Online Methods of Administrative Law Research

A number of both fee-based and free resources provide online access to federal regulations
and related content, including the following:

• Lexis Advance and Westlaw. Lexis Advance and Westlaw both include the full text
of the Federal Register and C.F.R. in their easy-to-use and search databases.
Shepardize or KeyCite to ensure regulations are current. Both of these services,
however, charge a fee for their use.
• FDsys. The Government Publishing Office now offers for free both the Federal
Register (since 1994) and C.F.R. (since 1996) on the Internet. Access
http://www.gpo.gov/fdsys and select either Federal Register or Code of Federal
Regulations. Searching the Federal Register can be done by subject or keyword,
agency name, citation, or by browsing tables of contents. Searching C.F.R. can be
done by keyword, citation, or by browsing your choice of C.F.R. titles or volumes.
The versions of C.F.R. and the Federal Register available on FDsys are official PDF
versions, meaning that they are the same as the print versions of those sources.
They should thus be updated the same as their print versions, namely, by using
LSA and then C.F.R. Parts Affected (found in the Reader Aids section of the most
recent issue of the online Federal Register). Look for your C.F.R. Title (for example,
Title 21), and then point and click to review any changes to the section in which
you are interested. Remember that FDsys is being replaced by GovInfo
(https://www.govinfo.gov), which has a cleaner appearance and enhanced search
capabilities, allowing you easy access to both the Federal Register and C.F.R.
• e-CFR. You may elect to use e-CFR, the unofficial electronic version of C.F.R.,
located at http://www.ecfr.gov. Material on this easy-to-use and free site is updated
on a daily basis. Simply select your C.F.R. title (again, Title 21) from the drop-
down menu and point and click to review changes to your C.F.R. provision.
• FederalRegister.gov. In summer 2010, the federal government launched a new,
free website, Federal Register, at http://www.federalregister.gov. The site divides the
thousands of federal rules and regulations into six categories: money; environment;
world; science and technology; business and industry; and health and public
welfare. The site has a clean and crisp appearance and makes locating federal rules
and regulations easy; users may browse by agency (Department of Commerce) or
topic name (crop insurance).
• Regulations.gov. Proposed and final rules are also available on another new, free
government website, “Regulations.gov,” available at http://www.regulations.gov.
This site allows searching by keyword, name of agency, and more, allowing quick
access to U.S. government regulations from nearly 300 federal agencies.
Regulations.gov includes reminders of rules going into effect and comment due
dates. You may post comments and sign up for regular e-mail alerts about a specific
regulation.

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 Internet Tutorials on Administrative Law Research

Review the following websites for excellent tutorials on performing administrative law research:
http://www.law.georgetown.edu/library/research/tutorials/admin/index.cfm and
https://www.federalregister.gov/blog/learn/tutorials.

6. Decisions

As discussed earlier, in addition to issuing rules and regulations (acting in a quasi-legislative

manner), administrative agencies interpret and enforce their rules and regulations through
the process of issuing decisions (acting in a quasi-judicial manner). For example, the
Federal Communications Commission issues rules and regulations relating to radio
broadcasts. If a radio personality allegedly violates those regulations, the FCC will hold a
hearing and issue a decision relating to this matter. The hearing held by the agency is
somewhat less formal than a trial conducted in a courtroom, but its basic function — to
determine facts and render a decision — is the same. There is no jury, and the individual
who renders the decision in the proceeding (called an “adjudication”) is an administrative
law judge (“A.L.J.”) who is an expert in this field. Alternatively, the agency can prosecute
violators in court, often by referring the matter to the Department of Justice for
prosecution. Thus, the Environmental Protection Agency can ensure compliance with its
regulations by instituting a civil or criminal action. There are approximately 1,400 A.L.J.s
assigned to more than 30 federal agencies, with well over 50 percent assigned to the Social
Security Administration.
These decisions rendered by the administrative agencies will be published so you may
gain access to them and review them. There is no one set of books containing the decisions
of all of the agencies; however, the United States Government Publishing Office does
publish sets containing decisions for each agency. Table T.1.2 of The Bluebook identifies
more than 30 official administrative publications, from Decisions and Orders of the National
Labor Relations Board to the Federal Trade Commission Decisions. Although these
publications are official, the sets lack a uniform approach. Indexes are often difficult to use,
and the updating can be sporadic. As a result, private publishers such as CCH, Bloomberg
BNA, and Matthew Bender have published sets that report agency decisions. Typically,
these sets are in looseleaf format (see Chapter 7), and decisions are located through
alphabetically arranged Tables of Cases or through the subject matter index for the set,
which will direct you to a narrative discussion followed by annotations to cases. To locate
the actual case, use the citation given in the annotation. These cases are often published in
separate bound volumes that contain both agency decisions and court decisions. Table T.15
of The Bluebook identifies more than 100 of these services, from Aviation Cases to the
Environmental Law Reporter.
West publishes volumes entitled Code of Federal Regulations Annotated (for select C.F.R.
titles), which are arranged identically to C.F.R. and include C.F.R. regulations. In addition,

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however, the volumes include references to law reviews and other authorities and
annotations to cases interpreting C.F.R. provisions so that you may easily find authorities
interpreting and construing C.F.R. provisions that you are researching.
Additionally, many agencies post their decisions on their own websites. The following
site will link you to administrative decisions and actions for many agencies:
http://guides.lib.virginia.edu/administrative_decisions.
If a decision has been rendered by an agency, you can check its current status, namely,
Shepardize it, by using Shepard’s United States Administrative Citations, which provides
update information for decisions reported in more than 30 reports published by federal
administrative departments, boards, courts, and commissions. Thus, you can Shepardize an
administrative decision or order (using Shepard’s in print or electronically on Lexis or Lexis
Advance) and ensure it is good law and find other decisions that discuss your case.
Alternatively, you can KeyCite the case through Westlaw to make sure it is still good law
and find leads to other relevant authorities.

Practice Tip
Administrative Law
Use Shepard’s Code of Federal Regulations Citations to locate state and federal cases, law review articles, and
annotations that interpret or mention C.F.R. regulations, presidential proclamations, and executive orders.
You may also Shepardize or KeyCite your regulation, using Lexis Advance or Westlaw, respectively.

7. Review of Agency Decisions

If a party is dissatisfied with the decision rendered by the A.L.J., in most instances the
matter may be reviewed at a higher level within the agency and then appealed to a federal
court. The enabling statutes dictate the type of review afforded to agency decisions. Because
a “trial” has already occurred at the agency itself, the aggrieved party often appeals the
agency decision to the appropriate United States Court of Appeals, the intermediate level of
court in our federal system, bypassing the United States District Courts, which function as
trial courts in our federal system. Many of these cases are heard by the United States Court
of Appeals for the Federal Circuit or the United States Court of Appeals for the District of
Columbia, because many agencies are located in the District of Columbia. Further appeal
may be made to the United States Supreme Court, assuming certiorari is granted. See
Figure 10-9 for a chart showing the appeal process for many federal agency decisions. In
some cases, however (such as those heard by the Social Security Administration), after the
agency itself has reviewed the decision of an A.L.J., a dissatisfied party may file a civil suit in
a federal district court. Statutes governing the agency will specify a forum for review.

Figure 10-9
Appeal of Typical Agency Decisions

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8. Locating Federal Cases Reviewing Agency Decisions

There are several techniques you can use to locate federal cases that have reviewed federal
agency decisions. You can Shepardize the agency decision in Shepard’s United States
Administrative Law Citations. This will give you the subsequent history of the agency
decision by providing you with the appropriate citations to U.S. Supreme Court cases and
lower federal court cases that affect or mention your agency decision. You may also
Shepardize on Lexis Advance or use Westlaw’s KeyCite to find cases and other authorities
that mention your case.
Because you are now interested in locating cases from lower federal courts of appeal and
from the United States Supreme Court that have reviewed agency decisions, you can also
rely on the standard sources you would use to locate federal cases on any topic: digests and
annotations.
For all federal court cases, use West’s Federal Practice Digest, 4th or 5th Series (or, if
needed, any of the earlier series). To locate United States Supreme Court cases, use West’s
United States Supreme Court Digest. To locate annotations on agency matters, use A.L.R.
Fed. Don’t forget to review West’s Code of Federal Regulations Annotated (for select titles),
which includes references to law reviews and other authorities and annotations to cases

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interpreting C.F.R. provisions.
You can check the websites of the agencies themselves to see if they provide their
decisions. For example, when you access the site of the National Labor Relations Board
(http://www.nlrb.gov), you can immediately link to decisions and search by keyword or
date. Similarly, Lexis Advance and Westlaw offer decisions of numerous agencies (although
fees are charged to access their databases).

9. The United States Government Manual

One book of particular relevance to administrative law is The United States Government
Manual, referred to as the “Official Handbook of the Federal Government.” This softcover
book is prepared annually by the Office of the Federal Register and provides thorough and
detailed information on the agencies (such as the Federal Communications Commission),
quasi-official agencies (such as the Smithsonian Institution), and international
organizations in which the United States participates.
A typical agency description includes a list of officials heading the agency’s operating
units, a summary of the agency’s purpose and role, its brief history, a description of its
programs and activities, as well as organization charts showing how the agency is organized.
Since 1995 the Manual has been offered for free online by the Government Publishing
Office at FDsys (and is also offered through GovInfo at https://www.govinfo.gov). FDsys
does not offer keyword searching, but each year’s issue of the Manual is easily browsed. A
fully searchable version is available at http://usgovernmentmanual.gov.

Practice Tip
Getting Help with FDsys

Users needing assistance with FDsys may access its Contact Center for access to highly trained specialists. Call
toll free at (866) 512-1800 or send an e-mail to ContactCenter@gpo.gov. Additionally, FDsys offers webinars
on using its collections. To take a tutorial, access http://www.gpo.gov/fdsysinfo/instructional_video.htm.

10. State Administrative Law

There are agencies in most states, the actions and activities of which often parallel federal
agencies. For example, one of the better known federal agencies, the Occupational Safety
and Health Administration (“OSHA”), is patterned after the California Division of
Occupational Safety and Health (“Cal/OSHA”). Whereas the federal OSHA agency
regulates health and safety measures on a national basis, the state safety and health agency
may impose additional standards for ensuring that work environments and public buildings
are safe. Similarly, many state agencies issue regulations for the practice of certain
occupations in the state, such as standards for beauticians, barbers, and real estate agents.
One of the best examples of a state agency is your state department of motor vehicles.
Although your state statute will set forth the age at which one may drive, testing and

411
licensing procedures as well as other regulations related to the activity of driving typically
are determined by the department of motor vehicles.
Some states, usually the more populous ones, publish their agencies’ rules and
regulations in a fashion similar to the publication of administrative law at the federal level;
that is, in separate sets of books devoted solely to agency regulations and titled
“Administrative Codes.” These usually have indexes, which are arranged similarly to other
indexes and are easy to use. Simply look up the word or phrase that describes the issue you
are researching, and you will be directed to the pertinent administrative code section. Table
T.1.3 of The Bluebook will indicate if your state publishes a separate administrative code.
You may also find that after you read a statute in the state code, you are referred to an
administrative regulation in the cross-references or library references that follow the statute.
In other instances, in the course of reading a case or a local encyclopedia, you may come
across a reference to an administrative regulation. In any of these events, carefully review
the administrative regulations, as they typically provide detailed rules, which are subject to
strict compliance.
Some state agencies issue decisions. With the exception of tax and unemployment
compensation decisions, these are rarely published. Agency websites offer a wealth of
information.
Both Lexis Advance and Westlaw offer state agency rules and some state agency
decisions. Agency rules and decisions may also be available for free on the Internet. Start
with your state’s home page and look for links to administrative agencies, rules, and
decisions. Your state’s home page can be accessed by starting with WashLaw at
http://www.washlaw.edu/ and then selecting your state from the list provided. For further
information, contact the pertinent agency, often located in your state’s capital.

D. International Law

1. Introduction

“International law” is broadly defined as the law relating to relations among sovereign
nations. Although most individuals regard international law as the exclusive province of
international lawyers and as an area of law that has little relevance to their daily lives,
international law does impact your everyday existence. For example, the fish you order in a
restaurant or the tuna fish you may purchase in a supermarket may have been caught in
another country’s “economic fishing zone” and is available here pursuant to a treaty.
Similarly, individuals in the legal profession who practice near Canada or Mexico often
need to become familiar with various aspects of international law, such as the North
American Free Trade Agreement (“NAFTA”). Moreover, with more and more companies
“going global” and the Internet allowing worldwide communication and commerce, it is
important for legal professionals to have a basic understanding of international law
research.
One often hears that there are two branches of international law: public and private.

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“Public” international law is what we typically view as international law: the conduct and
regulation of nations, usually called the “law of nations.” “Private” international law is an
older and more archaic term, used primarily in Europe to describe an area of law more
properly classified as “conflict of laws.” For example, assume a store in your city ordered a
shipment of vases from France that arrived broken. The issue as to which jurisdiction’s law
would apply, that of France or that of your jurisdiction, is a matter of “private international
law.” Many contracts include a choice of law clause that governs what law applies and
where venue will lie.
Although it is true that international law is a specialized field of law and that most
paralegals will not be involved in this practice area, you should become sufficiently familiar
with international law sources and research procedures so that, if needed, you can
adequately perform a basic research task in this field.

2. Sources of International Law

According to Article 38 of the International Court of Justice Statute, international law is

derived from four sources:

(i) International conventions (for example, treaties), which set forth rules for conduct
expressly recognized and voluntarily agreed to by signatory nations
(ii) International custom; that is, some general practice accepted as law or believed to
be obligatory
(iii) General principles of law accepted by civilized nations
(iv) Judicial decisions and the teachings of international law experts

3. Overview of International Law Research Procedure

If you are presented with an international law research task, you should use the following
procedure unless you know the exact source for the answer to your issue or problem: You
should first “get your feet wet” by reading some basic or introductory information relating
to your issue. This familiarization process will save you time by ensuring that you do not
head off in the wrong direction due to a lack of understanding of the issues involved. After
you have familiarized yourself with the issue by reviewing some basic materials and sources,
you should determine whether a treaty covers this issue and provides a definitive answer to
your question. If so, you will need to review the treaty and then determine if it is still “good
law,” that is, if it is still “in force.” Finally, you will need to read analyses and cases
interpreting the treaty.
To follow this research process, you need to know which sources to consult. This
section of the chapter will provide you with the sources you should consult in order to
perform international law legal research.

4. Basic Texts and Sources

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There are several sources to consult to obtain introductory information and background on
international law. Law libraries usually collect all international law materials together. You
should browse the shelves in this section for other useful materials. Consider starting with
JuriGlobe (http://www.juriglobe.ca/index.php), which will give you an initial overview of
the applicable legal systems and the official languages that apply to various countries.
Some of the better known general texts and guides relating to international law are as
follows:

James Crawford, Brownlie’s Principles of Public International Law (8th ed.

2012)
Claire M. Germain, Germain’s Transnational Law Research: A Guide for
Attorneys (1991)
Green H. Hackworth, Digest of International Law (1940-1944)
Marjorie M. Whiteman, Digest of International Law (1963)

These texts all provide excellent information relating to international law. In many
ways, they resemble an encyclopedia in that most are multivolume sets that contain
articulate narrative statements of the law and citations to cases that are located in footnotes.
Thus, you are not only provided with a description or summary of an issue, but you are
directed to cases as well. Access is gained through the alphabetically arranged index found
in the last volume of each set.
You should also consult Restatement (Third) Foreign Relations Law of the United
States. This Restatement focuses on international law as it applies to the United States and
is an excellent starting place for international law research. The Restatement provides
general information on international law, international agreements, and international
jurisdiction, judgments, and remedies. The Restatement will also provide you with citations
to cases that have interpreted treaties. Additionally, a set of more than 400 volumes titled
Foreign Relations of the United States provides a historical overview of significant foreign
policy decisions and diplomatic activities of the United States. Volumes since about 1945
are available online at the State Department website
(https://history.state.gov/historicaldocuments). Print volumes since about 1976 are still in
the preparation process, but more than 250 volumes are available in e-book form for free
downloading through https://history.state.gov/historicaldocuments/ebooks.
Finally, you should consult an excellent periodical, the American Journal of
International Law. This quarterly publication contains thoughtful and analytical articles
relating to various international law topics. Use the index for the set or use the print or
online indexes for periodical and journals (see Chapter 6) to determine if an article has been
written relating to the issue you are researching.

5. Treaties

Once you have gained some background information relating to your research problem,

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you need to determine if a treaty governs this issue. A treaty is a formal agreement, usually
written, between two or more countries. Treaties may be bilateral (between two parties) or
multilateral (among several parties). The history of treaty-making goes back thousands of
years. Some treaties have ended wars, others have resolved boundary disputes, and still
others deal with trade or economic issues. One type of treaty is referred to as a
“convention” and usually relates to a formal multilateral agreement with numerous parties,
such as “The Geneva Convention Relative to the Treatment of Prisoners of War.”
Although treaties may have been signed and agreed to by representatives of the countries
involved, they are not effective until they are ratified or officially approved by each
government.
In the United States, treaties are initiated by the executive branch and then negotiated
by individuals selected by the President, often foreign service officers employed by the
Department of State. They are entered into by the President with the “advice and consent”
of the Senate. Two-thirds of the United States Senate must consent to a treaty. There are,
however, types of agreements called “executive agreements” that can be entered into by the
President without Senate approval. In fact, since the 1940s, most international agreements
have been executive agreements rather than treaties. There is often a great length of time
between the date a treaty is signed by the representatives of the signatory countries and the
date it is formally ratified. In some cases, years pass between signing and ratification, and it
is quite difficult to obtain the text of a treaty during this interim stage.
According to the Constitution, “all Treaties made, or which shall be made under the
Authority of the United States shall be the supreme Law of the Land; and the Judges in
every state shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” U.S. Const. art. VI. Thus, treaties are “primary” law in
that they must be followed.

6. Sources for Treaties

a. Pre-Ratification
After a treaty is negotiated by the executive branch, it is signed by the President and
transmitted to the Senate for its advice and consent. At this point, treaties can be located in
a series entitled Senate Treaty Documents. Because the United States Senate, namely, the
Committee on Foreign Relations, will hold hearings on a treaty and issue a report much the
same way hearings are held and reports are issued for legislation, you can review the report
by consulting Congressional Information Service (CIS) Index (see Sections A.3 and A.5 of
this chapter). Additionally, Congressional Index contains a table reflecting the status of
treaties pending before the United States Senate. Finally, access the Senate’s Treaty Page
(http://www.senate.gov/pagelayout/legislative/d_three_sections_with_teasers/treaties.htm)
to link to treaties received from the President, treaties approved by the Senate, and other
treaty status actions during the current Congress. Access FDsys at
http://www.gpo.gov/fdsys and select “Congressional Documents” to obtain treaties
submitted to previous Congresses by the President. Finally, access Congress.gov at

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https://www.congress.gov/treaties to review treaty documents.

b. Post-Ratification
The first official publication of United States treaties and international agreements is
through the set titled Treaties and Other International Acts Series (T.I.A.S.). After appearing
in T.I.A.S. in slip form, these treaties and agreements were then published in bound
volumes called United States Treaties and Other International Agreements (U.S.T.). The last
U.S.T. volume to be produced was in 1984. To locate treaties in either of these sets, use the
index United States Treaty Index. This Index is easily used. You may locate a treaty by
country name (Brazil, Canada, Senegal, United States of America) or by topic (health care,
extradition, trademarks, navigation). T.I.A.S. treaties and international agreements since
1996 are available online through the U.S. Department of State’s website at
http://www.state.gov/s/l/treaty/tias/index.htm.
Another collection of treaties is the United Nations Treaty Series (“U.N.T.S.”), which
publishes treaties filed, registered, or recorded with the Secretariat of the United Nations.
Thus, this collection contains numerous treaties to which the United States is not a party.
A cumulative index to U.N.T.S. provides access by country and by topic. U.N.T.S.
expands at the rate of more than 60 volumes per year.
The set U.S.C.S. includes a separate volume that includes several major treaties to
which the United States is a party, such as the Patent Cooperation Treaty and several of the
Geneva Conventions.
Treaties are available on both Lexis Advance and Westlaw. Searching is easily
accomplished by treaty citation, country name, or keywords and phrases.
Many treaties are now available on the Internet. Consult the following sources:

• The United Nations Treaty Collection offers access to thousands of treaties and
international agreements (contained in more than 2,500 hardbound volumes) and
complete access to U.N.T.S. Access https://treaties.un.org/Pages/Overview.aspx?
path=overview/overview/page1_en.xml. All multilateral treaties deposited with the
United Nations are available. You may search by subject, participant, keyword,
popular name, and more, including searching the online U.N.T.S. Cumulative
Index. The United Nations site also offers a glossary of terms relating to treaty
actions.
• FDsys (https://www.gpo.gov/fdsys) offers treaties. Select “Congressional
Documents,” and then select the particular Congress in which you are interested;
then select “Senate Treaty Documents” to view treaty documents from 1975.
• Perhaps the best free source for recent treaties to which the United States is a party
is Congress.gov (https://www.congress.gov/treaties ). Congress.gov does not
include the full text of treaties but does provide a wealth of treaty information
(since about 1975). Searching may be done by treaty number, word or phrase, or
type of treaty.

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 • The United States Senate Treaty Page at
http://www.senate.gov/legislative/treaties.htm provides access to treaties received
and approved by the Senate as well as those reported out by the Senate Foreign
Relations Committee and ready for Senate floor consideration.
• The United States State Department offers T.I.A.S. treaties and international
agreements since 1996 at http://www.state.gov/s/l/treaty/tias/index.htm.
• More than 25 treaties related to intellectual property are available for free through
the website of the World Intellectual Property Organization at
http://www.wipo.int.
• Finally, one of the best new free sites for international law research is the Electronic
Information System for International Law provided by the American Society of
International Law at http://www.eisil.org. EISIL provides “one-stop shopping” for
primary materials, helpful websites, and research guides to international law on the
Internet.

7. Determining the Current Status of Treaties

After you have read and reviewed a treaty, you should determine whether it is still in force.
Sometimes the treaty itself will specify the date until which it will be in force. For example,
the treaty might provide as follows: “The treaty enters into force 30 days after ratification
and remains in force for a period of 10 years and continues in force thereafter unless
terminated by either party by giving one year’s written notice to the other.” You should also
check an annual publication of the State Department entitled Treaties in Force, which
identifies all of the treaties and other international agreements to which the United States is
a party and that are still in force. Treaties in Force is easy to use as it is organized both by
country and by topic.
Perhaps the easiest way to determine whether a treaty involving the United States is still
in force is to access the Office of the Legal Adviser of the State Department, which provides
Treaties in Force (with a complete table of contents, allowing easy online searching by
country name or treaty topic) as well as to treaty actions and other valuable information. In
fact, the print version of Treaties in Force is published in limited quantities, so this online
version (located at http://www.state.gov/s/l/treaty/tif/index.htm) is the best source to use to
determine the status of treaties.

8. Interpreting Treaties

To assist you in interpreting treaties, use both secondary sources and primary sources. For
secondary sources that have construed treaties, review the texts and the American Journal of
International Law, described in Section D.4 of this chapter.
To locate primary sources, for example, cases that have interpreted treaties, check the
following sources:

Shepard’s Federal Statute Citations (print version). Be sure you have obtained Shepard’s

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 for statutes rather than the volumes for cases. Locate the section called “United
States Treaties and Other International Agreements.” By looking up the volume and
page of the U.S.T. citation and using the same technique for Shepardizing cases and
statutes, you can locate judicial decisions and A.L.R. annotations that have
mentioned, discussed, or interpreted your treaty.
Lexis Advance and Westlaw. Unfortunately, treaties located on Lexis Advance and
Westlaw cannot be Shepardized or KeyCited, although the Live Help research
assistants may be able to craft work-arounds to help you.
U.S.C.S. U.S.C.S. contains a separate volume titled “Notes to Uncodified Laws and
Treaties,” which will provide you with annotations to judicial decisions interpreting
treaties.
Internet Assistance. Many international organizations post their decisions on their
websites. For example, both the Permanent Court of Arbitration and the
International Court of Justice include links to their cases.

Once you have located cases construing your treaty, be sure to Shepardize or KeyCite
these cases to ensure they are still good law and to help you locate additional pertinent
authorities.
A hotly debated issue is the use of foreign law by American courts, specifically the U.S.
Supreme Court. Some Justices are strong supporters of the use of foreign law, and three
recent U.S. Supreme Court cases have cited foreign law or international conventions. Other
Justices are vigorously opposed to the use of foreign law, and amendments to statutes or to
the Constitution were proposed in the 111th through 114th Congresses to prohibit United
States courts from basing rulings on international laws, treaties, or religious laws. Some
states have statutes barring the use of foreign law in their state courts.

Internet Tutorials on International Law Research

The following sites provide excellent tutorials and research guides for performing international law research:
http://www.law.georgetown.edu/library/research/tutorials/intl/index.cfm and https://law.duke.edu/ilrt.

9. International Tribunals

There are a variety of methods available to nations to resolve disputes. Often one country
will agree to act as an informal mediator in a dispute between two countries. For example,
in the dispute over the Falkland Islands between Great Britain and Argentina, the United
States attempted to avoid the outbreak of hostilities by acting as a mediator or liaison
between the two nations.
The Permanent Court of Arbitration was established in 1899 at The Hague, Holland’s
royal city. Members of this court serve not as judges but as arbitrators, and the court offers
a broad range of services, including mediation, arbitration, and fact-finding, for resolving

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international disputes. It is the oldest institution dedicated to international dispute
resolution.
In 1920, the League of Nations established the Permanent Court of International
Justice, also at The Hague. This court was renamed the International Court of Justice in
1946 when the United Nations accepted responsibility for its operations. It is often called
the “World Court.” This court has 15 judges elected for nine-year terms by the United
Nations Security Council and the General Assembly voting independently. The World
Court also provides advisory opinions upon request of the six principal organs or 16
specialized agencies of the United Nations. In addition, any United Nations member may
bring a dispute before the Court, and nations may specify in their treaties and agreements
that any disputes they may have will be decided by the Court. The Court renders its
decision by majority vote. Its decisions, which are reported both online and in a set of
books titled Reports of Judgments, Advisory Opinions and Orders, are final, and there is no
appeal. Although the World Court has rendered a number of decisions, including those
dealing with war reparations and a ruling that Iranian militants had violated international
law by taking 52 American diplomats as hostages, its decisions have often been ignored by
the offending nation.
There is no uniform method of enforcing these decisions of the World Court. The
United Nations General Assembly may, if the Security Council fails to act on a threat to
peace or act of aggression, recommend collective measures, including use of armed force, to
maintain or restore peace. The United Nations itself has no permanent police force to
resolve international conflicts and will send peacekeeping forces when nine members of the
Security Council decide and the disputing countries agree. If any one of the five permanent
members of the United Nations (including the United States) votes against the proposal, it
fails. Since 1948, there have been 69 peacekeeping operations. At the time of the writing of
this text, 16 were currently under way. Many peacekeeping missions focus on monitoring
human rights, providing electoral assistance, operating hospitals, and clearing mines.
One of the better known examples of United Nations action occurred subsequent to
the invasion of the Republic of Korea by Communist forces from North Korea. The
United Nations Security Council agreed to a “police action,” and 16 member nations of
the United Nations countries sent armed forces to South Korea, with South Korea and the
United States providing most of the supplies and troops.

10. International Organizations

There are thousands of international organizations. The best known is the United Nations,
established in 1945 and located in New York City. The United Nations now has 193
member nations, including its original 51 member nations.
Other well-known international organizations include the Organization of American
States, the oldest regional international organization in the world, composed of 35 North,
Central, and South American nations, Caribbean nations, and the United States; the
African Union (formerly the Organization of African Unity), an association of 54 African

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nations; the Council of Europe, composed of 47 members; NATO (North Atlantic Treaty
Organization), an alliance of 28 countries from Europe and North America; the European
Union, at the time of the writing of this text, composed of 28 democratic European
countries; and the G20 (formerly the G8), a group comprising the eight major industrial
countries (Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, and the
United States) and 11 emerging market economies (including China and India) as well as
the European Union that meets annually to discuss major economic issues.
Links to hundreds of international and regional organizations can be found at the
following two websites:

• Library of Congress (http://www.loc.gov/rr/news/io.html)

• International Law Institute (http://www.ili.org/global-affiliates/affinity-
groups/links-of-international-organizations.html)

Practice Tip

What Does the FDsys Eagle Logo Mean?

As noted in this chapter, the website FDsys (https://www.gpo.gov/fdsys) provides authenticated (meaning
complete and unaltered) documents for nearly every research task described in this chapter: legislative history,
executive, administrative, and international law research. The site includes more than 50 different collections
of documents. The advantage of using FDsys (or its successor, GovInfo, at https://govinfo.gov) to locate the
documents you need for your research tasks is that because the documents have been verified as authentic,
they may be cited as if to the original print source without any URL information included in the citation.
Bluebook R. 18. Documents on FDsys and GovInfo include a digital signature and a graphic of an eagle,
verifying their authenticity.

E. Municipal Research

1. Introduction

Often a legal question may arise that is entirely of local concern. For example, if a client
wishes to install a swimming pool in a backyard, he or she will need to know what
requirements are imposed by the local jurisdiction with regard to fencing around the pool.
A client who has a two-acre parcel of land may wish to maintain horses on his or her
property and will need to know if this is permissible. These and other similar issues are
determined by referring to the requirements imposed by the local jurisdiction or
municipality rather than the code of the state. To determine the answer to such questions
of local concern, you need to know how to conduct municipal or local legal research.
The following is an example of a city code section. “It shall be unlawful to sell or offer
for sale any food, beverage or merchandise on any sidewalk within the Central Business
District without obtaining a permit pursuant to section 6-482.” Richmond, Va., Code § 6-
481 (2015).

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2. Terminology

Most municipalities operate under a document called a “charter,” which sets forth the
powers and activities in which the municipality may engage. A charter for a city is similar to
a constitution for a state or the articles of incorporation for a corporation.
Just as your state passes statutes that are the laws for your state, municipalities also
engage in lawmaking. These local laws are usually called “ordinances” and are passed by the
local governing body. This may be a city council, a city council acting with a mayor, a
county board of supervisors, a county executive who supervises a board, or some other local
legislative body.
In smaller communities, proposed ordinances are often published in the local
newspaper, setting forth the text of the proposed ordinance and the time and date of the
meeting scheduled to consider and vote on passage of the ordinance. If the measure is
passed, its text will also be published in the local newspaper. In larger municipalities,
information relating to proposed ordinances and the text of approved ordinances is usually
published in a separate journal or online.
At both the federal and state level, after statutes are passed, they are organized into
codes, that is, they are codified. This same process occurs for municipal legislation. The
ordinances passed by the local legislature are organized or “codified” so that all of the
zoning ordinances are together, all of the health and safety measures are brought together,
all of the animal control ordinances are organized together, and so forth.

3. Municipal Research Materials

One of the most difficult tasks in performing municipal research is finding an up-to-date
version of the city or county code. Often the law library in your area will maintain the
codes for the surrounding municipalities. You can also check your public library, which will
usually have the codes. Unfortunately, public librarians are not as familiar with updating
and supplementing materials as are law librarians, and the code at the public library may be
outdated.
The best place to review a code may be at the appropriate government office: city hall,
city clerk’s office, county counsel’s office, or city attorney’s office. These codes should be
current and complete.

Practice Tip

Locating Municipal Codes on the Internet

Hundreds of city and county municipal codes are published for free on the Internet by various publishers and
local governments. Following are some of the best sites to locate municipal codes on the Internet:

• Municipal Code Corporation (http://www.municode.com) provides codes for more than 3,000 local
governments. Searching is easily accomplished: Select a state, select a locality, and search by keyword or by
browsing an index or chapter.

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• American Legal Publishing Corp. (http://www.amlegal.com/code-library) provides links to numerous city and
county codes.
• eCode, offered by General Code (http://www.generalcode.com/codification/ecode/library), provides numerous
city and county codes that are easily searched by keyword or chapter.
• Locate your city or county’s website and look for a link to its code.

4. Municipal Research Procedure

Once you have found the code for your municipality, the research techniques used to locate
ordinances are similar to the research techniques used to locate federal or state statutes. The
most common method of locating ordinances is the descriptive word approach.
Codes are usually maintained in looseleaf binders that contain all of the municipality’s
ordinances organized according to topic, such as elections, business regulations, and fire
protection. An index is provided at the end of the binder. You use this index to locate
ordinances just as you would any other kind of index. Think of words and phrases that
describe the problem you are researching, look these up in the alphabetically arranged
index, and you will be directed to the appropriate ordinance. You can also examine the
code’s table of contents, usually placed at the front of the binder, and scan the list of topics.
Most codes also contain the city or county charter.

5. Interpretations of Municipal Ordinances

Municipal codes are rarely annotated. That is, after you read the ordinance relating to the
issue you are researching, you are seldom directed to cases interpreting this ordinance. Each
ordinance is usually followed only by a brief historical note indicating when the ordinance
was enacted. Thus, conducting research on municipal law is very difficult. In many cases,
researchers contact their local planning board or city attorney to inquire if there are any
cases interpreting municipal ordinances.
Perhaps the best way to locate cases interpreting ordinances is though Lexis Advance or
Westlaw, although coverage is limited. West also publishes volumes titled Ordinance Law
Annotations, which direct you to cases that interpret or apply ordinances. This set is
arranged by topic (taxation, traffic, vagrancy) and will provide digests or brief summaries of
all cases that have interpreted ordinances relating to these topics. Thus, if you were to look
for ordinances relating to pawnbrokers, you would be directed to cases from a variety of
jurisdictions that have interpreted ordinances dealing with this topic. Ordinance Law
Annotations is also available on Westlaw.

Practice Tip

Conducting Municipal Research on the Internet

Researching local law on the Internet may well be just as complete and current as performing this research
using conventional print volumes. Because the print volumes containing local ordinances are rarely annotated
(meaning they seldom direct you to cases), reviewing the local ordinances on the Internet may offer the same

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 information as that which can be found in a law library.

F. Rules of Procedure and Court Rules

1. Introduction

As you know, there is an explosion of litigation in this country. If litigants could file their
pleadings with courts whenever they liked and in any format they liked, on any type of
paper they liked, the backlog in cases would be even more severe than it presently is. To
promote efficient operation, courts are usually empowered to enact certain rules relating to
various procedures and administrative matters, such as the correct size of paper to be used,
when papers must be filed, and the format of papers presented to the court. In addition to
rules relating to such procedural matters, there are rules of evidence, rules of appellate
procedure, and rules of criminal procedure.
There are several sets of rules of procedure that might be binding in a jurisdiction. For
example, all federal district courts follow the Federal Rules of Civil Procedure (FRCP),
which contain rules on pleadings, motions, discovery, and civil trials. In addition, the
district courts may make their own rules governing practice in their courts. For example,
the United States District Court for New Hampshire follows the FRCP and also has its
own “local rules” relating to the maximum length of memoranda submitted to the court.
Similarly, nearly all states have modeled their own civil procedural rules after the
FRCP, and in addition have local or court rules governing practice before the courts. For
simplicity, this discussion will refer to the more significant rules (such as the FRCP) as rules
of procedure and the more local rules, which generally govern less significant matters (for
example, the format of documents), as court rules.
Courts usually insist on strict compliance with all of their rules and will refuse to accept
pleadings submitted that are not in conformance with these rules promulgated for the
orderly administration of justice.

2. Federal Rules of Procedure

The Federal Rules of Civil Procedure (FRCP) became effective in 1938 and govern the
conduct of all civil proceedings in the United States District Courts. Many states have
patterned their own state rules on the FRCP. Thus, there is often a great deal of uniformity
between the FRCP and rules adopted by the various states. The FRCP govern all trial-
related matters from the commencement of an action, through the pleadings allowed, to
motions and discovery practice, to the trial itself. Appellate practice in the federal courts of
appeal is governed by the Federal Rules of Appellate Procedure. Finally, the United States
Supreme Court has its own set of rules, composed of more than 50 pages of materials
relating to matters such as the time allowed for oral argument, the necessity of a table of
contents for briefs in excess of five pages, and the required color for the covers of briefs
submitted to the Court (for example, white for petitions for writs of certiorari and yellow

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for reply briefs).
The rules of civil procedure for federal courts are set forth both in U.S.C.A. and
U.S.C.S. In U.S.C.A., the Federal Rules of Civil Procedure are located in volumes
following the statutes in Title 28, and the Federal Rules of Criminal Procedure are located
in volumes following the statutes in Title 18. In U.S.C.S., there are separate unnumbered
volumes, following Title 54, for the various federal rules. In both sets, after you read the
pertinent rule, you will be directed to relevant cases through the use of annotations.
You can locate a pertinent rule by any of the standard research techniques used for
locating statutes: the descriptive word approach, the topic approach, or the popular name
approach. Once you have located the rule in which you are interested, you can examine the
historical notes, library references, and then the annotations after the rule. The annotations
will direct you to cases interpreting or construing the rule. Moreover, West’s set titled
Federal Rules Decisions, discussed in Chapter 4, focuses on United States District Court
cases that have interpreted the Federal Rules of Civil Procedure or Federal Rules of
Criminal Procedure. Articles commenting on the federal rules are also included.
All of the major federal rules (the Federal Rules of Civil Procedure, Federal Rules of
Criminal Procedure, Federal Rules of Appellate Procedure, and Federal Rules of Evidence)
are available on the Internet at http://www.uscourts.gov/Rules-policies. Additionally,
commentary and background information on proposed rules are provided together with the
text of proposed amendments.
Don’t forget to Shepardize or KeyCite the federal rules to locate cases, articles, and
annotations that have mentioned or interpreted the federal rules.
For ready and convenient access to applicable rules, many attorneys and paralegals rely
on deskbooks, one-volume paperbacks that contain a complete set of the federal rules
(although they do not include annotations to direct you to cases). The deskbooks are
replaced every year to ensure their currency.
Several sets of books are useful in interpreting the federal rules, such as West’s Federal
Rules Service, 3d and Federal Rules Digest, 3d, which will direct you to cases interpreting the
rules. Perhaps the two best known secondary sources for interpreting and analyzing federal
rules are the following treatises:

• Moore’s Federal Practice, a set of more than 30 volumes that includes the full text of
the federal civil procedure rules together with extensive commentary and analysis;
and
• Federal Practice and Procedure by Charles Alan Wright and Arthur R. Miller (often
referred to as “Wright and Miller”), a more than 60-volume set of books with full
coverage and analysis of all aspects of federal civil, criminal, and appellate
procedure, as well as relevant forms.

Forms for use in connection with litigation in the federal courts can be found in Federal
Procedural Forms, a multivolume set that provides step-by-step assistance in drafting forms
(such as complaints, answers, motions for new trials, and so forth) for proceedings before

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federal courts and agencies. Checklists, “how to” guides, and other information make this
an invaluable resource. An alternative source for forms is Bender’s Federal Practice Forms, a
multivolume companion set to Moore’s Federal Practice, which provides a comprehensive
range of litigation forms needed by those who practice in federal courts.

3. Federal Rules of Court

In addition to the significant and substantive federal procedural rules that govern practice
in our nation’s federal courts, the lower federal courts themselves are free to enact their own
more local rules of court so long as those rules are consistent with the national rules.
That is, each of the 94 federal district courts and the 13 circuit courts has rules specific
just to that court. Often these rules are administrative and relate to matters such as the
maximum length of a brief or citation form. Other rules are more substantive and might
impose a duty upon counsel to meet and confer regarding disputed issues or to attend a
status conference or settlement conference. No matter what the nature of the rule and no
matter how insignificant it may seem to you, the court will expect and demand strict
compliance with its rules.
With 94 district courts and 13 circuits, determining the specific rules for each court can
be a daunting task. One excellent source you should consult is Federal Rules Service, 3d
(mentioned above), which arranges all the rules alphabetically by state.
All of the “local” court rules of the federal courts are now available on the Internet at
http://www.uscourts.gov/about-federal-courts/federal-courts-public/court-website-links.
Simply point and click on the particular federal court in which you are interested and you
will be immediately linked to its local rules.

Practice Tip
Interpreting Federal Rules

Use the Shepard’s print set Federal Rules Citations or Shepardize or KeyCite online to locate federal and state
cases, law review articles, and A.L.R. annotations that interpret or mention federal rules (whether they are the
Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Appellate Procedure,
or Federal Rules of Evidence). You will also be directed to cases and sources interpreting the rules of the
Supreme Court and the local rules of the lower federal courts.

4. State Rules of Procedure and Court Rules

To promote efficiency in litigation, states have also adopted rules of procedure and rules of
court.
Many states have modeled their rules of civil procedure after the Federal Rules of Civil
Procedure. These rules are often published together with the state’s statutes. For example,
in California, the Civil Procedure statutes follow the Civil Code and precede the
Commercial Code. You will be provided with historical notes, library references, and

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annotations, just as for other state statutes. Additionally, many states now publish their
rules on their websites. See Table T.1.3 of The Bluebook for each state’s judicial website.
In addition to these rules governing statewide practice, courts within the state may also
issue specific or local rules governing practice before those courts. These local rules tend to
be more administrative than substantive and often address such matters as the size and
weight of papers accepted by the court, what time the clerk’s office closes, whether
pleadings are accepted by facsimile transmission or electronically, and the format of
citations. Failure to follow the local rules regarding even such minor matters as the type of
paper to be used may result in rejection of documents and pleadings. If your pleading is
rejected for nonconformance with local rules and the time limit for filing the pleading
expires before you can submit an acceptable pleading, the client’s rights may be
jeopardized, and your firm may be subjected to a claim of professional negligence.
To obtain a copy of the local rules, contact the clerk of the court and arrange to
purchase a set of the rules. The fee for obtaining local rules is usually nominal. Changes in
local rules are often announced and published in your local legal newsletter or other
publication. To ensure you are using a current set of rules, call the court clerk on a periodic
basis to inquire if there have been any amendments or revisions to the rules since the time
you obtained your set. Alternatively, access WashLaw at http://www.washlaw.edu/, which
will link you to many local court rules for each state. Review Bluebook Bluepages Table
BT.2 for references to local rules on citation form.

G. Citation Form

1. Legislative Materials:
Bill: H.R. 628, 114th Cong. (2016).
Committee Hearing: Child Care Costs: Hearing on H.R. 1249 Before the H. Comm.
on Educ. & Labor, 113th Cong. 94-96 (2014) (statement of Rep. Martha
McSally).
Committee Report: H.R. Rep. No. 114-506, at 6 (2015), as reprinted in 2015
U.S.C.C.A.N. 109, 114.
Congressional Debate: 151 Cong. Rec. H11,462-63 (daily ed. May 25, 2015)
(statement of Rep. Gary Palmer).
2. Presidential Materials:
Proclamation No. 8733, 3 C.F.R. 906 (2015), reprinted in 3 U.S.C. § 469 (Supp. I
2015).
Exec. Order No. 13,597, 3 C.F.R. 477 (2015), reprinted in 3 U.S.C. § 297 (Supp.
III 2016).
Remarks on Iran, 2016 Comp. Pres. Doc. 201600022 (Jan. 17, 2016).

3. Administrative Materials:
Examination Guidelines, 78 Fed. Reg. 11,050 (Feb. 14, 2013) (to be codified at 37

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 C.F.R. pt. 1).
7 C.F.R. § 29.2409 (2012)

4. International Materials:
Agreement for the Promotion of Aviation Safety, Ir. — U.S., art. II, Feb. 5, 1997,
T.I.A.S. No. 12,831.

5. Local and Municipal Materials:

Seattle, Wash., Mun. Code § 9.12.010 (2013).
San Jose, Cal., Code ch. 7.11 (2015).

6. Court Rules:
Fed. R. Civ. P. 12(b).
Cal. Sup. Ct. R. 56.

Internet Resources

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Writing Strategies

When writing about the “special” research projects discussed in this chapter, use
the following techniques:
Legislative History: To lend credibility to your legislative history results, always
use full titles. Refer to Senator Barbara Boxer, not Barbara Boxer. Refer to “the
United States Senate Committee on Appropriations” rather than “the Committee.”
Administrative Law: In discussing agency decisions, omit personal pronouns. Do
not discuss an agency decision by saying, “he decided . . . .” Instead, state that “the
National Labor Relations Board decided . . . .”
International Law: Because treaties are usually cited by their names and those
names are often lengthy, unclutter your writing by giving the full name of the treaty
only once and then giving it a short descriptive title by saying “hereinafter ‘Nuclear

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 Waste Treaty.’ ”
Municipal Law: Do not use personal pronouns in discussing the entity that
enacted municipal legislation. Do not say “our ordinance provides . . .” but rather say
“County of Fairfax ordinance section 12-1-4 provides . . .” or “the relevant City
ordinance states . . . .”

Assignment for Chapter 10

LEGISLATIVE HISTORY

1. Use the CIS Index for 2008.

a. What public law relates to the Military Personnel Citizenship Processing Act?
b. Locate the CIS “Legislative History” volume for this public law.
i. When was it approved?
ii. What was its designation in the Senate as an enacted bill?
iii. On which days did debate occur in the House and the Senate on this
version of the bill?
2. Use the CIS Index for 2008.
a. For which piece of legislation did Shane McNamee testify?
b. Review the CIS Abstracts volume for 2008. On what day did Mr. McNamee
testify?
c. Who is Shane McNamee?
3. Use United States Code Congressional and Administrative News.
a. To which topic or act does Public Law 113-60 relate?
b. Use Table 6 for the 113th Congress. Locate the following information
relating to this Act.
i. When was this Act approved?
ii. What was its number in the House?
iii. Give the date on which the Act was passed by the Senate.
iv. Give the date on which the Act was passed by the House.
v. Give the House Report Number.
4. Review the legislative history in United States Code Congressional and
Administrative News for the Public Law identified in Question 3 above.
a. According to the House Report, page 1, what is the purpose of the Act?
b. Review page 4 of the Report. What type of deed was used to convey the
property?
c. Review page 5 of the Report. Does the legislation contain any earmarks?
d. Which volume of the Congressional Record includes debates and information
relating to this legislation?

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ADMINISTRATIVE LAW

5. Use the most recent C.F.R. Index (published by Thomson Reuters/West).

a. Which C.F.R. title and part deal with the adulteration or misbranding of
infant formulas?
b. Which C.F.R. title and part deal with using a badge, emblem, or insignia on
advertisements for wine?
i. Review this provision. May a bottle of wine used in an ad display the
U.S. Navy flag or insignia?
ii. What provision governs your answer?
6. Use the Wages-Hours volumes for the CCH Labor Law Reporter.
a. Review Paragraph 25,480A relating to “Payment of Wages to Tipped
Employees.” Are special gifts in forms other than money or its equivalent
(such as theater tickets, passes, or merchandise) counted as tips?
b. Review subparagraph .752, entitled “Restaurant Hosts.” Which case held
that restaurant hosts met the statutory definition of “tipped employees”?
7. Locate the case published in volume 2006-2007 of NLRB Decisions ¶ 17,316.
a. What is the name of the case?
b. Was the employer’s dues rule (requiring all employees to authorize union
dues checkoff as a condition of employment) an unfair labor practice?
c. What remedy was ordered?
8. Use the Master Index volume to the looseleaf set Communications Regulation by
Pike and Fischer.
a. What section relates to blocking caller ID?
b. Review the information summarized as 29 Communications Reg. 830
(2003). Do the rules relating to requiring all companies conducting
telemarketing to transmit caller ID information and prohibiting them from
blocking such information apply to tax exempt nonprofit organizations?

INTERNATIONAL LAW

9. Use the Cumulative Index No. 48 for volumes 2551-2600 of the United Nations
Treaty Series, and find the multilateral agreement on the establishment of the
Nordic Patent Institute.
a. Give the citation to this agreement.
b. When and where was the agreement signed?
c. Locate the treaty in U.N.T.S. Who signed the agreement for each party?
d. When does the agreement enter into force?
e. Briefly describe how the agreement may be terminated.
f. When was the agreement registered with the United Nations?
10. Use Whiteman’s Digest of International Law.
a. What volume and page discuss accidental outbreak of hostilities as not being

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 an act of aggression?
b. Review this material. In what two circumstances is there no aggressive
intention shown by a state?
c. Give a “well known example” of an error that occurred in 1904.
d. When a United States U-2 plane was shot down in 1960 by the Soviet
Union, what did the United States deny?
11. Use Moore’s A Digest of International Law.
a. Use the Index. What is the present usage of civilized nations relating to the
exchange of prisoners of war? What was the former practice?
b. Use the “List of Cases Cited” in the Index to the Digest. Generally, to which
topic does the case Parham v. Justices relate? Give an example that occurred
in New Orleans.
12. Use Hackworth’s Digest of International Law.
a. What volume and page relate to the nationality of a person born on an
American vessel on the high seas?
b. Review the section. If a child is born to Chinese parents on an American
merchant vessel on the high seas, does the child acquire the nationality of the
United States? Answer the question and cite a case (give the case name only)
that supports your answer.
13. Use U.S. Treaties and Other International Agreements.
a. What is the general subject matter of 35 U.S.T. 6478 (T.I.A.S. 11057)?
b. Where was this agreement or joint communiqué signed?
c. For which Cuban nationals did Cuba accept return?
d. Who signed this agreement for the United States?

Internet Assignment for Chapter 10

1. Access the website Congress.gov. Locate Senate Bill 1177 introduced in the 114th
Congress.
a. Review the Summary. Briefly, what issues were addressed by the legislation?
b. What is the Public Law Number for this legislation?
c. To which committee/subcommittee was this legislation assigned?
2. Access Congress.gov. Locate the Congressional Record for October 22, 2015.
Select the “Entire Issue.”
a. Review page H7094. Who spoke about climate change?
b. Review page S7440. In discussing the Protecting Our Infants Act, which
senator’s work did Senator McConnell acknowledge?
3. Access Congress.gov. Locate H.R. 144 introduced in the 113th Congress.
a. Briefly, what is the topic of this legislation?
b. What final action was taken on this legislation?

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4. Access Congress.gov. Locate H.R. 644 introduced in the 114th Congress. Review
the Committee Report (114-18). Briefly, what is the background and need for this
legislation?
5. Access Congress.gov. Locate information about Senator Cory Booker. Select to
review Senator Booker’s legislative work in the 113th Congress.
a. How many bills did Mr. Booker sponsor and cosponsor?
b. Review the status of the legislation Mr. Booker sponsored and cosponsored.
How many pieces of legislation became law?
6. Locate the compiled legislative histories on the website of the Department of
Justice (https://www.justice.gov/jmd/ls/legislative-histories). Review the legislative
history of the Freedom of Information Act.
a. When was the bill introduced in the Senate? Who introduced it? In what
Congress was it introduced?
b. Review the Senate Report for the legislation. Briefly, what is the purpose of
the legislation?
c. Review the Congressional Record for the legislation. How many categories of
documents did Mr. Moss state could be withheld? Why can they be
withheld?
d. Review the President’s remarks on signing the legislation. From what
essential principle does this legislation spring?
7. Use FDsys. What is the subject matter of Presidential Proclamation 9389 issued
on January 15, 2016?
8. Use FDsys. Review 9 C.F.R. § 352.1. What is the meaning of the word “bison”?
9. Use FDsys. Review 7 C.F.R. pt. 220.
a. May yogurt be used to meet all or part of the meats/meat alternates
components for the requirements for the school breakfast program? Answer
the question and cite the provision that governs your answer.
b. What is the calorie range for a high school senior for breakfast?
10. Use FDsys. Locate the Federal Register issue for November 20, 2015. Select
“Table of Contents” and then review “Reader Aids.” Update Executive Order
13348. What result are you given?
11. Use www.federalregister.gov. Locate the December 11, 2015, issue of the Federal
Register, and answer the following:
a. How many pages was this issue of the Federal Register?
b. Locate the proposed rule of the Defense Department.
i. Briefly, what is the purpose or topic of the proposed rule?
ii. How many days was the public given to comment on the proposed
rule?
iii. What was the cost identified in connection with the Program at issue?
iv. If finalized, where in C.F.R. would the rule appear?
12. Use GovInfo.gov. Use the search box and locate the Executive Order that
revoked Executive Order 13348. Briefly indicate why the first executive order was

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 revoked.
13. Use GovInfo.gov. Locate the most recent U.S. Government Manual.
a. When was the Department of Energy established?
b. How many “units” (parks, monuments, trails, and so forth) are there in the
National Park System (which is operated by the National Park Service)?
14. Use GovInfo.gov. Locate the Compilation of Presidential Documents. Review the
President’s remarks on November 6, 2015, relating to the Keystone Pipeline
Project. Where were the remarks made? Which prime minister was mentioned in
the President’s remarks?
15. Access the website of the United Nations. Use the United Nations Treaty
Collection database and locate the treaty “CITES” in the U.N. Treaty Series.
Review the details for Registration No. 14537 (for March 3, 1973). Select to
review the “Text document.”
a. What is the title of this treaty or convention?
b. When did it enter into force for the United States?
c. Briefly, what is the topic or subject matter of this convention?
d. Review Article XVIII. If parties to the convention have a dispute that cannot
be negotiated by themselves, how will the dispute be resolved?
e. In what volume in the U.N. Treaty Series can this convention be located?
16. Access the website of the State Department’s Treaty Affairs Office. Select
“Treaties in Force” for the most recent year. Locate a multilateral convention to
which the United States is a party relating to computer crime.
a. When did this agreement enter into force?
b. What is its citation in T.I.A.S.?
17. A client in Austin, Texas, has a tract of land that is three-quarters of an acre.
How many colonies of bees may the client maintain on that property? Give an
answer and cite the provision that governs your answer.
18. Access the Local Rules for the Southern District of New York. What is the
maximum length of appellate briefs on bankruptcy appeals?

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 Chapter 11

The Digital Library: Lexis Advance,

Westlaw, and Nonprint Research Sources
Electronic research services presumably save money by making legal research more efficient.

In re UnitedHealth Grp. Inc. S’holder Derivative Litig., 631 F.3d 913, 919 (8th Cir. 2011)

A. Introduction to Computer-Assisted Legal Research

B. Lexis Advance
C. Westlaw
D. Final Pointers on Computer-Assisted Legal Research
E. Other Competitors in Commercial Electronic Research
F. Nonprint Research Tools
G. Citation Form

Chapter Overview
Legal research can be accomplished by means other than using the conventional sources of
bound books and journals. There are several newer technologies that allow you to conduct
research efficiently and accurately. This chapter introduces you to the digital library,
primarily computer-assisted and fee-based legal research. Legal research using the Internet’s
free resources is discussed in Chapter 12. Being a competent researcher requires use and
familiarity with all media, including traditional print courses, computer systems, and the
Internet to find the best answer to a legal question in the most efficient manner and at the
lowest cost to the client.

A. Introduction to Computer-Assisted Legal Research

1. Lexis Advance and Westlaw

There are two major competing computer-assisted research services: Lexis Advance and
Westlaw. These research systems provide access to a tremendous variety of cases, statutes,
administrative regulations, and numerous other authorities that a law firm or other
employer may not otherwise be able to afford. The more familiar you become with Lexis
Advance or Westlaw, the more efficient you will be at locating the information you need.
Lexis Advance and Westlaw operate in essentially the same manner; most users, however,
eventually develop a preference for one or the other. Because both services contain
substantially the same materials, it is impossible to declare that one service is superior to the

434
other. Although there are some differences in their approach and content, the one that is
“best” is the one that is best for you.
Each service consists of thousands of databases. The databases include cases, statutes,
administrative regulations, hundreds of secondary sources, and other materials for you to
access. In general, research using Lexis Advance and Westlaw is highly similar. Both allow
easy retrieval of cases, statutes, and other materials when you already have a citation. You
merely type the citation into an open field and click on “Search” or a similar button. You
need not use correct or Bluebook citation form. When you do not have a citation, you will
usually access the appropriate database (such as selecting federal cases or Ohio cases) and
then formulate a search question by using Boolean searching (a search method using
symbols, word fragments, and numbers, rather than plain English) or by using plain
English, usually called “Natural Language.”
Both LexisNexis and Thomson Reuters/West have recently upgraded their traditional
online research systems and now allow “Google” type searching. The older platforms (Lexis
or Lexis.com and Westlaw Classic) required researchers to first select a database (for
example, electing to search Arizona statutes or federal district court cases) before any search
could be conducted. This imposed a burden on researchers when they were unsure where to
start a research project; thus, the newer platforms Lexis Advance and Westlaw (previously
called WestlawNext but now rebranded simply as “Westlaw”) allow Google-type searching
in an all-in-one search box continuously displayed on each and every screen. Searches using
this method return all documents that might be responsive to a search question, rather than
returning solely Arizona statutes or federal district court cases. Because Westlaw retired its
original or “Classic” research system in 2015, and Lexis plans to retire its original system in
favor of Lexis Advance in 2016 or shortly thereafter, the focus of this chapter will be on the
newer platforms.
It is important to have a basic understanding of the two computerized legal research
systems; however, the best way to learn how to perform computerized legal research is to do
it. There is no substitute for “hands-on” experience. Lexis Advance and Westlaw both offer
training courses and written materials describing their systems. Often complete tutorials are
available on their websites. You may also contact or access:

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 Ethics Alert
Computer Literacy

Legal professionals are ethically bound to provide competent representation to clients. This duty is broad
enough to require that you be sufficiently familiar with conventional and electronic research techniques such
that you can make an accurate determination as to which sources will yield the best results at the lowest cost
for the client. Neither conventional research nor computer-assisted legal research should be used exclusively.
Effective researchers use a combination of the two methods and employ selectivity to determine which
method is best for a given task.

2. Getting Started Using Lexis Advance or Westlaw

Getting started usually requires you to sign on to Lexis Advance or Westlaw with your
identification number and password assigned to you by your school or employer. When
performing research on the job, you will usually enter a client name or number so that the
client can be billed for the time spent conducting the research. In most firms, legal
professionals have desktop computer access to Lexis Advance, Westlaw, or both.
The first screen presented to you after sign-on usually allows you to retrieve a document
or case (if you know the citation), check a citation (through either Shepard’s Citations or
KeyCite), select a specific source within which to search, or use either system’s “all-in-one
search box” to search for anything, using any citation or wording you desire.

3. Boolean Searching

You probably know that computers are extremely literal. They will not search for cases
containing the word “collision” if you search for “collide.” Thus, a method called Boolean
searching allows you to use words, symbols, numbers, and connectors (collectively, often
called Terms and Connectors) to overcome the literalness of the computer. For example,
Lexis Advance and Westlaw both use an exclamation point (!) to substitute for any number
of additional letters at the end of a word. Thus “colli!” will locate “collide,” “collision,”
“colliding,” and so forth. Of course, words such as “collie” will also be located, so use the
symbols carefully. Both Lexis Advance and Westlaw also offer publications that explain the
use of their search symbols, numbers, and connectors. See Figure 11-10 at the end of this
chapter for a chart of Lexis Advance and Westlaw Terms and Connectors.
These symbols and connectors help you narrow your search and make it more
manageable. If you merely entered “first amendment,” Lexis Advance and Westlaw would
retrieve thousands of documents containing this phrase. A more effective search would be
as follows: “first amendment” /50 free! and press. This instructs Lexis Advance and
Westlaw to locate only those documents that contain the phrase “first amendment” within
50 words of the words “freedom” or “free” and “press.” (Of course, documents including
words such as “freeze,” “freely,” and so forth will also be located if those terms are found
within 50 words of “first amendment.”)

436
Most experts agree that Boolean searching provides more targeted results than plain English
searching. Following are some tips for constructing a search query using Terms and
Connectors on Lexis Advance or Westlaw:

• Lowercase Letters. Neither Lexis Advance nor Westlaw is sensitive to capital letters
(unless you specify such in your search request). Thus, for basic searching, use
lowercase letters.
• Singular, Possessive, and Plural. Forms of singular, possessive, and plural are
automatically found if they are regular forms. Thus, a search for “tenant” will
produce results for “tenants” and “tenant’s” but a search for “foot” will not find
“feet.”
• Universal Symbols. Both Lexis Advance and Westlaw offer some universal symbols
or “wildcards” to help you expand your search:
• To replace single letters within words, Lexis Advance uses a question mark (?);
Westlaw uses an asterisk (*). Thus, “m?n” will find “man” or “men,” and
“Nels*n” will locate “Nelson” or “Nelsen.”
• An exclamation point (!) replaces any ending to a word. Thus, “sec!” finds
“security,” “securities,” “secure,” and so forth.
• Connectors. Connectors help you locate needed documents and narrow your
search. Following are the most commonly used connectors:
• Or. A search for “teacher or student” will locate documents containing either or
both of these words.
• And. A search for “negligence and doctor” will locate documents only if they
contain both these terms.
• /n. The connector “/n” instructs Lexis Advance and Westlaw to find documents
that contain words appearing within a specified number (n) of words of each other.
Thus, a search for “tenant /50 evict” locates documents in which the words
“tenant” and “evict” appear within 50 words of each other.
• /s and /p. The connector “/s” finds words in the same sentence and “/p” finds
words in the same paragraph. Thus, a search for “alter /s ego” (or “alter /p ego”)
locates documents in which the words “alter” and “ego” appear in the same
sentence or paragraph, respectively.

Both Lexis Advance and Westlaw offer other connectors as well. They are described in any
of Lexis Advance’s marketing materials and on its website at
http://www.lexisnexis.com/documents/pdf/20130204092121_large.pdf. See Westlaw’s
User Guide “Getting Started on Westlaw” at http://legalsolutions.thomsonreuters.com/law-
products/westlaw-legal-research/training-support. Multiple connectors may be used in one
search request. (See Figure 11-10 at the end of this chapter.)
Constructing a proper search is the most important part of computerized legal research
because a poorly constructed search query will produce too few or too many documents.
Remember to draft your search query before you sign on and costs are assessed. In most

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instances, a list of Terms and Connectors will be displayed on your screen as you construct
your search query to remind you of their meanings.

4. Plain English Searching

Recognizing that many individuals find working with Boolean connectors awkward, both
Lexis Advance and Westlaw offer “Natural Language” searching to allow you to enter your
issue in plain English or Natural Language and eliminate the need for symbols, numbers,
and connectors. Thus, you could enter a search question such as “May an employer
monitor an employee’s e-mail communications?”
Construct your searches before you sign on so that you work efficiently and do not
incur excessive costs. Draft some sample queries and search terms. Although using Natural
Language is easier when constructing queries, Boolean searching usually produces more
precise results.

Practice Tip

Boolean or Plain English Searching? Westlaw’s Suggestions

Use Boolean searching when:

• You are searching for particular terms;

• You are searching for a particular document; or
• You are searching for all documents containing specific information, such as all cases classified under a
particular topic name and Key Number.

Use plain English or Natural Language searching when:

• You are researching broad concepts; or

• You are a new or infrequent computer user, or you are unfamiliar with Boolean Terms and Connectors.

B. Lexis Advance

1. Getting Started from Your Home Screen

For simplicity, we will assume that you are using Lexis Advance throughout this section of
this Chapter. After you log on to Lexis Advance, the first screen provides various research
options, including the following:

• Red Search Box. A bright Red Search box is prominently displayed at the top of
your first screen (and on every Lexis Advance screen). This simple search box allows you to
search similarly to the way you use a general search engine such as Google. Thus, you may
enter a term (for example, “employment discrimination”), a source (for example, USCS), a
citation (for example, 414 So. 2d 210), or “shep:” to Shepardize a case or statute. A drop-
down menu will allow you to search “Everything” or to select a particular jurisdiction, such

438
as Ohio cases. No matter what screen you are on in Lexis Advance, you may always return
to this home or welcome screen by clicking on the words “Lexis Advance Research”
displayed at the top left of each and every Lexis Advance screen. (See Figure 11-1.)
• Explore Content. Lexis Advance’s first screen will list several Content Sources that
you may select. These are useful when you know you are looking for a statute, an
administrative regulation, or a case. For example, you may select “Cases,” “Statutes and
Legislation,” “Forms,” or “Secondary Materials.” (See Figure 11-1.) Once you select one of
these broad content areas, you are typically given some narrowing options. For example,
when you select “Cases,” you will be able to filter by jurisdiction, such as “Fourth Circuit”
or “New York,” or “All Federal.” Once your

Figure 11-1
Lexis Advance Home Screen

jurisdiction has been narrowed down, your search begins. Lexis Advance will
present you with two different search options:
• Terms. You may enter keywords in a search box and search by Natural Language
or run a Terms and Connectors search. You will be given reminders and prompts

439
 on using Terms and Connectors to make your search as efficient as possible. You
will be given the opportunity to enter an exact phrase and to exclude certain terms.
(See Figure 11-2.)
• Document Segments/Fields. Lexis Advance allows you to search by naturally
occurring segments of a source, such as the name of a party, the court deciding the
case, the judge, core terms, and more. Segment searching is useful when you are
looking for all cases involving a certain party (for example, all cases involving
Microsoft), or opinions written by a specific judge. (See Figure 11-2.)

• Practice Areas. You may elect to view various practice areas, such as Copyright, Tax
Law, or Torts. Select “Practice Areas” from your first or home screen. (See Figure 11-3.)
Once you make your selection, you will be able to access a wide variety of materials (cases,
statutes, treatises, and more) that deal with that topic.
• Research Tools. Your first Lexis Advance screen also provides several pragmatic
tools to speed your research. The “History” feature saves your research history for the
previous 90 days, allowing you to pick up where you left off in a previous research session.
“Favorites” displays

Figure 11-2
Lexis Advance Search Screen

440
 Figure 11-3
Lexis Advance Practice Area Topics

441
the sources you access most often. Thus, if you routinely consult the Restatement (Second)
of Contracts, you may select it as a Favorite, and return to it with the click of a button
every time you access Lexis Advance. “Alerts” lets you set alerts to be notified of updates
and changes to cases, statutes, and other sources you have been researching. Several tutorials
and other support options are available as well.

2. Constructing a Search and Display of Search Results

There are two ways to search for materials on Lexis Advance if you do not have a citation:
the traditional search using Boolean connectors (discussed above) or the newer plain
English search method called “Natural Language.” You may use Natural Language in the
Red Search Box on every screen or in the Terms boxes displayed as you begin to search
specific types of content.
If your search produces numerous documents, you can weed out irrelevant ones by
using the filtering options displayed on the left side of your screen. (See Figure 11-4.) The
document you are viewing will take up most of your screen. Note Shepard’s Preview feature
on the right side of your screen, which gives you immediate insight as to the validity and
status of your results.

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 Figure 11-4
Lexis Advance Results Screen

Once the search results are on screen, you may move back and forth between
documents by using hyperlinks. (See Figure 11-4.) You may print or download your
results, save them to a folder for quick access later on, or e-mail them to yourself or others.

3. Specialized Searches

a. Searching for Statutes and Constitutions

• By Citation. If you know the precise citation for a federal or state statute or
constitution, use the Red Search Box. Type your citation (such as 35 uscs 101) in
the open field and click “Enter” or your search icon. After reviewing the statute,
you can browse through preceding and consecutive sections. You can also review
the case annotations following your citation, just as you would in the print version
of U.S.C.S.
• By Topic. When you do not know a statute or constitutional citation, select

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 “Statutes and Legislation” from your first screen, narrow your options (by selecting,
for example, U.S.C.S. or Florida statutes) and then fill in your Terms and
Document Segments/Fields boxes with your keywords, core terms, and so forth,
using Terms and Connectors or Natural Language.

b. Searching for Cases

• By Citation. If you know a case citation, use your Red Search Box and type your
citation (such as 430 us 112 or 35 P3d 892) in the open field. Lexis Advance
includes star paging to inform you of the page number you would be on if you
were reading the case in the other parallel sets. A new feature offered is a display of
some cases on Lexis Advance’s screen exactly the way they appear in the official
reports. When a case is displayed on the screen, look for the link to view your case
in print reporter format. Also, an “About This Document” pane is displayed along
the right side of the screen (see Figure 11-5), allowing you to access pleadings and
briefs filed in the case, seminal cases, and other resources related to the topic
discussed in the case.
• By Topic. When you do not have a citation, select the “Cases” button from your
first screen. Use your narrowing filters and select a jurisdiction (for example, all
federal cases, U.S. Supreme Court cases, or Arizona cases). You will then be given
your Terms and Document Segments/Fields boxes, allowing you to type in your
key terms (using Natural Language or Terms and Connectors), party name, docket
number, core terms, judge’s name, and so forth. Click your search icon to obtain
your results. Use Shepard’s Preview and “About This Document” to broaden your
results and view other cases and resources relating to your topic.

Figure 11-5
Lexis Advance Case Results Screen

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c. Searching for Administrative and Legislative Materials

• By Citation. If you know the citation to a C.F.R. provision, the Federal Register, or
a public law number, use your Red Search Box and type your citation (for example,
29 cfr 100.602).
• By Topic. If you do not have a citation, select “Administrative Codes and
Regulations” from your first screen. Use your narrowing filters and select to view
the Federal Register or C.F.R. Then use your Terms and Document
Segments/Fields boxes, typing in your keywords (using Natural Language or Terms
and Connectors). Click “Search” to obtain results and use Shepard’s Preview and
“About This Document” to broaden your results.
• Legislative History. Lexis Advance offers thorough coverage of legislative materials.
Select “Statutes and Legislation” from your first screen, and then select “Legislative
Histories.”

d. Searching for Law Reviews and Journals

• By Citation. Use your Red Search Box if you know the citation to a law review or

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 journal article.
• By Topic. When you do not have a citation, select “Secondary Materials” from
your first screen. Then select “Law Reviews & Journals.” Use your narrowing filters
to select a specific law review or law reviews related to your topic of interest (for
example, Immigration). Use your Terms and Document Segments/Fields boxes to
type in your keywords (using either Natural Language or Terms and Connectors),
and select “Search.” As always, use Shepard’s Preview and About this Document to
expand your results.
• By Law Reviews. Select “Secondary Materials” and then a particular state (for
example, Texas). You may now elect to search specific law reviews from that state,
such as the Baylor Law Review or the Houston Law Review. Use your Terms and
Document Segments/Fields boxes to type in your keywords and select “Search.”

e. Searching for Secondary Authorities

You may search for secondary authorities by selecting “Secondary Materials” from your first
screen. You will now be given the option to select a particular source (for example, you may
select Treatises, Restatements, Law Reviews & Journals, or Dictionaries) or a practice area
(for example, Securities Law). If you select a practice area, such as Family Law, you will be
given a list of treatises, practice guides, and other resources relating to this field. You may
now browse the table of contents for your source or use your Terms and Document
Segments/Fields search boxes to construct your search.

4. Shepardizing
As discussed in Chapter 9, Lexis Advance makes it easy to verify that your cases, statutes,
and other primary authorities are still valid. To do so, type “shep:” and your citation into
your Red Search Box that is displayed on your screen at all times. Alternatively, once you
are viewing a document on your screen, select “Shepardize this document” or click on its
flag or signal. For example, a red stop sign is a warning that your case has been subject to
some negative treatment (such as being reversed). A yellow triangle indicates caution,
meaning that your case may have been criticized or limited. Many Lexis Advance screens
display a reminder list, explaining the Shepard’s signals. Remember to use the Shepard’s
Preview pane displayed on the right side of your screen to gain immediate insight into the
status of your case or statute.

5. Other Lexis Advance Features

Lexis Advance offers numerous features to make your research efficient and accurate.

• Hyperlinking and Document Management. As you read a case, statute, or other

authority on the screen, references to other cases or authorities are hyperlinked,
allowing you to jump to these other documents by merely placing your cursor on

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 the item displayed. You may print, download, or e-mail searches and documents to
yourself or others or save them in Folders for later review and access.
• Case Summary. Before your case is presented, the Case Summary describes in
plain English its procedural background, gives an overview of the case, and
describes its outcome.
• Content Overview. When you run a search from your Red Search Box (for
example, searching for “laches defense in copyright infringement cases),” the left
side of your screen will provide a review of the sources responsive to your search
and notify you that there are, for example, 600 cases, 300 secondary sources, and
300 administrative materials that are responsive to your search query. Select as
desired.
• About This Document. Select the “About This Document” tab from the right side
of your screen for access to case briefs and other resources related to the topic
discussed in your case, statute, or other authority.
• Filters. You may filter your search, before you run it or afterward, by selecting
particular jurisdictions, specific practice areas, or content. These filters allow you to
refine the results you are given by date, jurisdiction, and other segments.
• Alerts. Create Alerts to monitor changes or new negative analysis of the cases and
other authorities of interest to you. You can elect to be notified by e-mail on a
daily, weekly, or monthly basis.
• Briefs and Records. As you view a case on your screen, look in the About This
Document pane on the right side of your screen. Select “Briefs” to link to briefs
and court records filed in your case. These briefs may give you ideas for drafting
your own briefs and memoranda. Briefs are not offered for all cases.
• Legal Issue Trail. The Legal Issue Trail helps you find connections between cases
on a specific point of law. Look for the words “Activate Passages” on the right side
of your screen. When you select this, Lexis Advance places a perforated “box”
around each of the specific legal issues in your case. If you click inside one of these
boxes, you will be given a “trail” of related cases dealing with the same issue.
• Highlighting. When you view results on your screen and highlight them, you have
the option of copying this material, running another search using this selected text,
adding it to a folder, annotating it with your own comments, or highlighting it in
color.
• Folders. The Folders feature allows you to save your results indefinitely. If you
have identified content of interest to you, copy it and save it in a folder marked
with a label you create, such as “Smith Research” or “Punitive Damages.”
• Search on the Web. When your results are displayed on your screen, select
“Search” from your toolbar at the top of your screen to be directed to free Internet
sources such as Google and Wikipedia that have mentioned your case or statute or
have related content for you to view.
• 50 State Surveys. A new feature gives access to all 50 states’ statutes on more than
30 state and regulatory topics. For example, if you wish to know the requirements

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 in all 50 states to adopt a child, the 50 State Surveys feature would cite and list,
alphabetically, all applicable statutes from all states, thus allowing you to find and
compare statutes all over the nation. You will also be given a brief overview of some
of the issues for each state, such as who must consent to adoption, what the waiting
period is, and more. From your initial screen, select “Secondary Sources” and then
“50 State Surveys.”
• Citation Assistance. Recall from Chapter 10 that when you copy text or a citation,
you will be given a “Copy” message, which allows you to set your preferences
(Bluebook format, California format, including parallel citations, and so forth). You
may now drop this copied material and its citation into other documents. Be sure
to review the citation to ensure it is correct.
• Help. Look for the “Support” box on your first Lexis Advance screen to view
tutorials, access help features, or to call Customer Support at (800) 455-3947. You
can also select the “More” button at the top of your screen for “Live Support” to
send requests for real-time help by e-mail.
• Depth of Content. Lexis Advance offers a rich variety of content. Look for the
following on your first screen: Briefs, Pleadings, and Motions; Forms; Jury
Instructions; and Company and Financial Information (for profiles of companies).
• Affiliated Services. LexisNexis offers numerous complementary services. For
example, “Company Dossier” provides business information on more than 80
million companies worldwide, including company overviews, financial reports, and
more. Lexis for Microsoft Office can check the format of citations, check quotes,
prepare tables of authorities, and assist with drafting and proofreading.
• Mobile Applications. Lexis Advance is available for mobile devices such as iPhones
and iPads. You may thus find authorities and Shepardize them on the go.

6. Quick Review of Lexis Advance

To use Lexis Advance:

a. Establish your Internet connection.

b. Sign on by typing in your Lexis Advance user number, identification number, or
password.
c. Type in the client or billing number.
d. If you wish to conduct a “Google” type search or if you know a citation to a case,
statute, or other authority, use the Red Search Box and enter your query or citation.
e. Select a Content area (Cases, Statutes and Legislation, Secondary Authorities) or
Practice Area (Family Law or Torts) when you are unsure where to start your legal
research, Filter by jurisdiction or other fields. Type your search terms or keywords
into the Terms boxes (using Natural Language or Terms and Connectors).
Continue applying filters, as needed. Click “Search.”
f. Examine the results. Shepardize all primary authorities to ensure their validity, and

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 Shepardize all authorities to expand your research results.

C. Westlaw

1. Getting Started from Your Home Screen

Like Lexis Advance, Westlaw includes thousands of legal databases, public records, news
and business publications, and other resources. Recall that for a period of time the original
Westlaw service, Westlaw Classic, existed alongside the newer platform WestlawNext,
which allows Google-type searching (eliminating the need to select a database before
conducting a search, which was problematic for researchers when they did not know where
to start a research project). Westlaw Classic was retired in 2015, and WestlawNext was
rebranded or renamed simply “Westlaw” in 2016. After you enter your password and client
identification, the first screen of Westlaw (see Figure 11-6) will provide you with several
choices, including the following:

• Global Search Box. A search box is prominently displayed at the top of your first
screen (and on every Westlaw screen). This Global Search Box allows you to search
similarly to the way you use a general search engine such as Google. It states, “enter
terms, citations, databases, anything.” Thus, you may enter a term (for example,
“patent reform”), a source (for example, USCA), a citation (for example, 560 us
48), or “kc:” and a citation to KeyCite a case or statute. A drop-down menu will
allow you to search “Everything” or to select a particular jurisdiction, such as Ohio
cases. No matter what screen you are on in Westlaw, you may always return to this
home or welcome screen by clicking on the words “Thomson Reuters Westlaw”
displayed at the top left of each and every Westlaw screen. (See Figure 11-6.) If you
wish to view a certain source, merely start typing it (such as “Am. Jur.” or
“A.L.R.”) in the Global Search Box; you may then select it from a drop-down
menu.

Figure 11-6
Westlaw Home Screen

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• Home Screen Tabs. The Home Screen allows you to select one of five tabs:
• All Content. This selection is the “default” selection (although you may edit the
way your first screen appears to display sources of most interest to you). This
screen allows you to select a number of sources, such as “Cases,” “Statutes &
Court Rules,” “Key Numbers,” and “Secondary Sources.” When you make your
selection (assume you have selected “Cases”), you may narrow your choices by
jurisdiction (First Circuit cases or Texas cases), and then search using your
Global Search Box, typing in keywords, citations, party names, and so forth.
You may search using Natural Language or Boolean Terms and Connectors.
When your results are displayed, you may further narrow or filter your results,
for example, electing to look for a certain party name, docket number, cases
from a certain time period, and more. Look for the “Related Documents” pane
on the right side of your screen to be directed to secondary sources, briefs, and
other sources related to the topic you are searching. If you select “Key Numbers”
from this first screen, you will be given a list of West’s more than 400 topics.
Select the topic of interest to you (for example, Larceny) and then continue
using drop-down menus to find your specific topic of interest (Intent to
Commit Larceny). Select this, and all the cases dealing with this topic will now

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 be displayed.
• Federal Materials. If you select this tab, you will be given a list of federal sources to
view (cases, statutes, C.F.R., and so forth). When you make your selection, use
your Global Search Box to type in keywords. Thus, if you select “U.S.C.A.” and
type in “plant patents,” the center portion of your screen will display results, the
left side will provide your narrowing filters, and the right side will display Related
Documents.
• State Materials. Once you select State Materials, you will then select a specific
state, for example, Georgia. You will now be able to select to search Georgia cases,
statutes, regulations, briefs, secondary sources, and more. Use the Global Search
Box to type in keywords, citations, party names, or more. Results will be displayed
in the center of your screen, and your narrowing filters will be displayed on the left
side of the screen.
• Practice Areas. The Practice Areas screen lists numerous legal fields, including
Bankruptcy, Corporations, and Intellectual Property. When you select a practice
area, you will be able to browse numerous resources, such as bankruptcy cases,
statutes, forms, law review articles, and A.L.R. annotations. (See Figure 11-7.)
• Tools. The Tools tab allows you to access the Key Number System and numerous
practical resources.

In addition to these tabs, your first or home screen allows you to create Folders (to save
materials of interest to you); view your History (which saves your research history for one
year and displays your five most recent documents and searches, allowing you to return to
your research if you are interrupted); set Alerts (to be notified of changes in the sources of
interest to you); or obtain Help (by e-mail, telephone, or through taking tutorials).
Additionally, your first screen will display the sources you most frequently use, as well as
sources you designate as your Favorites, allowing you to access quickly the materials you
need most often.

Practice Tip

Westlaw’s Global Search Box has a powerful auto-suggest function. Merely start typing a case name, issue, or
name of a source, and a drop-down menu will list a number of relevant options for you to select.

2. Constructing a Search and Display of Search Results

If you do not have a citation, you must construct a search or formulate a query. You may
search in the Global Search Box by Terms and Connectors (described above) or Natural
Language. Thus, you may type your query in plain English in your Global Search Box,
which will auto-suggest terms, sources, cases, and more.
Once your search results are shown on your Westlaw screen, there are several methods

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you can use to browse the materials to determine if they are on point. Citations to cases
that respond to your query will be listed with your search terms (for example, “patent
infringement”) banded in yellow. Select as desired. Remember that the right side of your
screen will display “Related Documents” to refer you to other resources, such as A.L.R.
annotations, treatises, and more. (See Figure 11-8.) After you select your desired case or
result, the “Selected Topics” feature on the right side of your screen will also display
additional sources that may be of help, such as references to A.L.R. annotations, treatises,
and court documents. (See Figure 11-9.)
If your search does not produce sufficient results (or else produces too many
documents), you may edit your search by applying the narrowing filters (narrowing your
search results by court jurisdiction, date, and so forth) that appear on the left side of your
screen.
When you select the full text of a case, you are given the same features as in West’s
conventional print volumes, meaning that headnotes and topic names and Key Numbers
are provided.

Figure 11-7
Westlaw Practice Areas

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3. Specialized Searches

a. Searching for Statutes and Constitutions

• By Citation. If you know the citation to a statute or a constitution, enter the

citation in your Global Search Box (for example, 17 usca 109), and click “Enter.”
You will be given the statute, library references, and annotations.
• By Topic. If you do not have a citation, select “Statutes & Court Rules” from your
home screen. You may then select federal statutes or a state’s statutes. You will then
need to decide whether you will search by Terms and Connectors or Natural
Language (or you may browse the index to U.S.C.A. or your state’s statutes). Type
your keywords in the Global Search Box and click “Enter” or your search icon.
Westlaw’s feature “History” for statutes provides links to other sources (bill
versions and legislative history documents) that discuss your statute. You will also
be informed if pending legislation might affect your statute.

b. Searching for Cases

• By Citation. If you know a case citation, enter it in the Global Search Box (for
example, 520 us 788), and click “Enter.”
• By Topic. If you do not have a citation, select “Cases” from your home screen. You
may then select an appropriate database, such as all federal cases, cases from the
First Circuit, or cases from Texas, and then formulate your query in the Global
Search Box by using Terms and Connectors or Natural Language.
• Remember to use “Related Documents” to expand your research efforts.
References to additional sources such as A.L.R. annotations are automatically
displayed on the screen with your search results when you conduct case law
research on Westlaw.
• Westlaw includes star paging to inform you of the page number you would be
on if you were reading the case in parallel sets for the case.
• A newer feature is the display of cases on Westlaw’s screen exactly the way they
appear in a printed book. If the note “Original Image PDF” is shown on the
screen, you may select this to view your case in the same easy-to-read, dual-
column format you’re used to seeing in print reporters.

c. Searching for Administrative and Legislative Materials

• By Citation. If you know the citation to a provision in either C.F.R. or the Federal
Register, you may enter it in the Global Search Box displayed on the home screen.

Figure 11-8
Westlaw Results Screen

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 • By Topic. You can search through C.F.R., the Federal Register, and other sources
by accessing the pertinent database from your first Westlaw screen and then
entering your search query in the Global Search Box, using either Terms and
Connectors or Natural Language. Alternatively, by selecting “Practice Areas” from
the top toolbar, you may then select the field in which you are interested, such as
“Energy & Environment.”
• Legislative History. Westlaw also includes numerous legislative history documents,
including bills, the Congressional Record, and compiled legislative histories for
certain statutes. Select “Legislative History” from your first screen and then pick
and choose the sources you wish to review (or select “Arnold & Porter Legislative
Histories” for numerous compiled legislative histories).

d. Searching for Law Reviews and Journals

When you sign onto Westlaw, the first screen displays the entry “Secondary Sources.” Once
you select that database, then select “Law Reviews & Journals.” You may now enter your
search query using Terms and Connectors or Natural Language. Alternatively, you may
enter an author’s name or title of article, or you may enter a citation to a law review article.
You may also elect to review law reviews published in a certain state or may elect to review

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law reviews by topic, such as “Antitrust.”

e. Searching for Secondary Authorities

When you sign onto Westlaw, a category titled “Secondary Sources” allows you to search
through a number of secondary sources, including the Restatements, A.L.R., treatises, and
other secondary sources. Select the source you wish to search and browse its table of
contents or enter your keywords in the Global Search Box.

4. KeyCiting
To update and validate your primary authorities when using Westlaw, use its service called
“KeyCite.” The service and process is highly similar to Shepardizing using Lexis Advance.
Westlaw’s Global Search Box allows KeyCiting. Type in “kc:” followed by your citation
and view your results. Alternatively, when you are viewing a case or statute on the screen,
watch for the “signal indicators” on the screen. For example, a red flag signals strong
negative history, and a yellow flag indicates caution. For a reminder of what the flags mean,
click the wording “Powered by KeyCite” at the top of a document. KeyCiting is discussed
in detail in Chapter 9.

Figure 11-9
Westlaw Case Results Screen

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5. Other Westlaw Features

Like Lexis Advance, Westlaw offers a number of added features to make legal research easy
and efficient, including the following:

• Hyperlinking and Document Management. As you read through various

authorities, references to other authorities will appear in a bright blue color as
hyperlinks, which allow you to click and be immediately transported to them. You
may print, download, or e-mail searches and documents to yourself and others or
save your results in folders for easy access at another time.
• Overview of Results. After you conduct a search using your Global Search Box,
the center portion of your screen will display the documents that are most
responsive to your search query, ranked by their relevance. The left side of your
screen will display an overview list of your results, informing you how many cases
contain your term, how many secondary sources mention your term, and so forth.
When you select one of these content areas (for example, “Cases”), the right side of
your screen will direct you to “Related Documents,” such as secondary sources,
briefs, or pleadings that are related to your search.
• Key Numbers. To locate cases on Westlaw using the Key Number System, select

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 “Key Numbers” from your home screen. You can search Westlaw’s Key Number
Digest Outline, browsing the list of more than 400 topics, until you find the right
Key Number. Alternatively, you can enter descriptive terms into an open search
box to locate topic names and Key Numbers.
• Selected Topics. When you are viewing results (for example, a case), the right side
of your screen will direct you to “Selected Topics,” allowing you to view additional
materials, such as A.L.R. annotations and briefs, that are related to the document
you are viewing.
• Narrowing Filters. Like Lexis Advance, Westlaw allows you to filter your search
either before you run it or afterward. After your search results are displayed on your
screen, you can restrict your search to search by court, date, judge, attorney, topic,
or other fields. Drop-down menus help you select dates.
• Alerts. Create Alerts to run your searches on a regular basis or to automatically
monitor the status of your cases, statutes, and more and notify you by e-mail of
those updated results.
• Briefs. You may select “Briefs” from your first screen to review briefs filed in
specific courts or relating to specific areas of the law. Alternatively, as you view a
case on your screen, the Selected Topics pane on the right side of your screen will
direct you to briefs and court records that cite your case or authority.
• Highlighting. When a document is displayed on your screen, you may copy
portions of it and then add a “sticky note” to your screen with your comments,
save it to a folder, or highlight it in a color of your choice.
• Folders. You may copy, drag, and drop information, citations, text, and more into
research folders that you may create and name (for example, “O’Hara Contract”),
save indefinitely, and share with others.
• Search on the Web. When your results are displayed on your screen, select
“Search” from the toolbar at the top of your screen to be directed to free Internet
sources such as Google and Wikipedia that relate to your topic.
• 50 State Surveys. Like Lexis Advance’s feature with the same name, this service
gives access to all 50 states’ statutes on various topics, such as corporate law and
family law, allowing you to compare statutes from all over the nation. Select
“Secondary Sources” from your home screen and then select “50 State Surveys.”
• Citation Preferences. Recall from Chapter 8 that Westlaw provides assistance
with citations. For example, you may elect either to italicize or underscore case
names, to include parallel citations, or to select Bluebook citation form (which is
the default approach) or a jurisdiction-specific citation form, such as California
or Texas citation form. Look for the “Preferences” button at the bottom of your
screen, and then select “Citations.” Set your preferences. Then whenever you
highlight text, select “Copy with Preferences.” When you drop this text into
any document, the citation will be formatted according to your preferences.
You may have to tweak the citation a bit, but significant help is given.
• Graphical Display of Direct History for Cases. Westlaw shows you the direct

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 history of your case in an easy-to-understand flowchart format. For example, you
would be shown in graphical format, using arrows, how your case progressed from
trial, through its initial appeal, when certiorari was granted, and then what the
United States Supreme Court held. You may easily link to the court briefs and
motions filed at each level of the case’s history. Select “History” to access this
feature.
• Graphical Display of Timelines for Statutes. Westlaw’s feature, called “Graphical
Statute,” displays a timeline of your statute’s legislative history (for federal statutes
and some state statutes) with links to prior versions of the statute, committee
reports, the Congressional Record, presidential messages, and any legislative histories
compiled for your statute. You will also be informed if any pending legislation
affects your statute.
• Help. Select the “Help” button at the bottom of any screen to take a tutorial, e-
mail a question to Westlaw research attorneys, or to call a research attorney at 1-
800-REF-ATTY. Use the “Live Chat” button at the bottom of your screen to ask
for real-time help by e-mail.
• Depth of Content. Similar to Lexis Advance, Westlaw provides a rich variety of
content. Look for the following on your first screen: Practical Law (offering
materials on various topics such as Estate Planning and Litigation); Forms; Briefs;
Expert Materials; Public Records; and Business Law Center (offering a wide variety
of materials relating to business transactions and law).
• Affiliated Services. Westlaw offers several affiliated services, including the
following: Westlaw Litigator, a complete service for legal professionals engaged in
litigation, affording access to jury instructions, court briefs and records, motions,
experts, calendaring systems, and more; and Westlaw’s Drafting Assistant, which
can check the format of your document and citations, create tables of authorities,
alert you to inconsistencies in your document, and more.
• Mobile Applications. Westlaw is available as an app for smartphones and iPad
tablets. You may thus find and KeyCite your authorities at a moment’s notice.

Practice Tip

Westlaw Reference Attorney Blog

Thomson Reuters/West reference attorneys offer a blog at

http://blog.legalsolutions.thomsonreuters.com/category/legal-research/reference-attorney-tips showing
sample Westlaw searches and offering helpful information and a tip of the week about using Westlaw.

6. Quick Review of Westlaw

To use Westlaw:

a. Establish your Internet connection.

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 b. Sign on by typing in your Westlaw user number, identification number, or
password.
c. Type in the client or billing number.
d. If you wish to conduct a “Google” type search or if you know a citation to a case,
statute, or other authority, use your Global Search Box at the top of your screen,
enter your keywords or the citation, and click the search icon or “Enter.”
e. If you do not know where to start, select a content area (such as “Cases” or
“Secondary Sources”) from your first screen. You may now enter keywords into the
Global Search Box (using either Natural Language or Terms and Connectors) or
filter by jurisdiction or other fields and then use the Global Search Box.
f. Review the materials presented. KeyCite all primary authorities to ensure their
validity, and KeyCite all authorities to expand your research results.

Practice Tip
Lexis Advance and Westlaw Interactive Tutorials

Lexis Advance and Westlaw both offer free online interactive training and tutorials (as well as useful print
products) to help you learn to use their services.

• Lexis Advance. For tips, webinars, literature, and training videos, access http://www.lexisnexis.com/en-
us/support/lexis-advance/default.page.
• Westlaw. For training materials, user guides, and videos, access http://legalsolutions.thomsonreuters.com/law-
products/westlaw-legal-research/training-support.

D. Final Pointers on Computer-Assisted Legal Research

1. When to Use Lexis Advance or Westlaw

Some tasks are best performed by using conventional print research tools, whereas others
are best performed by using computer-assisted legal research tools, such as Lexis Advance or
Westlaw. Still other tasks might call for you to blend both methods of research. Knowing
which method to use requires an analysis of many factors, including the complexity of your
task, the costs involved, and time constraints. Many instructors urge students to first
become familiar with the conventional print tools before becoming too wedded to
computer-assisted legal research. Strong skills in manual legal research provide a good
foundation for using Lexis Advance and Westlaw more effectively.
Use conventional print sources when:

• You need to “get your feet wet” and get some background about an area of the law.
• You need a thorough and comprehensive analysis of an area of the law, such as that
provided by a treatise.
• You are having difficulty formulating research queries for Lexis Advance or

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 Westlaw because you are unfamiliar with the issue you are researching.
• It would be more cost-effective and easier to use traditional print sources to get a
quick answer to a question than to incur costs by using Lexis Advance or Westlaw.

Use computer-assisted legal research when:

• You already have a citation to a known case or other authority.

• You are looking for cases involving a known party, attorney, or judge.
• The area of law is new or evolving.
• You are looking for the most current information available.
• You are validating your primary authorities (by Shepardizing or KeyCiting).

Computer-assisted legal research is a valuable tool. The services provide rapid access to
a wide range of materials that no law firm could afford to purchase or shelve. Nevertheless,
computer-assisted legal research may be expensive and will produce useful results only if
you understand how to make the systems work effectively for you. This takes practice and
experience. Legal research is not as easy as merely inserting some words into a search box.
Effective researchers use a combination of computer-assisted legal research and
conventional research techniques to obtain the best results for clients.

2. Limitations of Computer-Assisted Legal Research

Following are some limitations of computer-assisted legal research:

• Literalness. Computers may be highly literal. Thus, a search for “teacher” may not
produce results including “instructor” or “student.” Construct your search query
carefully before you sign on and begin incurring costs.
• Cost. There are numerous pricing variations for Lexis Advance and Westlaw. Large
law firms pay flat rates, allowing unlimited use of Lexis Advance and Westlaw by
their legal professionals. Fees are typically assessed not only for use of the systems
themselves but also for the hourly time that legal professionals spend searching and
viewing the results.
• Database Limitations. There are some limitations to the Lexis Advance’s and
Westlaw databases. To determine the date limitations of publications and
materials, consult Lexis’s database list at http://w3.nexis.com/sources, or sign onto
Westlaw and check what sources are within and “out” of your subscription pricing
plan.

3. The Future of Print Publishing

On occasion, experts wonder whether the new virtual libraries will ultimately replace
conventional law libraries with their primarily print collections. In brief, the more reasoned
conclusion is that although the newer technologies (especially Lexis Advance, Westlaw, and

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the Internet) provide excellent tools, they are unlikely to replace law libraries for some of
the following reasons:

• Libraries are permanent archives of materials, whereas the Internet is a temporary

host continually being updated, and even replaced, with earlier versions of
information sometimes lost forever.
• As the 2014 American Bar Association Legal Technology Survey Report concluded,
nearly one-fifth of the average attorney’s work time was spent on legal research, and
“the data also show[ed] that print isn’t dead . . . . ” (although older attorneys
turned to print first more often than did attorneys with fewer years of practice).
• Certain materials such as articles and texts are copyrighted and are thus unlikely to
appear on the Internet because their authors would lose royalties if their works
were disseminated globally on the Internet with a keystroke.
• Several years ago, CD-ROMs and e-books were touted as the technological marvel
that would replace the printed page. Now, most experts recognize their value as
complementary sources to conventional printed materials. Similarly, the other
newer technologies will likely continue to coexist with their print counterparts.
• Although people can read hundreds of pages at a sitting, research shows that most
people only read a few screens of information before printing it out.

In sum, surveys show that legal publishers still have a strong connection to print products,
law librarians have concerns about the costs of digital libraries, and legal professionals
continue to have a strong attachment to print sources.
Thus, be flexible in your research methods. Be prepared to switch sources when you
reach a dead end. No one method is best. Combine the best features of print research
approaches with the best approaches of computer-assisted legal research to best serve a
client’s needs.

E. Other Competitors in Commercial Electronic Research

Although Lexis Advance and Westlaw are the acknowledged giants in the field of
computer-assisted legal research, a number of other companies offer access on a fee basis to
legal materials through the Internet. Most charge moderate fees and appeal to small firms
and sole practitioners. Some cater to government users.

• Bloomberg Law (http://www.bna.com/bloomberglaw). The most significant

competitor to Lexis Advance and Westlaw is Bloomberg Law, launched in 2009 by
Bloomberg Finance One L.P., the global business and financial news provider.
Bloomberg Law offers a comprehensive collection of federal and state materials,
secondary sources such as treatises and practice materials, and in-depth company
information. A number of experts expect Bloomberg Law to pose a serious threat to

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 Lexis Advance and Westlaw. Some of Bloomberg Law’s features include the
following:
• A universal “GO” bar allows you to search for primary or secondary materials or
to search by citation.
• “Practice Centers” (such as Intellectual Property, Corporate/M&A, and Tax)
integrate a wide range of materials pertinent to that area of law. Each Practice
Center features relevant primary sources, legal analysis, and news and practice
tools.
• A Dockets feature offers case law, dockets and filings, and other litigation-related
tools all through one menu.
• Company Profiles and Company Screener features provide wide-ranging
information about companies, including news, litigation information, stock
performance, and company data.
• User-friendly tools such as an Alerts Manager (to inform you of breaking news
or cases), a Research Trail (which automatically saves your searches), Workspaces
(to allow you to collaborate with your colleagues and place documents in a
digital filing cabinet), and 24/7 customer support help researchers organize their
work.
• BCite, Bloomberg Law’s citation service, informs you if your cases are still good
law and provides analysis of and links to the subsequent history of your case, all
in an easy-to-understand colorful display.
• Fastcase (http://www.fastcase.com). Fastcase is a fee-based legal research system
that allows its subscribers access to a vast array of federal and state cases and
statutes. Its libraries are searchable in a variety of ways, from “Google” type
searches, to citation lookup, to Natural Language and Boolean searching. A
number of state bar associations have purchased Fastcase subscriptions for all of
their members. Although Fastcase does not verify or update authorities in the same
way that Shepard’s or KeyCite do, its product Authority Check provides you with a
list of other cases that cite your case. Most impressive, Fastcase offers affordable
pricing (as low as $65 per month) and free iPhone and iPad apps so busy
professionals can readily conduct legal research while commuting, in the
courtroom, or before an important meeting.
• Casemaker (http://www.casemaker.us). Casemaker provides access to federal and
state materials as well as practice guides at low cost. In addition, more than 25 state
and local bar associations have partnered with Casemaker to provide their members
free access to these materials. Casemaker offers a Google-like universal search bar,
search history features so users can save and reuse their research results, and the
ability to store research in folders. Casemaker’s citation service, CaseCheck+,
provides a green “thumbs up” to indicate your authority is still good law and a red
“thumbs down” to indicate negative treatment.
• Ravel Law (https://www.ravellaw.com). The newest entrant in the field of
computer-assisted legal research is Ravel Law, founded in 2012. Ravel Law allows

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 one to search for materials using a “Google” type keyword search or Boolean
Terms and Connectors. You can filter results by date and jurisdiction. It provides
hard data and analytics about the cases it locates, showing you with visual maps,
graphs, and timelines how each key decision is cited by others and why the case
matters. For example, a timeline graph can be used to determine if a case is being
cited less frequently over time (and is thus perhaps falling out of favor). Ravel Law
also provides analytical data on judges. Ravel Law’s coverage is presently limited to
federal and state case law. For example, it includes all Supreme Court cases but
cases from the circuit courts only since 1925 and cases from the state courts only
since 1950. Ravel has teamed with Harvard to digitize and scan Harvard Law
School’s entire case law collection to “Free the Law” to make it available online,
free, to anyone with an Internet connection.
• VersusLaw (http://www.versuslaw.com). VersusLaw provides access to federal and
state cases, statutes, and other legal sources for as low as $20 per month.
• JuriSearch (http://www.jurisearch.com). JuriSearch offers primarily California,
Florida, and Massachusetts materials for moderate fees.
• PACER (http://www.pacer.gov). Public Access to Court Electronic Records
(PACER), a service of the United States Judiciary, allows users (who must register
to use the system) to obtain case and docket information from all federal courts.
The PACER system offers electronic access to a listing of all parties and
participants in cases, documents filed for certain cases, case status, and other useful
information. For example, if you wish to review Radio Shack’s bankruptcy filings
or the filings in the Takata airbag products liability litigation, you may access the
court files, and review all documents filed in the matter. The fee is presently 10
cents per page, whether pages are viewed, printed, or downloaded. If less than $15
in fees is accrued in a calendar quarter, the fee is waived.

F. Nonprint Research Tools

In addition to computer-assisted legal research, there are some other nonprint tools that
legal researchers should know how to use: microforms, sound recordings, and CD-ROMS,
DVDs, and eBooks.

1. Microforms

a. Types of Microforms
Microforms are based on the principle of microphotography: Images are reduced and placed
on rolls or sheets of film. A microfilm reader is then used to review the images recorded on
the film. The readers resemble a television screen and are usually equipped with printers so
you may obtain a photocopy of the material being viewed. There are three main types of
microform:

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 • Microfilm. Microfilm is a cartridge, cassette, or reel of film (usually 16 or 35
millimeters) that is threaded into a reader. Although microfilm saves storage space,
it has not been widely used for legal materials. It is, however, often used for
government records, bank records, newspapers, and other materials. Many counties
preserve their land records on microfilm. The image shown on the screen is often
fuzzy, and the prints reproduced are also often difficult to read.
• Microfiche. Microfiche is a microform displayed on a thin transparent celluloid flat
sheet rather than on a roll of film. Each sheet of microfiche may contain images of
up to 400 pages. Probably the best-known use of microfiche for legal research is
ProQuest’s CIS Congressional Bills, Resolutions, & Laws on Microfiche, used to
compile legislative histories with materials from 1933 through 2008. Many law
libraries maintain their legislative history materials on microfiche.
• Ultrafiche. Ultrafiche is a type of microfiche with a high reduction ratio. As many
as 1,800 pages of text can be held on a single sheet of ultrafiche.

b. Summary of Microforms
All microforms save storage space. Although their use for nonlegal purposes has been broad,
their role in legal research has never really taken hold. One exception is that microfiche is
often used for the materials making up a legislative history; however, with the easy
accessibility of legislative materials through websites such as Congress.gov (see Chapter 10),
the use of microforms has waned significantly. Ask your law librarian what materials are
available in microform at your law library.

2. Sound Recordings and Video

Many continuing legal education programs are offered for those in the legal profession.
Professionals may attend the seminars or programs in person or may usually purchase a
sound recording or CD-ROM of the program. More recently, legal professionals obtain
continuing legal education through webinars, seminars offered on one’s own desktop
computer, which are often accompanied by materials that may be downloaded or printed.
Law firms often use video for mock trials, helping to sharpen attorneys’ skills as well as
point out certain characteristics of client witnesses that may bear on credibility. Some firms
use videotape presentations to introduce clients to certain routine matters, such as
providing clients with basic information about having a deposition taken or the trial
process. Videotapes are often used at trials to show the jury an accident scene or in criminal
prosecutions to show occurrence of the crime itself (such as bank robbery or shoplifting).

3. CD-ROMs, DVDs, and eBooks

CD-ROMs and DVDs are highly efficient storage media; they may contain more than
200,000 pages of text. Lexis and Westlaw both make cases, statutes, and practice guides
available on CD-ROM. One disc can take the place of several bound volumes. For

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example, cases reported in more than 500 volumes since 1980 in West’s Federal Supplement
are available on six discs. Searching is easy, making it efficient to locate cases by citation,
party name, keywords, or other elements. Because discs containing new cases and statutes
must be purchased, most publishers issue new discs (for a fee) and take back old ones at
periodic intervals. The cost for CD-ROM and DVD products is about the same as for their
print counterparts. In some instances, publishers issue CD-ROMs with print books. For
example, West offers a three-volume treatise on limited liability companies in print form
with an accompanying CD-ROM with pertinent forms. High-speed wireless Internet access
to legal materials using laptops and mobile devices such as iPhones may make using CD-
ROMs and DVDs for legal materials a relic of the past.
A newer trend is the offering of eBooks, which are books available in digital form and
readable on computers or other electronic devices. Law-related eBooks are available for
downloading onto devices such as smart phones, iPads, NOOK and Kindle readers, and
more. Lexis, Thomson Reuters/West, and Wolters Kluwer offer thousands of books
(including court rules, treatises, student textbooks, and practice guides) on the mobile
device of your choice. Advantages of eBooks include their portability, the fact that once an
eBook is downloaded, there is no need to have Internet access to read it, the ability to add
notes to the text, and the ability to easily search content. Lexis’s eBooks link to Lexis
Advance and West’s eBooks link to WestlawNext, so you can gain easy access to authorities
cited in your eBook. The home pages of each publisher will provide links to the titles and
publications available as eBooks.

Tips for Efficient Use of Computer-Assisted Legal Research

• Construct your search or query before you sign on and start incurring costs.
• You need not memorize all of the commands and root expanders. A quick reference sheet is usually provided at
each terminal in a law library and on many search screens.
• Do not waste time by reading long cases or law review articles on the screen. Such a practice causes strain to the
eyes and the wallet. Print the document, e-mail it to yourself, or jot down its citation so you can locate it later.
• To save money, use a smaller file or database rather than a larger one. For example, if you are interested only in
California cases, use the database just for California rather than one for all 50 states.
• Because Lexis for Microsoft Office and Thomson Reuters/West’s Drafting Assistant (see Chapter 9) can check cites
from a table of authorities, you may easily check the cites in an adversary’s brief to ensure that the cases relied upon
by the adversary are valid and have not been weakened.
• Use alerts services to track information about clients and then send the clients articles that mention them. Clients
are thrilled when their legal team expresses a personal interest in their business.

G. Citation Form

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 Figure 11-10
Comparison of Selected Lexis Advance
and Westlaw Terms and Connectors

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Internet Resources

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Writing Strategies

Although computer-assisted legal research is somewhat mechanical, writing about

the results you locate online is not. Because the reader of every project you write will
be busy, and some readers may be highly critical, you need to produce a written
project that is readable.
To enhance interest in your writing:

• Use the active voice because it is more forceful than the passive voice.
• Use lists and quotations to “break up” long narrative passages and add visual drama
to your page.
• Use verbs (“conclude”) rather than nominalizations (“drew a conclusion”) to create
interest.
• Use strong words (“unique” rather than “somewhat unusual”).
• Use concrete words (“your lease”) rather than vague terms (“your situation”).

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 • Use placement to enhance interest by placing stronger arguments at the beginning
and end of your project where they will have more force.
• Use “graphics” such as high-quality paper, headings, and white space to capture the
reader’s interest.

Assignments for Chapter 11

LEXIS ADVANCE ASSIGNMENT

1. From the initial Lexis Advance screen, retrieve the case located at 544 U.S. 113.
a. What is the Lexis database number or citation for this case?
b. What are the parallel citations for this case?
c. Select “Citing Decisions.” Use the filtering options and select to review cases
from the Fourth Circuit. Which 2013 Eastern District of Virginia case
discusses headnote 14 of your original case? Give the case name only.
d. Return to your original case. Select “About This Document” and then “View
Reports.” Select the first Report. What is the first seminal case listed? Give
the case name only.
e. Return to your original case. Shade any portion of the case. How many colors
may you elect to highlight portions of the case?
2. From the initial Lexis Advance screen, select “Practice Areas” and then “Family
Law.” Which secondary sources may you view for more information on this topic?
3. From the initial Lexis Advance screen, select “Practice Areas” and then “Estate,
Gift & Trust Law.” Select “All cases.” Use the Red Search Box and search for the
following: validity of “holographic wills.” When you are given your results, filter
by state and select Oregon and then sort by date.
a. What is the newest case to which you are directed?
b. On which page of this case does the term “holographic will” appear?
4. From your initial Lexis Advance screen, use the Red Search Box and retrieve the
case at 784 F.3d 543.
a. What is the name of this case?
b. Review headnote 4 of this case and select “Shepardize — Narrow by this
headnote,” and then select “Citing Decisions.” How many cases cite this
headnote?
c. Return to your original case. Select “Activate Passages” and then select the
first “box” that appears in Section III A of your case. Which two cases cite
your case for this issue? Give the case names only.
5. From your initial Lexis Advance screen, retrieve 29 U.S.C. § 206.
a. Generally, to what topic does this statute relate?

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 b. Under “Research References and Practice Aids,” select the first Am. Jur. 2d
reference listed. What is the topic of this discussion in Am. Jur. 2d?
6. From your initial Lexis Advance screen, select “Statutes and Legislation” and then
Wisconsin. Select to browse Wisconsin statutes by the table of contents or listing
of Wisconsin statutes. Select “Public Health” and then Chapter 154. Review the
definitions in Subchapter I.
a. Does “life sustaining procedure” include kidney dialysis?
b. Does “life sustaining procedure” include providing nutrition?
7. From your initial Lexis Advance screen, select “Statutes and Legislation” and then
Delaware. Construct a search of the Delaware statutes. In your first “Terms” box,
use terms to determine the duration or term of a trademark in Delaware and
whether a trademark can be renewed in the state.
a. What is the term of a state trademark registration in Delaware?
b. May the registration be renewed?
c. What is the renewal fee?
d. What statute governs your answer?
8. From your first Lexis Advance screen, select “Secondary Materials” and then “Law
Reviews & Journals.” Construct a search to locate a Seton Hall Law Review article
written by Michelle M. Harner that includes the term “risk management.”
a. Give the citation to the law review article.
b. Shepardize this law review article. How many sources cite it?
c. Review the graphical map or timeline shown on the screen. Are citations to
this law review article generally increasing or decreasing?
9. From your first Lexis Advance screen, locate a U.S. Supreme Court case in which
the plaintiff’s name is Korematsu.
a. How many cases cite Korematsu?
b. How many other citing sources cite Korematsu?
c. Review the graphical map or timeline shown on the screen. Are references to
this case by citing sources increasing or decreasing?
10. From your first Lexis Advance screen, select “Administrative Codes and
Regulations” and then “Federal.” Either review Title 21 of C.F.R. or construct a
search to locate the C.F.R. provision relating to warning statements that must be
included in sun-tanning preparations that do not contain a sunscreen ingredient.
a. What C.F.R. provision includes the warning language?
b. What is the warning that these sun-tanning preparations must contain?
c. Select the reference to the Federal Register. When was this provision effective?
11. From your first Lexis Advance screen, select “Secondary Materials” and then
“Restatements.” Review the Official Text of the Restatement (Third) of Trusts.
Either review the Table of Contents for the Restatement or construct a search to
answer the following questions.
a. What section defines an “active trust”?
b. What is an active trust?

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 c. Shepardize this document. Which 2014 Michigan Court of Appeals case cites
this Restatement provision? Give the case name only.
12. From your first Lexis Advance screen, select “Secondary Materials” and then
“Dictionaries,” and “Ballentine’s Dictionary.” Enter “res gestae” as the exact term
you wish to search.
a. Briefly, what is the meaning of “res gestae”?
b. To which primary source are you directed by this definition?
13. From your first Lexis Advance screen, select “Secondary Materials” and then
“Treatises, Practice Guides & Jurisprudence,” and then “California.” Select Cal.
Jur. 3d. Either browse the table of contents or construct a search to determine if
interference with light, air, or a view is a nuisance.
a. What section in Cal. Jur. 3d discusses this issue?
b. In the “Reference” section, select the Civil Code statute to which you are
directed. If a fence is 9 feet high, is it a private nuisance?
14. From your first Lexis Advance screen, retrieve 119 S. Ct. 662.
a. How does page 163 of the parallel U.S. Reports begin?
b. Select “Shepardize this document.” What icon would you select to create an
Alert for this case?
c. Select “About This Document” and “View Reports.” What is the first
seminal case you are directed to relating to this topic?
15. From your first Lexis Advance screen, select “Dockets” and then Dockets for the
U.S. Courts of Appeal. Which 2012 Fifth Circuit case has the docket number 10-
20808. Give the case name only.
16. From your first Lexis Advance screen, select “Cases” and then “federal.”
a. Using the search box, use Natural Language and search for works made for
hire for a commissioned work that is a sculpture. To how many cases are you
directed?
b. Using the search box, use Boolean Terms and Connectors and search for the
specific term “work made for hire” within 25 words of the word “sculpture”
and the term “commissioned work.” To how many cases are you directed?

WESTLAW ASSIGNMENT

1. From the initial Westlaw screen, retrieve the case located at 556 U.S. 49.
a. What is the name of this case?
b. Select “Selected Topics.” To which A.L.R. Fed. annotation are you directed?
c. Retrieve the A.L.R. Fed. annotation. To which Wisconsin case are you
directed? Give the case name only.
2. Retrieve the case located at 792 F.3d 118.
a. What is the name of this case?
b. Who delivered the opinion of the court? For which Supreme Court Justice
did the author clerk?

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3. Locate a U.S. Supreme Court case in which the plaintiff’s name is Gottschalk.
a. Give the citations for this case.
b. How does page 68 of the parallel U.S. Reports begin?
c. What icon would you use to set a KeyCite Alert for this case?
4. Select the appropriate databases and locate a 2014 U.S. Supreme Court case in
which the plaintiff’s name includes Alice Corp.
a. Give the name of the case.
b. Review headnote 11 of this case. How many cases cite this headnote?
c. Review headnote 14 of this case. Select the “key” diagram. What is the first
Key Number that is listed?
d. Select the first Key Number. What is the first case to which you are directed?
5. Select the appropriate databases and locate a Minnesota Court of Appeals case in
which the plaintiff’s name is Limongelli. Give the case name and citation.
6. Locate 11 U.S.C.A. § 301.
a. Generally, to which topic does this statute relate?
b. Review the Notes of Decisions following this statute. Must a debtor be
insolvent to file bankruptcy? Give your answer and cite a 1995 case that
supports your answer. Give the case name only.
7. Use the Popular Name Table for U.S.C.A.
a. What is the citation for the short title of “Jennifer’s Law”?
b. What statute relates to § 203 of the Public Law Number for this legislation?
c. Access that federal statute and select “History” and then “Legislative History
Materials” for this section. Access the second House Report listed.
i. What was the purpose of this law?
ii. Review the background for this law. What did a federal study of the
incidence of child abuse and neglect in America show?
iii. Which Committee issued the Report?
8. Select the appropriate database. What is the statute of limitations in Virginia for
libel?
9. From the initial Westlaw screen, access Key Numbers.
a. What topic and Key Number would you select to view cases relating to
infringement of computer and software patents in general?
b. Select this topic and Key Number. How many cases discuss this issue?
10. Select Secondary Sources and then Law Reviews and Journals. Locate the Yale
Journal of Law and Technology. What is the title of a 2015 article by James
Grimmelmann written in this journal?
11. Select Secondary Sources and then Black’s Law Dictionary.
a. Briefly, what is the definition of “piercing the corporate veil”?
b. When you review this definition, to which treatise are you directed?
12. Select Secondary Sources, Restatements, and Restatement (Third) of Agency.
a. What is the principle announced in Section 4.03?
b. Review “Selected Topics” for this section. What is the first treatise to which

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 you are directed?
c. Access the 1991 Northern District of Indiana case that is cited in Section
4.03. How many citing references cite this case?
13. Select Secondary Sources and then Secondary Sources Index. Locate New York
Jurisprudence, 2d. What is the general subject matter of Criminal Law: Procedure
§ 3388?
14. Select Secondary Sources and then A.L.R.
a. Search for “breach of fiduciary duty.” How many A.L.R. references are listed?
b. Search for “backdating of stock options as a breach of fiduciary duty.” How
many references are listed?
c. Search using Boolean Terms and Connectors. Search for the term
“backdating stock options” to appear within ten words of “corporate officer”
and the term “fiduciary duty” to appear within ten words of “board
member.” How many references are listed?
15. From the first Westlaw screen, select Secondary Sources and then use the
Secondary Sources Index to locate Am. Jur. Legal Forms 2d.
a. Review the table of contents. Locate a form for the sale of a copyright in a
published book. Who will sign this form?
b. What topic and Key Numbers are listed?
c. What Am. Jur. 2d reference are you directed to relating to transfer or
assignment of a copyright interest?
16. From the first Westlaw screen, select Secondary Sources and then use the
Secondary Sources Index to locate Am. Jur. Proof of Facts.
a. Locate an article by Michelle L. Evans relating to abandonment of a trade
secret. What is its citation?
b. What does Section 12 of this article provide?
17. Review the Federal Rules of Civil Procedure. If a party fails to obey an order to
provide or permit discovery, may a court sanction the party by dismissing the
action? Give your answer and cite the provision that governs your answer.
18. From the first Westlaw screen, select “Legislative History — Arnold & Porter.”
Select the USA Patriot Act of 2001. What is the House Report Number for this
legislation?
19. Locate C.F.R. Review Part 13 of Title 6 of C.F.R.
a. What is the definition of “Individual” for purposes of this Part?
b. Can you email this section to yourself or another? If so, what icon would you
select?

COMPARING LEXIS ADVANCE AND WESTLAW ASSIGNMENT

For each question set forth below, use both Lexis Advance and Westlaw.

1. Access 204 Va. 414 on both Lexis Advance and Westlaw. Shepardize and KeyCite

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 this case.
a. How many cases cite this case?
b. Review headnote 7 for this case. How many cases cite headnote 7 of this
case?
c. How many law reviews cite this case?
d. Give the citation to the newest law review that cites this case.
2. Access 918 F. Supp. 2d 962. Shepardize and KeyCite this case.
a. How many cases cite your case? Give the name of the plaintiff for each case.
b. How many secondary sources or other sources cite your case?
3. Access 10 U.S.C. § 5001.
a. How many cases are listed in the Notes of Decisions or Case Notes?
b. Are the cases identified by Lexis Advance also identified by Westlaw?
c. Can you tell on both Lexis Advance and Westlaw what change occurred to
this statute in 2006?
4. Select to review only Colorado state court cases. Enter the following search query:
“statute of limitation” /30 jurisdiction. How many results are you given by Lexis
Advance? How many results are you given by Westlaw?

Internet Assignment for Chapter 11

1. Access Thomson Reuter’s Training and Support page for Westlaw at

http://legalsolutions.thomsonreuters.com/law-products/westlaw-legal-
research/training-support. Select “User Guides” and “Getting Started.”
a. Select the guide relating to “Setting Preferences on Westlaw.” Review the
information on Changing Citation Settings.
i. How many state-specific citation formats are offered?
ii. Can you elect to include subsequent history?
b. Select the guide titled “Getting Started.”
i. Review Page 3. How many jurisdictions can you select before running a
search?
ii. Review Page 3. What is a custom page?
iii. Review Page 5. When you run a search and view results, will
documents be included even if they do not reference the specific terms
used in your search?
2. Access LexisNexis’s Lexis Advance Page at http://www.lexisnexis.com/en-
us/products/lexis-advance.page.
a. Select the Quick Reference Guide.
i. Review Page 3. What three options may you use to filter or select dates?
ii. Review Page 16 relating to Alerts. What Monitoring Options do you
have for Alerts?

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b. Select the Common Research Tasks Guide. Review Page 7. How do you add
citations?

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 Chapter 12

E-Research: Legal Research Using the

Internet
On the Internet, nobody knows you’re a dog.

Peter Steiner, cartoon in The New Yorker, July 5, 1993

A. Introduction
B. Glossary of Terms
C. Conducting Legal Research Online
D. Strategies and Tips for Internet Legal Research
E. Ethical Concerns Regarding Use of the Internet
F. Practical Concerns Regarding Use of the Internet
G. Surf’s Up: The Best Internet Legal Research Sites
H. Cautionary Notes on Internet Legal Research
I. Citation Form

Chapter Overview
The best legal researchers know how to use a combination of conventional research
methods with computerized and electronic research methods to achieve results. Although
one need not be a computer guru to satisfy one’s duty to perform legal research
competently, legal professionals should be sufficiently proficient in using the Internet that
they can quickly find a case or statute. The Internet affords researchers the ability to find
and review cases, statutes, and a vast array of other materials at no cost, 24 hours each day.
Every year more and more materials are available on the Internet. Although the Internet
will never replace conventional research methods and while there are some significant
drawbacks to Internet legal research, it is an extremely efficient and time-saving method for
some research tasks.
Although this chapter provides a glossary of Internet-related terms, one need not be
conversant with the jargon of computers to be an effective researcher. In fact, the most
useful strategy in conducting Internet legal research is to have one good starting place and
then use this to branch out to other sites of interest.
This chapter provides a glossary of Internet terms, tips, and strategies on conducting
legal research on the Internet, and some cautionary notes about over-relying on the
Internet. The chapter also provides the “best of the best” sites for various legal research
tasks as well as some sites for nonlegal research.

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 A. Introduction

Today’s legal professionals have at their fingertips vast amounts of information that is free
and available 24 hours each day. Until fairly recently, a researcher wanting to review a
newly issued Supreme Court decision had only two options: drive to a law library or
subscribe to a costly computerized legal research service such as Lexis Advance or Westlaw.
The advent of the Internet has dramatically changed legal research, allowing professionals
immediate access to cases, statutes, federal regulations, forms, legislative materials, treaties,
journal articles, and much more. In many instances, cases are posted to the Internet
simultaneously with their release by the clerk of the court. Although the good news is that
there is a vast array of legal materials available for your use, the bad news is that the
information is so voluminous that making sense of the materials offered can be difficult and
confusing.
The Internet was originally developed in the 1970s for military and government use,
primarily to provide a secure method of communication in the event of nuclear attack. Use
then expanded to the scientific and educational communities and, starting in the late
1980s, people began realizing the Internet’s potential for enhancing communication. Use
rapidly spread to the commercial sector, which quickly worked to develop the Internet’s
ability to promote the sale of goods and services. The Internet is now used in every possible
field of endeavor, from the military, to the government, to educational institutions, to not-
for-profit organizations, to commercial enterprises. Nearly every business, including all but
the smallest law firms, has a presence on the Internet.
Legal professionals typically use the Internet for the following purposes:

• Communication. Legal professionals use the Internet to communicate with each

other and with clients. Through electronic mail (“e-mail”), clients can be kept
informed of the progress of their cases. Legal professionals can become involved in
newsgroups to keep apprised of topics of interest to them and to continue their
legal education. In many instances newsfeeds will automatically e-mail newsletters
or bulletins to subscribers, enabling legal professionals to keep current in their
fields of interest.
• Court Filings. Many courts and agencies now permit or require pleadings and
motions to be filed electronically. In fact, all federal courts permit e-filing of court
documents. Electronic filing allows courts to verify page limit and word count
requirements immediately and provides immediate verification that a document
has been filed.
• Marketing. Most law firms have a website, which is a marketing brochure about
the firm that is published electronically rather than in print form. The site will
typically describe the firm, its professionals, areas of expertise, and locations, and
may provide articles or newsletters on legal topics. State bar ethics codes regulate
advertising. Thus, firms need to ensure their websites are in compliance with those

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 regulations.
• Education. Legal professionals can take continuing education classes online and
subscribe to educational newsletters and other informative materials.
• Commerce. Legal professionals can order books, publications, and other materials
from publishers and other vendors.
• Research. Legal professionals can use the Internet to conduct research, including
legal research. One can determine an adversary’s address, a client’s exact corporate
name, when a company’s stock “went public” and who its officers and directors
are, and a variety of other research tasks. The Internet can also be used for legal
research, including finding cases, statutes, regulations, locating forms, reviewing
legal journals and periodicals, and locating legislative documents. This chapter will
focus on the use of the Internet to conduct legal research.

All legal professionals should strive for some degree of familiarity with Internet legal
research. The general duty imposed on legal professionals to have a sufficient level of
competence to represent their clients is broad enough to require competence in new and
emerging technologies, including the Internet. Nearly 20 years ago, a law review article
declared that “[t]he lawyer in the twenty-first century who does not effectively use the
Internet for legal research may fall short of the minimal standards of professional
competence and be potentially liable for malpractice.” Lawrence Duncan MacLachlan,
Gandy Dancers on the Web: How the Internet Has Raised the Bar on Lawyer’s Professional
Responsibility to Research and Know the Law, 13 Geo. J. Legal Ethics 607, 607 (2000). In
fact, the American Association for Paralegal Education states that to be a successful
paralegal, one must possess the “core competency” of being able to use both print and
electronic sources of law to locate applicable primary and secondary materials. Moreover,
employers and clients are increasingly technologically proficient and will justifiably expect
their legal team to be equally proficient, so that clients can be kept apprised of the status of
their matters by e-mail, relevant cases can be sent electronically to co-counsel, and others in
the firm can be provided immediate access to files and records pertaining to a client’s case.
Finally, under 2012 amendments to the American Bar Association’s Model Rules of
Professional Conduct, an attorney’s duty to understand technology is not optional. The
comment to Rule 1.1, entitled “Competence,” states that to maintain the requisite
knowledge and skill, “a lawyer should keep abreast of changes in the law and its practice,
including the benefits and risks associated with relevant technology . . . .”
Not only is there a nearly overwhelming amount of information available on the
Internet, but also the technology surrounding Internet legal research continues to develop
rapidly. For example, legal professionals can now retrieve and Shepardize or KeyCite cases
and statutes on their mobile devices and access authorities on their iPhones (see Chapter
11).
There is, of course, some danger in relying too much on the Internet, primarily because
not all legal materials are available online. Nevertheless, learning good Internet research
techniques will save you a great deal of time. In most instances, Internet legal research

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should complement your other research techniques — namely, conventional book research
and research using Lexis Advance and Westlaw.
Finally, be aware that there is an astounding amount of nonlegal information on the
Internet. Use the Internet as a tool to track clients’ stock prices, determine the weather at
the client’s headquarters, and obtain basic information about clients’ industries. Read the
press releases issued by clients. Clients will be pleased and flattered that you took the time
and effort to do some homework about their business, location, and financial status.

B. Glossary of Terms

Some otherwise confident professionals are intimidated by the Internet, in many cases
because terms commonly used when discussing the Internet, such as “browser,” “URL,”
and “hyperlink,” are unfamiliar to them. Although this section of the chapter provides you
with some basic Internet terms, practically speaking, there is little need to know a great deal
about how the Internet works or how specific terms are defined. Most of us have no idea
how our cell phones and microwave ovens work and yet are entirely comfortable using
these devices. The Internet should be viewed the same way: It is nice to know some of the
terms commonly used, but it is not totally necessary in order to be able to conduct legal
research competently.
Following are some of the terms frequently encountered in the electronic world:

Blog: Abbreviation for “web log,” an online journal or diary where a “blogger” posts his
or her thoughts, often on a daily basis. The entries, called “postings,” are usually
arranged in chronological order, with the most recent additions listed first. Blogs
devoted to law topics are often called “blawgs.”
Browser: Software that helps access and review information on the Internet and translates
HTML-encoded files into text and images that one can read and view. Apple’s Safari
and Google’s Chrome are examples of browsers.
Cloud computing: Storing and accessing information over the Internet (on someone else’s
server) rather than on a user’s computer’s hard drive, allowing easy access to files
from multiple devices and locations.
Cyberspace: The electronic or computer world in which vast amounts of information are
available; sometimes used as a synonym for the Internet.
Domain name: The name that identifies an Internet site, such as “www.ibm.com.”
Domain names have two parts: the “generic top level domain,” which is the last part
of the domain, such as “com,” or “gov,” and which usually refers to the type of
provider of the information, and the “secondary domain,” which is more specific and
is to the right of “www,” such as “ibm” in the above example.
Downloading: Transferring files or information from the Internet to your personal
computer files.
DSL: Abbreviation for “digital subscriber line,” a technology providing fast digital data

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 transmission over the wires of a local telephone network.
E-mail: Electronic mail or messages sent through the computer rather than in physical
form (which is often called “snail mail”).
Extranet: An internal company or law firm Intranet that provides access to selected
outsiders on a case-by-case basis.
FAQ: “Frequently asked questions,” often included on websites and that respond to the
most commonly asked questions about the site or about the information provided by
the site.
FIOS: Abbreviation for Fiber Optic Service, a digital technology providing Internet
access with maximum connection speed.
FTP: File transfer protocol, a common method of moving files or communicating
between two Internet sites or computers.
Home page: The first or main page you are sent to when accessing a person’s or business’s
website.
HTML: Hypertext markup language, a standard language of computer code.
HTTP: Hypertext transfer protocol, a common method of moving files or
communicating between two Internet sites.
Hyperlink: A method of instantaneous transport to another destination. Hyperlinks are
often underscored or appear in a different color on the computer screen; by clicking
the colored line, you will be immediately transferred to that particular site or page.
Internet: A collection of worldwide, interconnected computer networks originally
developed for defense purposes and linked together to exchange information; the
Internet is not owned by any one person or company.
Internet Service Provider (ISP): A company that provides Internet access, such as Comcast
or Verizon, for a monthly fee.
Intranet: A private network inside a company or law firm that provides access only for
internal use to those in the company or firm and not to outsiders; for example, a law
firm’s intranet could be used only by those in the firm and could not be accessed by
any member of the general public.
Link: See “Hyperlink.”
Listserv: A system that allows groups of people to e-mail each other and participate in
group discussions, usually about a topic of common concern. For example, a listserv
comprising law students may automatically send one message to all others in the
group.
Log-in: (n.) An account name used to gain entry to a computer system. Unlike a
password, it is not secret. Also called a “user name”; log in: (v.) the method of
accessing a computer system.
Modem: A device that connects to your computer and to a telephone line or cable line
allowing the computer to communicate with other computers much the way
telephones allow humans to communicate with each other.
Netiquette: The code of etiquette or conduct for the Internet.
Network: The connecting of two or more computers so that they can communicate with

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 each other and share resources, files, and information.
Newsgroup: An online forum for sharing information and communications. Users view
messages, post their own messages, and reply to others.
Online: The process of being connected to the Internet through electronic
communication.
Password: The secret code used to gain access to a computer system.
PDF: Portable document format, a format that duplicates on a computer screen what a
conventional print source looks like.
Posting: Entering information or messages into a network — for example, cases are
“posted” to the website of the United States Supreme Court, and legal professionals
“post” messages on a listserv.
RSS: Abbreviation for “rich site summary” or “really simple syndication,” a format for
automatically delivering updated web content.
Search box: An initially blank box on a computer screen in which you type or key in the
word or terms you are interested in researching.
Search engine: A particular service that helps one locate useful information on the
Internet, usually through the use of keywords; common search engines are “Yahoo!,”
“Google,” or “Bing.” A search engine is a website that looks for and retrieves other
websites. Search engines look for words in the millions of web pages on the Internet
and direct you to pages that include the search words or keywords you enter in a
search box.
Server: A computer or software package that provides or serves information to other
computers.
Spamming: Sending blanket unsolicited messages to others; similar to “junk mail.”
Surfing the ‘Net: The process of moving or linking from one site to another in the course
of reviewing information.
Uploading: Transferring files or information from a computer one is using to another.
URL: Uniform resource locator, one’s address on the Internet. Most Internet addresses
begin with “www” or “http://www.” The URL of IBM is “www.ibm.com.”
User name: See “Log-in” (n).
WWW: World Wide Web, commonly used to refer to the entire collection of resources
that can be accessed in cyberspace through the Internet.
Web: See “WWW.”
Web page: A particular file or “page” included in a website.
Website: A collection of web pages; for example, IBM’s website (www.ibm.com) will
consist of numerous web pages, each of which is devoted to a specific topic. A
website always begins with a “home page,” which is the first screen viewed when the
website is accessed.
WiFi: Abbreviation for “wireless fidelity,” a form of wireless data communication.

Glossaries of Internet terms can also be found at

http://www.matisse.net/files/glossary.html and http://pc.net/glossary.

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 C. Conducting Legal Research Online

1. Getting Started

Following are the steps in accessing the Internet so you can begin conducting legal research.
In brief, you will be using your modem and telephone or cable line (or wireless network) to
connect to the server of your Internet service provider. When the communication between
your computer and the Internet has been established, you will type in a request or click a
link, and your browser will send a request for information to the server. The server will
send the information to you, and you will view it in your browser. You will “surf the ‘Net”
by clicking on hyperlinks and jumping to other sites of interest. You may download files or
information for later viewing or printing.

• Turn on your computer and proceed to log in, using your log-in identification
(sometimes called your “user name”) and your password. Access your Internet
Service Provider.
• Type in the word or term you are researching in the search box (if you are in a
general search engine such as https://www.google.com). Alternatively, in the
address “box” at the top of the page, type in your favorite starting page, such as
https://www.google.com; http://www.washlaw.edu/; or https://www.gpo.gov/fdsys.
Use this page as your jumping-off point and begin double clicking on the links that
interest you. (See Figure 12-1.)
• Note that although most Internet addresses begin with “http://www” (or
“https://www” with the “s” standing for “secure”), you may not need to type in the
initial “http” or “www” information. Most browsers are configured to recognize
“www” (or the main site address) by itself. Similarly, in most instances the Internet
is not “case-sensitive,” meaning that you can usually type in either upper- or
lowercase letters and they will be recognized and read.

Figure 12-1
Home Page for FDsys

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2. Using a Good Start Page

There is probably no better tip for conducting legal research on the Internet than to always
begin your project with one good “start page.” Your start page should be reliable and easy
to use. It should be formatted in a user-friendly manner so that you can easily read the
print on the screen and locate the information you need without confusing graphics,
pictures, and distracting scrolling announcements, advertisements, or pop-ups. The
advantage of always beginning at the same place or start page is that you will quickly
become comfortable and familiar with the page, and it will serve as an excellent jumping-off
place for your research tasks. View the information at the Library of Congress site “Guide
to Law Online” at https://www.loc.gov/law/help/guide.php. It provides an annotated guide
to sources of information on government and law available online. It includes selected links
to useful and reliable sites for legal information.
Although there are many start pages from which you can begin your research, following
are some well-known legal favorites:

• https://www.law.cornell.edu. The Legal Information Institute at Cornell University

Law School is one of the best known legal sites. It offers overviews of legal topics
such as bankruptcy and corporations and allows direct linking to federal and state

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 cases, statutes, court rules, and administrative regulations. The site is highly
respected and credible. Use its dictionary and encyclopedia “Wex” at
https://www.law.cornell.edu/wex for information about hundreds of legal topics.
• http://www.justia.com. Justia provides free case law, codes, regulations, legal
articles, and legal blog databases, as well as community resources. Justia also
provides information about various legal topics. For example, when you select
“Family Law,” you are given an overview of this area of law, a glossary of family
law terms, and links to articles of interest and other resources. (See Figure 12-2.)
• http://www.washlaw.edu/. This site of Washburn University School of Law lists
legal materials, courts, and states, making it very easy to locate material of interest.
Once again, because it is a site offered by an educational institution, it is highly
regarded. Its appearance is plain, nearly stark, without any distracting advertising.
(See Figure 12-3.)
• http://lp.findlaw.com. This site, FindLaw (now owned by Thomson Reuters), is
another one of the best known legal sites. It directs users to a vast array of legal
materials, including cases, statutes, forms, reference materials, and legal articles.
Links to hundreds of sources of interest to legal professionals are provided,
including links for law students, links to help locate attorneys, experts, and
consultants, and numerous other links to legal resources.

Figure 12-2
Home Page for Justia

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 Once you choose a “start page” that you are comfortable with, begin your research task
with this page and progress from there. After some time, you may encounter other sites that
are of more use to you. If you are a beginner in Internet legal research, however, this
method of consistently beginning any Internet legal research task with your “one good start
page” is the best way to gain expertise on the Internet.
Some researchers start with Wikipedia. Understand, however, that articles on
Wikipedia have not been subjected to the rigorous review and fact checking that articles on
many other sources receive. Moreover, the site has been hacked on numerous occasions.

Figure 12-3
Home Page for WashLaw

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 Practice Tip

Using Google Scholar to Conduct Legal Research

One newcomer to free Internet legal research is Google Scholar, located at https://scholar.google.com.
Searching of federal and state cases is easily accomplished; you may search by case name, citation, or
keywords. Results are provided in Google’s typical fashion in that they are ranked in order of “importance”
(at least, according to Google’s determination of the cases’ order of importance). You may also easily
determine which other cases have cited your case.

3. Assessing the Credibility of Websites

Much of the material that appears on the Internet appears authoritative and reliable;
however, many sites are not subject to the rigorous fact checking and editing of their print
counterparts. Authors who publish in print form are often the acknowledged experts in
their field. On the Internet, it is nearly impossible to judge credibility. Articles often fail to
identify an author or date. Contributors to discussion groups are anonymous. Consider the
following factors in evaluating the credibility of websites:

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 • Domain Name. Examine the domain name in the website (specifically, examine
the ending, such as “com” or “org”). Some sites are considered more reliable than
others. For example, the “gov” (government) sites are probably most authoritative,
followed by the “edu” (educational) sites. If the domain name shows it is a
commercial site (through the use of “com” or sometimes “org”), its content may be
influenced by its owner or publisher. Review advertising on commercial sites to
determine whether there is bias. Consider whether the purpose of the site is to
generate revenue. On the other hand, many law firm websites end in “com,” and
articles posted on a firm’s website are usually highly reliable and authoritative.
• Currency. Articles posted on the Internet may become quickly stale. Examine the
site to determine whether material has been recently updated. Also, if hyperlinks to
other sites are outdated, it signals that the site may not be regularly maintained.
• Author. A tilde (~) in a web address indicates a personal website, meaning that the
author is an individual rather than an institution. Well-known experts usually like
to be paid for their work; thus, “free” articles on the Internet may not be authored
by the best known experts in the field. Check the author’s qualifications. Does the
author include contact information? Reliable authors often encourage readers to
contact them.
• Appearance. Review the overall look and feel of the site. If the site is amateurish or
accompanied by cartoons and humorous graphics, this may be a sign that its
content is not serious.
• Errors. If you locate even one error in content (such as incorrect citation form or
out-of-date fee schedules), it may well signal that other errors exist. Similarly, errors
in grammar, spelling, and punctuation are signs that the material was not subject to
thorough editing and review.
• Attribution and References. Quotations and statistics should be attributed to their
source (and, ideally, there should be hyperlinks to the original source). Most
reliable sites include references and hyperlinks to other resources to allow their
users to obtain additional information.
• Richness of Content. Review a few other websites to compare their content and to
serve as a double-check of the accuracy and depth of analysis of your site.
Reputable sites should include an “About Us” section (so you can determine who
sponsors the site), a thorough site map, and easy search capability.

D. Strategies and Tips for Internet Legal Research

It is far easier to get distracted when researching on the Internet than when researching
using conventional print volumes. A site piques your interest so you click on it. When you
access that site, another site looks promising and you click on it. When you access that site,
yet another intriguing link appears. Before you know it, you are no longer researching
search and seizure articles but have begun reviewing stock quotes, checking the weather in

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Seattle, or perusing movie reviews. The vast amount of information on the Internet is a
constant source of diversion and distraction. Staying focused is a continuing campaign.
Understand that when you enter a term in a search box — for example, “patent
infringement” — and a list of relevant sites is given, the sites may be listed in order of how
many times your term, “patent infringement,” appears on the site, even in coded or hidden
form. Thus, the first site identified is not necessarily the best; it may be merely the one that
uses or displays the term “patent infringement” most often. Because terms can be hidden in
websites, you may be directed to a site that offers little or no substantive information about
patent infringement. In some instances, you are directed to law firm websites and you must
wade through marketing material before you can locate substantive material on patent
infringement. Other sites, notably Google (https://www.google.com), list the most relevant
and useful sites first, making research easy and productive.
Why use the Internet rather than Lexis Advance or Westlaw? Although search strategies
using Lexis Advance and Westlaw are generally more focused and produce more targeted
results, Lexis Advance and Westlaw are fee-based services, while the Internet offers free legal
research 24/7. Lexis Advance and Westlaw, however, have far more complete databases. For
example, state court cases are available on the Internet only for the past several years, while
Lexis Advance and Westlaw offer access to nearly all state court cases. Moreover, there is no
way to check the validity of a case you locate free on the Internet, while Lexis Advance
offers Shepardizing, and Westlaw offers KeyCiting to determine whether your case is still
“good law.”
Following are some tips and strategies to help ensure that your Internet research is as
efficient and effective as possible:

1. Take Notes. Rather than jumping or linking from site to site, jot down the sites
that appear promising. You can access other sites after you have come to a dead end
in your present research efforts. Moreover, it is possible that you will get
disconnected from the Internet. If you have jotted down sites of interest, you will be
able to locate them later. Use a computer gadget such as a desktop notepad for these
notes.
2. Use the History Lists. When you research, you will use links to jump from site to
site. To return to the immediately previous site, select the “back” arrow at the top of
your toolbar. By continually selecting the “back” and “forward” arrows, you can
move through the sites you have visited. Alternatively, you can review the sites you
have visited by clicking on the “history” button or on the down arrow at the top of
your page that displays the URL of the site you are currently visiting. A drop-down
menu will be displayed that identifies the most recent sites you have visited. Select
the site in which you are interested and you will be transported there.
3. Use Bookmarks. When you determine that there are certain sites you continually
visit or that provide you with useful information, “bookmark” them or add them to
your “favorites” list, so you can readily return to them. When you are at the website
of interest, select “Favorites” or the appropriate icon from the top of your toolbar.

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 On Google Chrome, select the star button on the right side of the address bar. Your
site will be bookmarked as your personal favorite. Once you add a bookmark, the
page name appears whenever you click the “Favorites” or “bookmark” icon.
4. Avoid Reading the Screen. Reading material on a computer screen is very tiring
and causes eyestrain. If a long article or case appears promising, print it and read it
in hard copy form.
5. Be Aware of Gaps in Information. Although a law library and Lexis Advance and
Westlaw offer all federal court cases, the Internet presently offers only all the United
States Supreme Court cases; lower federal cases are often available only for the past
several years or decades, and access to state court cases is even more limited. Thus,
research on the Internet cannot be a complete substitute for research using
conventional print sources or the computerized research systems Lexis Advance or
Westlaw.
6. Never Completely Rely on the Internet. Although the Internet provides some
excellent information and is often the easiest and cheapest way to find a case or
statute, it is not a substitute for a law library. Relying solely on the Internet for legal
research will result in a research project that lacks in-depth analysis. The best way to
find cases interpreting statutes is still the old-fashioned way: reviewing the
annotations following statutes in U.S.C.A., U.S.C.S., or the state codes (whether
you do this using print materials or using Lexis Advance or Westlaw). The Internet,
however, is an excellent tool for locating a quick answer to questions such as, “What
is the statute of limitations for medical malpractice actions in California?” or “What
is the definition of ‘copyright’ in federal law?” or “What is the citation to the United
States Supreme Court case Brown v. Board of Education?” To complete a research
project, you will need to supplement your Internet legal research efforts with
conventional research methods or with computerized services such as Lexis Advance
and Westlaw.
7. Subscribe to a Newsletter. Consider subscribing or signing up to receive news
bulletins or updates from a law-related website. You will then be provided with daily
or periodic updates related to topics of interest to you. Be cautious: Many newsletter
services (such as those at http://newsletters.findlaw.com) are excellent, but
subscribing to too many newsgroups will only result in duplication of materials and
a clogged inbox, especially because once you register to receive a newsletter, you may
begin receiving other e-mails and solicitations.
8. Consider Disclaimers. Review the disclaimer section of a website. It will tell you
the limitations of the site and will usually indicate if you are permitted to reproduce
the material on the site. Unless otherwise indicated, material on a private,
educational, or commercial website is protected by copyright law, and you cannot
copy and use it any more than you could photocopy a well-known treatise and then
use it. The federal “gov” sites, however, including Congress.gov and FDsys, publish
materials in the public domain, and any material on these sites is freely available for
printing, using, downloading, or other purposes.

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 9. Use RSS to Obtain Updates. Many websites offer “RSS feeds,” which
automatically send you updated content from your frequently visited websites or
blogs. Thus, rather than having to check continually to see whether a website has
changed its content or added new information, you will be automatically notified if
new content has been posted. Look for a symbol such as “RSS feed” and click on it
to subscribe to updated information. This feature is similar to Lexis Advance’s and
Westlaw’s “Alerts” services, which automatically notify you of changes in the status
of cases you have Shepardized or KeyCited and of updated information relating to
your searches.

E. Ethical Concerns Regarding Use of the Internet

One of the many uses of the Internet is facilitating communication, or e-mail, between
legal professionals and their clients. Additionally, briefs and other documents are routinely
sent electronically to clients for review. Such messages and documents sent to clients travel
over a variety of networks in an essentially open environment. One concern regarding such
communications is that of privacy. Legal professionals owe ethical duties to clients to
maintain their information in confidence. Electronic communications are vulnerable to
interception, misuse, and alteration. Thus, law firms using e-mail must ensure that the
means used to communicate information to clients are secure so that the attorney-client
privilege is not inadvertently waived. Although not every communication between legal
professionals and clients needs to be encrypted, some communications may be so sensitive
that they should not be sent unless they are protected by encryption software. Before
communicating electronically with clients, determine what your firm or office policy is. At
a minimum, communications to clients should be accompanied by the type of notice
common on facsimile cover sheets, namely, that the communication is intended only for
the recipient; it is private and confidential; if it is received in error it should be returned to
the sender and may not be copied or disclosed; and so forth. Law firms that market
themselves as knowledgeable about the Internet and cyberlaw may be held to a higher
standard of care regarding electronic communications.
A number of experts and groups have considered whether sending unencrypted e-mail
over the Internet violates a client’s right to confidentiality. In 1999, the ABA resolved the
issue in its Formal Opinion 99-413, which concluded that e-mail communications pose no
greater risk of interception or disclosure than other methods of communication (such as
regular mail) commonly relied upon as having a reasonable expectation of privacy. Thus,
sending client material by unencrypted e-mail was determined not to violate the ethical
duty to maintain a client’s information in confidence. After attorneys criticized the ABA’s
opinion, noting that the ABA did not take into account the fact that e-mail is more easily
intercepted today than in prior years, the ABA issued its updated Formal Opinion 11-459,
concluding that lawyers must warn clients about the risks of sending confidential
information by e-mail and take reasonable care to protect the confidentiality of the

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communications by giving appropriately tailored advice to the client. Thus, most law firms
now obtain the client’s informed consent before communicating critical information by e-
mail. Check your state’s rule of professional conduct to determine its policy on e-mail
communications with clients.
Another ethical concern that has arisen regarding use of the Internet by legal
professionals is whether law firm marketing materials constitute advertising and solicitation.
In one instance, a law firm sent an advertisement for its immigration services to thousands
of different newsgroups, raising the question whether the advertisement was improper
client solicitation. State bar regulations regarding attorney advertising must be carefully
reviewed to ensure that all materials posted by a firm on the Internet or sent out to
newsgroups are in compliance with state codes regulating advertising and client solicitation.
Law firm websites are usually viewed as communications or “advertisements” rather than as
unlawful solicitations; thus, so long as their content is neither false nor misleading, they are
permissible.
Similarly, legal professionals should be circumspect about providing any information
on the Internet that could be viewed as legal advice. The websites of most law firms include
broad disclaimers that state that information posted on the site is not legal advice, does not
create an attorney-client relationship, and is provided for general information purposes
only.

Ethics Alert
Avoiding Copyright Infringement

Be careful not to fall into the trap of thinking that everything on the Internet is in the public domain and can
be used without permission. Thus, avoid excessive quoting from Internet sources unless attribution is given or
permission is received. In many instances, you can directly e-mail the author of an article or piece and ask for
permission to reproduce the material. Look at the site to see whether the author has granted permission to
reprint or use. Consider the credibility of the source before relying on it in your writings.

F. Practical Concerns Regarding Use of the Internet

Character Michael Scott (played by actor Steve Carrell) of the television show The Office
famously commented in an episode, “Wikipedia is the best thing ever. Anyone in the world
can write anything they want about any subject. So you know you are getting the best
possible information.”
The “Siegenthaler Incident” illustrates many concerns regarding Wikipedia’s “best
possible information.” In 2005, well-known writer and journalist John Siegenthaler
discovered that someone had changed a Wikipedia article about him to state falsely that it
was believed he had been involved in the assassinations of John F. Kennedy and Robert F.
Kennedy. The hoax information stayed on Wikipedia for more than 130 days before being
detected. The incident caused much soul searching in the Internet community, and

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Wikipedia thereafter introduced measures and policies to deter such hoaxes.
In general, there are two primary concerns with relying on and citing to Internet
sources in legal briefs and other documents: reliability and currency.
As to reliability, despite the fact that many entries on Wikipedia are collaboratively
written and thus not subject to rigorous (or perhaps, any) fact checking, courts themselves
have cited Wikipedia numerous times. As evidence of its popularity, as of 2010 it had been
cited in more than 400 judicial opinions. Lee F. Peoples, The Citation of Wikipedia in
Judicial Opinions, 12 Yale J.L. & Tech. 1, 6 (2010). As of 2013, a search for “Wikipedia”
on the Westlaw database revealed more than 1,100 cases with references to Wiki or
Wikipedia. Brittany M. McIntosh, Gamecocks Spur Trouble in Jury Deliberations: What the
Fourth Circuit Really Thinks About Wikipedia as a Legal Resource in United States v.
Lawson, 64 S.C. L. Rev. 1157, 1165 n.81 (2013). In Lawson, 677 F.3d 629 (4th Cir.
2012), the court vacated a criminal defendant’s conviction because of a juror’s reliance on
Wikipedia, which the court noted was inherently unreliable. Id. at 650. Thus, “a prudent
practitioner would avoid relying on Wikipedia for any legal research, legal argument, or
legal citation.” McIntosh, supra, at 1165.
As to currency, a persistent problem with the Internet is “link rot,” meaning the
vanishing or changing of websites and hyperlinks. After a law review article noted that
almost one-third of websites cited by the U.S. Supreme Court in its decisions between
1996 and 2011 were no longer working, which had implications for the reliability of those
citations and cases, Raizel Liebler & June Liebert, Something Rotten in the State of Legal
Citation: The Life Span of a United States Supreme Court Citation Containing an Internet
Link (1996–2010), 15 Yale J.L. & Tech. 273, 278 (2013), the Supreme Court responded
by creating a new page titled “Internet Sources Cited in Opinions” (at
http://www.supremecourt.gov/opinions/cited_url_list.aspx), at which the Court provides a
list of all Internet sources cited during each term and an image of the page as it existed at
the time it was cited. As noted in Chapter 8, to avoid this “link rot,” many writers save or
store links in a permanent archive such as Perma.cc (https://perma.cc), operated by
Harvard and used by many legal scholars, or Internet Archive Wayback Machine
(https://archive.org/web/). Citations to Internet materials are thus stored, and readers are
directed to the preserved page. The Bluebook now shows how to cite to such archived
materials by enclosing the archival site in brackets. (See examples in Chapter 8 and in
Section I of this chapter.)
In conclusion, researchers need to understand the differences between print sources
(with their rigorous editing and fact checking) and electronic sources (which may be highly
reliable or which may be transient and unreliable) to remain attuned to the differences
between primary authorities (the law itself) and secondary authorities (discussions about the
law). Internet legal research tends to blur the lines between the different types of authorities
because Internet search engines tend to direct researchers to secondary authorities. See Ellie
Margolis, Authority Without Borders: The World Wide Web and the Delegalization of Law, 41
Seton Hall L. Rev. 909 (2011).

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 G. Surf’s Up: The Best Internet Legal Research Sites

At the end of each chapter in this text, pertinent websites have been given to assist you in
your research efforts. As you have noticed, there are hundreds of websites available, so many
that research using the Internet can seem overwhelming. For example, federal cases can be
located through at least ten different websites. This section of this chapter will give you
brief descriptions of some of the best sites for legal and nonlegal research.

1. Best Legal Start Sites

As mentioned earlier, the best way to conduct efficient legal research on the Internet is to
have a reliable and user-friendly starting place. Among the best starting places are the
following:

2. Best Sites for Locating Cases

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3. Best Sites for Locating Statutes

4. Best Sites for Government Materials

In many instances, you can “guess” at website addresses for government agencies. For
example, the website of the Internal Revenue Service is http://www.irs.gov. Don’t forget to
use PACER (see Chapter 11) to obtain case and docket information from all federal courts.
Following are some useful sites for locating federal and state government materials:

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5. Best Sites for Locating Forms

6. Paralegal Sites

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7. Best Specialty Sites

Note that two sites provide extensive and reliable coverage of numerous law topics: Access
Cornell University Law School’s site at https://www.law.cornell.edu/wex to review more
than 1,000 topics such as criminal law, employment law, and family law (select “Browse”
and then review the list of topics and definitions provided); access WashLaw’s site at
http://www.washlaw.edu/ and select “Reference Resources” for links to hundreds of law-
related sites and resources.

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 Following are some sites for specialized legal topics:

Americans with Disabilities Act Site

Attorney and Ethics Sites

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Corporate, Business, and Securities Sites

Environmental Sites

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Intellectual Property Sites

International Sites

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Labor and Employment Sites

Legal Research and Writing Sites

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Reference Materials Sites

Tax Sites

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8. Best Nonlegal Sites

Although it is helpful to have a repertory of law-related sites at your fingertips, you also
need to be familiar with some basic information sites, so you can determine the weather in
the city where tomorrow’s deposition will be taken, directions to the client’s office, or the
last price at which the client’s stock was sold. Following are some basic information and
reference sites.

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9. Where to Start When All Else Fails

General search engines can provide excellent information and leads. Whether you start with
Google, Yahoo!, or some other site, you merely type keywords into a search box and you
will then be given a list of websites that respond to your search terms. Google
(https://www.google.com), with its references to more than 30 trillion webpages and its
ranking of results by relevance, is the most popular search engine in the United States and
worldwide. Google’s search engine is so intuitive that you can enter terms such as “17 usc
101” and be referred directly to 17 U.S.C. § 101.
Two newer features of Google bear mentioning: You may now install Google on your
toolbar so that you may do a Google search at any time from any website (access
http://www.google.com/toolbar/ie/index.html and follow the directions); Google also
provides a variety of special features such as forms, calendars, contacts previews, gmail, and
more at the address https://www.google.com/accessibility/all-products-features.html.

10. Tech Trends: Blogs, Apps, and More

Discussion groups, listservs, newsgroups, and law-related web logs (sometimes called
“blawgs”) help legal professionals keep current on cutting-edge legal issues and share
information. Technically, listservs are different from newsgroups in that listservs operate
through e-mail. For example, a listserv system automatically sends everyone on the mailing
list a message at the same time. In a newsgroup, anyone with an Internet connection may
view the messages, post their own, or reply to other messages. A blog or blawg is an online
journal or web log related to legal topics.
Following are some excellent websites that allow you to subscribe to newsletters or to
access blogs.

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One of the newest tech-related developments is the creation of various applications or
“apps” that can be used with iPhones, Samsung Galaxies, and other similar devices. Some
of these apps include databases for the Federal Rules of Civil Procedure, U.S. Constitution,
tax and other federal laws, federal regulations, Black’s Law Dictionary, and various state
statutes, all accessible anytime and anywhere. Other apps available to legal professionals
include those that calculate court deadlines, apps for time and billing entries, and case
management tools. Many are free or are offered at reasonable cost. For example, an
abridged version of Wolters Kluwer Bouvier Law Dictionary is available as a free app from
the iTunes store. As noted in Chapter 11, Fastcase provides a free app for iPhones (access
http://www.fastcase.com/iphone to download the app), and this author’s citation form app,
Cite-Checker: Your Guide to Using The Bluebook, is available through iTunes and Google
Play.
Lists of popular law-related apps can be found at
http://libguides.law.ucla.edu/mobilelegalapps and at
http://www.informedlibrarian.com/MobileAppsforLaw. You may also search for apps at
sites such as Apple’s iTunes store or the Amazon App Store.
Among other trends are the use of social media sites such as Facebook, LinkedIn, and
Twitter. Law firms and practitioners tend to use these tools for client development,
networking, career development, and enhancing their reputations.
Law firms and practitioners are increasingly using cloud computing, meaning storing
data on a server owned by someone else and then accessing the data or files from any
computer or device. A popular online storage service is Dropbox
(http://www.dropbox.com), which allows users to store and synchronize their files, giving
access to files no matter what computer or device one uses. During an emergency such as a
power outage or Hurricane Sandy, the use of Dropbox allows users to access their files from

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home or their mobile phones, even if they cannot get to their offices.

H. Cautionary Notes on Internet Legal Research

Many researchers confuse locating information on the Internet with researching. Retrieving
a case is not the same as analyzing it. Locating a statute or a case is just the beginning of a
research task. Cases that interpret the statute must be analyzed; treatises and Restatements
should be reviewed; and periodicals, looseleaf services, and other materials should be
consulted.
Moreover, much of the material that appears on the Internet is anonymous. Thus, you
do not know the credibility or reputation of the author. Just as you would not take medical
advice from a stranger on the corner, you should not take legal “advice” from strangers on
the Internet corner. Most experts prefer to be paid for their work authoring texts and then
to receive royalties based on sales of the material. Those who post materials on the Internet
may well be reliable experts. Then again, they may not be; there is no way to know for sure.
There are obviously tremendously valuable research materials on the Internet,
particularly the United States Code, the Code of Federal Regulations, state statutes, and
federal and state court cases. Note that all of these materials share one thing in common:
They are all materials in the public domain. The well-known legal services, such as Lexis
Advance and Westlaw, have not posted their valuable databases on the Internet, and you
should not expect that these materials will be made available for free. Moreover, although
cases and other materials can be found easily on the Internet, they lack helpful editorial
enhancements, such as the headnotes and case summaries that are found in the print
sources and on Lexis Advance and Westlaw.
Finally, always consider that even the most reputable-seeming sites can be subject to
abuse. The websites of the federal judiciary, CIA, and Department of Justice have all been
hacked. Thus, at any given moment, the materials you review on the Internet may be false.
As long as you remember these cautionary notes, the Internet remains a valuable and
efficient tool for beginning your research project. It can never be a substitute for a full, in-
depth analysis of legal materials, such as those you find in a law library or through the well-
known and reliable computer research services, such as Lexis Advance or Westlaw.

Fast Facts: Print Libraries and Digital Libraries

The American Bar Association’s 2014 Legal Technology Resource Center Survey Report disclosed the following:

• Respondents on average spent nearly one-fifth of their working hours conducting legal research.
• When starting a research project, the respondents reported that they turned to free online services first, followed by
fee-based research services. The top free legal research service was Google. Of fee-based services, Westlaw was more
commonly used than Lexis or Lexis Advance.
• More than half of the respondents maintain a presence in an online community or social network, such as
Facebook or LinkedIn.
• More than one-third of the respondents had downloaded a law-related app, with Fastcase being the most common.

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• Fourteen percent of respondents reported their firms had experienced a security breach at some point.

I. Citation Form

As discussed in Chapter 8, The Bluebook requires the use and citation of traditional printed
sources when they are available, unless there is a digital copy of the source available that is
authenticated, official, or an exact copy of the printed source (in which case the
authenticated, official, or exact copy may be cited as if to the original source). If access to a
source would be substantially improved by providing an electronic or Internet citation, it
may be provided as a parallel citation. Some materials, however, exist only in cyberspace, in
which case citation form is governed by Rule 18 of The Bluebook.
Before citing to any Internet website, remember to assess its credibility; a court may be
highly receptive to employment statistics from the Department of Labor but considerably
less inclined to accept the definition of “negligence” found on Wikipedia.
Following are some Bluebook examples. Additional examples are found in Chapter 8.

• Exact copy of print source available on Internet (for example, a statute found on
FDsys at https://www.gpo.gov/fdsys):

4 U.S.C. § 2 (2012).

• Source available in traditional print format but Internet content is identical, and
citation to the Internet will substantially improve access:

Dolan v. United States, 91 Fed. Cl. 111 (2010),

http://www.uscfc.uscourts.gov/sites/default/files/opinions/CMILLER.DOLAN012610.pdf.

• Source found exclusively on the Internet:

Karen Sloan, California Dreamin’ on Law Jobs?, Nat’l L.J. (Mar. 14, 2016),
http://www.nationallawjournal.com/home/id=1202752042011/California-Dreamin-on-
Law-Jobs-?mcode=1202615035239&curindex=0.

• Internet source with archive URL:

Elie Mystal, Is This the Beginning of the End for Grand Juries?, Above the L. (Mar. 18, 2016,
5:26 PM), http://www.atlredline.com/is-this-the-beginning-of-the-end-for-grand-juries-
1765796060 [http://perma.cc/4P7X-DTX].

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 Net Tips

Some advantages of using the Internet:

• Access to Internet sources is available 24 hours a day, from anywhere in the world.
• The Internet provides free access to a wide array of legal materials. Immediate
access to breaking legal news is provided through newsgroup subscriptions.
• E-mail, chat rooms, and newsgroup postings and comments allow you to ask
colleagues for assistance and information.
• The Internet provides access to many private materials. For example, some
paralegals have posted their case briefs on the Internet and invited others to print
and use them. Similarly, law firms often publish articles on selected legal topics.
• The Internet provides direct access to invaluable legal materials including cases,
statutes, and regulations.

• Office space for library books and binders is expensive. The web stores incredible
amounts of information at no cost.

Some drawbacks to using the Internet:

• Many unpublished cases find their way onto the Internet. On the Internet, with its
vast virtual space, no one edits out the “dog” cases. Some state courts prohibit
citations to unpublished decisions. Thus, exercise care and look carefully for the
words “published” or “unpublished” at the beginning of a case.
• Although you can locate many primary materials (including cases and statutes) on
the Internet, you cannot determine with certainty whether they are still “good
law.”
• The Internet is transient. Sites appear, then vanish with no explanation. According
to one expert, Alexa Internet, the average life span of a web page is 75 days. After
that, the page is changed or deleted.
• The Internet is anonymous. The “experts” providing advice via e-mail or chat
rooms are unknown and unproved.
• Accessing the law is far different from understanding and analyzing it.

Writing Strategies

Be cautious in using terms of art when discussing materials found on the

Internet. Provide definitions for terms such as “browser” or “server” and use jargon
sparingly so as not to confuse or intimidate readers.

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 When setting up Internet citations, ensure that the often long string of numbers
and letters in the URL break at a natural point at the end of a typed line. Proofread
carefully to ensure readers can locate the material you cite. It is easy to transpose
numbers and letters in long URL strings. If you must break a website address, do not
end a line with a “dot” or period because it can be confused with a sentence-ending
period. Start the next line with the “dot” or period (even though this appearance can
look awkward).
The Bluebook (Rule 18.2.2) allows writers to give instructions on accessing
websites (for example, an instruction to “follow hyperlink” or “search History”)
when a URL is overly long or includes confusing characters such as question marks
and percentage symbols. Better yet, use a URL truncator service (such as TinyURL at
http://tinyurl.com or Bitly at https://bitly.com) to shorten long URLs.

Assignment for Chapter 12

1. Access the Congress.gov website. Locate S. 2512 introduced in the 114th

Congress.
a. Briefly, what is the general subject matter of this bill?
b. Select “All Actions.” What date did the bill pass in the Senate?
c. Select to review Pages 1606-1607 in the Senate Section of the Congressional
Record. Select “All articles in Senate section.” Locate the statements made on
Page S. 1580 for the Congressional Record dated March 17, 2016. How many
people did the World Health Organization estimate could be infected in the
region that year?
2. Use any of the websites discussed in this chapter to obtain federal materials. What
is the short title of Public Law 114-102?
3. Access the website USA.gov. Select “Government Agencies and Elected Officials.”
Locate information about the Transportation Security Administration.
a. What is the parent organization for the TSA?
b. Access the TSA’s website and review information about the organization of
the TSA. How many employees are there in the TSA workforce?
4. Access Cornell’s Legal Information Institute.
a. Select “Wex legal encyclopedia.” Briefly, what is a gag order?
b. Review the Federal Rules of Evidence. Is evidence of liability insurance
admissible?
5. Access Google Scholar.
a. What is the citation for the 1954 case Brown v. Board of Education?
b. How many cases have cited this case?
6. Access the Hoover’s website and locate company information about Verizon
Communications, Inc.

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 a. What is the company’s rank on the Fortune 500 list?
b. List the company’s top three competitors.
c. What company did Verizon acquire in mid-2015, and how much did it pay
to acquire this company?
7. Access the website for the Federal Trade Commission. Review information about
the National Do Not Call Registry. When may you file a complaint about an
unwanted telephone call?
8. Access the Justia website. A client in Massachusetts has been convicted of forging a
public record. What punishment may be imposed?
9. Access the website for U.S. Courts.
a. What is the address for the Northern District of Indiana?
b. Review the local rules of civil procedure for the District of Oregon. What
must the first paragraph of every motion certify?
10. Access the website for FDsys. Select the Code of Federal Regulations and review 17
C.F.R. § 240.10b-17 to answer the following question. When must a public
company give notice of a stock split, and to whom must notice be given?
11. Access Google. Enter “California Business and Professions Code 6061.5.” What is
the general subject matter of this statute?
12. Access the website of the “ ‘Lectric Law Library.” Review the notice placing an
employee on probation. How long a probationary period is given in this notice?
13. Access the website for the law firm Arnold & Porter. What social media does the
firm use?
14. If you subscribe to FindLaw’s newsletter “The Supreme Court Digest,” how often
will you receive the newsletter?
15. Access Justia. Select “Law Blogs.”
a. How many blogs are devoted to consumer law?
b. Select “Consumer Law.” Can you elect to receive updates through an RSS
feed?

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 Chapter 13

Overview of the Research Process

[R]esearch is never completed . . . around the corner lurks another possibility . . . .

Catherine Drinker Bowen (1959)

A. How to Begin
B. Working with the Authorities
C. When to Stop

Chapter Overview
Among the most difficult tasks in performing legal research are beginning and ending the
project. It is easy to become so overwhelmed at the task ahead of you that you become
paralyzed at the thought of how and where to commence your legal research. Part of the
difficulty lies with the tremendous mass of legal publications: millions of cases, volumes of
codes, and so many secondary authorities, including encyclopedias, periodicals, treatises,
attorneys general opinions, looseleaf services and other sources, that a researcher does not
know where to turn first. Lexis Advance, Westlaw, and the Internet add another layer of
complexity to the research process.
Similarly, once you have begun delving into these authorities, you cannot decide when
to stop. It seems there is always one more case to read or source to check. This chapter will
offer some practical guidelines on beginning your research task and knowing when to end
it.

A. How to Begin

1. Introduction

There are few inflexible rules in legal research. It is not nearly so precise as mathematics,
which provides step-by-step logical guidelines to enable you to systematically reach a
solution to a problem. In legal research you are asked to provide an answer to a legal
question. To reach that answer, there are a number of strategies available to you. Although
the sheer number of authorities available to consult offers great flexibility, these numerous
authorities can also produce great uncertainty. Where do I begin? How do I begin? These
are often the questions that so intimidate legal researchers that they are unable to begin the
task itself. Moreover, researching is rarely a straight line but often involves backtracking and
revisiting sources, requiring patience and flexibility.
Although this chapter will offer you some guidelines and strategies on getting started,

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the best approach, as always, is the one that works best for you. If everyone you know
prefers to consult an annotated code first but you like to become comfortable with a topic
by reviewing an encyclopedia, then that is the best approach.
You should view legal research as a process. Although the answer to a question is the
destination you are traveling toward, there are many roads you can follow to reach that
destination. Which road you choose to take is not important. In fact, while the number of
sources you can examine may be staggering, this in itself is one of the benefits of our system
of legal publishing. If you cannot locate a case or statute using one research technique, there
are many alternatives available to help you find those authorities.

Ethics Alert
The Two Inflexible Rules of Legal Research
There are really only two inflexible “rules” that you must follow when you perform legal research to ensure
you comply with your ethical duties of competent representation:

• If the source you review has a supplement or pocket part, you must check it.
• You must Shepardize or KeyCite all primary authorities.
As long as you always perform these two tasks, you have tremendous freedom in solving your legal research
problems.

2. Thinking Things Through

Although it is tempting to go online or to run to the library and start grabbing volumes of
books as soon as you are given a research task, the time you spend thinking about a project
before you begin is time well spent.
It may be helpful to reduce your issue to writing. This will help you “frame” the issue
and in and of itself may impose some structure on the project and suggest certain
approaches to follow. After you write out or type the issue, develop a list of descriptive
words and phrases. Because almost all legal authorities are accessed by alphabetically
arranged indexes, and the descriptive word approach is usually the most efficient method of
using an index, jot down the words that initially occur to you in examining the issue. These
will be the words you will use in examining the indexes or online sources. Similarly, these
will be the words you will use in developing search queries on Lexis Advance, Westlaw, and
the Internet.
After you have selected the most obvious words, facts, and phrases, expand your list by
thinking of related words, such as synonyms and antonyms. If you cannot think of any
such related words right away, consult a dictionary or thesaurus. An online dictionary and
thesaurus are available at http://www.dictionary.com. Consider the following questions,
which will help you develop a list of descriptive words or phrases:

• Who is involved?

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 • What is the issue being considered?
• Where did the activity take place?
• When did the activity take place?
• Why did the issue develop?
• How did the problem arise?

The former Lawyers Co-op recommended that researchers use the “TAPP Rule” in
determining which words to look up in an index:

T Consider the Thing involved in the problem

A Consider the Act committed or the cause of Action (or defense) a party would assert
P Consider the Persons involved in a problem
P Consider the Place involved

Once you have given some initial thought to your project and prepared a list of some
key descriptive words and phrases, expand your list by adding legal concepts. Consider the
following five issues.

• Criminal or Civil Law. You must first determine whether the action is a criminal
one brought by the federal government or your state government for a wrong done
to society or is a civil one, brought by a private party for a wrong done to him or
her. The legal authorities, burdens of proof, and punishments and remedies are far
different in criminal cases from those in civil cases.
• Jurisdiction. You must consider which jurisdiction’s authorities you will examine.
In other words, is the issue one of Minnesota law, enabling you to limit your
research strictly to Minnesota authorities, or is the issue one of federal law? If the
issue is one of federal law, narrow the focus again by considering which district or
circuit is involved. If your question relates to a lawsuit filed for violation of the
United States Trademark Act and the lawsuit was filed in the United States District
Court for the Northern District of Texas, which is in the Fifth Circuit, you should
look for other cases from the Fifth Circuit. All lower federal district courts that fall
within the jurisdiction of this federal circuit court are bound by its decisions. Each
of the intermediate circuit courts of appeal is free to make its own decisions
independent of what other circuits have held; however, in practice, the circuit
courts are often guided by decisions from other circuits. Similarly, when
performing research related to a specific state, restrict your search to authorities
from that state. Expand your search to other states only if your state lacks
authorities. Remember that although authority from outside your state may be
persuasive, it is never binding.
• Action. Once you have identified the issue as being civil or criminal and state or

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 federal and have identified the particular jurisdiction (for example, specific state or
circuit), you need to consider the legal issues involved in the case. Ask yourself
what the plaintiff would allege in a lawsuit based upon this issue. Would the
plaintiff’s action be for breach of contract? Personal injuries arising out of a car
accident? Trespass to his property?
• Defenses. Once you have considered the plaintiff’s “gripes,” put yourself in the
place of the defendant, and ask how the defendant would best defeat the plaintiff.
What defenses would a defendant assert? Would the defendant allege that there was
no agreement or, if there was an agreement, he fully performed its terms? That the
plaintiff’s failure to wear a seat belt rather than the defendant’s conduct caused the
injuries suffered by the plaintiff in the automobile accident? That the plaintiff
invited the defendant to come onto the plaintiff’s property?
• Remedies. After you look at the issue from the perspectives of both parties,
consider what remedies the plaintiff is seeking. Is the plaintiff asking for money
damages for a breach of contract or injuries sustained in an accident, or does the
plaintiff want to compel the defendant to repair damage caused to his property by
the trespass? If you are unsure as to the theories on which the plaintiff would claim
relief, what defenses the defendant would assert, or what remedies the parties
desire, consult West’s list of more than 400 topics of the law (see Figure 5-2) or
access Westlaw and review the list of topics and Key Numbers. Use this as a
“menu,” and pick and choose the words and topics that fit your problem.

Examining these issues will not only help develop a list of descriptive words and phrases
that you can look up in the indexes you will be using, but it will also help ensure that you
have the “big picture” focus, which is critical in the legal profession. After all, it is deadly to
think that because you have examined an issue from the plaintiff’s perspective, you are
finished. The plaintiff may, in fact, have a cause of action enabling her to recover
substantial money damages. Nevertheless, the defendant may have a perfect defense, which
would completely defeat the plaintiff’s action. If you examine questions only from one
party’s side, you will be sure to miss critical issues.
To develop your list of descriptive words, facts, and phrases, use any approach that
works best for you. Perhaps rough notes jotted down on a legal pad are sufficient. You may
prefer to use index cards or a word processor. It is not the technique you use that matters at
this juncture — far more important is the thinking process and analytical skill you will
develop by examining these legal issues in a precise fashion.
Figure 13-1 provides an approach that you may wish to follow to help develop the
working outline described herein, that is, the road map you use in reaching your
destination. This outline will also help you develop words to use in formulating a search
using Lexis Advance or Westlaw. Feel free to copy and use this outline for each project you
research.

3. Tackling the Project

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Once you have formulated the descriptive words, facts, and phrases that you will look up in
an index or online, you need to decide with which sources to start. There are two categories
of sources you can consider: primary authorities (cases, constitutions, statutes, executive
orders, treaties, and administrative regulations) and secondary authorities (everything else).
Remember that digests will help you locate cases.
Some research questions will immediately suggest or even dictate the source to consult.
For example, if the question is what the statute of limitations is for an action against a
doctor for professional negligence, how many days a defendant has to answer a complaint,
or the number of people required to witness a will, the answer will undoubtedly be found
in a statute. In such cases, you should proceed directly to an annotated code, look up your
descriptive words in the index, read the statute to which you are referred, and examine the
library references and case annotations following the statute to review how courts have
interpreted the statute.
It is altogether likely, however, that you will not know which source to consult initially.
In such instances, consider the following strategy.

a. Familiarization
When you are unsure where or how to start a research project, invest an hour or so in
becoming familiar with the general area of law involved (contracts, property, wills). The
best place to “get your feet wet” is an encyclopedia, which will offer you introductory
information on an area of the law. If you live in a more populous state that publishes its
own encyclopedia, start with this. If your state does not have a local encyclopedia,
familiarize yourself with the topic by reviewing C.J.S. or Am. Jur. 2d.
If you read either C.J.S. or Am. Jur. 2d, West publications, and you locate a
particularly relevant section, make a note of any topic name and Key Number provided
(Partnership 14, Negligence 121, Contracts 42), as this will unlock the door to other
authorities. Similarly, look for relevant annotations in A.L.R., which can provide extremely
useful information to you.

Figure 13-1
Research Project

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 Consider also using specialized treatises for your issue. For example, if the question
involves corporations or bankruptcy, browse those sections of the law library to see if a
treatise exists for that topic. Treatises provide excellent analyses of legal topics as well as
references to supporting case law and other authorities.

b. Consult Primary Sources

After you have begun to feel comfortable with the subject matter, consult the primary
authorities: constitutions, statutes, and cases (and, if applicable, administrative regulations,
executive orders, and treaties).

(1) Constitutions
If your issue is a federal one, it may be governed by the United States Constitution.
Both U.S.C.A. and U.S.C.S. contain the text of the United States Constitution as well as
annotations referring you to cases interpreting constitutional provisions. If your issue is not
federal but may involve your state constitution, consult your state’s annotated code, which
will contain the state constitution as well as annotations to cases construing provisions of
your constitution.

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 (2) Statutes
Always examine an annotated code rather than an unannotated one because under the
American common law theory of stare decisis, it is not merely the language of a statute or
law that controls, but the interpretation of that language by a court.
For federal statutes, consult U.S.C.A. (Thomson Reuters/West’s publication) or
U.S.C.S. (the Lexis publication), look up your descriptive words in the indexes to U.S.C.A.
or U.S.C.S., and read the statutes to which you are referred. After you read applicable
statutes, review the library references and cases to determine how the statute is interpreted
by courts. Follow the same process for state statutes, using your state’s annotated code.
Once you have a reference or citation to a specific statute, consider consulting the Table
of Statutes construed in a local encyclopedia or a treatise, which will direct you to a
discussion of treatment and interpretation of the specific statute in which you are
interested.
Always check pocket parts or supplements to a code to determine if a statute has been
amended or repealed and to find cases more current than those in the hardbound volume.

(3) Cases: The “One Good Case” Approach

If a review of the annotations for a constitutional or state statutory provision has not
yielded any cases on point, use digests, which function as case finders.
Many experts believe that finding “one good case” solves many research problems. If
you can find one good case, you can use its topics and Key Numbers to locate other cases in
the American Digest System (if the case is published in a West reporter) and you can
Shepardize or KeyCite the case to find other authorities that mention or discuss your case,
thereby leading you to a host of other relevant sources. Note that the advice involves
finding one good case, not one perfect case, because there likely is no such thing as the
perfect case for a legal issue.

(a) Federal Issues

For a global approach, use the Decennial Digest System. For a more focused approach,
concentrate on West’s federal practice digests (such as West’s Federal Practice Digest 4th or
5th). Use the Descriptive Word Index for any of the digests. Look up your descriptive
words, facts, or phrases and allow the Index to provide you with a topic name and Key
Number (such as Venue 42). Look up your topic name and Key Number in the
appropriate digest and out will spill the cases you need. Focus on the particular state or
circuit you need. All of the West’s digests organize the cases according to state or district
and circuit, so you may easily locate cases on point.

(b) State Issues

If the issue is governed by state law and you wish to find cases from a particular state,
the best case finders are digests. West has published a digest for every state but Delaware,

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Nevada, and Utah (these states use a regional digest, namely, the Atlantic Digest or Pacific
Digest). Use the Descriptive Word Index available for each set and look up the words, facts,
and phrases listed on your research outline. You will be provided with a topic name and a
Key Number such as Wills 56. Look up this topic name and Key Number in your state
digest, and you will be provided with other cases from your state dealing with this same
issue.
Figure 13-2 provides a chart showing the sets to review when conducting legal research
using most primary authorities.

c. Consult Secondary Sources

After you have reviewed the pertinent primary authorities (constitutions, statutes, and
cases), consult the secondary authorities to fill in the gaps. Many secondary authorities will
refer you to cases, thus ensuring that you find all of the case law relating to your topic. The
most commonly consulted secondary authorities are A.L.R. annotations, encyclopedias,
periodicals, Restatements, and texts and treatises.

Figure 13-2
Chart of Primary Authorities

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There are several secondary sources, and you should examine the list of secondary
authorities shown in Figure 13-3, and ask yourself if your issue would be addressed by the
particular authority in question. If so, review the authority. You need not examine every
secondary authority for every issue you research. It is possible that a review of a treatise and
an A.L.R. annotation may provide you with such useful information as well as sufficient
references to cases that you need not examine other secondary authorities.

d. Miscellaneous Research Guides

In addition to the primary and secondary authorities discussed above, there are a few other
sources that you may wish to consult when performing research. Consider using Shepard’s
Citations or KeyCite not only to let you know whether the authorities you rely upon are
still good law, but also to lead you to other sources. Shepard’s and KeyCite will refer you to
law review articles, opinions of the attorneys general, treatises, and annotations that
mention your case, statute, or constitutional provision. It is possible that these authorities
have so thoroughly examined an issue that for you to conduct additional research would be
“reinventing the wheel.”
In addition, Lexis Advance and Westlaw will also direct you to others’ briefs that
discuss your case or statute, thus allowing you to see how other legal professionals have
approached an issue.
Do not forget to use common sense. If the question can be easily answered by an
individual or organization, call or write. Thus, if your question relates to zoning in your
county, contact your county supervisor or the county zoning officer. If your question
relates to the current minimum wage, contact a local employment agency. Many basic
questions can be answered by Internet legal research techniques.

Figure 13-3
Chart of Secondary Authorities

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 Browse the library for useful materials. For example, if your issue deals with
bankruptcy, locate the section of the law library containing books related to this topic. Scan
the shelves for helpful sources. When you come to a dead end, ask your law librarian for
assistance.
Use the Research Game Plan shown in Figure 13-4 to ensure you have consulted all
applicable sets of books. Fill out the plan as you perform your research to verify that your
research has been thorough and has focused on both primary and secondary authorities.
Once you have collected your authorities, consider their quality, credibility, and reliability.
Identify the particular source you consult and then rate its helpfulness or value to you on a
scale of 0–10, with 10 being the highest. If you later have only a vague recollection of a
source that provided valuable information, the Research Game Plan may jog your memory.
It also serves as a reminder to check all pocket parts and to Shepardize or KeyCite all
primary sources.

e. Strategies for Effective Research

Following are eight tips to ensure your research is sufficiently thorough:

(i) Use encyclopedias (C.J.S., Am. Jur. 2d, or a local set for your state) to obtain

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 introductory information about the issue you are researching.
(ii) Always examine the statutes. Use an annotated code because it will refer you
to cases.
(iii) If you cannot locate cases through an annotated code (because the issue is
not dealt with by statutes), use digests: The Decennial digests can be used for
a global approach; the federal practice digests can be used for federal cases;
and state and regional digests can be used to locate cases from a particular
state or region.
(iv) If there is a well-known treatise or text on this topic, examine it because it
will provide excellent analysis as well as references to cases and other
authorities.
(v) For a complete overview of a topic, consult A.L.R. (or A.L.R. Fed. for
federal issues).
(vi) For discussions of new or controversial issues or a thorough examination of
an issue, find legal periodicals through the Index to Legal Periodicals & Books
or Current Law Index or their online versions.
(vii) If a looseleaf service is devoted to the topic you are researching, examine it;
it will provide an exhaustive treatment of the topic.
(viii) Shepardize or KeyCite to validate your primary authorities and to locate
other cases, legal periodical articles, attorneys general opinions, and A.L.R.
annotations. Remember that you can customize your results to focus on
specific headnotes or jurisdictions.

Figure 13-4
Research Game Plan

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 Practice Tip

Just Ask!

Georgetown University Law Library recommends considering the acronym JUST ASK before you start any
research project.

J Consider the jurisdiction. Federal? State? Administrative agency?

U Follow useful leads by asking experts and colleagues for help.
S What is the scope of your project? Is your teacher or supervisor looking for in-depth analysis or a quick
review?
T What terms of art apply to the project? What terminology do people use when discussing the problem?
A Be sure you know the meaning of any acronyms used by others in describing the research issue.
S Ask what sources might be of help, such as journals, looseleaf services, and online databases.
K Consider the key money constraints. How many hours can be billed to the project?

(Adapted from Georgetown Law Library, http://www.law.georgetown.edu/library/research/just_ask.cfm (last

visited Feb. 24, 2016.)

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 B. Working with the Authorities

1. Note-Taking

As you begin to read the primary and secondary authorities, you need to develop some
focused plan for taking notes. Ultimately, the results of your research must be
communicated to someone by way of a letter to a client, an e-mail communication, an
internal office memorandum, or a brief submitted to a court, and the notes you take will
form the basis for your written project. There is nothing more frustrating than beginning to
write your project, having a vague recollection that some source provided a perfect analysis
or quote, and then being unable to find it in your notes. Equally frustrating is having to go
back to the law library or go online at additional expense to a client to obtain complete
citations because your notes do not reflect the date of a case or the page of a quotation.
These time-consuming tasks can be avoided by effective note-taking during the research
process. This way you do not have to waste time later by retracing your steps to locate
information you should have obtained earlier. Effective note-taking requires some practice
and is often developed through trial and error. Once you neglect to include the page of a
quotation in your notes, thus necessitating another trip to the law library or another online
session, you will not make the same mistake twice.
Notes that can be used to help you write your project are more than scribbling on a
legal pad. If you simply jot down phrases, parts of cases, and isolated sentences on pages in
a pad or electronic notepad, you will find they are a muddle when you later try to use these
notes to construct a written project, with information relating to one issue being hopelessly
intertwined with information relating to entirely separate issues.

a. Organizing Your Notes

You should develop a system for taking and organizing notes during your research efforts so
you can effectively use these notes to write your project. One of the best approaches is to
use a looseleaf notebook or binder that is divided into separate sections through the use of
tabs or dividers. You can devote each section to a particular issue. For example, you could
use the first section to reflect information relating to the standard of care of physicians, the
second section to record information relating to conduct constituting a breach of that
standard, the third section to contain notes relating to defenses the doctor could assert, and
the fourth section to relate to damages for injuries caused by the physician’s breach of the
duty of care or malpractice. Consider leaving at least one section untitled for a while
because you will invariably discover issues during the course of your research that you had
not originally considered.
As you research you may discover that each of these major issues comprises sub-issues.
Either insert new tabs or dividers so you can compile information relating to these newly
discovered sub-issues, or assign a number or letter to each sub-issue and reflect that in the

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margin next to any notes relating to it.
If you find that some authorities or cases discuss more than one issue, take notes in one
section and in the other(s) simply insert a reminder to review the authority, such as the
following: “For discussion of damages in malpractice action, see Jones v. Smith, 421 N.E.2d
609, 614 (Ind. 1989), Tab I.” Alternatively, you can photocopy or print the case and “cut
and paste” it by placing certain portions of it in your Tab I section and other portions in
your notes for Tab III. An advantage of using a looseleaf binder is that you can shuffle
sections of your argument around. If you decide the information in Section II should be
discussed after Section IV, it is easy to switch the pages in your binder.
If you prefer to use looseleaf sheets (rather than a binder or spiral notebook), label each
sheet with a topic name (Duty of Care, Breach of Duty, Damages), and then record
information relating to these topics on the appropriate pages. Often students will use
different colors of looseleaf paper for different issues so that white sheets relate to the issue
of Duty of Care, pink sheets relate to Breach of Duty, and so forth.
Other individuals find index cards useful and label each card with a topic name (Duty
of Care, Breach of Duty, Damages) and devote a separate card to each case, law review
article, A.L.R. annotation, or other authority, briefly summarizing the case, article, or
annotation. Some individuals prefer using different colored index cards for different issues.
This system allows immediate recognition and retrieval of the sections you later desire to
review.
The advantage to any of these techniques is obvious: When your research is completed,
it is already partly organized and prepared for the writing stage. All of your information
relating to Duty of Care, Breach of Duty, or Damages is in one place rather than hopelessly
scattered among numerous pages or electronic files.
Another advantage of keeping notes related to separate issues in separate sections is that
you can take your separate sheets of paper or index cards and shuffle them around so that
you can physically organize the results of your research and determine the order in which
you will discuss the cases relating to damages or some other topic. For this reason, try to
keep your notes about any one case, law review article, annotation, or other authority to
one page or one index card. The purpose of taking notes is to record only the critical
portions of a case, not to write out the entire case in longhand.
You can always photocopy or print the case itself so you will have it to refer to when
writing your project, but for note-taking purposes, be brief, and keep notes to one page or
one index card per authority. If you are photocopying or printing cases, invest a bit of time
and always maintain them in alphabetical order. Then, when you need to refer to them
when writing your project, you will be able to locate the case you need easily. Many
individuals prefer to photocopy or print almost all cases they intend to rely upon (and, in
fact, some attorneys insist that finished research projects be accompanied by copies of all
cases and authorities cited therein).
If you photocopy or print cases, you should mark or highlight the significant portions
of the case so when you review it later you can readily locate its relevant sections. Once
again, consider imposing some order on this process by using a different color pen or

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highlighter to reflect different issues so that the portions of any case dealing with a
physician’s standard of care are highlighted with yellow while the portions of any case
relating to damages are highlighted in pink. When you later review your case, you will then
be able to quickly locate the portions you need. Do not be afraid to record your own
thoughts and reactions on your copies of cases. An interjection such as “perfect” or “oops”
may later jog your memory as to the value of a case you read days earlier. You should
consider rating the cases on a scale of 1 to 10 so you will have an easier time of weeding out
weaker authorities.
New software packages allow students to simulate highlighting, bookmarks, and sticky
notes as they take notes on their laptops while in the law library. This form of electronic
note-taking is easy and convenient, and hyperlinks to cases and authorities of interest can
be inserted in the notes. Any kind of text can be stored in your files and folders, including
cases you have downloaded, class notes, or other materials. You can insert notes wherever
you like, just as you would attach sticky notes to a text you read. You can highlight
portions of text. Finally, you can easily search the entire text of your file or folder, thereby
allowing you to locate immediately your notes and information on “jurisdiction” or
“venue.” Many students like Evernote (https://evernote.com), which allows you to collect
and share notes, place notes in notebooks, save things you find online, and more. The basic
Evernote tool is free; enhanced features are available for a fee.
Don’t forget the new features of Lexis Advance and Westlaw (which allow you to store
your research results in folders, add notes to your research results, and highlight important
text using different colored highlighters). See Chapter 10.
Similarly, there are a number of research management and citation systems available to
help researchers. For example, Zotero (https://www.zotero.org) is a free tool that allows you
to save, store, and manage bibliographic references such as books and articles. It helps
organize your materials by allowing you to drag articles into folders and capture web pages
and screen shots. The program then assists you in citing these materials in Bluebook citation
form. Video tutorials on using Zotero are available at the Georgetown Law Library website
(access https://www.law.georgetown.edu/library and search for “Zotero”).
A new variant of Zotero is Juris-M (https://juris-m.github.io/downloads), based on
Zotero, but which adds support for legal materials and legal citation styles including The
Bluebook.

b. Contents of Notes
If your notes are to be of any assistance to you in constructing your written project, they
will need to be more than random words or isolated phrases. The best approach for taking
notes on cases is to brief the cases. You will recall from Chapter 4 that briefing a case is, in
fact, described as taking notes on a case. Thus, any sheet or index card relating to a case
should be a mini-brief of the case and should include the following elements:

• complete citation

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 • brief overview of facts
• procedural history
• issue(s)
• reasoning
• holding

It is not necessary that your sheet of paper or index card be perfect. It should contain
only the most important and relevant information. You can “fill in the gaps” when writing
your project by referring to your copy of the case itself. The sheet of paper or index card is
only for reference purposes. Do not expect to be able to put your project together by simply
assembling your sheets of paper or organizing your index cards and turning them over to a
word processor or secretary. Your notes provide only the framework for your project. They
are not the project itself.
For taking notes on other authorities such as law review articles or A.L.R. annotations,
simply summarize the most relevant points. Although these authorities may be quite
lengthy and often exceed 20 pages, they are secondary authorities, and thus you should not
rely too much on them. Such authorities serve as great backups to the cases you rely upon
and, because your project will not solely depend upon these authorities, you should be able
to record the information you need on one or two pages or index cards. Often, in fact,
these authorities are used to introduce you to an area of the law or provide an overview of a
topic. Although they may be of invaluable help in educating you on a topic, you may
decide not to cite these authorities at all in your project, preferring instead to rely upon the
primary authorities to which they referred you.

c. Complete Notes
Your notes will be of little help to you if you are constantly returning to the library or going
online to obtain additional information. Your goal upon completion of the research phase
of your project is to return to your work space to write the results of your research, having
everything you need in your notes. If you need to return to the library or logon again
during the writing phase to get a parallel cite or the name of the author of a law review
article, your note-taking was ineffective.
It is a great temptation when researching simply to jot down part of a citation and then
start taking notes, figuring you will obtain the complete cite later. Resist this temptation,
and always include all of the information you will need for citation purposes in your notes.
Follow Bluebook form. This will save time later.
When taking notes, clearly identify whether your notes reflect a quote or are merely
paraphrasing the judge’s or author’s statements. It is nearly impossible to remember days
after you performed your research whether a statement in your notes that “physicians are
liable for the harm to their patients proximately caused by their negligent or intentional
wrongful acts” is a quotation or your own summary of a case unless your notes remind you.
Any system is sufficient so long as it works for you. You may use quotation marks only for

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direct quotes and then any material not in quotes is a paraphrase; you may label each
statement in your notes with a “q” or a “p”; or you may elect to use a different color pen to
show a quotation.
It is important to record the page even a paraphrase occurs on because you may wish
later to review the original language in the case, and you must include in your citation a
reference to specific pages and pinpoints, whether or not the statement is a direct quote.
Similarly, if your quotation appeared in headnote 6 of a case or you are relying primarily on
headnote 6 of a case, indicate this in your notes as [6]. When you later Shepardize or
KeyCite, you will be able to focus on the treatment of this portion of the case by later
authorities and will not waste time reading later cases relating to headnote 12 when you
were not relying on that portion of the case.
Your notes should reflect whether you have checked the pocket part or supplement to
the authority and whether any information was found therein as this may need to be
included in your citation. Similarly, notes relating to primary authorities should record that
they have been Shepardized or KeyCited and are still “good law.” You can simply include a
“box” on each page or index card and complete it as follows:

PP/Supp. x
Info in main vol. yes or p.p./supp. no
Shep./KeyCite x on 2/6. Problems/concerns None.

2. Staying Focused

One of the most difficult tasks in performing legal research is staying focused on a specific
issue or question. Students commonly report that as they are in the process of researching
an issue such as negligence and reading a pertinent case, they come across a reference to
what appears to be a promising law review article. Without completing the reading of the
case, they then grab the law review article, which refers to two other cases. These new cases
are then pulled from the shelves, and they also refer to other promising authorities. At the
end of a full morning of research, the student is surrounded by a pile of books, none of
which has been thoroughly analyzed and some of which, when later re-read, are a mystery
as to their relevance because they discuss topics completely unrelated to the original issue of
negligence.
This hopscotch approach to research will invariably lead you away from your answer
rather than toward it. The reason it occurs so frequently is that it is incredibly tempting to
interrupt your analysis of an issue with the thought that the “perfect” authority is the next
one, or that if you do not grab the authority now you will forget about it later.
Train yourself to stay focused on each specific issue. If you are researching a problem,
for example, whether a physician is liable for injuries sustained by a patient during surgery
when the patient consented to the risks of surgery and violated the doctor’s orders prior to
surgery, devote yourself to one topic at a time. Decide that the first morning you will only

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research the general duty of care required of a doctor. If you come across cases or references
that relate to the consent issue or the issue of damages, jot these down in the sections of
your notebook corresponding to those topics so you can review them later, but do not
interrupt your research on the assigned issue.
Keep notes of your research “trail,” so that if you are interrupted, you will know where
to resume your work. Use the Lexis Advance and Westlaw features that allow you to
maintain and store your research results.
After you are thoroughly satisfied that you understand a physician’s general duties,
assign yourself the issue of whether the patient’s consent was valid; that is, whether it is
proper for a doctor to obtain, in effect, a release prior to surgery for acts that occur during
surgery, and whether the patient had any choice but to sign a written consent without
which the doctor would not perform the surgery. If, during the course of research related to
these consent issues, you come across other references to the physician’s duty of care or
damages recoverable in malpractice actions, write them down for future reference, but do
not allow yourself to be sidetracked from the consent issue on which you are working. Use
electronic aids, such as Google’s “Scratchpad” or “Keep,” to take notes, maintain your “to
do” list, and record websites of interest on a sidebar displayed on your screen or iPhone at
all times. With any luck, when it is time to research your last issue, the question of
damages, you will already have a list of promising cases and other authorities to review, thus
eliminating the need for you to start at the beginning with encyclopedias, codes, or digests.
The hopscotch effect also occurs during Shepardizing or KeyCiting. For example, in the
middle of Shepardizing one case, you may find a reference to a later case that explains your
case. If you interrupt your Shepardizing to read that case, you may forget where you are in
the Shepardizing process. Thus, when you return to the task, you may assume you
completed Shepardizing the original case when in reality you only examined some rather
than all of the requisite references.

C. When to Stop

One of the most difficult tasks in legal research is knowing when to stop. No one will come
up to you in the law library, tap you on the shoulder, and inform you that time is up and
your task is complete. Moreover, it seems as if some issues can be researched endlessly. If
you read a landmark case, it may refer to five other cases, which you may also decide to
read. When it is time to Shepardize or KeyCite these six cases, you may discover that each
of the six cases has been mentioned or discussed in ten other cases (as well as numerous law
review articles, opinions of attorneys general, and A.L.R. annotations). You now have 60
other cases that could be examined, each of which refers to other authorities and each,
when Shepardized or KeyCited, is in turn discussed by other cases and authorities. This
process could continue indefinitely and is a bit like a funnel that gets wider and wider.
Eventually, you need to call a halt to your research.

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1. Practical Considerations

Sometimes there is a practical reason for stopping your research. It is possible that the
client’s claim is for $40,000. You cannot possibly afford to expend $20,000 in legal
research and then present the client with a bill after the trial that charges the client $20,000
for legal research and $10,000 for other costs and attorneys’ fees, leaving the client with a
mere $10,000 recovery. Thus, in many cases, economics will govern how thorough your
research will be. When the client’s budget dictates the amount of research that can be
performed, you will have to be as efficient and streamlined as possible. Keep track of your
hours as you go along, and after a few hours report back to your supervisor on your
progress and estimate how much longer you think will be required. Before you begin the
project, discuss the budget with your supervisor, and agree on a strategy and a time to meet
and discuss your efforts. When you are given the project, your supervisor may expressly tell
you that you should allot five to six hours for research and might even suggest a specific
statute or case as a beginning point. Ask what form the project should take. Will your
results be communicated to the client in a letter? An e-mail? Does the attorney want an
office memorandum?
This balance between the duty to research adequately and the economic realities of a
case is a delicate one. It is the supervising attorney’s task to resolve this issue and give you
proper guidance. If you do not receive any instruction, take the initiative and state that for
time-management purposes, you would like to inquire as to the date the project is due (this
in and of itself may give you a clue as to how thorough the project is to be) and a range of
time the attorney estimates for the research. Alternatively, give your supervisor a brief status
report after a few hours of research. A quick e-mail will allow your supervisor to redirect
you, if necessary.
Research as efficiently as possible. If your research efforts produce a number of
potentially relevant cases, all of which look promising but the reading of which would be
impractical and time-consuming, adopt a strategy that will produce the best results in the
least amount of time. For example, read newer cases before you move on to older cases,
read cases from higher courts before those from lower courts, and read cases from your
forum jurisdiction before those from a foreign jurisdiction.
If you find that the project is far more complex than you and your supervisor originally
anticipated and that the authorities are unclear or conflicting, stop your research and go
back to your supervisor, explain your progress thus far and why the issue is more complex
than anticipated, and ask for direction. Your supervisor would much prefer to find out after
6 hours of your research that you are having difficulty rather than after 30 hours that
cannot be billed to the client.
Do not be embarrassed to ask for direction or acknowledge that you are having
difficulties. If the answer to a question was so easy, everyone would already know it, and
there would be no need to research it.
Attorneys are always interested in economic efficiency, and if you present your question
in a manner that shows you are aware of the economics of a law practice, you will be

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commended rather than criticized. For example, instead of telling your supervisor, “I can’t
find any authorities on this, so I’m quitting,” state, “I haven’t yet been able to find any
authorities on point. If I can’t turn up some leads in the next hour, let’s meet and discuss
our next step.” Alternatively, you can report, “I’ve spent the six hours you suggested and
because the courts are in conflict on this issue, I believe I need two to three more hours.
Will the client approve this additional time?”

2. Complex Projects

If the project is complex, you may find yourself in the “funnel position,” that is, the
situation in which there is an ever-expanding list of authorities that could be reviewed.
Knowing when to stop researching this type of project is difficult. It is hard to know if you
have gotten the “right answer.” Seldom, if ever, is there one perfect case or authority that is
directly responsive to your research task. It is far more likely that you find numerous cases
that are somewhat responsive and that you must patch together to arrive at an answer.
One clue that your research is complete is that you keep bumping into the same
authorities. For example, assume that you locate the Lynch case, which itself refers to
Adams, an earlier case. Later cases all refer to Lynch and Adams, and when you Shepardize
or KeyCite Lynch and Adams you turn up no new lines of case law.
These references to the same authorities are a signal that the principle originally set
forth in Adams has been continually repeated by later cases. If nothing significant or new is
added by the line of cases decided after your “best” case, and Shepardizing or KeyCiting
reveals that the cases you rely on are still valid, stop researching. This circular procedure is a
hint that your research is complete. You may want to “flesh out” your research by reviewing
a law review article or other secondary authority, but if these confirm the results of your
earlier research, you will know you have been sufficiently thorough.
Often beginning researchers lack the confidence to stop researching and are convinced
there is one perfect case that they will find if they can only devote enough time to the
effort. This is a fallacy. Seldom, if ever, is there a perfect case — for the reason that no two
cases are exactly alike. You will find cases that are similar to yours, and you will be able to
argue that because the cases are similar the reasoning in the reported cases should apply to
your particular problem. It is highly unlikely, if not impossible, however, to find an
identical case, so do not waste your time looking for one. Once you have cases “on point”
(similar legal issues as your case, similar facts as your case, from the highest courts in your
jurisdiction, and that are still valid) this is sufficient.
Another sign of lack of confidence in beginning researchers is their unshaken
conviction that they cannot be right, and there must be some case hidden in the library that
will render their efforts meaningless. If you have examined the statutes (and, if applicable,
constitutional provisions) from your jurisdiction as well as the cases interpreting the statutes
and have updated the statutes by checking the pocket parts and Shepardizing or KeyCiting
the statutes and cases, and the authorities are in agreement, your research is concluded. It is
only when you neglect to review the cases interpreting a statute or fail to update by

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checking pocket parts and Shepardizing or KeyCiting that your research is a trap for the
unwary.
After you gain confidence in your research skills through practice, you will be able to
trust your instincts and say, “I’m finished,” rather than thinking, “I can’t possibly have
found the right answer even though 22 cases all say the same thing so I’ll continue to look
for something to prove me wrong.”

3. Quick Questions

Often your research task is specific and well defined. You may be asked to check how many
days a defendant has to provide answers to interrogatories propounded by a plaintiff or
what the statute of limitations is to sue for breach of contract in your state.
Such specific questions are easily answered by examining your state’s annotated code.
Review the statute and a few cases construing it. Update and Shepardize or KeyCite the
authorities to determine they are still valid. Generally, this approach will be sufficient to
answer questions that are straightforward.

4. Established Issues

If your research task relates to an established area of the law, such as the elements of a cause
of action for breach of contract, a landlord’s duty to provide habitable premises to a tenant,
or the damages recoverable in fraud actions, you may find a multitude of authorities. Some
of the authorities may be decades old, and there may be numerous cases, periodical articles,
A.L.R. annotations, and discussions in texts and treatises. These authorities, however, may
reflect remarkable unanimity. That is, researching an issue related to an established area of
law usually results in numerous authorities in agreement.
Determining when to stop researching will be relatively easy because the authorities will
begin referring to each other over and over again. Once you update and Shepardize or
KeyCite to ensure that the primary authorities are still valid, your task is complete.

5. Newly Emerging Issues

Research in newly emerging or evolving areas of law can be frustrating because there will
often be substantial conflict among courts as judges grapple with a difficult issue and try to
establish rules of law. Thus, research relating to the liability of an Internet service provider
for allowing a user to post copyrighted music on a website without its owner’s permission
or research relating to software and business method patents will be fraught with conflict.
Often periodical articles or A.L.R. annotations will be most helpful because they will offer
an overview of new topics and attempt to explain and reconcile conflicts. Shepardize or
KeyCite any law review articles or A.L.R. annotations. Check the pocket parts to A.L.R.
Remember computer-assisted legal research, which has the ability to locate pertinent
documents if you carefully formulate the search query.
Research for these newly developing legal topics is difficult because often you cannot

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find one single right answer. If this is the case, you simply need to follow the standard
research techniques, and realize that your conclusion may well be that the authorities are
uncertain and conflicting.

6. Issues of First Impression

Often the most difficult research task is the one that yields no results whatsoever. Thus,
after hours of research, you may not have found any authorities. There are two conclusions
to draw from this occurrence: “There are no authorities relating to this issue” or “I must be
doing something wrong because I can’t locate any authorities.” Beginning researchers will
always draw the second conclusion and refuse to stop researching even though they are
retracing their steps over and over again.
It is possible that an issue is one of “first impression,” that is, one not yet considered in
your jurisdiction. Unfortunately, there is no foolproof way to determine this. There is no
list produced by the legislature or courts of “topics not yet considered.” There are, however,
two techniques you can use to assure yourself that it is not your research strategy that has
resulted in a total lack of authorities.
First, select a populous and varied jurisdiction such as California or New York that has
a rich body of law. Use the same research techniques, sets of books (annotated codes,
digests), and descriptive words that you used in your home jurisdiction. If you obtain
results in California or New York, you will know that your strategies, choice of books, and
descriptive words were sound and that the lack of authorities in your jurisdiction is the
result of an issue of first impression, not misguided research efforts.
Second, computer-assisted legal research, with its ability to search for thousands of
documents that contain specific terms (and sort them by date), will help verify your
research techniques. If your search query is “med! & malpractice /s diagnos! & diabet!” and
after you have selected the database for all Utah statutes and cases you obtain no references
whatsoever, you should feel more confident that Utah has simply not yet considered this
issue. To achieve a final comfort level, contact the service representatives for Lexis Advance
or Westlaw and ask for assistance in formulating a search.

Help Line: Research Assistance from Lexis Advance and Westlaw

Both Lexis Advance and Westlaw are extremely helpful in providing research assistance if you encounter
difficulties when performing research.

• Lexis Advance: Call (800) 45-LEXIS for 24/7 research help.

• Westlaw: Call (800) REF-ATTY for research assistance.

Additionally, both services offer “real-time” or “live help” online assistance. When you are researching online,
simply type your question in the chat box, and you will be given personalized research assistance within minutes.

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7. How Many Authorities Are Enough?

Beginning researchers usually want to know how many cases or authorities should be cited
in a brief or project. There is no answer to this question. As a general rule, however, you
will need fewer authorities to support a well-established principle and more authorities to
discuss an emerging area of law or one in conflict.
Is one citation enough? It is possible that a single citation may suffice to answer a quick
question. Thus, the question of how many days a defendant has to answer interrogatories
propounded in a federal court action can be responded to as follows: A party served with
interrogatories has 30 days after the date of service to answer or object to the
interrogatories. Fed. R. Civ. P. 33(b)(2). A further review of the Federal Rules of Civil
Procedure, however, discloses that the answering party has three extra days to respond if
served by mail or electronic means (if the recipient consented to being served by electronic
means) and that if the last day is a Saturday, Sunday, or holiday, the party has until the
next business day. Fed. R. Civ. P. 6(a), (d). More complex questions, such as whether a
landlord may turn off the heat of a tenant who has not paid rent, may require careful
reading of several statutes, cases, and other authorities.
Remember the weight of authorities: Primary authorities (cases, constitutions, statutes,
and regulations) must be followed by a court. Secondary authorities (encyclopedias,
periodical articles, annotations, and so forth) are persuasive only. Thus, you should always
aim to have at least one primary authority to support each of your arguments. Do not make
the mistake of assuming, however, that if there are 12 cases from your jurisdiction, all of
which state that punitive damages are recoverable in fraud actions, you should discuss and
cite all 12. Courts are impatient with string citing or repetitive arguments. Exercise
discretion, and select the most articulate case or the one most similar to your case. Consider
selecting the landmark case in this area and then one recent case from your highest court.
See Figure 13-5.
Cite secondary authorities if they provide a concise analysis of a topic or if the author is
a well-respected and renowned authority in that legal field. Consider combining primary
authorities with a secondary authority to support your argument. Do not, however, believe
that legal research is like a recipe and that if you always cite two cases and a law review
article your argument will win. Different topics require different levels of analysis, and you
will need to exercise your own discretion to determine how many authorities are enough.

Practice Tip

When to Stop Researching

Although there is no perfect rule when to stop conducting legal research, consider that it is time to stop when:

• You keep bumping into the same authorities and their commentary is much the same;
• You have read the same point in a number of different sources, with nothing new added; and
• Your Shepardizing or KeyCiting reveal no changes to the law.

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 Figure 13-5
A Blueprint for Legal Research

Internet Resources

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 Ten Tips for Effective Research

1. Be prepared. The time you spend thinking about a project before you begin is time well spent. Give yourself a
few minutes to plan your research strategies.
2. Be flexible. If the books you need aren’t on the shelf or if your efforts are not yielding results, switch to another
set of books.
3. Be thorough. Check all pocket parts and supplements to be sure you have the most recent materials. Shepardize
or KeyCite all primary authorities to make sure the law is still “good.” Take complete notes. Be scrupulous in
transcribing citations to avoid backtracking. Consider a variety of research methods (print sources, computer-
assisted legal research, and the Internet) to achieve the best results.
4. Be patient. Research can be a difficult process. Expect some roadblocks.
5. Be organized. Tackle one topic or issue at a time. Do not allow yourself to get sidetracked on a minor issue or
diverted in another direction. Address each research issue with a laser, not a buckshot, approach.
6. Be efficient. Gather together all the materials you need so you don’t waste time wandering around the library.
7. Be creative. If all of your colleagues are beginning their research in one set of books, begin in another to avoid the
crowd as well as the crowd mentality. Try contacting agencies and individuals and asking for assistance rather
than depending exclusively on the books in the stacks.
8. Be wary. Make sure you approach your problem from all angles. Play devil’s advocate. What will the adversary
argue?
9. Be resourceful. Look for law review articles and annotations on your legal topic. If someone has already written a

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 thorough analysis of an issue, why reinvent the wheel?
10. Be calm. If you get stuck, ask a librarian for help. That’s what they’re there for.

Writing Strategies

As you prepare to write, invest time in “brainstorming.” Jot down or type

anything that comes to mind relating to the project. You can later omit any ideas or
topics that are not useful. The mere process of starting to write something will get
your creative juices flowing, and some ideas that you originally believe are farfetched
may later develop into a creative line of reasoning.
If you initially think of more than one way to express a thought, write down
both expressions. Later you can decide which to omit or perhaps you will find a way
to combine both ideas.
If an argument or line of reasoning occurs to you during the research process,
write it down as clearly and completely as possible. You may later be able to “lift”
these notes intact and place them verbatim into the written project. That is, the more
complete your note-taking is, the easier it will be for you to write the project. In
some instances, your notes will almost be the equivalent of a first draft. If your “note-
taking” consists merely of photocopying or printing cases and passages of writings,
however, you will need to devote far more time to the initial draft because much
work will need to be done to develop what is in those cases and writings into a
reasoned and concise project.

Assignment for Chapter 13

Answer the following questions, which are designed to test the research skills you have
learned in the preceding chapters. If your answer is found in a statute, give the citation to
the statute that supports your answer. You may use whatever sources you feel will best
answer these questions, whether those sources are print, located through Lexis Advance or
Westlaw, or located by using the Internet.

1. In New York, a client, Kyle Adams, signed a will in 2013. Kyle got married and
had his only child in 2014 and died in 2015, leaving the child unprovided for and
unmentioned in the will. What is the effect of the birth of the child on the earlier
will? Will the child share in any portion of Kyle’s estate?
2. What is the stock ticker symbol of Harley-Davidson, Inc., which trades on the
New York Stock Exchange?

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 3. A client wishes to dissolve his South Carolina corporation (which has issued
shares). What fee will be imposed by the state?
4. What is the citation for the short title of “Obamacare”?
5. Anna and Aaron have just moved to Ohio and decided to divorce. How long must
they reside in Ohio before they may file a petition to divorce?
6. A client has been convicted of sending obscene materials through the mail, which
is a federal offense. What punishment might be imposed?
7. A California client, who purchased a valuable work of fine art (a sculpture entitled
“Glory”), would like to deface it. Does any statute prohibit such?
8. Who is the inventor of U.S. Patent No. 9,124,756? What is the subject matter
covered by the patent?
9. A client, an aesthetician in Massachusetts, has been found to be a “habitual
drunkard.” What action can the Board of Registration of Cosmetology take?
10. What is the current federal minimum wage, and when was it last increased?
11. May an employer ask an applicant for a job about the nature of his disability and
how severe it is, or would such violate the ADA?
12. May a judge serve as an advisor to Marriott International, Inc., or would such
violate any judicial codes of conduct?

Internet Assignment for Chapter 13

1. Access the Boston College Law Library website. Select Research Guides, then
“Starting Out,” and then “Basic Legal Research Tips.” What are the five steps to
legal research?
2. Access UCLA Law Library’s Research Guides, specifically “UCLA School of Law
Legal Research and Writing Guide.” Review Appendix A, titled “Research
Checklist.”
a. Where should you begin your research?
b. What is the last point made in the Research Checklist?
3. Access the University of Washington Law School Law Library website. Select
“Research Guides” and then “Basic Legal Research.” Review the guide entitled
“What you always wanted to know about legal research but were afraid to ask.”
Select “Final Thoughts.”
a. Because many Internet sites disappear, what should you do if an item is
important to your research?
b. When is it safe to stop researching?

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 Section III

Legal
Writing

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 Chapter 14

Back to Basics
The writer who neglects punctuation, or mispunctuates, is likely to be misunderstood . . . .

Edgar Allan Poe (1848)

A. The Mechanics of Writing

B. Grammar, Spelling, and Punctuation

Chapter Overview
The goal of legal writing is to communicate. The style of the communication may simply
be informative, for example, to inform the reader of certain facts or events, or it may be
persuasive, for example, to persuade the reader to adopt a certain point of view. No matter
what style or form legal writing takes, its mechanics (grammar, spelling, and punctuation)
must be correct. Failure to use good grammar results in cloudy and incomprehensible
writing. Incorrect spelling casts doubt on your skill and credibility. Improper punctuation
results in an unclear project.
This chapter will review these basics of writing so your final product will effectively
communicate to its intended audience, whether it is a client, an adverse party, or a court.

A. The Mechanics of Writing

Even if your research is flawless and you have found primary authorities “on point,” these
will do you no good unless you can communicate your results to a reader. Flaws in the
communication process, such as improper spelling, awkward word usage and sentence
construction, and errors in punctuation distract your reader from your message, making the
reader doubt your abilities and reflect on your carelessness.
Some legal professionals have strong writing backgrounds and are comfortable with
grammar, spelling, and punctuation. Others have more scientific or technology-oriented
backgrounds and are unused to writing. Even those individuals who have done a great deal
of writing in college or on the job may be unfamiliar with the strictures of legal writing. For
example, typical undergraduate writing is marked by more flexible punctuation.
Punctuation in legal writing is considerably more rigid because a misplaced or omitted
comma can change the meaning of a statement. There is vigorous debate among
grammarians regarding some punctuation marks and usages. Select a well-known text such
as The Chicago Manual of Style or the United States Government Publishing Office Style
Manual (available online at https://www.gpo.gov/fdsys; search for “GPO Style Manual”),
and use it to support your position, if necessary.
After years of communicating primarily by telephone, many people in the business

538
fields are now communicating more in writing. Thanks to e-mail, texting, and blogs,
people are writing more now than ever before. Unfortunately, communicating via these
methods is often so informal that careless errors are perpetuated. Thus, although many of
us may be writing more, we’re also writing worse, with less attention to spelling,
punctuation, and proofing. Do not be seduced into thinking that because e-mail to your
supervisor or colleagues is easy and informal, it can be incorrect. The way you
communicate communicates a message about you. Invest the time and effort in producing
a clear and well-written document or message every time you write, and no matter what the
means of communication. A final word of caution about e-mail: Most law firms and
businesses have strict policies about the use of e-mail for business purposes only. Moreover,
the security of e-mail is open to question. Many employers monitor e-mail use. Therefore,
do not use your work e-mail for anything other than business purposes, and do not say
anything you wouldn’t want your boss to read.
Although there are many guides to writing, perhaps the best known and easiest to
understand is The Elements of Style by William Strunk, Jr., and E.B. White. First
introduced in 1918, The Elements of Style (now in its fourth edition) sets forth in clear and
concise fashion principles of usage and composition with illustrative examples. Some
writing instructors recommend a cover-to-cover re-reading of “the little book” each year to
refresh one’s understanding of the fundamentals of English style. Portions of the first
edition of The Elements of Style are available online at http://www.bartleby.com.
Additionally, most dictionaries include sections on grammar, spelling, and punctuation
together with useful examples. Finally, any bookstore’s reference section will include
numerous books on writing and style. Invest in a few reference tools, and keep them near
you when you write.
Don’t let the rules of grammar and its incomprehensible terms (such as “pluperfect” or
“subjunctive”) intimidate you. You do not need to know all of the parts of speech to be a
good writer, just as you do not need to know all of the parts of an oven to be a good cook.
This chapter will discuss the rules most commonly misunderstood or violated by legal
writers.

B. Grammar, Spelling, and Punctuation

1. Grammar Do’s and Don’ts

Rules of grammar are used so that we can communicate clearly. Following are some of the
most common grammatical errors made by beginning and even experienced writers.

a. Subject-Verb Agreement
A verb must agree in number with the subject of a sentence. That is, if the subject of a
sentence is singular, the verb must also be singular. Similarly, if the subject of a sentence is
plural, the verb must also be plural. Most problems in subject-verb agreement occur when a

539
subject is used that has more than one word, when the subject is an indefinite pronoun
(such as “everyone”) or collective noun (such as “jury”), or when several words or a
prepositional phrase intervene between the subject and the verb.

(1) Multiple-Word Subjects

Because the subject of the sentence in the preceding example consists of two words
connected by “and,” it is plural, and thus a plural verb (were) is needed.
If the subject is composed of singular words connected by “or” or “nor,” use a singular
verb.

If the subject is composed of a singular and a plural word and they are joined by “or” or
“nor,” the verb should agree with the word nearer to the verb, as in “Either the judge or the
jurors have left.”
Often confusion regarding subject and verb agreement arises when a word that ends in
-one or -body, such as “someone” or “everybody,” or a word such as “each,” “either,”
“neither,” or “no one” is used. These indefinite pronouns are considered singular, and a
singular verb must be used. Moreover, a singular pronoun (he, she, it) must be used with
these words. Other indefinite pronouns, for example, “both,” “few,” and “many” are clearly
plural and therefore take a plural verb, as in “Few were left in the courthouse.”
Although it is common to use plural pronouns in speaking or informal writing, legal
writing is more formal and one must be scrupulous in using singular pronouns with such
words.

540
Although the correct examples above show proper usage, you may wish to avoid the words
“his” or “he” if they strike you as sexist. As discussed later in this chapter, there are several
ways to remedy sexist language.

(2) Collective Nouns

Collective nouns (nouns that stand for a group of people or items) such as committee,
crowd, court, and jury are usually singular.

If you wish to discuss the individuals composing the unit, for the sake of clarity use the
following form:

(3) Intervening Words

Subject-verb agreement problems often occur when words or phrases intervene between
a subject and a verb.

In the preceding examples, the subjects are “remainder” and “deposition.” Both of these

541
words are singular and therefore they require the singular verbs “is” and “shows.” Focus on
the subject of the sentence and ignore intervening words.

(4) Prepositional Phrases

Prepositional phrases that intervene between a subject and a verb often confuse writers
who may be tempted to match the verb with the noun in the prepositional phrase rather
than with the subject of the sentence.

In summary, always carefully scrutinize your writing to identify the subject. Once you
have located the subject, classify it as singular or plural and then select the appropriate verb
form, ignoring any intervening words or phrases such as “together with.”

Practice Tip

Achieving Subject-Verb Agreement

• Try mentally replacing multiple word subjects (such as in “the plaintiff and the defendant are present”) with the
word they to determine the correct verb, as in “They are present.”
• Geographic names such as “the United States” are usually treated as singular, as in The United States is prepared
to announce its policy.
• Always use a plural verb with “you” even when “you” is singular, as in You alone are always punctual.

b. Sentence Fragments
Sentence fragments, or incomplete sentences, are caused by a failure to include a subject
and a verb in each sentence. Often a sentence fragment occurs because the writer has
assumed that a dependent clause, that is, one that cannot stand on its own, is a sentence by
itself. Sentence fragments can often be avoided by correcting the punctuation or by making
the dependent clause into a complete sentence.

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c. Run-on Sentences
In many ways, a run-on sentence is the opposite of a sentence fragment. A run-on sentence
combines two sentences into one. Run-on sentences can usually be corrected by inserting
the proper punctuation or by dividing the run-on into two separate sentences.

d. Modifiers
The incorrect placement of a modifier (a word that limits, describes, or qualifies another
word or group of words) causes ambiguity. Place modifiers next to or as close as possible to
the words they modify. For example, the sentence “Ginny agreed only to lend her sister
money” is capable of two interpretations. Does it mean that Ginny agreed to lend her sister
money and no other item? Or does it mean Ginny will lend her sister money and will not
lend money to anyone else? It may be necessary to add words to a sentence with a modifier
in order to achieve clarity. Either of the following two sentences will reduce ambiguity:

• Ginny agreed to lend her sister only money and nothing else.
• Ginny agreed to lend money only to her sister and not to anyone else.

Similarly, note the following sentence: “A man was put to death in Texas for a murder he
committed during a supermarket robbery this morning.” The phrase “this morning” must
be placed after “Texas” to avoid ambiguity.
Modifiers such as “almost,” “ultimately,” “frequently,” “immediately,” “eventually,”
“finally,” and “only” are notorious causes of ambiguity. Exercise caution in using these

543
words.
The typical modifiers are adverbs and adjectives. Once again, try to place these
modifiers adjacent to the words they modify.

e. Split Infinitives
An infinitive is the word to with a verb, as in to run or to plead. An infinitive is said to be
“split” when a word (usually an adverb) is inserted between the word to and the verb, as in
to quickly run or to convincingly plead.
Writing experts now recognize that there is no formal rule against splitting an infinitive,
and split infinitives are commonly seen in nonlegal writing, including newspaper articles;
however, legal readers tend to be conservative and may be annoyed or distracted by a split
infinitive. Because many split infinitives are so easily corrected (by merely moving the
adverb that causes the “split” after the infinitive), correct them when you can, and avoid
splitting an infinitive unless you want to place emphasis on the adverb.

Do not insert “not” or “never” in an infinitive because the result is awkward and
incorrect.

f. Dangling Participles
A present participle is a verb ending in -ing, as in arguing or entering. It is said to “dangle”
when it does not modify the subject of a sentence. Also called a dangling modifier, this
grammar problem most often occurs when a sentence starts with a word ending in -ing, as
in Trying to meet the filing deadline, my computer crashed. This sentence is incorrect because

544
it lacks an identification of the subject and implies that the computer was trying to meet
the deadline. To remedy a dangling modifier, either identify the actor immediately after the
introductory modifier, or reword the modifying phrase so that it identifies the actor, as in
As I was trying to meet the filing deadline, my computer crashed.
Some dangling participles result in unintended humor. For example, the following
statement was published in The Westhampton Beach (N.Y.) Hampton Chronicle News:
“Boasting a voracious appetite and stocked with both male and female sex organs capable of
producing 1,000 offspring per year, officials at the U.S. Department of Agriculture are
warning Long Islanders to report any sightings of the oversized escargot immediately.”

g. Pronouns

(1) Personal Pronouns

Personal pronouns (I/me, he/him, she/her, we/us, they/them) change forms depending
on whether they function as the subject of a sentence or the object of the sentence. When
the pronoun functions as or replaces the subject of a sentence, use “I,” “he,” “she,” “we,” or
“they.”

When the pronoun functions as or replaces the object of a sentence, use “me,” “him,”
“her,” “us,” or “them.”

545
 As an aid to determining which form of pronoun to use, mentally omit or cover up the
noun and the word “and” accompanying the pronoun, and this will provide a clue as to
which pronoun to use. For example, in the sentence “You must give John and I/me clear
instructions,” omit “John and” so the sentence reads “You must give ________ clear
instructions.” This reading makes it clear the correct pronoun is “me.” Finally, by custom
and usage, the first person pronoun (I/me, he/him, she/her, it) is usually placed second, as
in “Joe and I went to Rome” (not “I and Joe went to Rome”) and “Provide Lee and me
with the exhibits” (not “Provide me and Lee with the exhibits”).

(2) Reflexive Pronouns

The reflexive pronouns are the “self” pronouns such as “myself,” “yourself,” “himself,”
“herself,” “ourselves,” “yourselves,” and “themselves.” Reflexive pronouns usually reflect
back on a subject as in “She injured herself.” Do not substitute a “self” pronoun for a
personal pronoun (I/me, he/him).

(3) Relative Pronouns

The relative pronouns include “who,” “whom,” “that,” and “which.” To decide
whether to use “who” or “whom,” you need to determine if the relative pronoun is the
subject of the sentence. If so, use “who.” Thus, use “who” whenever “I,” “he,” “she,” “we,”
or “they” would be used. If the relative pronoun is the object of a sentence, clause, or
prepositional phrase, use “whom.” Thus, use “whom” whenever “me,” “him,” “her,” “us,”
or “them” would be used.

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 Practice Tip

Who and Whom (Remember “m” for Whom)

When using who or whom, rephrase the question or clause and determine whether you would use he or him in
its place. If he would be used, use who. If him would be used, use whom. Remember that the “m” in him
matches up with the “m” in whom. This tip works in almost all instances.

• Example: Who is calling?

• Test: Rewrite as He is calling. Replace he with who.
• Example: Whom do you trust?
• Test: Rewrite as I trust him. Replace him with whom.

Use “who” or “that” to refer to humans (as in “the paralegal who was hired,” “the
project manager who proofread the document,” or “the paralegal that was hired”). Note
that many writers object to the use of the word “that” to refer to persons, although it is
commonly used colloquially. Use “that” or “which” to refer to non-humans, places, or
objects (as in “the deposition that was taken,” “the exhibits, which were omitted,” or “the
dog that barked”).
“That” is used in a restrictive clause (a clause that is essential to the meaning of a
sentence), whereas “which” is used in a non-restrictive clause (a clause that merely adds an
idea to a sentence that would be complete without the clause). For example, in the sentence
“The pens that were on the desk are missing,” the word “that” tells which particular pens
are missing (namely, the ones on the desk). Presumably, there are other pens that were not
on the desk, and those can still be found. On the other hand, review the sentence, “The
pens, which were on the desk, are missing.” This sentence tells us that all of the pens were
on the desk, and they are all missing. Many writers have difficulty determining whether to
start a clause with “that” or “which.” Remember these hints:

• If you can drop the clause and still retain the meaning of the sentence, use “which.”
If you can’t, use “that.”
• A clause beginning with “which” is usually set off by commas.
• A clause beginning with “that” is not set off by commas.
• “That” introduces essential information; “which” seldom does.

Examples

• My car, which was brand new, was damaged in the collision. (You can drop the

547
 “which” clause and the sentence still makes sense. Use “which.”)
• The car that was damaged in the collision was my car. (Elimination of the “that”
clause causes the sentence to lose meaning. Thus, the phrase is essential. Use
“that.”)

Writers often substitute pronouns for names in a manner that creates ambiguity. For
example, in the sentence “The document Ellen drafted for Teresa was given to her for
review,” it is unclear whether the “her” refers to Ellen or Teresa. Clarifying such an
ambiguous statement usually requires rewriting the sentence. Thus, “The document Ellen
drafted for Teresa was given to Ellen for her review” makes it clear which individual
received the document for review.
Similarly, the statement “Don likes these cookies more than me” creates confusion (in
addition to being grammatically incorrect). Because the word “cookies” is used as the object
of the verb, the sentence means that Don likes the cookies more than he likes me. To
reduce confusion, rewrite such sentences. Thus, “Don likes these cookies more than I do”
makes it clear Don likes the cookies more than I like them.
Use “it” to refer to collective nouns such as jury, court, committee, or association unless
you are referring to the members of the group. Also use “it” or “its” to refer to non-human
entities or institutions such as corporations.

(4) Gender-Linked Pronouns

Avoid the use of gender-linked pronouns. For example, the sentence “A nurse should
always keep her thermometer handy” is objectionable because it implies that nurses are
always female. Similarly, the sentence “A judge must give his instructions to the jury” is
objectionable because it presupposes the judge is male.
There are several techniques you can use to avoid offending readers:

• Change singular nouns to plurals. One technique is to change the singular nouns
to plural. This in turn will necessitate a change in the singular pronoun “he” or
“she” to a neutral plural pronoun such as “they” or “their.” Thus, the first example
would read “Nurses should always keep their thermometers handy,” and the second
example would read “Judges must give their instructions to the jury.”
• Rewrite the sentence to avoid using any pronouns. Many sentences can be
rewritten so that no pronouns are used. The first sentence would then read “A
nurse should always keep a thermometer handy,” and the second sentence could be

548
 rewritten as “A judge must always give instructions to the jury.”
• Use the noun “one.” Another alternative is to use the noun “one.” Using this
technique, the first example would be rewritten as “One should always keep one’s
thermometer handy,” and the second example would be “One must always give
one’s instructions to the jury.” As you can see, however, the use of “one” often
results in a vague sentence that is stuffy in tone.
• Use the pronoun “you.” In some situations, the pronoun “you” can be used. Thus,
rather than writing “The applicant must provide his or her address,” write, “You
must provide your address.”
• Use “he or she.” In some instances, none of the techniques previously described
will work smoothly. In those cases you could use “he or she” throughout the
document. This, however, can result in a clumsy document if used continually.

Avoid the use of “he/she.” This construction creates an awkward appearance because
slashes are seldom used in legal writing. Their use is noticeable and distracting to a reader.
The combination “s/he” is even more noticeable and distracting.
If you are drafting a long document, such as a contract, you may use “he” throughout
and at the end include a statement that the use of a masculine gender is deemed to include
the feminine. This is a common approach used by legal professionals. Avoid alternating
between “he” and “she” in a single document, especially in a single paragraph. This attempt
to be fair and gender-neutral is misguided and disruptive to the flow of a project.
When addressing a letter to an individual whose gender is unknown, for example, a
letter to the Secretary of State of Utah, check the Internet to see if you can determine
whether the individual is a man or woman. If you cannot make that determination, address
the letter as “Dear Sir or Madam.” While “madam” is an archaic form of address, it is
correct in such a situation. Similarly, when you are responding to a letter written by an
individual whose name is ambiguous, such as Terry L. Smith, consider calling and asking
how the letter should be addressed. Rest assured, you will not be the first person confused
by such a name. If contacting the person is not possible or practical, you could address the
letter “Dear Terry,” “Dear Terry Smith,” or “Dear Colleague.”
In sum, correct gender-linked pronouns to avoid offending readers if you can do so
without causing an awkward and distracting document. For example, the use of specially
crafted words such as “personholes” (rather than “manholes”) is jarring to a reader. Thus, it
is still acceptable to use “he” or “him,” if changing the pronouns or rewriting the sentence
would result in clumsy and distracting writing.

Practice Tip
Following the Old Grammar Rules

Because legal writing is more formal than other styles of writing, and because legal readers are notorious
perfectionists, err on the side of caution so readers will not be jarred by your usage. Thus, whenever possible,
consider complying with the “old” rules of writing in legal documents:

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• Avoid splitting an infinitive;
• Avoid starting a sentence with a conjunction such as and or but; and
• Avoid ending a sentence with a preposition.

2. Spelling

Poor spellers often announce, “I’ve never been a good speller,” as if this disclaimer were
some justification for a writing problem that negatively affects a project and the reader’s
view of its author. If you know that spelling is your weak spot, you need to work harder on
this area rather than shrug it off with excuses. Keep several dictionaries handy — one in
your office, one at home, a pocket one in your briefcase, and a dictionary app on your
phone. You may want to go to a professional bookstore that stocks legal books or to the
bookstore at a law school to purchase a legal dictionary. A legal dictionary will include
words used in legal settings such as “rescission” as well as Latin terms and phrases
commonly used. Don’t be afraid to write in your dictionary. Circle or highlight words you
have reviewed. Chances are you will need to look up the word several times before you
memorize the correct spelling. Similarly, you may wish to keep an index card handy with
your top-ten list of commonly misspelled words. Refer to it often. Over time, you will learn
the words on the list.
Using a dictionary is not a sign of weakness. It is a signal that you are striving for
professionalism in your work product. When you look up a word such as “canceled” in the
dictionary, you may notice that you are given the spelling “canceled” and then the
alternative spelling “cancelled.” Usually the entry given first is the preferred spelling, and
you should use this form of the word. Similarly, use the commonly accepted spelling of a
word rather than some foreign or exotic variety. For example, use “organization” and
“behavior” rather than “organisation” and “behaviour,” which are British spellings of those
words.
One of the wonderful features of many word processor systems is their ability to check
the spelling of words. Be sure to use your spell-checking feature to help you catch spelling
errors, but do not rely on it exclusively. In fact, many experts believe spelling checkers
encourage complacency. Although the spelling checker will let you know if you misspelled
“restaurant,” it cannot check word usage. Thus, if you used the word “principle” rather
than “principal,” the spelling checker will not inform you so long as “principle” is spelled
correctly.
Be thorough in your review of your finished project, and read through the last draft for
spelling errors. You should also keep a list of your own common spelling errors handy and
refer to it. If you find it difficult to review your own work, ask a co-worker or friend to read
through your project for spelling errors. See Chapter 19 for tips on proofreading.
One of the most distressing results of misspelling is the effect produced in the mind of a
reader. If your aim in writing is to inform or persuade your reader, and the reader is
confronted with spelling errors, any value your product may have may well be
overshadowed by the misspellings. Readers of legal documents, such as employers, clients,

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attorneys, and judges, tend to be highly critical and perfectionistic. When confronted with
spelling errors, they may react by assuming that if you cannot be trusted to spell properly,
you cannot be trusted to have found the correct answer to a legal problem. Thus, spelling
errors cast doubt on more than your ability to spell by causing readers to question the
correctness of your conclusions. At best, spelling errors make readers believe you are
careless. At worst, they may question your intelligence.
Following are some words commonly misspelled in legal or business writing:

Following are some tips to becoming a better speller:

• Learn some rules. Many spelling rules are easy to remember (although they often
have exceptions), such as “place i before e, except after c, or except when it sounds
like ay, as in neighbor and weigh.” Exceptions include “leisure” and “weird.”
• Use a dictionary. Always consult a dictionary to check spelling, and mark and
highlight troublesome words. Some dictionaries contain no definitions; they only

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 list spelled words. These dictionaries are useful and portable. The online dictionary
found at http://www.dictionary.com is also helpful. The Wolters Kluwer Bouvier
Law Dictionary app (an abridged version of the full dictionary) is available free at
the iTunes store.
• Don’t over-rely on a spell checker. Studies show that papers written with the help
of a spell checker are only marginally better than those that are not.
• Use mnemonic devices to help you remember words, such as “the principal of your
school is your pal.”
• Pronounce your words carefully. It will be difficult to remember the correct
spelling of “environment” if you pronounce it as enviroment.
• Write your misspellings several times. If you catch yourself writing privelege rather
than privilege, write it ten times to train yourself.
• Proofread carefully. In many instances, a misspelled word will not look “right” to
you, and you can then correct the error.
• Use the “find and replace” feature of your word processor to correct common
errors automatically. For example, if you routinely type Untied States rather than
United States, the find and replace feature will locate each occurrence of this error
and replace it with the correct spelling.

Ethics Alert

The Duty of Competence

Although errors in spelling, grammar, and punctuation may seem minor or cosmetic, they can and do detract
from a polished project. In one case, a court noted with stern disapproval, “the plaintiff’s brief is littered with
spelling errors, grammatical sloppiness, and incorrect case citations” and condemned this “shoddy
professionalism.” Universal Restoration Servs., Inc. v. Paul W. Davis Sys., Inc., No. 908-C-2027, 2002 WL
596380, at *7 (N.D. Ill. Apr. 17, 2002). Thus, your duty of competence extends to all aspects of your
writing, even the technical aspects such as grammar, spelling, and punctuation.

3. Punctuation

a. Introduction
When you speak, you use pauses and changes in voice inflection as well as gestures to signal
meaning to the listener. In writing, these signals are given through the use of punctuation.
Punctuation makes writing more understandable to a reader. For example, a period
instructs the reader that a complete thought or sentence is concluded. Without periods, all
of a writing would be one incomprehensible sentence. Similarly, quotation marks signal to
a reader that the exact words of another are being used.
This portion of the chapter will discuss commas, apostrophes, colons, semicolons,
quotations, parentheses, and the less frequently used marks in legal writing such as dashes
and exclamation points.
There is some variation in punctuation. Given the same paragraph, two writers may

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punctuate slightly differently from each other. Nevertheless, the basic rules of punctuation
have remained relatively unchanged since about the mid-1880s. Although the newer, more
modern approach to punctuation, referred to as “open” punctuation, uses fewer
punctuation marks than the older approach (for example, many modern writers no longer
use the serial comma discussed below), legal writing, like business writing, tends to be
somewhat formal. Therefore, just as recommended in the section in this chapter on
grammar, when in doubt, err on the side of caution, and use the more conventional
approach to punctuation rather than some unusual approach.
Many writers place two spaces after a period ending a sentence, but it is becoming
increasingly common to use just one space (because modern word processing programs
automatically allow suitable spacing between and after letters). In fact, nearly all writing
guides, including the GPO Style Manual, now recommend using only one space after a
period. Whichever approach you use, be consistent.

b. Commas
A comma indicates a brief pause and is considered the most troublesome of punctuation
marks due to its numerous uses. Use a comma:
(i) After the salutation of an informal letter and after the closing of any letter:

Dear Aunt Kay, Sincerely,

Dear James, Very truly yours,

(ii) To set off digits in numbers, dates, and addresses:

There are 4,182 pages in the transcript. (Note, however, that Bluebook
Rule 6.2(a) states to use a comma only when numbers contain five or
more digits and would therefore write this number as “4182.”)
Please refer to my June 19, 2016, business report.
The defendant resides at 2202 Oak Brook Terrace, Evanston, Illinois
07816.

(iii) To set off an introductory word, phrase, or clause:

According to the plaintiff’s testimony, the car was traveling west on
Burgener Street at the time of the accident.
Nevertheless, the defendant failed to comply with the terms of his
agreement.
First, the defendant entered Mrs. Smith’s dwelling place.
Although she was quite elderly, she made an effective witness. Use of a
comma after a short introductory phrase is optional. Thus, the
following is correct: After the trial I was exhausted.

(iv) To set off interruptive or non-essential words or phrases:

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 While looking for her pen, however, she found the missing checkbook.
The defendant, over the strenuous objection of his counsel, insisted on
testifying.

(v) To set off appositives (a word or group of words inserted immediately after
another word that explains the previous word):
William Emery, the noted attorney, consulted on the case.

(vi) Before a coordinating conjunction (often called the FANBOYS, for “for,”
“and,” “nor,” “but,” “or,” “yet,” or “so”) introducing an independent clause,
namely, one that can function as a complete sentence. You may omit the
comma if the clause is short (five words or fewer). The comma is not needed
before the coordinating conjunction if the clause that follows cannot stand
on its own. The following examples are all correct:
The plaintiff intended to amend the complaint, but the statute of
limitations had expired.
The defendant’s answer had been amended several times, and the judge
expressed impatience with the many amendments.
The defendant’s answer had been amended several times and was poorly
written and nearly incomprehensible.
He argued the case and did so clearly.
The attorney argued but the jury convicted.

(vii) To set off items in a series of three or more items. Although the final
comma in a series is optional in most writing, in legal writing you must place
a comma after each item in the list and before the conjunction. For example,
examine the sentence, “I leave my property equally to Susan, Bill, Louise, and
Tom.” A reader would understand that each individual would receive one-
fourth of the estate. Note that the omission of the last comma could cause a
completely different result, for example, “I leave my property equally to
Susan, Bill, Louise and Tom.” The omission of the comma after “Louise”
arguably indicates that the property is to be divided equally into thirds: one-
third to Susan, one-third to Bill, and one-third to Louise and Tom together,
rather than in equal fourths to each individual. Because the omission of the
last comma in a series (the serial comma) can cause ambiguity, always include
it. In fact, at least one expert notes that omitting the serial comma is
acceptable only in newspapers and commercial magazines.

(viii) Before and after quotations:

“I need the pen,” Bob said.
Lee replied, “I agree.”

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c. Apostrophes
Apostrophes are used to show possession or ownership or to show omission of one or more
letters, as in the contraction don’t. The use of apostrophes to show possession, especially
with regard to proper names, is often confusing.
Use an apostrophe:

(i) to show possession or ownership. Follow these basic rules:

• Add an apostrophe and an s (’s) to show possession for all singular nouns,
even if the noun ends in s, x, or z.

• When a plural word ends in s, add only an apostrophe (’) to show

possession.

• When a word is plural and does not already end in s, add an apostrophe
and an s (’s) to show possession.

• To form the plural of most names or to show possession for most names,
follow the rules given above.

• For most names that end in ch, s, sh, x, or z, however, form the plural by
adding es and then form the plural possessive by adding an apostrophe
after the es (es’). The singular possessive is formed by following the first
rule above (as in Tim Jones’s car is red.).

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 Practice Tip

Marcus’ Pen or Marcus’s Pen?

Many grammar books permit the use of an apostrophe alone with a singular word ending in s when adding
another s would make the word difficult to pronounce or look odd. Thus, you may see Mr. Rogers’ sweater or
Marcus’ pen. Nevertheless, Strunk and White and most conventional grammar books suggest the ’s, as in Mr.
Rogers’s sweater and Marcus’s pen. This form is always correct. Moreover, it is consistent with shorter names, as
in Les’s car. It looks odd to see Les’ car. Thus, use the form Les’s car.

(ii) to indicate omission of letters, as in contractions:

• can’t (cannot)
• hadn’t (had not)
• it’s (it is or it has)
• don’t (do not)

One of the most common errors students and beginning writers make is misusing “it’s.”
“It’s” is a contraction for “it is” (or “it has”). The apostrophe is used to indicate that the
letter “i” or the pair of letters “ha” has been omitted. To form the possessive of it, use “its.”
Only use “it’s” when you mean to say “it is” or “it has,” not when you mean to indicate
possession.

Correct example: It’s a learned court that has the wisdom to reverse its decisions.

Practice Tip
Apostrophes and Plurals of Numbers and Letters

There is some disagreement whether an apostrophe should be used to show the plural of a number or letter.
The better practice and that of the Style Manual is to follow the general rules for forming plurals and to omit
the apostrophe unless the result would be confusing.

Correct examples: There are two Exhibit Bs.

The stock price fell in the 1990s.

The LSATs are difficult.

Be sure to dot your i’s.

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d. Colons
Use a colon:

(i) after the salutation of a formal letter:

Dear Mr. Smith:
Dear Sir or Madam:

(ii) to introduce a list; use a colon especially after expressions such as “as
follows” or “the following”:
The defendant asserted the following three defenses: laches, acquiescence,
and unclean hands.

(iii) to indicate that something will follow (when the introductory clause is a
complete thought):
We have instituted a new policy: Goods may not be returned without a
sales receipt.
Do not use a colon after a verb or preposition. Thus, it would be
incorrect to write, You will find the answer in: the case or the statute.

(iv) to introduce a formal or long quotation:

The court stated in unequivocal terms: “Liability is founded on this act of
gross negligence.”
(Note that this quotation could also be introduced by a comma.)
Capitalize the first word after a colon if the material following the colon can stand on
its own as a sentence. Conversely, do not capitalize the first word after a colon if the
material cannot stand on its own as a sentence. Consistent with the trend of placing only
one space after a sentence-ending period, the trend is to place only one space after a colon.

e. Semicolons
Use a semicolon:

(i) to connect two independent but related clauses:

That was his final summation; it was strong and forceful.
(Note that these two ideas could also be expressed as complete sentences
separated by a period.)

(ii) to connect two independent clauses joined by a transitional word or

conjunction such as “therefore,” “however,” or “nevertheless”:

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 The defendant was not credible; therefore, the jury voted to convict her.
The attorney argued persuasively; however, the judge overruled her.

(iii) to separate items in a list that contains commas:

Standing trial for embezzlement were Connie Rivers of Portland,
Oregon; Samuel Salter of Seattle, Washington; and Susan Stone of
Butte, Montana.

(iv) to separate items in a list introduced by a colon:

The elements to be proved in an action for breach of contract are as
follows: the existence of a contract; the unjustified breach of the
contract by one party; and damage caused by the breach to the non-
breaching party.
(Note that these items can also be separated by commas.)

f. Quotation Marks
Use quotation marks:

(i) to indicate the exact words of a speaker, capitalizing the first letter of a
quotation if it is a complete sentence but not if it is interrupted:
Patrick Henry said, “Give me liberty or give me death.”
“The motion,” said the judge, “is hereby granted.”

(ii) to explain or draw emphasis to a word:

The writer misspelled the word “defendant” in the brief.
Per Bluebook Rule 5, use quotation marks only for quotes of 49 words or fewer. For
quotes of 50 words or more, block indent the quote and use single spacing. The
indentation of these longer quotes itself indicates a quotation. For additional information
on presenting quotations, see Chapter 8.
Always place commas and periods inside closing quotation marks. Place colons and
semicolons outside closing quotation marks. When a quotation includes another quotation,
single quotation marks (‘ ’) are used:
“It was the jury foreman,” announced Betty, “who said, ‘The defendant
is guilty.’ ”

g. Parentheses
Use parentheses:

(i) to set off interruptions or explanations:

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 His primary argument was res ipsa loquitur (a Latin phrase meaning “the
thing speaks for itself”).

(ii) to direct the reader to other information:

The plaintiff has failed to allege justifiable reliance in the fraud cause of
action. (Compl. ¶ 14.)

(iii) to introduce abbreviations and defined terms:

The plaintiff, Southwest Avionics Industries (“SAI”), alleged seven causes
of action.
If what is included in a terminal parenthetical is a complete sentence, place a period
inside the parenthetical. Otherwise, the period is placed outside the ending parenthesis.

h. Dashes
Dashes create drama and draw a reader’s attention to a page. In general, however, they are
considered too informal for legal writing, and, in most instances, other punctuation marks,
such as commas, parentheses, or a colon, would be more appropriate. A dash is made by
two hyphens. Use a dash to indicate a break or interruption, as in the following sentence:
The defendant — not his brother — testified.

i. Exclamation Marks
Exclamation marks are used to emphasize an idea. They are rarely, if ever, used in legal
writing other than when they appear as part of a direct quotation.

j. Hyphens
Use a hyphen:

(i) to divide words between syllables at the end of a line of text. Avoid
hyphenating proper names. Use a dictionary if you are unsure where to
divide the word. The use of word processors with their automatic ability to
space words evenly eliminates much of the need for hyphens in dividing
words.

(ii) between the parts of a compound adjective when it modifies the next word:
would-be informant
employment-related injury
high-tech espionage

(iii) after certain prefixes:

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 a. prefixes preceding proper nouns
anti-American
pro-Israeli
b. prefixes ending with a vowel when the root word begins with a vowel
(other than “re,” generally)
anti-intellectual
co-op
de-emphasize
reexamine
c. with the prefixes all-, co-, ex-, and self-, as in self-involved and all-inclusive

(iv) to form compounds:

ten-year lease
on-the-job training

Practice Tips

Hyphens
• When a compound adjective follows a noun, omit the hyphen. Similarly, words need not be hyphenated if
they are not acting as a single modifier or adjective before a noun. Remember this example: A high-risk student
attends high school.
• Do not use a hyphen in a two-word modifier when the first element is an adverb ending in ly. Thus, the
following is correct: “ABC Inc. is a wholly owned subsidiary of Techron Corp.”
• Do not use a hyphen in a two-word modifier when the first element is a comparative or superlative. Thus, the
following is correct: “He is the best known attorney in the firm.”

k. Slashes or Virgules
The diagonal slash or virgule causes ambiguity because some writers use it to mean “or” and
others use it to mean “and.” Thus, it should be avoided. It is meant to show alternatives, as
in “This class is pass/fail” (meaning one can pass the class or one can fail it). A slash may be
used in dates or fractions.

Dictum

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Internet Resources

Numerous website addresses for guidance on writing and grammar are provided at the
end of Chapter 15. The following are excellent sources of information relating to grammar,
spelling, and punctuation:

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Assignment for Chapter 14

GRAMMAR

SELECT THE CORRECT WORD.

1. Each of the defendants have/has submitted a brief.

2. Everyone have/has left the conference.
3. Many of the plaintiffs were/was absent from the meeting.
4. No one have/has alleged fraud.
5. The board have/has issued their/its report.
6. One in ten defendants has/have retained counsel/council.
7. The plaintiff, as well as all defendants, has/have refused to attend the hearing.
8. Neither the witness nor her husband was/were truthful.
9. Everybody in the jury pool was/were disqualified.
10. An esteemed panel of experts were/was assembled to review the hospital records.

CORRECT THE FOLLOWING

1. All attorneys must submit time sheets. Just like everyone else.
2. Review the transcript today, it must be filed with the court tomorrow.
3. I have tried to carefully proofread the report.
4. Having read the proposal, a few concerns occurred to me.
5. Tabling the budget, revenue shortfalls need to be addressed.
6. The judge rebuked Tom and me/I for arriving late.
7. No one was on time except you and me/I.
8. The report was prepared for the defendants and me/myself.
9. Anna and myself/I will draft the contract.
10. Who/Whom is transcribing the notes?
11. Who/Whom did you transfer the funds to today?
12. An airline pilot should keep his flight log current.
13. A teacher must treat all her students fairly.

SPELLING

SELECT THE CORRECT SPELLING.

1. It is advisable/advisible to mark all exhibits.
2. The evidence is not admissible/admissable at trial.
3. I believe/beleive the witness’s testimony.

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 4. The releif/relief requested by the plaintiff was not granted.
5. His legal counsel/council offered excellent advise/advice.
6. It is permissable/permissible to mark up the draft.
7. Errors in the document were prevalent/prevalant.
8. The new accounting methods produced measurable/measurible savings.
9. He has been making persistent/persistant objections to our requests for
documents.
10. He is the most knowledgable/knowledgeable attorney about antitrust law.

PUNCTUATION

CORRECTLY PUNCTUATE THE FOLLOWING SENTENCES OR INDICATE IF THEY ARE

CORRECT.
1. Unfortunately the documents were not produced on time.
2. To summarize there are five elements we must prove to prevail.
3. Revenue showed a steep increase in the March 17 2016 executive summary.
4. Frank will examine the first witness and I will examine all remaining witnesses.
5. Put the exhibits in chronological order and mail the complete package to Mr.
Jones.
6. With regard to the jewelry, its not worth it to object to its worth and value.
7. Both petitioners requests were denied.
8. I attended the scheduling conference and I also attended all pretrial hearings.
9. I attended the scheduling conference and all the pretrial hearings.
10. Tim Foxs car was damaged in the collision. Thats the third time this year that
the Foxs have been involved in accidents.
11. The taxs effect has not yet been determined.
12. The legislature, he said, will vote against patent reform.
13. She planned organized and attended the conference.
14. She was the better prepared runner to win the five mile race.
15. He will serve as coadministrator of the board which is a better paying job.

Internet Assignment for Chapter 14

1. Access the website of the U.S. Government Publishing Style Manual.

a. Review Chapter 2. How many spaces should be placed after a period that
ends a sentence?
b. Review Chapter 3, and either correct the following or indicate if they are
correct:
i. The navy has increased its budget this year.
ii. I love the food of Southern France.

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 c. Review Chapter 6, and either correct the following or indicate if they are
correct:
i. Canada is an English speaking nation.
ii. It is one of the best liked books in high school.
iii. This was an eagerly-awaited moment.
iv. She cannot exercise self-control.
v. He is the exgovernor of Iowa.
d. Review Chapter 8, and either correct the following or indicate if they are
correct:
i. United States budget
ii. Each others books
iii. Two hours overtime
iv. He is a friend of John’s.
2. Access http://www.bartleby.com, and review Section II of The Elements of Style.
Either correct the following or indicate if they are correct:
a. James favorite poems are Burns poems.
b. The movie is thrilling but it is much longer than I expected.
c. He is ambitious, energetic and careful.

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 Chapter 15

Strategies for Effective Writing

There are two things wrong with almost all legal writing. One is its style. The other is its content.

Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38, 38 (1936)

A. Introduction
B. The Plain English Movement
C. Prewriting
D. Precision
E. Clarity
F. Readability
G. Brevity
H. Order
I. Drafting Techniques
J. Electronic Communications

Chapter Overview
Once you have mastered the mechanics of writing, you must focus on making your writing
effective. This chapter will present techniques to achieve the five hallmarks of effective legal
writing: precision, clarity, readability, brevity, and order.

A. Introduction

The cornerstone of the legal profession is communication — communication with a client,

colleague, adverse party, or judge. In most cases the communication will be in written
form. Even in those instances in which you communicate orally, you will often follow up
with an e-mail, written letter, or memo to a file. Because paralegals do not generally appear
in court, they often spend even more time than some attorneys in preparing written
documents. Thus, effective legal writing is critical to success as a paralegal.

B. The Plain English Movement

In 2010, Congress passed the Plain Writing Act of 2010, 5 U.S.C. § 301 (2012), which
requires executive agencies to use “plain writing,” defined as “writing that is clear, concise,
well-organized, and follows other best practices appropriate to the subject or field and
intended audience.” Plain language must be used in various documents, particularly those

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the public uses to obtain any government services or benefits or in filing taxes. The law,
however, does not apply to the actual regulations of agencies, which continue to be difficult
to read.
Many government agencies follow the Federal Plain Language Guidelines located at
www.plainlanguage.gov. It is clear that improved communications help the public. For
example, when the Department of Veterans Affairs redrafted a standard form to make it
clearer, telephone calls to the Department about the form decreased from 1,200 to 200
each year. According to the Federal Plain Language Guidelines, the first rule of plain
language is to write for your audience.
A number of state agencies have also adopted plain language techniques. For example,
the Judicial Council of California revised its civil and criminal jury instructions in plain
language so they would adequately communicate the law to jurors. These instructions have
received a number of awards for their clarity.
Similarly, the trend toward plain language has also gained acceptance in law schools,
where students are now encouraged to avoid “legalese” whenever possible and to write in
plain English to enhance the readability of their documents.
Writing in plain English so your reader understands you is not an easy task. Many legal
concepts are very complex, and translating them into plain English is difficult. Similarly,
some use of “legalese” such as Latin phrases may be unavoidable in certain instances.
Falling into the habit of using archaic phrases such as “the instant case at bar” when you
really mean “this case” is easy, and you must make a conscious effort to avoid confusing
jargon. See Figure 15-1.

Figure 15-1
SEC Guidelines for Plain English

Following is a brief summary of the SEC’s guidelines for writing in plain English:

• Use short sentences.

• Use definite, concrete, everyday language.
• Use the active voice rather than the passive voice.
• Use tables and lists to present complex information.
• Avoid legal and financial jargon and highly technical business terms.
• Avoid multiple negatives.
• Avoid weak verbs, abstract terms, and superfluous words.
• Enhance readability through attractive design and layout.

C. Prewriting

Many experts agree that the time you invest in a project before you begin writing can be the
most valuable time you spend on the project. Two threshold questions are of particular

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importance in helping you shape your writing so it is effective and understood on the first
reading. Always ask yourself, “What is the purpose of this writing?” and “Who will be
reading this writing?”

1. Purpose

There can be several reasons for writing something. It is possible that your purpose is to
relay information such as notifying a client that his deposition has been scheduled for next
month. Another purpose may be to obtain information such as asking a client to clarify an
answer given to an interrogatory question posed by an adverse party. You may be
explaining something to a reader, such as in a letter discussing the results of a settlement
meeting. Finally, you may be aiming to convince a reader in a trial or appellate brief when
your objective is to convince the court to adopt your argument.
If, before you begin any project, you ask yourself, “What is the purpose of this
document?” you will set the stage for the tone of the document. After all, there is no point
in using persuasive language when your sole mission is to notify a client that a will is ready
to be signed. Conversely, you do not want to adopt a neutral and purely informative style if
a client’s last chance to succeed is your appellate brief. By reminding yourself of the purpose
of your writing, you will be able to shape the appropriate tone and style of the project.

2. Audience
In addition to considering the purpose of a document, focus on the intended reader. Who
will be reading the project — a client, a supervising attorney, adverse counsel, or a judge?
If the writing is prepared for a client, try to obtain a thumbnail sketch of the individual.
Some clients may be novices in the legal world and even a term such as “interrogatory,”
which is commonplace to you, may be puzzling to a newcomer to litigation. Conversely, a
client may be a sophisticated real estate broker and a complex discussion of prepayment
penalty clauses in promissory notes may be easily understood. In general, use a
straightforward style for laypersons. Clients will not be impressed by your command of
Latin phrases but will be frustrated by their use. Clients expect to be informed, not
mystified, by legal writing. Immediately following the reaction of frustration is one of
anger: anger that they had to pay you once to write the letter and then a second time to
have you explain the letter. The goal of your writing is to communicate, not impress.
The highly respected and renowned financier Warren E. Buffett explains that when
writing Berkshire Hathaway’s annual report, he pretends he’s talking to his sisters. Though
highly intelligent, they are not accounting or financial experts. Mr. Buffett believes that he
will be successful if they understand his writing. Similarly, United States Supreme Court
Justice Stephen Breyer has said that he tries to write his legal opinions so that they are
understandable to high school students.
One of the most difficult tasks can be writing for a supervisor. Often the supervisor has
not really thought through the way the project should be structured, and as a result your
approach will not meet the supervisor’s expectations. Sometimes the supervisor may have

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access to certain facts and information you do not have, and your writing may be criticized
for being incomplete. You may find that you need to adopt one writing style for one
supervisor and an entirely different style for another. As you get to know the people you
work with, you will be able to understand their writing techniques and be better able to
meet their expectations. Obtain samples of documents written by your supervisors or
colleagues so you can get an idea of their styles and approaches. One of the most frustrating
tasks is writing for individuals who are so committed to their style of writing that they are
never satisfied with anyone else’s approach. They will endlessly revise a document, making
insignificant small-scale revisions, such as changing all the “glads” to “happys.” If you find
you can never make such an individual satisfied with your work, try a direct approach and
ask outright what the individual likes and dislikes in a writing. Prepare a “style sheet” (see
Chapter 19) to serve as a cheat sheet and reminder of your supervisor’s preferences and
quirks.
If the letter is to adverse counsel, adopt a neutral and objective style. Avoid language
that is confrontational or condescending. Although letters to other legal professionals may
include certain terms of art (“The Lanham Act,” “The ADA,” “ex parte”) that need no
further explanation, avoid a tone that implies you are giving a lesson on the law. Not only
are combative or condescending letters generally unproductive, you never know when they
may be made part of a record in a court proceeding. You do not want a letter written in
anger to come back to haunt you.
Writing for judges presupposes a level of expertise, and you need not give definitions or
long-winded explanations for commonly known terms or phrases. Nevertheless, keep in
mind that most judges rely heavily on law clerks to read briefs and then give an initial
opinion to the judge. Thus, you need to make a strong and forceful argument because the
judge may only scan the brief and rely on a law clerk’s review. Moreover, judges are usually
overwhelmed with heavy case loads and will not appreciate an overly long document that
resorts to jargon and legalese. They will be much happier if you make the points you need
to make as forcefully, persuasively, and briefly as possible, and then move on. As an
inducement to legal writers to adopt more concise writing styles, more and more courts,
including all of the federal courts of appeal and the United States Supreme Court, are
establishing page or word limits for documents submitted. Thus, you must be concise.
By asking yourself, “Who is my reader?” you will automatically tailor the document so
it is understood by the reader. The critical question is not whether you love your project but
whether the reader will immediately be informed or persuaded, that is, whether your
writing achieves its purpose.

D. Precision

The most important characteristic of legal writing is precision. Clients will rely on the
information and opinions given to them by legal professionals. Judges, administrators, and
others will assume the information provided to them is correct. Therefore, being right is

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fundamental to effective legal writing. No judge will render a decision in a client’s favor by
saying, “The legal conclusions you have reached are faulty and incorrect, but the brief is so
well written that I will rule in your favor.”
Be accurate with regard not only to the “big” issues, such as legal conclusions and
arguments, but also as to the “small” elements of a writing, such as names, dates, and dollar
amounts. An error in the client’s name or address may attract more attention than anything
else in the project. Just as spelling errors cast doubt on your ability, so do accuracy errors
have a disproportionately negative effect on the reader. The legal profession has become
more adversarial in recent years, and even clients (sometimes, especially clients) are quick to
point out an error. Similarly, many of your writings are sent to an adverse party who will be
more than happy to call attention to a mistake you have made. Thus, because your
audience is highly critical, you must be as accurate and precise as possible.
Every word and phrase is critical. For example, in 2015, the fate of the 955-page
Patient Protection and Affordable Care Act centered on the U.S. Supreme Court’s
interpretation of the meaning of a six-word phrase: “an Exchange established by the state.”
One cause of imprecise writing is an overreliance on forms. Drafting a contract requires
more than merely locating another contract in your office and then changing the names
and addresses. If this is your approach to drafting, you will no doubt find yourself
explaining to a client engaged in accounting services why his or her agreement refers to
restaurants and bars. Using forms as a starting point or guide is perfectly acceptable. Just
avoid relying exclusively on forms. When you have used a form originally drafted for
another client, proofread carefully to ensure the language is appropriate for this new client’s
needs. Use the “find and replace” feature in word processing programs to ensure the
consistent use of terms.

1. Word Choice

The selection of an improper word or the use of vague words causes imprecision in your
writing. Similarly, the use of qualifying language or words can cause unintended meanings.
For example, no employee would be comforted by reading, “Your department is not in any
immediate danger of being downsized.” The use of the qualifier “immediate” implies that a
danger exists; it simply is not immediate. Select the most descriptive and specific word
possible. Descriptive words lend strength and vitality to your writing. Moreover, the
selection of an incorrect word can be fatal in legal writing. A document that states, “The
Buyer may deposit the purchase price into the escrow account prior to May 15,” means
something entirely different from one that states, “The Buyer must deposit the purchase
price into the escrow account prior to May 15.” The second statement clearly imposes an
obligation on the buyer whereas the first statement does not.
The use of “will” or “may” for “must” or “shall” causes ambiguity and inaccuracy. One
writing professor has estimated that more than 1,000 published cases debate the meaning of
“shall.” Use “may” for optional action, “will” for future action (“I will appear in court on
Thursday”), and “must” for obligatory action. Most plain English guidelines (including

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those discussed at www.PlainLanguage.gov) recommend the use of “must” rather than
“shall” on the basis that “shall” is an obsolete word.
Following is a list of words that are commonly misused in legal writing. Just as you use
a dictionary to avoid spelling errors, use a dictionary or thesaurus to help you select the
precise word you need.

affect/effect

“Affect” means “to influence” as in “I was greatly affected by the victim’s story.”
“Effect” means “to cause or bring about” (as a verb) or “result” (as a noun) as in “He
effected a resolution of the case” or “One of the effects of the judgment was impairment of
his credit rating.”
If you have difficulty remembering the difference between these words, do not use
either of them. Use their synonyms (influence, or produce, or result).

among/between

“Among” is typically used to refer to three or more objects or persons, as in “The

agreement was entered into among Smith, Jones, and Andersen.”
“Between” is traditionally used to refer to two objects or persons, as in “The settlement
was negotiated between Peterson and Powell.”
If you are referring to distinct, individual items on a one-to-one basis, you may use
“between,” as in “She couldn’t decide between apple, cherry, or lemon pie.”

and/or

Many experts criticize the use of “and/or,” which can be confusing and ambiguous.
Avoid using “and/or”. Use either “and” or “or.”
Unclear: You must provide a reference and/or a resume.
Preferred: You must provide a reference, a resume, or both.

apprise/appraise

“Apprise” means “to notify or inform,” as in “I will continue to apprise you of further
developments in this case.”
“Appraise” means “to estimate value,” as in “He appraised the value of the property at
$100,000.”

arbitration/mediation

Both arbitration and mediation are forms of alternative dispute resolution. “Mediation”
is nonbinding negotiation in which a third party tries to help parties reach a settlement but
does not render a decision. “Arbitration” is the process in which a neutral third party hears
the parties’ dispute and renders a decision.

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argue/rule

Courts do not argue cases; lawyers do. Do not write “the court argued.” Similarly, courts
do not “contend,” “believe,” or “feel.” Courts “rule,” “decide,” “hold,” “state,” “conclude,” and
so forth.

beside/besides

“Beside” means “at the side of,” as in “Please sit beside me.” “Besides” means “in
addition to,” as in “Besides leaving Angela his property, Grandfather gave her his jewelry.”

compose/comprise

Compose means “to make up,” as in “The contract is composed of three sections.”
Comprise means “to include or contain or consist of,” as in “Tina’s collection comprises rare
porcelains.” Do not use “of” after comprise. Thus, it is as incorrect to write “The brief is
comprised of four sections” as it is to write “The brief is included of four sections.” Follow
this tip: When using comprise, place the “whole” item first and the “parts” item second, as
in “America comprises 50 states.”

disinterested/uninterested

Disinterested means “neutral” and “impartial,” as in “Judges must be disinterested in the

proceedings they decide.”
Uninterested means “not interested or bored,” as in “The jurors appeared uninterested
in the masses of statistical evidence presented.”

ensure/insure

Ensure means “to make definite,” as in “We must ensure the tenant pays all rent due.”
Insure means “to protect against loss,” as in “We must insure our valuables for at least
$10,000.”

fact/contention

A fact is something that has occurred or can be verified. Writers often characterize
something as a fact when it is merely an allegation or contention. Use the word “fact” only
when you are describing an event or something proven. For example, it is a fact that a
defendant has blue eyes. It is not a fact that the defendant assaulted the victim until the
jury or court says so.

fewer/less

Fewer refers to objects or people that can be counted, as in “There are fewer exhibits

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than I anticipated.” Less refers to general amounts and things that cannot be counted, as in
“I had less time to argue than the defendant did.”

forgo/forego

Forgo means to “give up” or “waive,” as in “I will forgo my right to notice of the
meeting.” Forego means “to go before” or “precede,” as in “The foregoing paragraph relates
strictly to compensation.”

guilty/liable

The word guilty refers to criminal wrongdoing. Liable refers to responsibility for a civil
wrong. Thus, it is correct to write that “Defendant Smith is guilty of robbery although
defendant Jones is liable for damages in the amount of $50,000 for breach of contract.”

liable/libel

Liable means responsible for some civil wrong, as in “She is liable for all the harm
proximately caused by her negligence.”
Libel is a form of defamation, as in “The magazine libeled our client by stating he was a
crook.”

judgment/judgement

In legal writing and in most American writings, spell as judgment. In Great Britain, the
word is spelled judgement.

memoranda/memorandum

Memoranda refers to several documents (plural) whereas a memorandum is a single

document.

oral/verbal

Oral means something spoken, as in “The plaintiff’s oral testimony at trial confirmed
her earlier deposition testimony.”
Verbal means a communication in words and could refer to a written or a spoken
communication. Thus, the statement We had a verbal agreement is confusing because it
could refer either to a written or nonwritten agreement. To avoid confusion, use oral or
written and avoid the use of verbal.

ordinance/ordnance

An ordinance is an act or resolution enacted by a local jurisdiction, as in “Buffalo

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recently enacted an ordinance prohibiting smoking in public places.”
Ordnance is military weaponry, as in “The troops came under heavy ordnance fire.”

overrule/reverse

A court overrules prior decisions involving different litigants in its jurisdiction. For
example, “The 1954 case Brown v. Board of Education overruled the 1896 case Plessy v.
Ferguson.” A court reverses and changes the outcome of the very case before it on appeal that
involves the same litigants, as in “The defendant appealed the decision rendered against
him; the court agreed with the defendant’s reasoning and reversed the lower court’s
holding.”

prescribe/proscribe

Prescribe means to order, as in “The physician prescribed complete bed rest for the
patient.”
Proscribe means to prohibit or forbid, as in “Massachusetts laws proscribe littering.”

principal/principle

Principal is the supervisor at a school or a dominant item, as in “The principal objective

to be gained is the prisoner’s freedom.” Another meaning of “principal” is a sum of money
on which interest is paid, as in “The promissory note required repayment of the principal
amount of the debt as well as interest.”
Principle is a fundamental rule, as in “The principles of physics are complex.”
Remember to match the “le” in the word “rule” with the “le” ending of “principle.”

respectfully/respectively

Respectfully means “with respect” and is a commonly used closing in a document, as in

“Respectfully submitted, Andrew Kenney.”
Respectively means in a certain order, as in “Jess and Emma composed the song, writing
the lyrics and melody, respectively.”

since/because

Avoid using since as a substitute for because; otherwise, ambiguity may result, as in the
sentence Since the tariffs were lifted, trade has increased. It is not clear in this sentence
whether since means after a period of time or whether it means because. To avoid confusion,
use since to refer to the passage of time, as in “It has been four weeks since we filed the
appeal,” and use because to show causation, as in “Because the jury was improperly charged,
the judgment was reversed.” It is acceptable to start a sentence with the word “because.”

2. Vague Words

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To lend forcefulness to your writing, use concrete and descriptive words. Avoid vague
words such as “matter,” “development,” “circumstances,” “system,” “situation,” “problem,”
and “process,” which provide little, if any, information to the reader. Thus, a sentence
beginning “Regarding this matter . . .” offers no guidance to the reader as to what “this
matter” might be. A much better approach is to write, “Regarding your lease . . . .”
Similarly, avoid using words such as “above” or “herein.” For example, if in an
agreement you state on page 18, “As described above . . .” the reader does not know where
in the previous 17 pages you discussed the issue. Be specific. State, “as described in
paragraph 4(b) . . . .”
The words “it” and “this” are often used in an indefinite and confusing manner.
Consider the following: “The court ruled the defendant should be granted probation. This
enables the defendant to participate in a work release program.” The word “this” could
refer either to the court’s ruling or the defendant’s probation. When using “it” or “this,”
you should, if necessary, repeat the word that “it” or “this” refers to. Thus, the prior
statement would read, “The court ruled the defendant should be granted probation.
Probation will enable the defendant to participate in a work release program.”
Similarly, avoid “made-up” words. Although you may have heard of, used, and even
written “dialogued,” “Borked,” or “liaising,” these “words” are not generally found in most
dictionaries because they are not yet recognized words in English. Our conversation and
writing are often influenced by business and technology terms. Thus, a number of terms,
such as “cutting edge,” “synergy,” and “empower,” are overused. Do not write, “We need
to interface to resolve the litigation” when you mean “meet.” Do not use “impact” as a verb,
as in “His actions will impact our ability to obtain a loan.” Use “influence” or “affect”
instead. Although English is an evolving language, do not use a word before it has evolved
into an entry in a dictionary.

3. Word Connotation

Many words have more than one meaning. When you select a word, consider its
connotation, or suggested meaning. There is a great difference, for example, in referring to
an item as “cheap” rather than “affordable.” The word “cheap” connotes shoddy or low
quality, whereas “affordable” conveys either a neutral or desirable meaning. Consider the
effect of telling someone he or she is “stubborn” rather than “determined,” or “blunt”
rather than “candid.” Certain words carry hostile undertones and will immediately make
the reader defensive or angry.
Use care when selecting words to ensure they have the connotations you intend. If
correspondence to an adverse party suggests there is a “discrepancy” in damage figures,
rather than simply asking for a clarification of the figures, you can be sure of an immediate,
and probably angry, response.

E. Clarity

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The second feature of effective legal writing is clarity — that is, ensuring that your project
is easily understood by the reader. Your writing style should be invisible. It is bad writing
that is noticeable. Because legal writings are read not for pleasure but for function, readers
expect you to make your point clearly and quickly. The three primary legal writing flaws
that obscure clarity are elegant variation, the overuse of negatives, and improper word
order.

1. Elegant Variation

The term “elegant variation” refers to the practice of substituting one term for another in a
document to avoid repetition of a term. Writers are often reluctant to repeat a term, in the
belief that repetition of a term is boring or unsophisticated. Unfortunately, in legal writing,
selecting alternative terms in legal writing creates the impression that something entirely
different is intended. Consider the following sentence: “Four of the defendant’s witnesses
were women, whereas all of the plaintiff’s witnesses were ladies.” In an attempt not to
repeat the word “women,” the writer conveys something entirely different about the
defendant’s group of witnesses.
Elegant variation is deadly in legal writing. For example, if you are drafting a document
that continually refers to an individual as a “landlord” and then suddenly you refer to this
individual as the “lessor,” the reader may believe that the “lessor” is not the same individual
as the “landlord.” You should therefore be cautious about varying words and terms you
have used. Although you may believe that selecting alternative terms shows your extensive
vocabulary and lends interest to the document, you unwittingly may be creating the
impression that there is a reason that different terms have been selected and that there is a
legal distinction to be drawn based upon this variation. Use the “find and replace” feature
of your word processing program to ensure terms are used consistently.

2. Negatives

The overuse of negatives can be confusing to a reader. Although statutes are often set forth
in negative fashion by describing what is prohibited, using more than two negative words in
a sentence usually forces the reader to stop and think through what you have said. For
example, the phrase “not unlikely” should be converted to “likely” or “probable.” Anytime
the reader is interrupted from reading the project, your message is weakened. As a writer,
your task is to ensure that a reader proceeds smoothly through the document without
needing to puzzle over phrases. For example, the statement “No individual shall be
prohibited from refusing to submit to a breathalyzer examination” is confusing. It requires
a reader to consider three negative words: “no,” “prohibited,” and “refusing.”
In drafting legal writing projects, keep in mind that there are many more negative
words than the obvious ones: “no,” “none,” or “never.” Many words function in a negative
fashion, such as “refuse,” “preclude,” “deny,” “except,” and the like. Although it is
impossible to purge your writing of all negative terms, you should carefully scrutinize your
writing to ensure that you have not used too many negative words that obscure your

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meaning.
The other disadvantage of using negative words is that they are not as forceful as
affirmative expressions. For example, it is more effective and shorter to write, “The plaintiff
was late for her deposition” than to write, “The plaintiff failed to timely appear for her
deposition.” To give strength and vitality to your writing, use affirmative and positive
terms.

3. Word Order

The most common sentence structure in the English language is the placement of the
subject first, the verb second, and the object third. Thus, the sentence “The defendant
attacked the victim” is phrased in this standard order. Although the thought can certainly
be expressed in another way, such as “The victim was attacked by the defendant,” readers
typically anticipate that sentences will follow the expected pattern of subject, verb, and
object. Although you may not want to structure every single sentence in a project in the
same fashion, excessive variation from the expected sentence structure will cause confusion
and lack of clarity. Just as you should avoid exotic spellings of words because they draw
attention to your writing rather than to your message, avoid exotic sentence structure. For
example, an article written in a national newspaper began, “The Navy Thursday asked the
Pentagon’s inspector general to investigate . . . .” Similarly, the famous quote “Backward
ran the sentences until reeled the mind” by writer Wolcott Gibbs about the style of Time
magazine is regularly cited as a rebuke to Time’s often poorly ordered sentences. These
oddly structured sentences catch the reader’s attention in a distracting way.
Vary from the anticipated sentence structure of subject, verb, object only when you
want to draw attention to a thought. Thus, if you have a point you want to emphasize, vary
the way it is structured. Keep this technique in mind if you need to “bury” a weak portion
of an argument: Phrase it in the manner commonly anticipated because this will draw the
least amount of attention to it.
One of the other benefits of using “normal” sentence structure is that you will
automatically phrase your thoughts in the active voice. When you vary from the anticipated
order of sentences, the result is often conversion to the passive voice, which creates a weaker
(and often longer) sentence. (See Section F.1.)

Ethics Alert

The Risk of Poor Writing

Courts are becoming more and more impatient with poorly written briefs. In one recent case, the court noted
that it could not determine the substance of the defendant’s legal argument and therefore denied the
defendant’s motion for being “incomprehensible.” In re King, No. 05-56485-C, 2006 WL 581256, at *1
(Bankr. W.D. Tex. Feb. 21, 2006). Thus, poor writing can result in an adverse ruling for a client.

F. Readability

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Because the subject matter discussed in most legal writing is complex, and often rather dry,
you need to make your product as readable as possible. Clients will be unfamiliar with legal
topics. Judges and other legal professionals will be too busy to struggle through a complex
and pompous document. Remember that the more complicated a topic is, the more
important is the need for readability. To enhance readability:

1. Prefer the Active Voice

The active voice focuses attention on the subject or actor of the sentence, who performs or
causes certain action. The active voice is consistent with standard sentence structure of
subject, verb, and object.
The passive voice focuses attention on the object of action by placing it first and
relegating the subject (actor) of the sentence to an inferior position.

The active voice is stronger and more forceful than the passive voice. Readers do not
have to search through the sentence looking for the actor or subject. Another advantage of
using the active voice is that it usually produces shorter sentences.
There are situations, however, in which the passive voice may be preferable. For
example, assume your law office represents a defendant accused of fraud. Instead of stating,
“The defendant deposited checks in his bank account,” you could write, “Checks were
deposited in the defendant’s bank account.” This use of the passive voice shifts the focus
away from the defendant. The reader is informed of what occurred but not who did it.
Consider using the passive voice in the discussion of weaker parts of your argument to
deflect attention from them. Conversely, be sure to structure the strongest parts of your
writing in the active voice because it lends strength and vitality to your writing. A classic
example of passive voice is seen in the recent statement of a politician accused of
wrongdoing who stated, “Mistakes were made” rather than “I made mistakes.” You may
also wish to use passive voice when you want to focus on the object of the action or when
identifying the actor is not necessary to the meaning of your sentence. In any event, if you
decide to use the passive voice, make sure your decision is a conscious one.

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 Practice Tip

Avoiding the Passive Voice

In many sentences, the person or the thing doing the action is introduced by the words by the as in The policy
was announced by the committee. This is a tip that you have shifted into the passive voice. Use your word
processor’s find and replace feature to locate your “by the” phrases to determine whether you are overusing
passive voice. Similarly, most word processors have a feature that will flag the use of passive voice. This
feature is a useful guide but can be distracting.

2. Use Lists

Another way to enhance readability is to use lists when discussing complex matters. Lists
not only enable readers to comprehend information quickly but also create visual impact
and interest because they are usually numbered or bulleted and set apart from the rest of
the text. When setting forth items such as the elements of a cause of action or the
components of a definition, use a list.
Lists (sometimes called tabulation) can be structured in several ways, but to increase
interest:

• Set the list off from the rest of your narrative by spaces above and below your list;
• Indent your list;
• Identify the items in your list with numbers, letters, or “bullets” (•); and
• Punctuate correctly by putting a semicolon after each item (except the last item)
and include “or” or “and” before the last item.

Not all lists need to be indented. If the list is short, you may separate each item from the
other by a comma and include the list as part of your narrative text.
The grammatical structure of all of the items in any list must be identical or parallel.
Thus, if the first word in a list is a verb, all of the following items must also be verbs.
Similarly, if the first word in the first item ends in “ing,” all subsequent items must also
begin with words ending in “ing.”

Incorrect
The elements of a cause of action for breach of contract are as follows:

• an agreement
• a breach of that agreement by one party
• the act of the breaching party must have caused damage.

Correct
The elements of a cause of action for breach of contract are as follows:

• an agreement;

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 • a breach of that agreement by one party; and
• damage caused by the act of the breaching party.

Lack of parallel structure is often seen in resumes in which job applicants will describe
their experience as follows: “Drafted documents. Prepared pleadings. Assisting in trial
preparation.” The last item should be “assisted” to retain parallel structure.
Similarly, lack of parallel structure can be seen within a sentence; for example, consider
“It is more important to write the brief than arguing it.” Revise as follows: “It is more
important to write the brief than to argue it.”

3. Avoid Nominalizations

A nominalization occurs when you take an adjective, verb, or adverb and turn it into a
noun. Although the nominalization itself is technically correct, overuse of nominalizations
drains your writing of forcefulness and makes it read as if written by a bureaucrat.

As you can see, nominalizations not only take strong action words such as verbs and
convert them into dull nouns, they also tend to make your writing overlong.
Avoid overusing nominalizations by proofreading carefully. Generally, if you use active
voice, you will greatly reduce nominalizations. Although not all nominalizations can be
avoided, their repeated use will render your writing unimaginative. To avoid
nominalizations, watch for words that end in -ion, -ent, and -ant.

4. Avoid Legal Jargon

The use of “legalese” frustrates readers and results in stodgy writing. Legalese or jargon
includes not only archaic and stuffy words and phrases such as “accord,” “aforesaid,”
“opine,” and “hereinafter referred to,” but words and phrases that are unfamiliar to a
reader, such as Latin phrases or legal terms (res judicata, mens rea, collateral estoppel). For
some years the Texas State Bar held an annual contest called “legaldegook” to draw
attention to atrocious legal writing. One “Wooliness Award” was presented for the
following:

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 For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an
organization described in Section 501(c)(4), (5) or (6) which would be described in Paragraph (2) if it were an
organization described in Section 501(c)(3).

Try to avoid using legal jargon. Often archaic or jargon-filled phrases can either be omitted
entirely or replaced with more familiar terms. For example, an agreement may begin as
follows:

THIS AGREEMENT is made and entered into this fourth day of May 2016, by and between ABC, Inc.
(hereinafter referred to as “Landlord”) and Susan Andrews (hereinafter referred to as “Tenant”) with reference to
the premises and covenants hereinafter set forth.

You may easily change the sentence as follows:

THIS AGREEMENT is entered into May 4, 2016, between ABC, Inc. (“Landlord”) and Susan Andrews
(“Tenant”) regarding the following facts.

The omission or replacement of archaic words and phrases with familiar ones not only
enhances readability but also produces a more concise writing.
You may not be able to omit all of the legalese you would like, particularly when
drafting wills, deeds, contracts, litigation pleadings, and other legal documents that have
more rigid structures. These documents are often drafted in accordance with standard
forms and conventions of many years ago, and people are reluctant to change such
commonly used forms. In any case, simply try to eliminate as much of the jargon as
possible. For example, the phrases “enclosed please find” or “enclosed herewith is” are often
used in letters enclosing other documents. Although there is nothing grammatically wrong
with these expressions, they are examples of legalese. If something is enclosed, won’t the
reader find it? Simply use the phrase “enclosed is” followed by a description of the item
enclosed.
If you are using legal terms or Latin phrases, be sure to give a brief definition for your
reader. The Texas State Bar recognized the following statement by a judge as particularly
horrible: “Parens patriae cannot be ad fundandam jurisdictionem. The zoning question is
res inter alios acta.” Similarly, a client may be completely bewildered by a letter informing
him or her that “the doctrine of laches precludes your claim.” Rewrite as follows:

The doctrine of laches (an unreasonable and prejudicial delay in bringing an action) precludes your claim.

Although the insertion of a definition or explanatory phrase produces a longer

document, the effect of enhanced readability is well worth the extra words.
Even if a document is prepared for another legal professional who will be familiar with

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the Latin phrase or legal term, add the definition because it often serves as a smooth
transition for any reader. Readers experienced with the terms will not be offended by your
inclusion of a definition and will readily be able to skip over it. Other less experienced
readers, such as a law clerk or a client receiving a copy of the writing, will be greatly assisted
by the “translation” you provide.

5. Keep Subjects and Verbs in Proximity

Because the two most critical parts of a sentence are the subject and the verb, readers
typically look for these first to make sense of a sentence. Legal writing is known for creating
huge gaps between the subject of a sentence and the verb. When too many words intervene
between the subject and the verb, readers no longer remember what the sentence is about
by the time they locate the verb. They are then forced to reread the sentence and hunt for
the subject.
Although you need not immediately follow every subject in every sentence with a verb,
avoid large gaps between these two parts of a sentence. Statutes are especially notorious for
separating subjects and verbs by long word strings.

Example
Any person, including an organization, institution, or other entity, that presents or causes to be presented to an
officer, employee, or agent of this office, or any department thereof, or any state agency, a claim, as defined in
subsection 2(g) of this paragraph, that the person knows or has reason to know was not provided as claimed, is
guilty of a class 1 misdemeanor.

In this sentence, there is a gap of 55 words between the subject (person) and the verb (is
guilty). To eliminate these huge gaps, rewrite the sentence, moving the verb closer to the
subject.

Better Example
Any person, including an organization, institution, or other entity, is guilty of a Class 1 misdemeanor by presenting
or causing to be presented to an officer, employee, or agent of this office, or any department thereof, or any state
agency, a claim, as defined in Section 2(g) of this paragraph, that the person knows or has reason to know was not
provided as claimed.

Alternatively, you can make the words intervening between the subject and verb into their
own sentence.

Example
The partnership, an entity organized and existing under Missouri law and formed after the passage of the Missouri
General Partnership Act, is composed of Smith, Jones, and Kimball.

Better Example

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 The partnership is composed of Smith, Jones, and Kimball. It is an entity organized and existing under Missouri law
and was formed after the passage of the Missouri General Partnership Act.

6. Use Forceful Words

Because legal writing is formal, writers often tend to adopt an emotionless, pallid tone in
their writing. Although your writing should not read like a romance novel, the use of vivid
and forceful words not only will keep your readers interested but also will aid in converting
them to your viewpoint.
Emphasis cannot be obtained by merely underlining or italicizing words or phrases or
by adding a modifier such as “very” or “hardly.” You need to select a word vivid enough to
carry the meaning you desire. Use a thesaurus or dictionary to help you select words that
are vivid and forceful.

Conversely, do not take a concrete word, which is strong in and of itself, and dilute it,
such as converting “improbable” to “somewhat unlikely” or “rapid” to “pretty fast.” In fact,
some words stand on their own and are not susceptible to degree, such as “unique,” which
means the only one of its kind. Something cannot be “quite unique” or “very unique.”

7. Repeat Strong Words and Phrases

Although you want to avoid redundancy in legal writing, there are certain situations in
which repetition can add emphasis to your writing. The repetition of a keyword or phrase
creates interest and adds drama to writing.

Example
The defendant misled the plaintiff. He misled her by promising the premises were quiet. He misled her by
promising the premises were habitable. He misled her by promising the premises were safe.

Each repetition of the words “misled” and “promising” builds on the previous

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reference. When you use this technique, be sure to structure the sentence so you end with
the strongest element.

Example
She was a diligent worker. She was a loyal friend. She was a loving mother.

8. Vary the Length of Sentences

Short sentences are easier to comprehend than long, complex sentences. Nevertheless, you
do not want a project filled with sentences of approximately the same length. Such a
writing would be tedious to read.
Just as you may need to vary the pattern of your sentences from the standard sentence
order (subject-verb-object) to add interest, vary the length of your sentences to enhance
readability. For example, a short sentence such as “She refused” is concise and powerful.
Generally, sentences that exceed three lines are too long for most readers.
Nevertheless, you do not want a writing filled only with short sentences. Such a project
would have a choppy and abrupt tone and would read like a telegram. For example, note
the clipped tone of the following sentences:

The landlord sent her the rent statement. She refused to pay. He sued to evict her. She countersued. He asked for a
jury. The jury ruled in her favor.

The following version has a much smoother and more readable quality:

The landlord sent her the rent statement. She refused to pay, and he sued to evict her. She countersued. Although
the landlord asked for a jury, the jury ruled in her favor.

Practice Tip

Readability Tests
Several readability formulas can be used to determine the readability of a project. One of the best known tests
is the Flesch Reading Ease Formula, which determines readability by using a calculation based on the average
sentence length and average number of syllables in a word. More information on readability tests and the
Flesch formula to determine readability can be found at http://juicystudio.com/services/readability.php. Note
that many readability tests rely on surface or technical characteristics and cannot test coherence; average
sentence length and average syllables per word cannot completely predict readability of a text.

G. Brevity

The length of a project does not necessarily translate into quality. Some of the most
compelling and well-known writings are the briefest. For example, the Lord’s Prayer has

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only 66 words. The Gettysburg Address has 286 words. Yet just one federal statute relating
to hospital and medical expenses paid under Medicare has more than 700 words.
Although almost all writers agree in principle that brevity is an admirable goal in legal
writing, brevity is not easily accomplished. One of the reasons brevity is difficult to achieve
is that the legal research that is the basis for your project represents time and effort. After
going to the library, researching, writing, rewriting, Shepardizing or KeyCiting, revising,
editing, and proofreading, writers are reluctant to abandon the words that evidence their
hard work. For example, one of the entries in the Texas State Bar “legaldegook” contest was
a sentence written by a lawyer that began “Accordingly, in the interest of brevity,” and
continued for more than 60 words.
Another contributing factor to the length of legal documents is that the topics discussed
are often complex, requiring thoughtful analysis. Finally, over-review of a writing causes
increased length. Each paralegal or attorney who works on a project will feel a need to
improve a writing, generally by adding to it, changing “now” to “at the present time” or
“if” to “in the event that.” Thus, being concise is difficult.
Although judges complain about lawyers’ inability to write succinct briefs, some writing
experts suggest that judges themselves contribute to the mass of legal publication by writing
longer opinions with more footnotes. One solution proposed by one writing scholar is that
judges impose page limits on themselves similar to those imposed on attorneys.
You must be merciless. Your reader’s time is at a premium, and you cannot afford to
frustrate the reader by redundancy and long-winded phrases. Moreover, if the reader
continually encounters a rehash of previous material and never encounters new material, he
or she may simply abandon the project and never read some of your later, more persuasive
arguments. Finally, most courts impose page limits and word count limits for submissions.
Documents that exceed the stated requirements are rejected. Thus, failure to be brief may
be legal malpractice.
To achieve brevity:

1. Omit Needless Words

There are numerous phrases that we use simply by habit. Many of these can be eliminated
or reduced to a more concise word or phrase.

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 Careful writing and revising will help you eliminate extra words. Ask yourself if you
absolutely need a phrase and whether there is an effective substitute for it. Many commonly
used phrases can be replaced by single words with no loss of meaning. In particular, avoid
constructions that include more than one preposition, such as “in regard to.” Use
“regarding” or “about.”

2. Avoid “Throat-Clearing” Introductions

“Throat-clearing” refers to introductions that are mere preludes for the main topic that is to
follow. Writers often feel compelled to warm up the audience by preparing them for the
main idea rather than simply presenting the idea.

Other overused introductory words are “clearly” and “obviously.” Writers often add
“clearly” before introducing a topic, believing that this word will lend persuasive force. To
paraphrase a famous jurist, adding the word “clearly” to a sentence won’t make it clear; and
if the sentence is clear, you don’t need the word “clearly.”
The word “obviously” should be avoided for the same reason as “clearly.” Moreover,
“obviously” carries a hostile meaning. By introducing a sentence or topic with the word

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“obviously” you signal to readers that you believe they lack the capacity to discern the
meaning of the sentence on their own. When you introduce a thought with “obviously”
what you really are saying is “even to an idiot such as you it should be obvious . . . .”

3. Avoid Redundancy

Those in the legal profession are wedded to redundancy. They cannot resist writing “null
and void and of no legal effect.” Is all this needed? If something is null, isn’t it void? If it is
void, can it have legal effect?
The reason legal writing is so prone to redundancy lies in the history of our language.
English has its roots in Latin and French as well as in the languages of the Celts and Anglo-
Saxons. Often word pairings were used to ensure that readers would understand phrases no
matter what their background or station in life. Thus, the French word “peace” joined with
the Latin word “quiet.” The French “devise” joined the English “bequeath.” These
redundant doublings have persisted long after their need. Their use today is often the result
of pure habit rather than necessity.
If you find yourself using these “stock” redundancies, stop and ask whether one word is
sufficient.

Common Legal Redundancies

acknowledge and agree

alter or change or modify
basic fundamentals
cease and desist
close proximity
consented and agreed
covenant, warrant, and represent
current status
due and owing
each and every
final conclusion
force or effect
free and clear
full and complete
give, devise, and bequeath
made and entered into
null and void and of no legal effect
past history
previous experience
refuse and fail
release, remise, and discharge

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 true and correct
unless and until
vitally necessary

4. Avoid Repetition

Once you have stated your contention or communicated the information you need to
communicate, stop. Many beginning legal writers believe they should make every point
three times by doing the following:

• telling the reader what the writing or project will say;

• saying it; and
• reminding the reader of what was said.

There is no place in legal writing for such needless repetition. If you write to clients,
they will be sufficiently interested in your communication to grasp what you are telling
them. Supervisors, adverse counsel, and judges are sophisticated enough or busy enough
that they do not need an argument repeated three times. When court rules dictate the
maximum length of briefs, you will not have the luxury of being able to repeat your
argument. The only exception to the rule of avoiding repetition is that in a long document,
readers often appreciate a separate conclusion, which briefly and concisely summarizes your
analysis.

H. Order

1. Outlines

Just as you would never begin a car trip to a far-off destination without a road map or its
digital equivalent, you should never begin a writing without some idea as to how you
intend to approach the project. A project that is poorly organized not only fails to inform
or persuade the reader but also may so frustrate the reader that it will not be read.
The best system for organizing a writing is to use an outline. Many writers doubt the
benefits of outlining and have resisted using an outline since elementary school. Although
the most complete outline includes full sentences or topics divided into headings and
subheadings, an outline need not be so formal. The looseleaf notebook containing the notes
you took while researching, or the index cards containing notes of your research results, are
working outlines. By shuffling the index cards or the pages in your notebook, you are
outlining, that is, organizing your approach to your writing.
Similarly, your outline can consist of your thoughts on the project scribbled on scratch
paper. It is not the format of the outline that is important; rather it is that the mere
existence of any type of outline forces you to consider and organize the structure of your
writing. The outline should disclose the basic sections of your project and the order in

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which they will be addressed.
If the notes taken during research are not helpful in preparing an outline, simply jot
down on paper all of the words and phrases you can think of that relate to your project.
Keep writing and listing the entries; do not worry about organizing these entries. This
outlining technique is usually called brainstorming. After you have finished listing every
topic you can think of, carefully examine the list, and then group related items together.
After you have settled on these rough groupings, decide the order in which the groups
should be discussed.
Another method of outlining is called “clustering.” Place a circle or “nucleus” in the
middle of a blank page of paper. Place the keyword or topic of your project in the nucleus.
Now write a related topic or issue nearby. Encircle it and draw a line back to your nucleus.
Continue by either branching out from the nucleus or the new circle. Trust your instincts
to select new words and topics. You may discover a writing approach by considering the
connections between words in your cluster. The final product should look like a spider
web. Write your project with your web nearby.
When your outline or “cluster” is completed, regardless whether it is a working outline,
a formal outline, or your list of topics, you should be able to determine immediately
whether you have included all of the items that need to be addressed and whether you are
devoting too much time and effort to minor points at the expense of major points.
Another popular outlining technique is storytelling. Talk to a friend or colleague (or
dictate into a smartphone) about your project. Start at the beginning by saying, “I have
been asked to . . . .” As you tell the story of your project, some organizational patterns may
emerge. Allow yourself to ramble a bit. Keep a notepad nearby, and write down ideas as
you are speaking. Your notes are then a preliminary outline.
One organizing technique recommended by many experts is reverse outlining, which
involves creating an outline of what you have already written (rather than creating an
outline before you write). A reverse outline allows you to review your organization and your
content. To reverse outline, take your first draft and in the margin next to each paragraph
(or on a separate sheet of paper) make notes about the main point of each paragraph. Use
only a word or brief phrase. Then examine your list of topics, which is now an outline of
your project, and omit repetitious paragraphs and reorder paragraphs, if needed.
Finally, allow some “down time” before you begin writing so that ideas percolate and
bubble up to the surface. Nearly all writers have experienced an “aha” moment while
showering or driving that gives them a great idea for a project. Keep your notepad or
notepad app handy so you can capture these ideas.

2. Internal Organization

The way you organize the project can affect the reader’s perception of the project. There are
four tips to follow in organizing your writing so it achieves your desired objectives.

a. Use Headings

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In longer writings, use headings and subheadings to alert the reader to the subject being
discussed. It is nearly impossible for a reader to comprehend page after page of narrative
containing no breaks or divisions. Similarly, it is very frustrating for readers to suddenly
find themselves in the midst of a discussion of contracts when the preceding paragraph
related to fraud.
Headings serve as signals to readers to alert them to the topics you are discussing and to
show a change in topics. If, for example, your brief states there are four prerequisites to the
awarding of an injunction, it will be helpful to the reader for you to label your discussion in
four separate parts, each relating to the element to be discussed next.
In persuasive documents such as briefs, try to make your headings as convincing as
possible. (“Defendant’s Reckless Conduct Has Caused Plaintiff Irreparable Harm.”) In
non-persuasive documents, your headings may be neutral and may consist of a mere word
or phrase (“Irreparable Harm”).

b. Use Effective Paragraphs

Just as you use headings to break up a solid mass of narrative, use paragraphs to break up a
discussion into units that are easy to read. Readers will expect that each of your paragraphs
relates to a distinct idea and will also expect that the first sentence of your paragraph will
“set the stage” for what follows. This first sentence is the topic sentence. Use a thesis
statement (described in Chapter 17) to provide structure to your analysis.
Avoid paragraphs that are too long. How long is too long? Most readers have difficulty
with paragraphs that cover more than one-half of a page. Not only does the mind crave a
break from a long discussion, so does the eye. Remember the visual effect of your writing,
and create a project that is pleasing to the eye. Also avoid short paragraphs. The traditional
rule is that a paragraph must have more than one sentence. On occasion, however, you may
want to use a one- or two-sentence paragraph in legal writing for emphasis and visual effect.

c. Use Effective Transitions

To move smoothly from one sentence, paragraph, or idea to another, use a transition word
or phrase. Without transitions, writing would be choppy and telegram-like. Transitions
connect what you have said with what will follow. Avoid using the same transition words.
Two of the favorite transition words of beginning writers are “however” and “therefore.” If
you find yourself continually introducing sentences and paragraphs with the same words,
examine your project and try to find other transitions to lend variety and interest to your
writing.

Commonly used transition words and phrases are as follows:

To introduce a topic
in general
initially

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 primarily
to

To show contrast
although
but
conversely
however
in contrast
nevertheless
on the contrary
on the other hand
yet

To show similarity
in the same way
just as
likewise
similarly

To show examples
for example
for instance
in fact
namely
specifically
that is
to illustrate

To show conclusions
accordingly
as a result
because
consequently
for this reason
inasmuch as
therefore
thus

To show additions
additionally
again

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 furthermore
in addition
moreover

To summarize
finally
in brief
in conclusion
in summary
to conclude
to summarize

d. Use Position and Voice for Emphasis

In nearly every persuasive writing project, there are stronger points and then points writers
wish they did not have to mention. Use the location or placement of information as well as
voice to draw your reader’s attention to the more compelling parts of your writing and to
minimize the impact of “negative” or weak sections of your argument.
The most prominent parts of a writing are its beginning and its ending. Readers tend to
start projects with great enthusiasm, lose interest in the middle, and then become attentive
again when the end is in sight. Therefore, put your strongest arguments and information at
the beginning and ending of your project, your paragraphs, and your sentences.
Bury negative information in the middle of your project, in the middle of your
paragraphs, and in the middle of your sentences. These locations will attract the least
attention and may even be overlooked. This is another compelling reason for crafting
strong topic sentences in each paragraph. These topic sentences, typically placed at the
beginning of paragraphs, not only convey the main idea of each paragraph but also may be
the only parts of a project read by a busy reader. Thus, if the first sentence of each
paragraph may be the only portion of your project that is read, put favorable information in
these prominent positions.
Negative information that is buried in the middle of a project, the middle of a
paragraph, or in the subordinate clause of a sentence will be less likely to be noticed. Be
extremely careful when including these unfavorable portions of your writing because a
careless spelling error or typo will immediately draw your reader’s attention to them.
There are other techniques you can use to “hide” flaws in your argument. Because
active voice is much stronger and more forceful than passive voice, consider using passive
voice in discussion of information you believe is negative.
For example, if your client sold a house with defects to the plaintiff, this fact can be
disclosed in the following two ways:

Active Voice The defendant intentionally sold a house with known defects
to the plaintiff.

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Passive Voice The house was sold to the plaintiff.

You can easily see that the plaintiff would prefer the first sentence whereas the
defendant would prefer the second. By using the passive voice you deflect attention away
from the actor (the defendant) and onto the object of the action (the sale of the house).
Note how the use of the passive voice here eliminates any reference whatsoever to the
defendant.
Similarly, the techniques discussed above for making writing vivid, such as selecting
descriptive and concrete words and avoiding nominalizations, should not be used in
discussions of negative information. Selecting vague words (“situation,” “matter”) and
including nominalizations (“The plaintiff underwent an operation” rather than “The
doctor operated on the plaintiff”) will de-emphasize negative information.
Finally, use detail in describing facts and issues favorable to you and discuss unfavorable
facts and issues in general fashion. For example, consider the following two descriptions of
an accident, one from the plaintiff’s perspective and one from the defendant’s.

Plaintiff’s version:

As the plaintiff was safely driving within the legal speed limit, defendant’s car ran through a red light and collided
with the left front door of the plaintiff’s car. The plaintiff was pinned behind the steering wheel for three hours.
After being forcibly removed from the totally damaged car by the police and firefighters at the scene, the plaintiff
was rushed to the hospital by ambulance, where she was treated for her severe and disabling injuries, including a
broken pelvis, a concussion, and internal bleeding.

Defendant’s version:

The accident occurred as plaintiff was traveling westward on Adams Avenue. After the collision, the plaintiff
remained in her car until she was transported to the hospital, where she received treatment.

Note the detail in the plaintiff’s version, which paints a vivid picture for the reader. In
contrast, the defendant’s version glosses over the event by summarizing it in a general
fashion. In fact, the defendant’s version doesn’t even make clear that the defendant was
involved in the collision.
Remember that documents submitted to court are persuasive documents, and their
style differs from the objective style used in legal memoranda. As discussed in Chapter 17,
in such objective projects the writer must disclose possible weaknesses in the case.
Consequently, in these writings, you will not bury negative information but will give it as
much emphasis as positive information.

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 Practice Tip

Using Word Clouds

One fun and interesting new tool writers can use is a Word Cloud, which visually informs you how often you
have used certain words in a passage; the more frequently a word is used, the more prominently it is displayed
in your word cloud. Word clouds let you know at a glance that you have given some words and concepts too
much prominence in your writing and that others need more emphasis and in-depth treatment. Use Worldle
(http://www.wordle.net) or Word It Out (http://worditout.com) to create your Word Clouds. The Word
Cloud below was created using language from this chapter.

I. Drafting Techniques

1. Getting Started

For most writers, the most difficult task is getting started. The research is completed, the
deadline is looming, and yet the writer cannot begin.
The best cure for this common disease is to write something. Write anything. Just get
started. If the idea of beginning an argument paralyzes you, don’t begin there. Start writing
the section of the document you are most comfortable with, even if this is not the correct
order. If you are familiar with the facts, begin with a statement of facts. If you know how
you want to conclude a letter, memo, or brief, begin with the conclusion. The mere act of
writing any section of a document will relieve some of your anxiety about being able to
write.

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 Use the storytelling technique discussed above to help you organize your thoughts and
give you ideas on how to begin writing.
Set a goal for yourself. Challenge yourself to complete a task within an hour. These
techniques may help you get started.

2. Finishing on Time

You will often be given deadlines for finishing projects. Similarly, documents prepared for
courts may need to be filed by a specified date. If you have a deadline date, you may find it
helpful to work backward from this date and establish a schedule for yourself. Set a date by
which all of the research will be done, another date for completing the first draft, another
for cite checking, and another for revising.
If you are a habitual last-minute worker, always finding yourself operating in crisis
mode, it may help to announce a deadline date to someone. Go public. By telling your
supervisor, “The first draft will be on your desk by Wednesday morning,” you will commit
yourself to meet this self-imposed deadline. If there is no deadline for filing the document
with the court, ask your supervisor, “When would you like this completed?” Without some
deadline date, the project will languish on your desk and continually be relegated to the
back burner while you work on other projects.
Once the deadline is established, allow yourself some time for emergencies. The copier
may break down, you may get sick, or someone else’s project may have a higher priority. If
you don’t allow room for these last minute crises, you may fail to meet the deadline.
Set small goals for yourself. Tell yourself, “I will have the statement of facts done by
11:00 A.M. today.” These self-imposed deadlines will help you tackle the project bit by bit
and meet the real deadline.
If you draw a blank while you are writing, just keep going. Move to another section and
return to the difficult section later. Mark blank or troublesome sections with sticky notes if
writing in longhand and with “xx” or some other signal if you are word processing. You can
use the “find and replace” feature to locate these troublesome passages later.
Avoid self-censoring. Don’t worry at this stage that something will sound awkward or
unsophisticated. You can clean up problem areas during your revision process.
If you are interrupted while writing, put a sticky note on your notepad or type a quick
note on your computer screen to remind yourself what you want to write about next.
When you return to the project, these notes will help you return to your project efficiently
and effortlessly.

3. Methods of Writing
There are three primary methods used for the actual writing process: writing by hand,
dictating, and writing on a word processor.

a. Writing by Hand

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Some people are most comfortable writing in longhand. Although this can be a very
effective technique, its primary drawback is that it is extremely time-consuming, especially
for a long memo or brief. In fact, some law firms are vehemently opposed to writing in
longhand and will insist that a faster method be used. Despite this, projects written in
longhand often need less revising than projects dictated or composed on a word processor.

b. Dictating
Dictating is probably the speediest method of drafting. It can take some time, however, to
shed self-consciousness when you dictate. Initially, dictating may seem painfully slow.
Confidence is rapidly gained, however. Stick with it until you become comfortable.
With time and practice you will acquire skill at dictating, together with a certain mental
discipline enabling you rapidly and effectively to organize your thoughts. This skill at
verbalizing complex thoughts may translate into ease and confidence in public speaking as
well. Enhanced competence in oral presentation is one of the hidden benefits of dictating.
If you dictate, you will need to insert punctuation and paragraphing so the transcriber
knows how to prepare the document. Similarly, you will need to spell certain words.
The popularity of dictating in law practice has declined significantly in recent years as
writers have become more comfortable composing with word processors. Nevertheless, it
remains an effective and efficient way to draft for some writers. A modern version of
dictating has arisen lately with legal professionals dictating into their iPhones or other
devices and then e-mailing the recording to a secretary or assistant to finalize.

c. Using a Word Processor

The most popular method of writing is composing using a word processor. Although this
method may be very speedy, and allows much flexibility in changing the placement of
sections, many individuals tend to spend excessive time revising as they go along. Do not
engage in micro-editing at the first draft stage. It is disruptive and a time-waster if you stop
writing to correct minor errors that you or your spell-checker can catch later.
Your project need not be perfect with the first draft. Your initial draft should be
focused on including the major issues and arguments that need to be addressed. Allow your
first draft to flow smoothly and then devote effort to revision later.
If you use a word processor, consider the following:

• Save your versions frequently. Use the functions on your computer that allow you
to select how frequently the document will be saved.
• To ensure that you don’t lose important information, back up your versions on
discs, print paper copies of the document frequently in case the disc is corrupted,
and e-mail your documents to your personal e-mail account or to a friend for
safekeeping. Use a cloud computing service such as Dropbox or iCloud to store
your data and make it accessible from any device, whether a computer, iPad, or
iPhone.

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 • Use the features of your word processor to help you. Consider using the “track
changes” feature to show changes between drafts. With a single button click, you
can then accept (or reject) all changes. This technique, called “redlining,” is used
when legal professionals negotiate the form and content of a document because it
allows each to see the changes made by the other.
• Understand that viewing the project one screen at a time allows you to see only a
small slice of the document. Thus, headings and other items may become
inconsistent. Carefully review a hard copy to check for consistency in the
presentation of such items.

J. Electronic Communications

New forms of communication, namely, electronic communications, have arisen in the past
several years, changing the way people communicate at the workplace. Although many of
them are great timesavers, others are traps for the unwary. Follow your reader’s preferences
for communications. If you know your recipient checks e-mail only sporadically, use the
telephone instead. To be meaningful, any communication must be received and
understood.

1. Phones and Voice Mail

Both conference calls and voice mail can reduce the time you spend on communications,
and here are some guidelines that will assist you:

• When setting up a conference call or webinar, treat it as a meeting and be prompt

in dialing or logging in.
• Make sure that introductions are made for all participants and that all participants
can hear each other. Don’t assume that someone is not on a call merely because
you did not hear his or her voice or introduction.
• Always ask for permission before placing someone on a speakerphone.
• Always disclose that another is listening with you if you are on a speakerphone.
• Do not leave overly long or rambling voice mail messages.
• Clearly and slowly state your name and phone number in voice mail messages.
Repeat at the end of your message for those unfamiliar with you so they do not
have to replay the message to obtain your name and number.
• Avoid using voice mail to “dodge” callers and to evade bad news.
• Avoid disclosing confidential information over a cell phone. Messages may be easily
intercepted.
• Check your office policy and state law to see if cell phones can be used for business
while you are driving. After a large law firm was sued in 2001 for an accident
caused by one of its attorneys who was driving while using a cell phone for firm
business, many firms now prohibit such use. Similarly, many states prohibit the use

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 of handheld cell phones while driving.

2. Communication by Facsimile

Communicating by facsimile is not nearly as commonplace as it was just a few years ago
because documents can now be easily scanned and sent by e-mail to others. Nearly all
facsimile cover sheets include a confidentiality notice indicating that if someone receives the
communication in error, he or she should return it to the sender. Such notices are used to
maintain attorney-client confidentiality and privilege. Preprogram frequently called
numbers. Always double-check the facsimile number before pressing “Send.” Once the
document is sent, it cannot be recalled.

3. E-mail

E-mail may well be the most common method of communication, both within the
workplace and to clients. E-mail creates an air of informality, and the ease with which a
message can be composed and sent causes countless errors. We have all heard stories of
people who, much to their chagrin, have mistakenly replied to “all” rather than solely to the
sender of a message. Many firms and offices have policies as to the types of communications
that can be sent via e-mail and typically include confidentiality notices at the conclusion of
each e-mail message. Follow these guidelines:

• Spell check all e-mail and proof for accuracy. If necessary, print a hard copy of the
message, proof it, correct it, and then send it. It is far better to be overly cautious
than to be perceived as sloppy.
• Because e-mail is generally “dashed off” without a great deal of thought, it often
produces brusque and abrupt communications. The reader will not be able to see
your expression, gauge your body language, or hear any intonation. Thus, attempts
at sarcasm and humor may be misperceived. Consider receiving a communication
writing, “I resent your message.” You may be tempted to respond in a curt or
hostile fashion before you realize the writer meant to write, “I re-sent your
message.”
• Never pass along inappropriate e-mail at your workplace. Politely inform the
sender that you do not care to receive such information.
• Do not assume e-mail is confidential. Many employers monitor e-mail
communications. Moreover, e-mail can be discovered in litigation, so be cautious
in corresponding by e-mail.
• Use templates for routine or standard responses, such as directions to your office.
• Reread your completed e-mail to ensure you answered all questions. If you did not,
you will simply get another e-mail, causing wasted time.
• Include the original e-mail in any of your replies. Many people receive numerous e-
mails each day, and they will not be able to make sense of a response such as “No, I
did not” without some context, such as the original message.

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 • Do not routinely request that a recipient confirm delivery of the message or request
a “read receipt.” These annoy recipients.
• Be careful in deciding whom to exclude from an e-mail and whom to include as a
“cc.” There are political ramifications in excluding certain individuals who may
believe you are disrespecting them or cutting them out of the loop. Similarly,
sending a critical e-mail to a colleague and then “cc-ing” his or her boss is the
electronic equivalent of tattling.
• Just as you wouldn’t pick up a telephone and start talking without saying Hello and
you wouldn’t hang the telephone up without saying Goodbye, use a salutation (such
as Dear Mr. Lee or Dear Nicole) and a closing (such as Sincerely or Best).
• When sending an attachment, double check to be sure you really did attach it (and
that it is the correct version).
• Be brief and to the point. Many people receive a great number of e-mail messages
each day and won’t bother to read a long, rambling message.
• Make the subject or “Re” line specific. Let the recipient know at a glance what the
message discusses. Add “no need to respond” to the subject line to save yourself
from receiving excess e-mail messages. A good subject line is Taylor v. Reid. A
better one is “Hearing Set in Taylor v. Reid for 6.20.16.”
• Be a charitable reader. Resist overreacting to an e-mail communication that may
seem abrupt. The writer may have been trying to be brief.
• Avoid using e-mail to resolve disputes or for delicate matters in which tone of voice
is important.

4. Text Messaging

Text messaging (or texting) is the term used for sending short messages (usually fewer than
140 or 160 characters) from cell phones or personal digital assistants such as BlackBerrys
and iPhones. Texting has become increasingly popular. Statistics vary, but at least one
company has estimated that 6 billion texts are sent each day in the United States alone.
Many law firms distribute mobile devices to their paralegals on the first day of work so that
everyone can stay in touch at all times. If you text message anyone about a business-related
matter, remember that although you may understand certain abbreviations, the recipient
may not. Be sure your message is clear. When in doubt, write it out.
Follow these six basic rules for texting in the workplace:

• Texting in front of other people is rude. If your boss is speaking at a firm-wide

meeting, and you are texting, it will be noticed. If you are awaiting critical news
and must be “on call,” alert the people you are with that you may need to answer
your phone or send a text.
• Do not assume that people will read your texts immediately. If you are conveying
urgent or time-sensitive information (such as a change in meeting time), follow
your text with an e-mail or telephone call.

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 • Double check both the recipient’s number and the content of your message to
ensure that your Auto Suggest or Auto Complete feature did not select an
unintended recipient or word.
• Avoid informal abbreviations such as ? (for I have a question) and UR (for you are).
Do not include emoticons. Remember the difference between personal texting and
texting for business purposes.
• If you are texting to someone who may not recognize your number, start with an
introduction, such as “I am Lindsey Young, the new paralegal working with Bill
Moss.”
• Be considerate of others’ schedules and time zones. Sending a text from New York
to someone in your firm’s Los Angeles office could disturb sleep if it is sent too
early.

Internet Resources

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Assignment for Chapter 15

PRECISION

SELECT THE CORRECT WORD IN THE FOLLOWING SENTENCES, OR REWRITE THE

SENTENCES TO ELIMINATE VAGUE WORDING.

1. The trial notebook is composed/comprised of three parts.

2. The decline in tax revenue will affect/effect the city’s ability to provide social
services.
3. Fewer/less than five attorneys attended the meeting.
4. The settlement was fewer/less than $50,000.
5. The principal/principle matter for discussion was the shareholder agreement.
6. We continue to monitor the situation closely and will respond at the appropriate
time.
7. Strong analytical skills are an important factor for a legal professional’s success.

CLARITY
REPHRASE EACH OF THE FOLLOWING TO PRODUCE A CLEARER SENTENCE.

1. Each motor vehicle owner must register his or her car with the Division.
2. The Human Resources Department will review each applicant for employment
when an application is submitted to the Division.
3. The project will not be approved unless all requirements for funding are met.
4. Those other than the landlord may not accept rent payments.
5. The President shall not appoint persons other than those approved by the
Nominating Committee.
6. Payment, reported the manager, will be accepted on Wednesday.
7. There are three defenses we will assert.

READABILITY

REWRITE THE FOLLOWING SENTENCES TO MAKE THEM MORE READABLE BY USING THE
ACTIVE VOICE AND OMITTING NOMINALIZATIONS.

1. The minutes of the meeting may be amended by the corporate secretary.

2. The stock was repurchased by the corporation.
3. We must give consideration to all of our options.
4. This provision is applicable to all employees hired after May 1.
5. The defendant shall make payment to the plaintiff in the amount of $25,000.
6. A distribution of a dividend will be made by the corporation.
7. Completion of the project will be accomplished by February.
8. Appropriate information will be provided to all employees regarding changes to

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 the company’s travel policy.
9. Safety measures will be taken by the managers to ensure protection of your assets.

REWRITE THE FOLLOWING SENTENCES TO MAKE THEM MORE READABLE BY USING

PARALLEL STRUCTURE.

1. The duties of the corporate secretary are:

• to take minutes of all meetings
• he will answer all shareholder inquiries
• provision of stock certificates
2. Company managers will institute policies regarding requests by employees relating
to travel, and also the reimbursing of expenses, as well as how employees submit
requests for vacation time.
3. In my previous job, I was engaged in drafting litigation documents, and I
conducted cite-checking, as well as I proofread documents.

REWRITE THE FOLLOWING SENTENCES TO MAKE THEM MORE READABLE BY

ELIMINATING JARGON AND REDUNDANT EXPRESSIONS.

1. As stated hereinabove, the defendant’s conduct created, caused, and produced

serious and significant emotional distress to each and every plaintiff.
2. Each of you must provide your response in a timely manner not later than June 1.
3. We intend to effect modifications to the rules, regulations, and policies with
regard to the submission of requests for reimbursement of expenses.
4. We call your attention to the fact that the company has a requirement for cell
phone numbers for each and every employee.
5. We hereby order and direct all employees to submit and produce receipts and
verification for all expenses incurred for or on behalf of the company.

Internet Assignment for Chapter 15

1. Review the document Drafting Legal Documents at the website of the National
Archives at http://www.archives.gov. Review the section on “Principles of Clear
Writing.” What are the first six principles listed?
2. Review the SEC’s guidance document Plain English Handbook at its website at
http://www.sec.gov. Review Chapter 6.
a. Review the information on finding hidden verbs. Change the following
expressions to replace the nouns with verbs: we made an application; we
made a determination; we will make a distribution.
b. Review the information on writing in the positive. Change the following
expressions to make them positive: not accept; does not include; not often.

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3. Access Professor Eugene Volokh’s site at
http://www2.law.ucla.edu/volokh/legalese.htm. Give the recommended
substitutions for the following terms of legalese: cognizant of; notwithstanding;
the case at bar; until such time as.

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 Chapter 16

Legal Correspondence
I didn’t have time to write a short letter, so I’ve written a long one instead.

Usually attributed to Blaise Pascal

A. Letterwriting
B. Conclusion

Chapter Overview
Although television and movies would have you believe that lawyers spend all day arguing
interesting and exciting cases in court, the truth is that much of a lawyer’s time is spent
writing. Lawyers often rely on paralegals to assist in the writing process and often delegate
entire writing tasks to paralegals.
This chapter will introduce you to one of the most common forms of legal writings:
legal correspondence. Letters are written for several purposes, and thus the style and tone
you use will vary according to the purpose of the letter.
As you work and have the opportunity to review the writings of others, start collecting
samples of the writings you find most effective. Use these samples to build up your arsenal
of writing tools.

A. Letterwriting

1. Introduction
In contrast to other legal writings, such as contracts, wills, and appellate briefs, there is no
rigid list of elements that must be included in a letter. Although letters should, of course,
contain the basics (date, salutation, body, and closing), you will be able to exercise great
creativity in letterwriting based upon the goal you seek to achieve in your letter. The tone
you adopt and the order in which you elect to discuss items are at your discretion. To
beginning legal writers this flexibility can be intimidating. Without a rigid format to follow,
some writers become paralyzed.
Letters can be extremely effective tools. The first letter you send to a client or adversary
often establishes the basis for a relationship. If your letter to adverse counsel is hostile and
arrogant, you will be responded to in kind, and this will mark the tone of future
correspondence. Thus, you need to do some planning and thinking before you write.
The two most important questions to ask yourself before you begin writing a letter are
“Who will be reading this letter?” and “What will this letter say?” The answer to the first

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question will set the tone for your letter, and the answer to the second question will tell you
what type of letter you should write.

a. Who Will Be Reading This Letter?

The tone or style of your letter must be appropriate for the reader. For example, if a letter is
directed to an individual who is relatively inexperienced with litigation, you will need to
explain the information you present in the most clear and complete fashion possible. If,
however, the letter is directed to another legal professional, such as a judge, attorney, or
other paralegal, you will know that your discussion of some matters need not be as detailed
or elementary as for a layperson.
If you find your letters are becoming stuffy and legalistic in style, there are a few
techniques you can use to warm up the tone. One is to use personal pronouns, especially
“you.” Therefore, rather than writing, “Tenants have a right to withhold rent if the leased
premises are not habitable,” try writing, “As a tenant you have the right to withhold rent
because your premises are no longer habitable.” Similarly, contractions such as “can’t” and
“wouldn’t” rather than “cannot” and “would not” tend to make a letter slightly less formal
and more personal, although contractions are not commonly used in legal or business
writing.
The fact that you will adapt your tone in legal letters to suit different readers is no
different from what you already do: A letter or e-mail sent to your friends is written in a
style entirely different from a letter responding to a job announcement.

b. What Will This Letter Say?

Before you begin drafting any letter, focus on the central purpose of your letter. Try to
distill this to one or two sentences. For example, some purposes may be as follows:

• The client needs to know a deposition has been scheduled for next month.
• The debtor needs to understand that failure to repay the client will result in
litigation.
• The client needs to be given advice regarding cutting down branches from trees
located on a neighbor’s property.

These three examples represent the most basic types of legal correspondence: general
correspondence or informative, demand, and opinion letters. Once you decide what type of
letter you need to write, a style will come almost naturally.
Before discussing techniques for writing these varieties of letters, we will examine the
format and elements of legal letters in general.

2. The Elements of Letters

Although there are different types of letters you will write, there are certain “basics” that are
common to all legal correspondence. The components of legal correspondence are similar

604
to those used for general business letters.

a. Letterhead
Law firms, government offices and agencies, and corporations all use special stationery,
called letterhead, that serves to identify the office by name, address, telephone and facsimile
numbers, website address, and other relevant information. Letterhead is usually placed at
the top of a page. Law firms (unless they have a large number of attorneys) usually list the
attorneys associated with the firm on the letterhead. Be careful when drafting and setting
up a letter that you recognize how much room the letterhead takes up because you need
some space between the letterhead and your writing. Use letterhead for all correspondence
connected with your employer because it conveys the message to the recipient that the
correspondence is “official.” Letterhead is used only for the first page of a letter. The
remaining pages match the color and quality of the letterhead page but are not imprinted
with the letterhead.

b. Date
Every item of correspondence must include a date, written out in full in the American style
by month, day, and year (for example, August 12, 2016). The date is usually centered two
or three lines beneath the letterhead, although occasionally it is placed at the left margin.
Because dates in legal matters can be critical, be sure the date given is the date the letter is
actually sent, rather than the date of an earlier draft.

c. Special Mailing Notations

If your correspondence will be sent to the recipient by any means other than first class mail,
indicate such as follows: “Hand Delivered,” or “Registered Mail,” or “By E-mail.” This
notation should be placed at the left margin two lines below the date and two lines above
the inside address. Similarly, any other special notations such as “Attorney-Client
Communication — Privileged and Confidential” should appear above the inside address.

d. Inside Address
The addressee’s name and address should appear two or three lines below the date or any
special mailing notations. Always follow the addressee’s or organization’s preferences for
spelling, capitalization, and punctuation. Use titles if appropriate, such as Ellen Cochran,
M.D., Stanley L. Williams, Esq., or David P. Kimball, Executive Vice President. If you do
not know the marital status of a female addressee, use “Ms.” unless you are directed
otherwise. The form “Mrs. William Trainor” is acceptable only in social letters. Use “Ms.
Madelyn G. Trainor.” See Figure 16-1 for sample addresses.

e. Reference or Subject Notation

The reference notation indicates the subject matter of the correspondence. The notation

605
may refer to the title of a case, the topic to be discussed in the letter, or a file or claim
number. The reference notation gives the reader an immediate snapshot of what is to be
discussed and also helps you later if you need to locate a letter you previously wrote. The
reference notation (abbreviated as “Re:”) is usually placed two lines below the inside
address. As a courtesy to your reader, include his or her file or reference number if you
know it, following your own reference notation. If your office uses internal file numbers,
indicate those as well, because they often assist in mail sorting. See Figure 16-2 for sample
reference notations.

Figure 16-1
Sample Addresses

Figure 16-2
Sample Reference Notations

Re: Calvin v. Temple Motors, Inc.

Civil Action No. 16-696-VMA
Re: Estate of Boyer
Our File: 9204\16-646
Your File: CN-9220
Re: Punitive Damages in Fraud Actions

f. Salutation
The salutation, or greeting, usually appears two lines beneath the reference notation. Unless
you are acquainted with the addressee, err on the side of formality, and address the letter to
Mr. Brown or Ms. Taylor, for example. Once again, unless you have been directed
otherwise, address letters to females as “Ms.” Letters to an unknown recipient, such as the
attorney general of a state, may be directed to “Dear Sir or Madam.” Follow the salutation
with a colon in business letters and with a comma in personal letters. See Figure 16-3 for
sample salutations.

Practice Tip

606
 Unknown Addressees

If you do not know the name of the recipient of a letter, for example, the Commissioner of the Internal
Revenue Service, consider the following:

• Use a title, such as Dear Commissioner; or

• Do some research on the Internet to find out the name of the Commissioner.
• If appropriate, use the salutation Dear Colleague.

g. Body
The body of the letter begins two lines below the salutation. The body is the critical part of
your correspondence because it conveys your message. The first sentence and paragraph
should set the stage for the rest of your letter by indicating the purpose of the letter.
Business letters and legal correspondence are usually single-spaced and then double-
spaced between paragraphs (meaning that there is a blank line between paragraphs). The
second and following pages will not be on letterhead but will match the color and quality of
the first letterhead page and will usually contain information such as the following (a
“header”) in the upper left-hand corner of each page:

Mr. Elliot Anthony

December 14, 2016
Page Two

Figure 16-3
Sample Salutations

Dear Mr. Smith:

Dear Ms. Anderson:
Dear Sir or Madam:

h. Closing and Signature

Most letters close with statements such as the following:

Please do not hesitate to call me if you have any questions.

Thank you in advance for your cooperation and courtesy.
If you have any questions or comments you may reach me at the number given above.

The complimentary closing is usually “Very truly yours,” “Sincerely,” “Best regards,”
“Yours truly,” or something similar, followed by a comma. “Very truly yours” is generally
regarded as more formal and is used less frequently than “Sincerely.” If the letter is
addressed to a judge, senator, or representative, the complimentary closing is typically
“Respectfully.” Capitalize only the first letter in the complimentary closing, and place it
two lines below the body of the letter. The closing is usually centered.
Avoid informal or unusual closings such as “Affectionately,” or “Successfully yours.”

607
Do not merge your complimentary closing with the last line of your letter. These merged
closings were fashionable hundreds of years ago but have a stilted and archaic look. An
example of a merged closing is as follows:

Thanking you for your attention, I remain,

Yours very truly,
Suzanne Forrest

For letters that you will sign, be sure to indicate your title underneath your signature so
the reader will know your position in the firm. Allow four lines between the complimentary
close and your typed name. Some individuals prefer to use blue ink for their signatures, so
readers can easily tell the document is an original rather than a copy.

i. Reference Initials, Enclosures, and Copies

Most letters include a few final notations. Generally, the arrangement of final notations is
as follows: reference initials (placed two lines below the writer’s typed name and title),
indications of enclosures (placed one line below the reference initials), and indications of
copies (placed one line below any indications of enclosures). All final notations appear at
the left margin, but their presentation styles may differ from author to author.
Reference initials indicate who wrote the letter and who typed it or prepared it. If the
author is Maria M. Adkins and the secretary who types it is Gregory L. Huntingdon, the
reference “MMA/glh” would appear at the left margin, two lines below the signature block.
The use of “mma:glh” is also common. If you prepared the letter yourself, you may omit
these initials.
If you are enclosing something in a letter, indicate this by the word “Enclosure” or the
abbreviation “Encl.” (or “Enclosures” or “Encls.” for more than one enclosure). Some
writers list or identify the item enclosed, so the reader will quickly know if the correct item
has been included. You may also see the notation “Enclosures (2)” for multiple enclosures.
Some authors use the word “attachment” rather than “enclosure” when materials are
attached to an e-mail letter or when material is physically attached to the letter rather than
merely enclosed.
Copies of the letter you write may be sent to others. For example, the client will
routinely be provided with copies of letters you write to adverse counsel because this is a
way of keeping the client informed of the progress of a case. To indicate the recipients of

608
copies use “cc:” followed by the names of those who will be receiving copies. Although “cc”
stands for “carbon copies,” which have universally been replaced by photocopies or
printouts, the signal “cc:” remains in use and likely now stands for “courtesy copies.”
There may be instances in which you do not want the reader of your letter to know
who received a copy of it. In such cases, simply sign your letter, mail it, and then mark the
copy that will go to the unidentified individual (assume Theresa Stone) and that will be
placed in the file “bcc: Theresa Stone.” This is a reference to “blind carbon copy.” See
Figure 16-4 for sample notations for reference initials, copies and enclosures.

Figure 16-4
Sample Notations for Reference Initials,
Enclosures, and Copies

TLB/amk
Encl.
cc: Susan M. Everett
Thomas L. Cruz
cc w/encl.: Stephen S. Neal

j. Format Considerations
Letters are written on standard 8½" × 11" paper and are usually single-spaced and then
double-spaced between component parts (for example, between the date and inside address,
between the inside address and reference notation, between the reference notation and
salutation) and between paragraphs.
Some letters show no indentations for paragraphs because new paragraphs are clearly
indicated by the double-spacing between paragraphs. This style is referred to as “block
form” or “left justified.” In block form, all elements of the letter, including the date and
complimentary closing, begin at the left margin.
Other firms and authors prefer to indent five spaces for new paragraphs even though
they are set apart by double-spacing. This style is called “modified block form.” Here the
date, complimentary closing, writer’s identification, and signature are all centered.
When the right-hand margin is even and every line ends at the right at the same space
(as shown in this text), this is referred to as “right justification” or “full justification.” Such
letters present a very crisp appearance. One drawback to right-justified margins is that the
spacing in some words may be cramped while others may be slightly spread out. Some
readers contend that word-processed right-justified documents are more difficult to read
because the variance in spacing eliminates distinctive word spatial characteristics, which aid
comprehension and ease of reading. Continuing improvements in word processors are
eliminating these spacing problems. Nevertheless, some writers prefer a “ragged edge” at the
right margin, believing it has less of a “computer” look and more of a “personally typed”
look. Many word processing programs now offer letter templates for business letters in
which spacing and common closings are already included, allowing you to “fill in the

609
blanks” of the form. Spacing is preset as well. In general, the choice of full justification or a
“ragged right edge” is a matter of personal preference.
Never allow a page to begin or end with one line by itself or one heading by itself.
Referred to as “widows and orphans,” respectively, these single lines or headings present an
unprofessional appearance. Use 12-point font for readability. Use a common font such as
Times New Roman or Courier New. Document design features are discussed in Chapter
19.

3. Types of Letters

a. General Correspondence
General correspondence or informative letters may include letters requesting or responding
to requests for information, cover letters that accompany some document or other
enclosure, confirmation letters that confirm some agreement or arrangement reached with
another party, or status or report letters providing a report to a client or insurance company
of the progress of a case. Except for status letters, these letters are often brief and may be
only one or two paragraphs in length.
These letters should contain the components of all letters (date, inside address,
reference notation). They also should conform to the elements of good legal writing set
forth in Chapter 15, namely, precision, clarity, readability, brevity, and order. If you
misspell the client’s name or send the letter to the wrong address, this will attract far more
attention than the content of the letter.
If you are unsure whether a letter should be sent to confirm some matter or clarify some
detail, err on the side of caution and write the letter. This will keep the file complete and
help establish the progress of the case if you aren’t there to explain it. Always send a
confirming letter to opposing counsel to confirm dates, amounts, or any other matter. If
adverse counsel has offered to settle the case for $20,000, immediately confirm this in
writing and then notify the supervising attorney, who will likely conduct negotiations or
give you instructions regarding such negotiations. If adverse counsel has granted you an
extension to answer interrogatories or produce documents, immediately confirm this in
writing by thanking the attorney so no dispute can later arise as to the dates. See Figure 16-
5 for several sample general correspondence letters, including confirmation, cover, and
status letters.

Ethics Alert

Corresponding with Parties

One of the most basic rules of ethics is that lawyers and those they supervise may not have any contact with
parties once those parties are represented by counsel. Thus, never call or write a party without checking
whether that party is represented by counsel. If you are unsure, when you make a telephone call, your first
question should be, “Are you represented by counsel?” If the person answers “yes,” politely end the call, and
contact that attorney.

610
b. Demand Letters
Demand letters set forth a client’s demands. The most common type of demand letter is a
collection letter, which outlines the basis for a debt due to a client and sets forth a demand
that it be paid. Other demand letters, however, demand that certain action be taken, such
as a demand that a landlord repair a leaking roof or a demand that one company cease
using a trademark similar to one owned by another company. Your tone should be firm
and businesslike, not strident or nasty. To eliminate any disputes whether and when the
letter was received, send the letter by some verifiable type of delivery, such as registered
mail.

Figure 16-5
Sample General Correspondence Letters

A. Sample Confirmation Letter

LAW OFFICES
OF
MICHELLE L. MONACO, P.C.
2300 BIRCH DRIVE
PHOENIX, ARIZONA 60234
(602) 788–4000

November 8, 2016

Stephen L. James, Esq.

6200 Tenth Street
Phoenix, AZ 60244

Re: Brownell v. Kaplan

Dear Mr. James:

This letter will confirm that you have granted us an extension to respond to the plaintiff’s complaint in the above-
referenced action until December 6, 2016. As I explained, the additional time is needed due to my client’s
hospitalization. Thank you for your courtesy and cooperation.
Please feel free to call me if you have any comments or questions.
Sincerely,

Michelle L. Monaco

MLM/pmr
cc: Sharon J. Kaplan

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 B. Sample Cover Letters

LAW OFFICES OF THOMAS N. MILLER, P.C.

1600 ELM STREET
SUITE 202
PORTLAND, OREGON 60102
(503) 657–1990
February 6, 2016

Mr. and Mrs. James E. Bailey

2002 Artesia Boulevard
Portland, OR 60435

Re: Execution of Wills

Dear Mr. and Mrs. Bailey:

I enjoyed meeting you last week and discussing the preparation of your wills. I have prepared the first drafts of the
wills, which are enclosed for your review. After you have examined the wills, please call me with any changes or
corrections you have. I will then revise them according to your instructions and schedule a date for you to come to
my office to sign them.
Please feel free to call me if you have any questions or comments.

Sincerely,

Thomas N. Miller
TNM:scg
Encls.

B. Sample Cover Letters

LAW OFFICES OF
TAYLOR AND GILBEY, LLP
4305 WILLETT STREET
KANSAS CITY, MISSOURI 45609
(913) 678–1299
September 14, 2016

Cynthia A. Chan, Esq.

5000 Missouri Avenue
Kansas City, MO 45609-4265

Re: Strategic Alliance Partnership

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Your File: CV 1895

Dear Ms. Chan:

In reviewing my correspondence to you of yesterday, I noticed that I neglected to include a copy of Exhibit A to
the Partnership Agreement, which should have been enclosed with the letter. I am enclosing Exhibit A with this
letter and apologize for any inconvenience this may have caused you.
Please feel free to call me if you have any questions or comments.

Sincerely,

Francis K. Taylor

FKT:wlm
Encl.

C. Sample Status Letter

FENTON, HOGUE AND HOGUE, LLP
1200 B STREET, SUITE 1900
LOS ANGELES, CALIFORNIA 90234
(213) 765–1400
July 16, 2016
Dale L. Curtis, M.D.
3200 Montana Avenue
Los Angeles, CA 90256

Re: Fontana v. Curtis, et al.

Our File: 94081

Dear Dr. Curtis:

This letter will provide you with a brief status report on the progress of the above-referenced action. As you know,
we have provided interrogatories, or written questions, to the plaintiff, which he is required to answer under oath
and return to us within thirty (30) days. After we have had an opportunity to review the plaintiff’s answers, we will
be in a better position to evaluate which documents we should request and which individuals and witnesses should
be deposed so we may obtain their testimony regarding the acts of professional negligence alleged against you.
The Superior Court has recently notified us that a settlement conference has been scheduled on the matter for
Wednesday, August 14, 2016, at 2:00 p.m. in Room 2404 of the Stanley Mosk Courthouse, located at 111 North
Hill Street in Los Angeles. You are required to attend that conference, at which time the judge assigned to the case
will explore the possibilities of settlement. The plaintiff will also attend and will be expected to make a reasonable
demand for settlement. If we are unable to settle the case at that time, a trial date will be assigned. We expect that
the trial will occur after the first of next year.
As soon as we receive the plaintiff’s answers to the interrogatories, we will provide you with a copy for your review
and comment. Please contact us if you have any questions.

Very truly yours,

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 Linda J. Fenton
LJF:sfk

The only portion of a demand letter that will differ from a general correspondence letter is the content of the
body. Include these elements:

• Introduction of your firm. Identify your firm and specify your role. A simple
sentence stating “We represent James K. Matthews regarding the automobile
accident that occurred on January 8, 2016” is sufficient.
• Recitation of facts. You must include the facts upon which the client’s claim is
based. Because your aim is to motivate the reader to pay your client or take some
action, phrase the factual statement as persuasively as possible.
• Demand. Set forth as clearly as possible your client’s demand. If this is a collection
letter, specify the exact amount due. If you are demanding that the reader take
some specific action, such as repairing a leaking roof, say so. If there are several
components to your demand, you may wish to set them forth in a list.
• Consequences of noncompliance. Because your aim in a demand letter is to persuade
the reader to pay your client or take some action, you should include a statement
telling the reader of the consequences of not complying with the demand letter.
These consequences may include the institution of litigation, the cessation of work
on a project, or some other adverse action. Although nearly all readers will be
offended by heavy-handed threats, there is nothing wrong in clearly and concisely
explaining to a reader what will occur if the client’s demands are not met.

• Date of compliance. You must set forth in explicit terms the deadline for
compliance. Do not write “You must pay the sum of $10,000 immediately.” When
is immediately? Two days? Ten days? Three weeks? Set forth a specific date so the
reader will know exactly when compliance is expected.

Follow these guidelines in drafting demand letters:

(i) Know the facts. Be sure you have all of the relevant facts. It is not enough to
have most of the facts. If the client has informed you that a debtor has
breached a contract, determine if the contract is written or oral. If it is
written, you need to obtain a copy of it and review it. A mistake in reciting
the facts will immediately call forth a response by the recipient pointing out
your error, and any momentum you may have had, along with your
credibility, will be lost. To be sure your recitation of the facts is correct, send
a copy of your demand letter in draft to the client asking that the client
review the letter and approve it before it is sent to the other party. If it later
turns out that the facts recited in the letter are incorrect, you have protected

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 yourself from your supervisor’s or client’s wrath by having obtained the
client’s approval.
(ii) Know the law. You cannot send a letter demanding money for breach of
contract if enforcement of the contract is barred by the statute of limitations
or some other law. You must perform some minimum amount of research to
ensure that the client’s claim is valid and enforceable. Similarly, review the
code of ethics for your state. It is unethical to correspond with a person who
is represented by counsel. Therefore, once you know an individual has
retained counsel, all correspondence must be directed to counsel. Most codes
of ethics set forth other rules you should be familiar with, such as that it is
unethical to threaten criminal prosecution if a civil demand is not met. Many
states have consumer protection or debt collection statutes, and demands for
payment of debts must comply with the requirements of these statutes. Be
sure to research any such requirements in your state because failure to follow
the statutory requirements may invalidate the demand.
(iii) Don’t argue the case. A demand letter should set forth the facts underlying
the demand, state the demand, and outline the consequences of
noncompliance. You need not, and should not, present all the evidence you
would need to prevail at a trial of this matter. The debtor will undoubtedly
know some of the facts relating to the claim, and you need not provide copies
of every item of correspondence and the name of every witness who supports
your client’s version of the matter. If the problem cannot be resolved by
direct negotiation, your firm will have ample opportunity to argue the case at
trial. Don’t tip your hand at this juncture. Although a few legal authorities
may be cited in some instances, routine collection letters rarely include legal
analysis.
(iv) Do what you say. If you have told the recipient of the letter legal action will
be instituted by December 10 unless the amount of $30,000 is paid to the
client, you must be prepared to follow through. Nothing jeopardizes
credibility more than empty threats. If December 10 comes and goes and you
issue another demand letter setting forth another deadline date, the reader
will know you do not mean what you say and will understand there is no
reason to comply with the renewed demand. This issue of doing what you
say is often a matter of communicating with the client. If the client has no
intention of suing or is aware the recipient may have certain counterclaims,
the letter can be structured appropriately. For example, rather than stating a
deadline date, the letter could leave the issue open and state any of the
following:
• We look forward to receiving your prompt response to this demand.
• Please contact us to discuss this matter further.
• Unless we receive a satisfactory response from you by December 10, we
will take all appropriate legal action.

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 • We invite your response to this claim and hope this matter can be
resolved amicably.

Note, however, that if you write, “We look forward to a counter proposal
from you,” you have made a serious concession and have invited the recipient
to play “let’s make a deal.” See Figure 16-6 for a sample demand letter.

Figure 16-6
Sample Demand Letter

MURPHY & SIMMONS, LLP

4501 CENTRAL STREET
MIAMI, FLORIDA 22013
(305) 571–3303
June 12, 2016

Mr. Michael L. Locke

Locke Real Estate Properties, LLC
Miami, FL 22699

Re: Tall Oaks Shopping Plaza

Dear Mr. Locke:

We represent Sarah Burke, lessee at Tall Oaks Shopping Plaza (“Tall Oaks”), located in Miami, Florida. On
October 1, 2013, Locke Real Estate Properties, LLC (“Locke”) and Ms. Burke signed a written lease agreement by
which Ms. Burke rented space owned by Locke at Tall Oaks for the purpose of operating a café and coffee shop.
Ms. Burke has operated her shop, Sarah’s Bakery & Coffee, since December 1, 2013, and has complied with all
terms and conditions of the lease.
As you know, Paragraph 4 of the written lease provides Ms. Burke with the exclusive right to operate a café and
coffee shop in Tall Oaks and expressly states as follows: “Lessor shall not lease any other premises within the
Center for use by any individual or company in competition with the business of Lessee.”
It is our understanding that Locke is currently negotiating with Dunkin’ Brands for the opening of a Dunkin’
Donuts shop in Tall Oaks. The operation of a Dunkin’ Donuts shop within Tall Oaks would be a clear violation
of the lease signed by Locke and Ms. Burke and would deprive Ms. Burke of the benefits of that for which she
bargained. Dunkin’ Donuts sells donuts, bakery items, and coffee and related drinks. The sale of these products
would be directly competitive with Ms. Burke’s business in clear violation of Paragraph 4 of the parties’ lease.
Paragraph 10 of the lease provides that the prevailing party may recover attorney fees and costs in any action to
enforce any terms or conditions of the lease.
Ms. Burke hereby demands that Locke cease any further negotiations with Dunkin’ Brands or any other entity
whose business would compete with that of Ms. Burke.
We urge Locke to comply with the terms of this letter as indicated so it may avoid costly and burdensome
litigation, including attorney fees and costs, which will be incurred if Ms. Burke is required to take action to
enforce the terms of the lease. If negotiations with Dunkin’ Brands continue, Ms. Burke will seek an injunction
ordering Locke to comply with the terms of the lease.
We look forward to receiving confirmation of Locke’s compliance with the lease terms by July 1, 2016.

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 Sincerely,

Murphy & Simmons, LLP

SMS/ajk
cc: S. Burke

c. Opinion Letters
Letters offering legal advice or opinions can be signed only by attorneys. Nevertheless, you
may find that you are given the task of researching the law and writing drafts of the letter.
Thus, although the letter is reviewed, revised, approved, and signed by an attorney, you
may be the principal author. Although these opinion letters are usually requested by clients
seeking advice on a particular matter, on occasion they may be requested by a third party,
such as an accountant who requires a legal opinion as to a client’s progress in litigation
before the accountant can prepare financial statements.
In addition to the standard components of a letter (reference line, salutation, and so
forth), there are eight key elements to an opinion letter. Opinion letters share some
elements in common with legal memoranda, although their analysis of legal authorities is
more simplified, and they are written to a client rather than to another legal professional.

(1) Date
Although all letters include dates, the date of an opinion letter is especially important
because the opinion will relate to the status of the law on that date. Changes in the law after
that date may well affect the correctness of the opinion.

(2) Introductory Language

It may be a good idea to remind the client why he or she is receiving an opinion letter.
An opinion letter may take several hours to research and prepare and may well be costly.
Reminding a client that he or she specifically requested the opinion may protect you from a
client’s refusal to pay the bill on the ground that this work was never requested. Consider
the following introductions:

• We enjoyed meeting you last week. As you requested, we have researched whether a
landlord is liable for injuries sustained by a tenant . . . .
• Per our telephone conversation of March 11, 2016, we have reviewed the issue . . .
.
• At your request . . . .
• You have asked for our opinion whether . . . .
• According to your instructions of July 18, 2016 . . . .

This introductory language not only protects you from a client’s faulty memory but also

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sets forth the scope of the letter by stating the issue that is addressed by the letter.

(3) Review of Facts

An opinion letter should always set forth the facts upon which it is based. Facts are
usually given in a narrative (sentence-by-sentence) form rather than in an outline or list
form. Including the facts gives the client the opportunity to correct you if any of the facts
are wrong. Even a minor factual change such as a change in a date or dollar amount can
cause an opinion to be incorrect. Thus, include the facts so the reader understands that the
accuracy of the opinion depends upon these facts and that changes in the facts may cause
changes in the legal conclusions reached. Consider introducing the facts as follows:

• You have informed us that you entered into a written lease on August 18, 2016 . . .
.
• As we understand them, the facts are as follows: On June 24, 2016, while traveling
west on Ash Street . . . .

(4) Conclusions
The essence of an opinion letter is the advice given to the client. Clients are particularly
eager to get to the “bottom line,” and many writers immediately give their opinion or
conclusion after a recitation of the facts, and then follow the conclusion with an
explanation. This is an effective technique if the opinion you give is one the client wants to
hear. If, on the other hand, you will be giving the client bad news, such as informing him
or her that a lawsuit cannot be initiated because the statute of limitations has expired, you
may want to lead the reader to this unfavorable news gradually. By explaining the law first
you will be preparing the reader for the unfavorable outcome, so by the time you actually
give the bad news, the reader understands exactly why the outcome is unfavorable.
Consider introducing the conclusion as follows:

• Based upon the facts you have provided us and the applicable law in this state, it is
our opinion that you may initiate an action for wrongful death against Timothy
Adams.
• We have concluded that you may bring an action for wrongful death against
Timothy Adams. Our conclusion is based upon the facts set forth above and our
analysis of the law in this state.

You may have observed that many opinion letters use “we” and “our” rather than “I”
and “my.” For example, an opinion is often introduced as follows: “It is our opinion” or
“Based on our interpretation of the contract, our advice is . . . .” This use of “we/I” is a
matter of preference by attorneys. Some attorneys believe it is cowardly to hide behind the
royal “we” and insist on using the first person “I/me” as in “It is therefore my opinion . . .
.” Many attorneys and law firms believe the opinion is actually issued by the firm itself

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rather than by any one particular attorney and thus the “we/our” form is appropriate. You
must learn the preference and policy of your supervisor and firm to determine which form
to use.

(5) Explanation of Conclusion

This portion of the letter explains and summarizes the law upon which your
conclusions are based. Because most opinion letters are received by laypersons who may not
be familiar with the law, avoid detailed discussions of statutes and cases. It is sufficient to
summarize the legal authorities in a general fashion.
Should you include citations to cases and statutes? Generally, avoid giving citations
unless your reader is sufficiently sophisticated to understand the citations. Similarly, do not
merely set out the text of a statute or case; rather, explain what the case or statute means.
Refer to the legal authorities as follows:

• Applicable case law provides . . . .

• We have researched the pertinent statute that governs this issue. It provides . . . .
• The legal authorities in this state are in agreement that . . . .

You may use headings and subheadings (such as “Fraud”) if this portion of the letter is
long, and you can divide your explanation into easily understood separate sections.

(6) Recommendation
After you have explained the law that governs the conclusion you have reached, provide
a recommendation to the client. Be sure that your recommendation is not unduly
optimistic. Never inform a client that he or she will recover a substantial amount of money
or that he or she “cannot lose,” because you will seldom be able to deliver as promised.
Phrase your advice as a probability rather than a certainty. Thus, write, “we believe that a
court may hold that,” rather than “your claim is undoubtedly valid.” Do not include any
language that could be viewed by a client as a guarantee of success. Similarly, if you need to
give the client bad news, try to soften your approach by writing, “Success is extremely
unlikely” or “The chances of a favorable outcome are remote at best,” rather than a blunt
“We will not represent you in this meritless case.” Be sure, however, that you clearly deliver
the bad news. Don’t soften your approach so much that you haven’t accurately conveyed
your meaning. Readers often perceive what they want to, and there is no place for
ambiguity in delivering unfavorable news to a client. If you must give bad news, try to find
an alternative avenue for the client, as follows:

Because the statute of limitations has expired, you will not be able to bring an action against your neighbor for
trespass. We would suggest, however, that you attempt to negotiate directly with your neighbor. If this approach is
unsuccessful, contact the company that issued your homeowners insurance because it may afford coverage for the
damage to your property.

619
Use wording such as “we regret” or “unfortunately” when delivering bad news.

(7) Instructions
The last portion of an opinion letter should be a clear direction to the client to contact
the office or take some other action. Consider the following:

Because the statutes governing this matter require that a claim be submitted to the city within 100 days of the
wrongful act, please contact us immediately and provide us with your instructions. Failure to file the claim by May
10, 2016, will bar any action against the city.

(8) Protection Clauses

On occasion, you may not have all of the information you need to provide a complete
opinion. For example, the client may have informed you that he is a tenant under a written
lease and yet has not provided the lease to your office for your review. In such cases, protect
yourself by explaining that you lack certain information and that the opinion may change
depending upon the information you receive. Similarly, if certiorari has been granted for an
authority you rely on, explain this to the reader so if the case you rely on is reversed or
limited, the client will have been forewarned. Finally, think ahead and consider what
defenses or arguments the other party may assert. Prepare your client to meet these
arguments.
Consider the following examples:

• This opinion is based upon the facts you have provided us. Once we have had an
opportunity to review the addendum to the lease entered into between you and
your landlord, we will be better able to provide you with our opinion and analysis.
Assuming the addendum does not materially alter the original lease, however, it is
our opinion . . . .
• The landmark case in this area of the law is presently being reheard by the
California Supreme Court. An adverse opinion by the court could affect the
conclusions in this letter. We will continue to monitor this case and notify you
once the court has issued its decision.
• Although your employer may argue his business is not subject to the provisions of
the Family and Medical Leave Act, we believe such an argument is without merit
because . . . .

B. Conclusion

Always write your letter with its intended audience in mind and clearly understand your
goals in sending the letter. Do you want to inform? Convince? Settle? This will help you
achieve the correct style and tone.
After you have finished the letter, reread it, putting yourself in the recipient’s place.

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This will allow you to focus on whether the letter conveys the information it needs to,
whether it will be readily understood by the reader, and whether the tone is appropriate.
Because you will have the opportunity to review correspondence from others, keep
copies of those that you feel are well written, and adopt the techniques you believe make
the letters effective. Notice the way others order their paragraphs or conclude their letters.
Learn from others.

Internet Resources

Assignment for Chapter 16

You have been given the following fact pattern by Stephanie Wilton, one of the senior
partners in your law firm.
The firm represents Allan Wright. Three months ago, Allan’s neighbor, Katherine
Olsen, transferred (by written agreement) all of her interest in a general partnership to
Allan. Allan paid a significant amount of money to Katherine for this transfer. The
partnership, TechTronics Company, was organized in our state and had four original
members, including Katherine. Although the partnership has a written agreement, it is
silent on a number of issues, including the rights of transferees of partnership interests.
Allan attended a partnership meeting last week and was startled to be told by the
managing partner, “You have no rights to attend meetings or manage this partnership. Your
only rights are to receive Katherine’s share of profits.”
Ms. Wilton would like you to prepare an opinion letter (for her signature) to Allan,
explaining what his rights are in TechTronics.
By way of background, the Uniform Partnership Act includes provisions relating to
transfers of partnership interests. The Uniform Partnership Act is part of the Uniform
Business Organizations Code (see Article 3). Our state has adopted the Uniform Business

621
Organizations Code in its entirety. The Code is available on the website of the National
Conference of Commissioners on Uniform State Laws at http://www.uniformlaws.org.
Assume there are no cases interpreting the applicable provisions of the Act.

Internet Assignment for Chapter 16

1. Access the site https://www.irmi.com/articles/expert-commentary/a-few-tips-on-

writing-to-opposing-attorneys and read the article by Gary Blake on writing letters
to opposing attorneys. Review the “Mistakes and Analysis” section. What four
comments are given to help you spot pitfalls in your own letters?
2. Access the site
http://www.michbar.org/file/generalinfo/plainenglish/pdfs/02_june.pdf and read
the article about writing client letters. What are the three general pieces of advice
given in this article?

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 Chapter 17

Legal Memoranda
[W]riting is the action of thinking, just as drawing is the action of seeing . . . .

Brenda Ueland (1939)

A. Introduction
B. Format of Memoranda
C. A Blueprint for Preparing a Memorandum

Chapter Overview
An office or legal memorandum is a well-known document in legal writing. It calls for you
to research an area of law thoroughly and set forth your findings, both positive and
negative, in a specific format.
It is only by being completely knowledgeable about the strengths and weaknesses of a
case that a law firm can make a fully informed decision whether and how best to

• represent the client

• prepare pleadings and motions
• settle the case
• proceed to trial
• appeal an adverse decision

Thus, office memoranda or “memos” are used to guide those representing the client in
every aspect of a case — from the initial decision whether to accept a case to a final appeal.
If the law firm knows in advance the weaknesses of a case, it can adopt certain strategies to
overcome these weaknesses, and prepare the client for a possible negative outcome. If the
memo shows the weaknesses are fatal, the memo saves the client time and money that
would be expended in a trial and assists in making a decision to settle the case. A well-
written memo can form the basis for motions to be made later in the case or even a trial or
appellate brief. Thus, skillful research and careful analysis at this early stage of a case will
contribute to the successful management of a case throughout its progress in your office.
Paralegals frequently prepare legal memoranda, and your employer will expect you to
be familiar with the purpose, style, and format of an office memorandum. Preparing and
writing a memorandum is often a challenging and satisfying task because it calls for you to
integrate both your research and writing skills and to present them in such a way that a
reader has a complete and objective “snapshot” of the case, including both its strengths and
its weaknesses.

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 A. Introduction

An office memorandum is a research document designed to provide information about a

case or matter. You will be asked to research a question, and your answer will be provided
in the form of a written memorandum. It is an internal document, meaning it is prepared
for use within a law firm, corporation, or agency. Although a copy of the memo may be
provided to a client, it is generally protected by the “work product” privilege and thus is
not discoverable by an adverse party.
Because the office memo is not usually discoverable and will be read only by those
representing the client (and possibly the client as well), its distinguishing feature is its
objectivity. It should set forth not only the strong points of a case but the weak points as
well.
On occasion, attorneys request more persuasive memoranda, which then avoid
objectivity and argue persuasively for a certain position. These memoranda are often
prepared in advance of some hearing or motion in court and are thus more similar to trial
court briefs (discussed in Chapter 18) than the traditional memoranda discussed in this
chapter.
Focus on the following three guidelines for effective memoranda writing:

1. Be Objective
The most difficult part of writing a memo is remaining neutral and objective. Once we hear
the words “our client,” we immediately tend to ally ourselves with the client’s position and
ignore the negative aspects of a case while focusing only on the positive. Moreover, phrases
such as “I believe” or “I feel” have no place in a memorandum. You should be informing
the reader of the findings of the authorities you have located, not interjecting your opinions
and judgments.
If you are not objective in pointing out weaknesses and flaws in the client’s case, you do
the client a disservice. It is much better (and far less costly) to determine early in the
representation that the other party has a complete defense to your client’s action than to
find this out at trial.
Force yourself to play devil’s advocate. Approach the project as your adversary might
and closely examine the cases that appear unfavorable to your position. Your adversary will
certainly do so, and you should be as prepared as possible to overcome weaknesses in your
case.

2. Be Specific

If you are asked to determine whether a tenant may sublease rented property when the lease
fails to address such an issue, focus on this specific question. You need not address the issue
as if you were writing a text on the history of landlord-tenant problems from the feudal
period to the present. If, during the course of your research, you come across other issues

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that you believe may be relevant, simply note them and include them in a section at the
end of the memo entitled “Additional Research” or “Recommendations.”

3. Be Complete

The supervisor who assigned you the task wants a finished project, not a sheaf of notes or
series of printed cases. Anyone can locate cases and photocopy or print them. Your task is
to read and analyze these cases, apply them to the facts of the client’s case, and present this
as a finished professional research memorandum. Put yourself in your supervisor’s place and
consider what you would need to know to understand fully the client’s case. Assume the
supervisor expects a final, polished product that will need no additional work.

B. Format of Memoranda

Unlike documents filed in court, there is no one rigid format for an internal office
memorandum. Some law firms have developed their own formats, and you may wish to ask
to review memos previously prepared because these will serve as a guide for you. If you
cannot locate a previous memo, use the format suggested below, which is a very common
and standard format.
There are usually either six or seven components to an office memorandum, each of
which should be identified by a capitalized heading that is centered or in some other way
set off from the narrative portion of the memo. In large part, the elements of a
memorandum are similar to those of a case brief, discussed in Chapter 4. See Figure 17-1.

1. Heading

The heading identifies the document, the person for whom the memo is prepared, the
person who prepared the memo, his or her position, the subject matter of the memo, and
the date it is prepared. The subject matter of the memo (found in the “Re:” line) should
include a brief statement of the topic of the memo as well as a file name and number. Thus,
a topic description such as “Injunctive Relief” will help facilitate indexing and later retrieval
of the memo. Include also your office’s file number. See Figure 17-2.

Figure 17-1
Elements of a Typical Memorandum

MEMORANDUM
To:

From:

Re:

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Date:

––––––––––––––––––––––––––––

ISSUES
1.
2.
BRIEF ANSWERS
1.
2.
STATEMENT OF FACTS
ANALYSIS
1.
2.
CONCLUSION

Figure 17-2
Sample Heading for Memo

MEMORANDUM

To: Michael T. Gregory, Esq.

From: David H. Hendrix, Paralegal
Re: Smith v. Jones

Our Ref.: 94061

Sublease of Rented Property

Date: July 15, 2016

2. Issue(s) or Question(s) Presented

This section of the memo sets forth the issues that will be addressed by the memo. In some
memos, only one issue will be discussed. Other memos may address several issues or
questions. If your memo will discuss more than one issue, number each one. Do not
number a single issue. Drafting the issues can be very difficult. In fact, you may not be able
to formulate the issues until you are almost finished researching the law to be discussed in
the memo.
The issues are normally set forth in a question format. They are usually one sentence,
although they may include subparts. Be careful that a one-sentence issue is not so long as to
be confusing. The issues should be phrased so that they relate to the particular fact the

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problem presented. For example, questions such as “What is a sublease?” or “What are a
landlord’s duties?” are far too broad. Incorporate a few facts from your case. Consider the
following:

• Under Massachusetts law, may a tenant sublease rented property when a written
lease fails to address this issue?
• Under Illinois law, does a landlord have a duty to disclose to tenants information
about crimes that have occurred on the premises?

Some writers prefer the issues or questions to start with the word “whether,” as in
“whether a tenant may sublease rented property when a written lease fails to address this
topic.” Because questions that begin with the word “whether” result in incomplete
sentences, many attorneys disfavor this form. Whichever format you choose, be consistent,
and use the same format for all questions.
The questions presented should be phrased in a neutral manner so that an answer is not
suggested by the question itself. If you have more than one issue, consider listing the most
critical issue first. It is possible that addressing the threshold issue first will cause later issues
to be rendered moot. For example, if you first determine there is no breach of contract, any
later discussion of damages for breach of contract is unnecessary.

Practice Tip
Drafting Your Issues

If you have trouble drafting your issues, wait until your memo is complete and then convert the conclusion
you reached into a question.

Example of conclusion: The copyright in works created by employees during the scope of their employment is
presumptively owned by their employers.

Example of issue: Does an employer or employee own the copyright in works created by employees during the
scope of their employment?

3. Brief Answer(s)

This section of the memo sets forth brief answers to the issues you presented together with
the reasons therefor. Try to avoid answers that merely repeat the question in a declarative
sentence. For example, statements such as “Subleases are common arrangements” or “A
landlord has duties to tenants” are hardly helpful to a reader.
Much better answers would be as follows: “A tenant may sublease property rented from
another unless there is an unequivocal written lease provision forbidding subleasing” or
“Inherent in a landlord’s duty to provide habitable premises is a duty to inform tenants of
crimes that have occurred at the leased premises.” Avoid answers that merely respond “yes,”
“no,” or “maybe.” Your answers should incorporate the reason for your conclusions.

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 Keep your answers brief — no more than one or two sentences. Do not include formal
citations in the brief answers. This section of the memo is only a quick preview of what will
be discussed in greater detail later in the body of the memo.
Maintain symmetry in your brief answers. If you have set forth three issues, you must
have three answers, each of which corresponds in order and number to the questions
previously asked. See Figure 17-3 for sample issues and brief answers.

Figure 17-3
Sample Issues and Brief Answers

Issues
1. Under New Jersey law, may a written contract be rescinded due to one party’s
fraud?
2. Under New Jersey law, can a failure to comply with the terms of a consent
agreement entered in court be the basis for contempt?

Brief Answers
1. Yes. A contract may be rescinded if one party procured the contract through fraud
and the other party was misled thereby.
2. Yes. Failure to obey any order of a court, even one based upon the consent of the
parties, is contempt of court.

4. Statement of Facts

The statement of facts may precede the issues or follow the brief answers. Either approach
is acceptable. Some readers prefer the facts to be given first so they can make sense of the
questions the memo will address. Most writers, however, place the statement of facts after
the brief answers.
The statement of facts will be based upon what you know about the case, what your
supervisor and client have told you, and your review of the file. In brief, you are telling the
client’s “story.” The factual statement must be neutral and objective. Therefore, you will
need to include even unfavorable facts. Do not allow your opinions about the case to color
your presentation of facts. For example, the statement “He endured four years of
employment by Smith” includes an opinion or judgment. State, “He was employed by
Smith for four years.”
Do not include arguments in your memo or conclusions that are not supported by the
file. If you are unsure whether a statement or event is true, refer to it as an “alleged”
statement or event. If there is a dispute as to the facts, include both versions. It is perfectly
acceptable to state, “Although the tenant alleges she provided notice to the landlord of the
leaky roof, the landlord disputes this.”
Although only relevant facts should be included, the factual statement should be
thorough. Do not omit certain facts on the assumption that “surely the attorney who gave

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me this project knows the facts.” It is possible a new paralegal or attorney may be assigned
to the case, and your memo may be the first source consulted to become familiar with the
case. Therefore, the statement of facts should be self-contained and not require reference to
other sources, such as pleadings or correspondence. To eliminate unnecessary facts, reread
your statement of facts after you have completed your first draft of the memo. If the
statement of facts includes facts that are not later mentioned in the analysis or discussion
section, those facts can probably be omitted.
The best presentation of a factual statement is narrative, that is, sentence after sentence,
paragraph after paragraph, written in the third person. Presentations of facts in outline
form, for example, in separate bullets or numbered sentences, appear choppy and rigid. Use
the past tense to narrate your facts unless facts are developing as you prepare the memo.
Finally, although other approaches are acceptable, the most typical approach is to present a
statement of facts in chronological order. In other words, relate the facts in the order in
which they occurred.
At this point, you probably realize that a legal memorandum is unlike any document
you have yet prepared. The presentation of questions, followed by answers, followed by
facts, is indeed unusual. Remember, however, that your final project will include these
critical elements on the first page, allowing your reader to review only a portion of the
memo and yet comprehend a total view of the case. These three elements provide a
snapshot of the essence of the client’s situation. The critical questions in the case are
enumerated, answers to these questions are provided, and an overview of the facts is given.
Simply by reading these first three sections, the reader will know the strengths and
weaknesses of the client’s position.

5. Applicable Statutes (Optional)

Some memos include a section describing or setting forth any applicable statutory
provisions that will be discussed in the memo. This section is optional and need not be
included. If you include applicable statutes, you may either paraphrase the statutes or quote
from them. If the statute is short, set it out in full. If the statute is long, set forth the
pertinent parts and consider attaching a copy to the completed memo. Provide citations to
any statutes in Bluebook form.

6. Analysis or Discussion

The heart of the memorandum is the analysis, or discussion, section. This portion of the
memo provides an in-depth analysis of the issues presented. Cases, statutes, and other
authorities will be presented and discussed. Citations typically appear in the body of the
memorandum, not as footnotes. See Chapter 18 for additional information on footnotes.
Citations should be prepared according to Bluebook form unless local or other form is used.
Keep in mind the critical distinction between primary and secondary sources: Primary
sources are mandatory and binding authorities, which must be followed, while secondary
authorities are persuasive at best. Thus, do not rely exclusively on secondary authorities

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unless there are no relevant primary authorities.
There are several things to keep in mind as you write the analysis section of your
memo.
Using thesis statements. Many writing experts suggest that authors use a thesis
statement when writing projects. A thesis statement distills the central ideas and arguments
in your project into one or two assertive sentences. A thesis statement usually appears at the
beginning of a project or issue to give focus and direction to the analysis to follow.
Sometimes a thesis statement is called an umbrella statement because every part of the
discussion to follow must fit beneath it. Thus, later sentences in the paragraph merely
elaborate upon the point made by the thesis statement; they do not introduce new material.
A thesis statement is not the same as a topic sentence. It is far more assertive than a topic
sentence, which generally merely announces the subject matter or theme of a paragraph to
follow; a thesis statement, on the other hand, provides a specific conclusion. Consider the
following thesis statements:

• To state a cause of action for false advertising, the plaintiff must show that a
statement is either literally false or implicitly untrue in that the statement is likely
to deceive consumers.
• To be enforceable, a noncompetition agreement must be reasonable as to its scope,
duration, and geographic area.

A topic sentence, on the other hand, might read “This Memorandum will discuss
enforceability of noncompetition agreements.” You can see that a thesis statement is a
strong, conclusory assertion and that it serves to frame the discussion to follow. For
example, using the second illustration given above, after providing the thesis statement, the
writer would then proceed to discuss the scope, duration, and geographic area of the
noncompetition agreement in his or her case. The thesis statement thus provides the
applicable rule and a preview of the analysis to follow. Thesis statements are discussed
further in Chapter 18.
Using the cases. It is not enough to merely locate authorities and summarize them.
Almost anyone can read a case and then restate its holding. You will be expected to do
more: to analyze the authorities and discuss how and why they relate to your particular
problem. This requires you to interweave and compare the facts of your case with the
authorities you rely upon. If the client’s particular situation can be distinguished from the
situation in the case law, say so. Explain why cases apply and why they do not. Be sure to
give some of the facts of the cases you rely on so readers can see how and why they apply to
your issue. One warning sign that you are merely providing case summaries rather than
analysis is that each paragraph in your memo discusses a single case. If you find this
happening, restructure the memo to ensure the cases you rely upon are being analyzed and
compared with the client’s fact situation rather than merely being summarized. Avoid
mentioning a case unless you discuss it at least briefly by explaining how and why it applies
to the client’s issue.

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 This section of the memo will require all your effort to remain objective. Thoroughly
discuss not only the authorities that support the client’s position, but also those that do not.
If you find weaknesses in a client’s case, continue researching to determine if there are ways
to surmount them. If new issues are disclosed by your research, discuss them. Typically,
memo writers discuss the cases and authorities that support the client’s position before
discussing those that are unsupportive. Once all authorities are discussed for an issue, move
on to the next issue.
If a direct quotation is particularly apt, use it. Be careful, however, to ensure that your
analysis consists of more than a series of quotations. It is easy to read a case and then retype
what the judge has stated. Use quotations, but make sure you explain their relevance to
your research problem.
Ensuring readability. Retain symmetry in your memo. If you have identified three
issues and provided three brief answers, divide your discussion into three parts, each of
which corresponds in number and order to the issues you formulated. Each section should
be labeled with a descriptive heading. Brief headings, such as “Elements of Contract,”
“Fraud,” and “Damages,” are acceptable and clearly alert the reader as to the topic to be
addressed. If desired, you may repeat your issues as headings, although this will add to the
length of your brief. Use subheadings if these would be helpful to a reader.
Be sure your discussion is readable. If every paragraph starts with a phrase such as “In
Smith v. Jones . . . the court held . . . ,” your finished project will have a choppy, stodgy
style and appearance. The most important part of the memorandum is not a dull recitation
of facts and holdings of several cases, but rather your analysis of the effect these cases and
other authorities will have on the client’s particular situation.
Most effective discussions contain the following three elements:

• A discussion of the relevant authorities;

• An analysis and comparison of these authorities to the client’s issues and facts; and
• A conclusion as to the effect of the authorities as they relate to the client’s problem.

In many instances, although writing style and techniques should vary to enhance
readability, the analysis can be reduced to the following basic format for each separate issue:

According to . . . [citations], the law is . . . [explain and discuss]. In the present case, . . . [compare with
authorities]. Therefore, . . . [conclude].

Analyzing using the IRAC method. In discussing and analyzing authorities, many
writers follow what is referred to as the “IRAC” method. “IRAC” is an acronym for Issue,
Rule, Analysis or Application, and Conclusion. Many writers, whether writing memos,
letters, or briefs for courts, use the IRAC approach in discussing a legal problem.
First, the issue being considered is presented. Introduce the question or topic you will
be analyzing. In a memo, the issue is originally set forth in the form of a question, such as
“Does the Uniform Partnership Act govern a partnership that has no partnership

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agreement?” In the discussion section, the issue is often rephrased in the following form:
“The key issue is whether the Uniform Partnership Act governs a partnership that has no
written agreement.” This serves to frame the discussion that will follow.
Next, provide the rule or legal authority that you rely upon to respond to the issue. The
authority can be a case, a statute, or some other primary or secondary authority or
authorities. If you rely on a case, give sufficient facts from the case that the reader will
understand why and how it governs your case. If your rule is a statute, set forth the
applicable provisions. Several authorities may be used. In fact, you should have at least one
primary authority for every conclusion you reach. Complex matters will require citation of
more authorities, including secondary authorities.
The most critical part of an IRAC discussion is the analysis or application of the rule to
your case. Explain why the rule you have set forth does or does not apply to your particular
case. Do more than merely summarize a case or statute. Summarizing should have taken
place when you set forth the rule. Analyzing requires you to compare and contrast the facts
of your case with those in the case you rely upon or to review a statute and show the reader
why your client’s situation falls within (or without) the activity described by the statute.
Apply the reasoning of the case or other legal authorities to your case.
Finally, after a thorough analysis, present the reader with a conclusion based upon your
analysis of the rule. If the rule has been set forth clearly and the analysis is complete, the
reader will likely be able to draw a conclusion even in advance of your stating it.
Nevertheless, presenting a conclusion wraps up your analysis and serves as reinforcement of
prior discussion as well as a signal that discussion of a particular topic is complete and that
a new topic will likely be presented next, once again using the IRAC method. Readers need
closure on one issue before tackling the next.
Many beginning researchers are reluctant to draw a conclusion. They simply summarize
applicable cases and then move on to the next topic. You will need to synthesize the
authorities you discuss by comparing and contrasting them to each other and then applying
them to the client’s particular case to reach a conclusion. For example, after discussing the
authorities relating to sexual harassment in the workplace, you could conclude by writing,
“Because the authorities are in agreement that the conduct an employee complains of must
be severe to constitute harassment, it is highly unlikely that a court would find a single
passing remark such as the one made to our client to be actionable.” See Figure 17-4 for an
example of an IRAC discussion.

Figure 17-4
Sample IRAC Discussion

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 Following the IRAC approach to discussing problems helps ensure that you conduct a
thorough analysis of an issue and is a commonly accepted writing approach in legal
documents and exam writing.
Variations on the IRAC method. Some experts suggest a variation of IRAC, often
called “CRAC” (for Conclusion, Rule, Application, and Conclusion). In this analysis, the
conclusion is given first, followed by the principal rule of law that supports the conclusion.
The rule is applied and illustrated through analysis of cases and other authorities. The rule
is then applied to the client’s particular case, and the conclusion is restated. Another variant
of IRAC is “CREAC” (for Conclusion, Rule, Explanation, Application, and Conclusion), in
which the rule is explained after it is given.
Some writing experts dislike constructs such as IRAC and CRAC because they believe
these methods encourage a rigid and formulaic approach to writing. Others believe that
IRAC is more useful for writing objective projects such as legal memoranda (because it
requires the writer to state the issue in a neutral manner) and that CRAC (with its assertive
conclusion given at the beginning) is more useful in persuasive writings, such as court
briefs. Still others believe that IRAC and its variations are better suited to school
examinations rather than memos and other documents. In any event, IRAC and its
variations may be useful tools to help you remember to include critical elements when you
analyze a legal problem.
Being concise. If you are concerned that your memorandum is too long, challenge
yourself to write an “e-mail memo,” which is an abridgement of a traditional memo to a
length that would be acceptable if included in an e-mail message that a recipient could read
on an iPhone or similar device without endlessly scrolling down the screen. In fact,
attorneys frequently request legal analysis of an issue while they are traveling or in another
office. The response to this request must convey the analysis clearly and succinctly and in a
format suitable for reading on a small screen.

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 Practice Tip
Using Quotations and Paraphrasing

Many beginning writers wonder when to use direct quotations and when to paraphrase. Consider the
following guidelines:

• Use a direct quotation when what has been said is so articulate and apt that to paraphrase it would dilute its
meaning.
• Use a direct quotation when the author of the quotation is so well known that a quotation from this person
would provide instant credibility.
• Avoid overlong quotations.
• Avoid overuse of block quotations. Some readers skip them.
• Use quotations sparingly so that they grab the reader’s attention and interest.
• Paraphrase when the original quotation is difficult to understand or would require so much restructuring (for
example, with ellipses and brackets) that it would be distracting to the reader.
• Always provide a full citation, with a pinpoint cite, for every quotation and paraphrase in your document.

7. Conclusion
The conclusion should be brief and should be a highlight of the conclusions you reached
earlier in the discussion or analysis section of the memo. In many ways, the conclusion will
resemble your brief answers, although it tends to provide more information than the brief
answers do. Do not include formal citations in your conclusion. Simply sum up your
analysis. You need not divide the conclusion into numbered sections as you did your
questions and brief answers. The conclusion should not present any material that has not
previously appeared in the body of the memo.
It is possible that during the course of your research you determine that certain
information is needed or that a certain course of action should be followed, such as locating
witnesses or propounding interrogatories to the adverse party. You may include these
recommendations as part of your conclusion, or you may prefer to create a new section
titled “Recommendations.” Similarly, if certain issues have not been discussed, identify
those excluded issues. In some instances, tables, photographs, or copies of cases or statutes
will be attached to the memorandum in a separate appendix. If your memo is unusually
long, you may wish to add a table of contents to help the reader. See Appendix B for a
sample memorandum.

Ethics Alert
Being Objective

The duty of competent representation owed to clients requires that clients be fully informed of both the
strengths and weaknesses of their cases. Legal memoranda must thus be neutral and objective and must fully
analyze cases and other authorities that may be adverse to a client so the client and counsel may jointly make
decisions pertinent to the case. Counsel may not bring or file frivolous actions and can be sanctioned for
doing so. Fed. R. Civ. P. 11. Thus, you are ethically bound to research all matters relating to a client’s case,

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 even unfavorable authorities.

C. A Blueprint for Preparing a Memorandum

Although legal professionals will invariably adopt individual approaches in preparing a legal
memorandum, there are several steps you can follow to ensure you provide a thoughtful,
complete, and objective analysis of a client’s case. The process usually begins with an
assignment from your supervising attorney. The assignment may be written but will usually
be given to you orally. Take careful notes, ask when the memo is due, and whether it will
be sent to the client. Do not be reluctant to go back to the attorney if you later discover
you need additional facts or information. Take the following steps:

1. Consider whether the issue is governed by federal law or state law. Next, consider
whether it is a matter more likely to be covered by statutory law or case law.
2. Draft a preliminary issue statement based on the information you have. For
example, your initial issue might be written, “Under California law, are
noncompetition agreements entered into by employees valid?”
3. Develop a research plan. If the matter is likely to be covered by statutory law,
review the applicable statutes, and then examine the case annotations following the
text of the statutes. If the matter is likely to be covered by case law, consider starting
with an encyclopedia or reviewing digests to find cases. If you are unfamiliar with
the topic of law, initially consult a treatise or encyclopedia to “get your feet wet.”
Prepare a list of keywords or search terms to use when examining the indexes to the
statutes, encyclopedias, treatises, digests, and other authorities. For example, terms
might include “employment,” “employer-employee,” “noncompetition,” and
“competition.”
4. Conduct research, paying attention to leads to other sources, such as law reviews,
A.L.R. annotations, and Restatements. Take careful notes as you read the authorities
you locate.
5. Shepardize or KeyCite the primary authorities to ensure they are still valid and to
direct you to other authorities on point.
6. Brief the cases you locate if this is helpful to you.
7. Organize your notes, using index cards, notebooks, sheets of paper, or online tools
and resources. Use these to construct a working outline.
8. Begin writing. If you have difficulty getting started, begin with the section that is
easiest to write. In many instances, this will be the statement of facts. Proceed to
other sections, always checking to make sure your writing is balanced and objective.
Consider using the IRAC method (or one of its variants) in the discussion section to
ensure you are analyzing cases rather than merely summarizing them.
9. Revise the memo. Check for content. Make sure each conclusion you have drawn is
supported by legal authority. Review to ensure that the cases you discuss include

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 sufficient facts that the reader will immediately be able to discern why they do or do
not apply to the client’s situation.
10. Edit the memo to eliminate unnecessary material and clarify ambiguous portions.
Proofread to omit spelling and typographical errors. Do a final check of citation
form. Present the finished product to the assigning attorney, along with copies of
cited cases and other authorities. Place a copy in the client’s file, keep a “chron
copy” (a copy placed in a chronological file you maintain showing your work
throughout the year), and place or “save” a copy in the firm’s memo bank, if
applicable. See Figure 17-5.

Figure 17-5
Examples of Elements in a Legal Memo

Tips for Memo Writing

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• Do not use first person pronouns. Avoid statements such as “The next case I found . . .” or “I believe . . . .”
• Use complete Bluebook or appropriate citation form so that if the memo becomes the basis for a document
submitted to court, you will not have to return to the law library or go online to track down cites.
• Some law firms maintain files or “banks” of previously prepared memos. Before beginning a new project,
check the memo bank to see if a memo on your topic has previously been prepared. If no memo bank exists,
offer to establish one. Similarly, check with your colleagues to see if anyone else in your office has prepared a
memo on a similar topic.
• Some attorneys prefer that all cases cited in the memo be photocopied or printed and attached to the memo
for ready reference. Check to see if the individual assigning the memo prefers this practice.
• Gather all documents and materials before you begin to write.
• After you Shepardize or KeyCite, provide your supervisor with copies of cases that negatively affect any cases
cited in the memo so they can be reviewed.
• Save memos you have prepared and others you come across in your own mini-memo bank. You may be
surprised how often you will need to retrieve previously prepared memos to verify certain legal issues or to use
as a starting point for a new project.

Internet Resources

Assignment for Chapter 17:

Legal Memorandum

To: Paralegal
From: Senior Attorney

Our client, Michele Taylor, became engaged to Brian Jackson last year. When Brian
proposed, he presented Michele with a large diamond engagement ring from Tiffany &
Co., worth approximately $20,000. After a six-month engagement, Brian called the

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engagement off, telling Michele that he just wasn’t ready to be married. Brian has asked
Michele for the engagement ring to be returned to him. Michele has refused and has asked
us to determine which party has the right to the ring.
Please prepare a memorandum for me relating to this matter. The memorandum
should be no more than seven pages in length and should be double-spaced. Use current
Bluebook citation form. Our state, Anywhere, has no cases or statutes regarding this issue
(although it is quite progressive with respect to other family law and social issues).
Therefore, do not restrict your research to the law of any one state.

Internet Assignment for Chapter 17

1. Access the site http://www.law.cuny.edu/legal-writing/students/irac-crracc/irac-

crracc-1.html.
a. Why is IRAC the most popular form of organization for writers?
b. What variation of IRAC is discussed? What are its component parts?
2. Access the article on legal memos at
http://www.law.wisc.edu/lrw/small_section_guide_-_memo_writing.docx.
a. Who should you assume the audience is for a memorandum?
b. In organizing your memo and phrasing your issue, what balance should you
try to strike?
c. How should information be organized internally in the memo when
discussing rules or rule components?
d. Review the information on writing style. What two writing features do legal
readers value?
3. Access the site
http://www.csun.edu/~bashforth/098_PDF/ME3_Argument/Thesis/05Sep04Bad%26BetterThes
How does a thesis statement differ from a topic sentence?

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 Chapter 18

Legal Briefs
[W]e must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief.
Hence we have briefing rules.

N/S Corp. v. Liberty Mut. Ins. Co.,

127 F.3d 1145, 1146 (9th Cir. 1997)

A. Introduction
B. Five Tips for Effective Briefs
C. Trial Court Briefs
D. Appellate Briefs
E. Ten Pointers for Effective Brief Writing

Chapter Overview
This chapter will introduce you to documents submitted to court. These documents,
commonly referred to as “briefs,” differ from letters and memoranda in their purpose and
audience. While letters and memoranda are intended primarily to inform and explain,
briefs are intended to persuade judges. The writing techniques used for briefs are therefore
different because each element of a brief must be crafted with its objective in mind: to
persuade a court to rule in a client’s favor.

A. Introduction

Briefs are formal written legal arguments submitted to a court, and they attempt to
persuade a court to rule in favor of a party. Such a brief may be referred to as a
“Memorandum of Law” or “Memorandum of Points and Authorities.” Be careful not to
confuse these court briefs with the internal office memoranda previously discussed.
Similarly, be careful not to confuse the briefs discussed in this chapter with the case briefs
or case summaries discussed in Chapter 4.
The fact that the document submitted to a court is referred to as a “brief” does not
necessarily mean the document is concise. A common joke is that only those in the legal
profession would call a 50-page document a brief!
Briefs are submitted in pending actions and may relate to a variety of issues, including
the following:

• a motion to dismiss a case

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 • a motion to change venue
• a motion to compel a party to answer interrogatories
• a motion for a new trial
• an appeal of a judgment

There are several types of briefs. Most are submitted to trial courts to persuade the
judge to rule a certain way. After a trial is concluded, the losing party may appeal the
judgment and will submit a brief, called an “appellate brief,” to the reviewing or appeals
court. Finally, briefs may be submitted to arbitrators and to administrative agencies or
other government units.
If an office memorandum has been prepared in a case, it may be a good starting point
for a brief because it will contain an analysis and discussion of the authorities pertinent to
the case. Although the memo then may serve as a source of cases and other authorities, the
manner in which these were discussed in the memo and the manner in which these will be
discussed in a brief differ significantly. The style of writing used in a memo is informative
and objective because your function as a memo writer is to explain the law. The style of
writing used in a brief is persuasive because your function as a brief writer is to persuade the
court.
One effective way to learn to write better briefs is to review those of others. A number
of websites offer free access to briefs, including
http://www.legaline.com/freebriefslinks.html, and both Lexis Advance and Westlaw offer
briefs, motions, and pleadings. These collections of briefs enable researchers to locate briefs
on the precise point of law for their own cases.

B. Five Tips for Effective Briefs

There are five critical rules to follow when writing court briefs:

1. Be Persuasive

In some ways, you may find it easier to prepare a brief than a memo. Most writers find it
difficult to maintain the neutral and objective tone required in a memo. It is often easier
and more natural to advocate the client’s position.
Aim at being persuasive throughout every portion of the brief. Even the table of
contents and headings provide an opportunity for you to persuade the court. Consider the
following two headings:

PUNITIVE DAMAGES

DEFENDANT’S FRAUD ENTITLES

PLAINTIFF TO PUNITIVE DAMAGES

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 Although both headings inform the reader that the next topic will deal with punitive
damages, the second one is considerably more forceful. Many writers include a “reason” in
their point headings throughout their briefs. This is an extremely effective technique for
drafting point headings. Consider the following point heading:

PUNITIVE DAMAGES SHOULD BE AWARDED BECAUSE DEFENDANT’S

CONDUCT WAS INTENTIONAL,
WILLFUL, AND RECKLESS

Each point heading should be centered and be assigned a Roman numeral or Arabic
number placed directly above or next to it. Headings may appear in capital letters (although
longer headings presented in all capitals are difficult to read and may be ignored). Use
parallel structure, so if a reader reads only the headings in a brief, the headings provide a
clearly written outline of the argument. Maintain consistency in your headings. Headings
are usually one sentence. Maintain this approach and do not switch between sentences and
phrases. Do not include formal citations in your headings.
If your headings appear as elements in a table of contents, you have another
opportunity to reach the reader. The table of contents will be the first part of the brief to be
viewed. Use this opening as your first attempt to convince the reader to rule in favor of the
client.
To achieve a persuasive tone, remember the techniques discussed in Chapter 15:

• Use active voice;

• Use parallel structure;
• Use strong, forceful, and descriptive words;
• Use sentence structure to achieve strength, placing the strongest part of the
sentence in the dominant clause;
• Use placement to achieve emphasis, placing the strongest parts of your argument in
the beginning and ending of the brief;
• Use repetition, but sparingly, for drama and emphasis; and
• Use positive statements rather than negative statements.

After you have completed the brief, review it carefully to eliminate words such as
“clearly” and “obviously,” which are overused, ineffective, and often insulting words
inexperienced writers believe will persuade a reader. Similarly, omit vague and equivocal
expressions such as “it would seem that” or “apparently,” which have no place in a
document aimed at persuading a reader.
Although accuracy, brevity, and clarity are always essential in legal writing, these
characteristics are mandated by the United States Supreme Court’s rules, which provide as
follows: “The failure of a petitioner to present with accuracy, brevity, and clarity whatever
is essential to ready and adequate understanding of the points requiring consideration is
sufficient reason for the Court to deny a petition [for certiorari].” Sup. Ct. R. 14(4).

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Similarly in In re King, No. 05-56485-C, 2006 WL 581256 (Bankr. W.D. Tex. Feb. 21,
2006), the court stated that it could not determine the substance of the defendant’s legal
argument and therefore denied the defendant’s motion “for being incomprehensible.”

2. Be Concise

Judges and law clerks are almost always overworked. Moreover, judges are often unfamiliar
with the area of law in a brief; they may not be experts in immigration law or civil rights as
your firm or practice group may be. Similarly, law clerks are often inexperienced. Thus, it is
critical for the writer to clearly and concisely explain the law and specifically apply it to the
facts of the case. The reader wants to know only two things: what relief you are requesting
and why you deserve it. Use a thesis statement (see below) at the beginning of your brief to
answer these questions and set the stage for the analysis to follow.

3. Use a Thesis Statement

Recall from Chapter 17 that a thesis statement distills an argument into one or two
assertive and conclusory sentences placed at the beginning of a project or issue. Always use a
thesis statement in brief writing. It is a preview or roadmap for your reader of the argument
and analysis to follow. Remember that legal writing is entirely unlike creative writing:
Readers do not want suspense; rather, they need a conclusion up front to lead them
through your analysis. A thesis statement provides structure to your project and controls
your analysis to follow.
Remember that a thesis statement is far more emphatic than a topic sentence. Consider
the following:

Topic Sentence: This brief addresses the business judgment rule.

Thesis Statement: The business judgment rule protects the corporate directors in this
case because their actions in opposing the hostile takeover were directed to
maximizing shareholder value rather than enriching themselves.

If you find it helpful in crafting your thesis statement, in your first draft use the words
In a nutshell, my client should win because . . . and then delete these unpolished words in
your next draft. Recall that it is possible that you will not be able to finalize your thesis
statement until near the end of your writing when you are certain of your conclusions.
Refining and modifying a thesis statement throughout the writing process is common.
Remember that the thesis statement is also called an umbrella statement because every
point you make thereafter fits under it. Think of your thesis statement as a campaign or ad
slogan. It provides the overarching theme of your document. Every part of your brief must
remind your reader of and advance this theme.
Using a thesis statement will not only guide your reader but also help you retain focus.
As you draft each section of your brief, reread your thesis statement and then test your
analysis against it to ensure that your argument is advanced by and is consistent with your

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thesis statement. See Chapter 17 for more information about thesis statements.

4. Be Honest

Although you need not present the adversary’s argument, you have an ethical duty to be
honest and bring to the court’s attention anything that would assist the court in reaching a
decision. If, in the course of your research, you discover cases that do not support your
position, mention these in a straightforward fashion, and then show the reader why they do
not apply to your situation.
Act on the assumption that your adversary will discover these cases and that if you
introduce these problem areas yourself, you will decrease the effect of the adversary’s
“smoking gun.” Moreover, the integrity shown by an honest and direct discussion of these
issues will carry over to the rest of your argument. Assertions you make in other sections of
the brief will then be likely to be believed and trusted by the reader.
Discussing these authorities does not mean you need to highlight them and make the
adversary’s case for him or her. Use placement in the brief to assist you, and “bury” the
most troublesome parts of your argument in the middle of the discussion. Consider using
passive voice to minimize the impact of these weak spots.

5. Know the Rules

Most courts issue rules relating to briefs filed before them. Some of these rules relate to the
size, color, and quality of the paper used, while others relate to citation form, length of the
document, and the elements required in a brief. Many courts establish maximum page or
word count limits and require that briefs exceeding certain page limits include tables of
contents and authorities. For example, the First Circuit Court of Appeals requires a copy of
all briefs submitted to be on a computer readable disk as well as in hardcopy form, unless
the brief is submitted electronically. Similarly, a newly revised federal rule has reduced the
page allowance for principal briefs from 50 pages to 30 pages. Fed. R. App. P. 32. The
United States Supreme Court rules require electronic versions of all briefs submitted to the
Court. Sup. Ct. R. 25(9). Make sure you have obtained a copy of the court rules and have
thoroughly read them before you prepare your brief because failure to follow the rules may
be fatal to your case. Nearly all courts have posted their rules on the Internet. You can link
to the rules for all federal courts through the website http://www.uscourts.gov. Each state’s
judicial website is given in Table T.1.3 of The Bluebook. Additionally, your law firm may
have a copy of the rules in its law library. If not, contact the court clerk and order a copy of
the rules. Always check the date the rules were issued, and verify that the rules are still
current.

C. Trial Court Briefs

1. Introduction

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Briefs submitted to trial courts are aimed at persuading the judge to rule in a certain way.
These briefs may be accompanied by other documents, such as deposition transcripts,
declarations, or exhibits. They may be written in support of a certain position or in
response or opposition to another party’s argument. On occasion, they are written in
response to a judge’s request for legal argument on a certain issue.
In some jurisdictions this brief is referred to as a Memorandum of Law or
Memorandum of Points and Authorities. Although some jurisdictions have rules relating to
the format, citation form, or length of these trial court briefs, these rules tend to be less
extensive than the rules for appellate briefs.
As in all legal writing, remember your audience. The judge who will read the brief will
be busy and will become frustrated with a lengthy and repetitious document. The other
reader, opposing counsel, will have a hostile attitude toward your brief and will scrutinize
the brief looking for errors and flaws in everything from citation form to Shepardizing and
KeyCiting to the conclusions you draw from your research. Although it is a futile effort to
believe you can persuade opposing counsel, aim at presenting a brief that at least cannot be
attacked by opposing counsel. A sample trial brief is found at Appendix C.

2. Elements of a Trial Brief

The elements of a brief submitted to a trial court will vary to some degree from jurisdiction
to jurisdiction. The following elements are found in most briefs, but you should be sure to
review your local court rules to determine if there is a required format.

a. Caption
Because the brief submitted to the court is a pleading, it must display the “caption” of the
case. The caption identifies the pertinent information about the case: the court, the parties,
the docket number, and the title of the document, such as “Memorandum of Law in
Support of Defendant’s Motion to Change Venue.” Rule 8 of The Bluebook provides
instructions for abbreviations and capitalization in headings and titles of court documents.

b. Introductory Statement
The party submitting the brief typically begins with a brief introductory statement such as
the following: “Defendant Vincent T. Parker respectfully submits the following
Memorandum of Law in support of his Motion to Change Venue.”

c. Statement of Facts
To save the judge the effort of reviewing all of the pleadings submitted in a case to
determine what the case is about, the brief should include a statement of facts. Although
these facts must be accurate, you should strive to present these facts in a manner most
favorable to the client. Use active voice and descriptive words to emphasize facts supporting
your position. Use passive voice and placement of unfavorable facts in less noticeable

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positions to minimize facts that are troublesome. For example, consider the following two
ways of describing a defendant’s experience with the law:

• Defendant’s version: The record discloses prior convictions.

• Prosecution’s version: The Defendant has a long history of serious criminal
conduct and victimization of innocent parties, including three separate convictions
involving violence to women and two additional convictions for assault with a
deadly weapon, specifically, a ten-inch jagged-edge hunting knife.

Most facts are presented in chronological order, though you may depart from this order
and discuss facts by topic if you wish to emphasize certain facts. Present the facts in the
third person and in past tense unless they are still unfolding as you write the brief. Be
careful not to jump the gun and argue your case. This section of the brief should be
devoted solely to facts, namely, events that have occurred, not legal theories and analysis.
Personalize your client by referring to him or her by name (Ms. LaPointe) rather than legal
role (Plaintiff). Although most writers present their statement of facts in a narrative, some
courts require numbered paragraphs, each of which includes a reference to supporting
materials and documents.
Do not overlook the importance of the statement of facts. Because most judges have a
thorough understanding of the law, they may begin forming impressions and drawing
conclusions even as they read the facts. Moreover, at this stage of the brief, the reader is still
enthusiastic and fresh. Do more than merely recite the facts in a dull fashion. Use the
statement of facts to win over your reader.

d. Argument
The argument section of a brief is the heart of the brief. This section contains the analysis
of the legal authorities that support the client’s position and demonstrates why and how
those authorities support the position advocated.
Divide your argument into sections, giving each section a Roman numeral or Arabic
number and a heading, and centering the heading on the page. The headings should be as
persuasive as possible. You may need subheadings. These can consist of short phrases or
even single words. Subheadings are usually preceded by capital letters (A, B, and C).
Citations typically appear in the body of your brief, although footnotes are popular with
some writers.

Practice Tip

Footnotes or Not?

The use of footnotes in legal documents engenders vigorous debate. Footnotes are commonly seen in law
review articles and in legal treatises; however, they are seen less frequently in published cases. There are two
schools of thought on the use of footnotes in legal memos and court briefs. Some experts believe that the
placement of a footnote number at the end of a sentence jars curious readers who are then compelled to glance

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 at the bottom of the page, leaving the narrative discussion in the body of the text. These experts believe that if
the point of a logical argument is to carry the reader through seamlessly from the first sentence to the last,
footnotes detract from this objective. Conversely, if some readers are so disciplined that they ignore the
footnote notations and continue reading the narrative text, of what use are the footnotes? Despite these
criticisms, footnotes continue to be used. Recently, in fact, some writing experts have advocated more
extensive use of footnotes on the basis that citations and extraneous comments clutter arguments and are
better placed at the bottom of a page. Other writers believe, however, that if something is important enough
to be discussed, it should be discussed in the body of the text; if a point is not important enough to be in the
body of the text, it probably doesn’t merit any discussion whatsoever.

With more and more courts allowing or mandating e-filing of court documents, there is a greater chance that
footnotes will not be visible on documents read on a screen at the same time as the part of the argument to
which they refer. Thus, citation expert Professor Peter W. Martin has stated that placing citations in the
narrative (rather than as footnotes) is the only way to ensure that the citations are seen together with the text
to which they refer. Peter W. Martin, If the Judge Will Be Reading My Brief on a Screen, Where Should I Place
My Citations?, Citing Legally (Apr. 8, 2014, 9:35 PM), http://citeblog.access-to-law.com/?p=149. Check your
firm or office policy or practice, but in any event avoid “talking” footnotes (those containing argument or
discussion) and footnotes that “wrap” from one page to the next, or even beyond. Some readers will leave the
narrative discussion, review the footnote that meanders on for several pages, and then simply resume reading
where they are, rather than returning to the page on which the footnote began. Endnotes are seen in other
disciplines but seldom, if ever, in legal documents (although they may be seen in law review articles).

As you discuss cases and other authorities, emphasize the extent to which favorable
cases are similar to the client’s case. In the interest of credibility, point out unfavorable
authorities and then distinguish them from the client’s position by showing why and how
they are different and thus inapplicable. Discuss cases in the past tense because references to
“this case states” or “the plaintiff argues” will be interpreted as references to your brief itself
rather than precedents. Avoid referring to the court by the name of a case. For example,
assume you are discussing the case Horn v. Wagner, 482 U.S. 116 (1988). In discussing this
case, do not write, “The Horn Court held . . . .” Although this approach is common, it is
nonetheless disfavored by some writing experts. The only way a court is referred to is by its
title (“the United States Supreme Court”) or by the name of its chief or presiding judge or
justice (“the Roberts Court”). In fact, the United States Supreme Court’s guidelines for
counsel arguing before the Court state, “Do not refer to an opinion of the Court by saying:
‘In Justice Ginsburg’s opinion.’ You should say: ‘In the Court’s opinion, written by Justice
Ginsburg.’ ” U.S. Sup. Ct., Guide for Counsel 10 (2015),
http://www.supremecourt.gov/casehand/guideforcounsel.pdf.
Review your arsenal of writing tips, and organize your argument so it flows logically.
Consider which techniques make for a strong and persuasive document, and give care to
techniques that allow you to minimize cases unfavorable to the client’s position. Be
definite. Avoid expressions such as “it seems” or “it is likely,” which immediately convey
the message to the reader that the writer is not sure of the position taken.
Avoid any use of the first person. Do not write, “we argue” or “it is my contention.”
Instead use expressions such as “Defendant will show” or “The Company has contended.”
This keeps the focus on the parties, not on you as the writer.
Be sure you have done more than merely summarize a series of cases. Analyze and apply

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the cases and other authorities to the client’s case so the reader can readily see why these
cases mandate the result you advocate. Consider using the CRAC approach or one of its
variants (discussed in Chapter 17) to ensure you thoroughly analyze and discuss each issue.
It is perfectly acceptable to rely upon cases in which a different result was reached than the
one you desire. Simply write, “Although the Court denied injunctive relief in Gray v.
Smith, 508 U.S. 110, 112 (1995), that denial was caused by the plaintiff’s failure to take
prompt action. In the present case, however . . . . Thus, the decision reached in Gray is not
applicable to this case.” Use an assertive thesis statement to give focus to your argument.
Be sure that each section of your argument ends with a strong conclusion before you
move on to the next section or topic.
Although the aim of your document is to persuade, you need not denigrate the
adversary’s position. A logical and well-reasoned argument will command respect. A hostile
and sarcastic diatribe will destroy your credibility and render your brief suspect.

Practice Tip

Responding to an Adversary’s Brief

When you are responding to briefs filed by an adversary, review the authorities cited in his or her brief.
Dissents in cases relied on by your adversary often provide good ammunition for drafting a reply or response
brief.

e. Conclusion
The conclusion should be a very brief recap of the highlights of the argument. Because it is
a summary, no citations should be included. The last sentence of the conclusion should
remind the reader of the relief requested, such as the following: “For the foregoing reasons,
Defendant Vincent T. Parker respectfully requests that the Court grant his Motion for
Change of Venue.”
Many writers use this one-sentence request for relief as their entire conclusion.
Although this is easy for the writer because it eliminates the difficult task of condensing a
complex argument into a readable summary, do not forgo this last opportunity to persuade,
especially because a reader often picks up interest at the end of a project and will thus pay
special attention to the conclusion. The conclusion should be no more than half a page.
Any conclusion longer than this will likely be ignored.

f. Signature and Date

The brief is typically “closed” much like a letter. The favored closing is as follows:

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g. Certificates of Service and Compliance
For all pleadings filed in court you must verify that all parties have received copies. A
certificate of service is placed at the conclusion of a pleading and states that a copy of the
pleading has been served on all parties. The method of service, such as hand delivery,
electronic service, or first class mail, and the date of service must be specified. Many courts
also require that those submitting briefs acknowledge in a separate certificate of compliance
that they have complied with all court rules relating to the format, length, and other
requirements for submissions to the court.

h. Exhibits
You may have attached exhibits to the brief for review by the court. These may consist of
correspondence, transcripts of deposition testimony, answers to interrogatories, affidavits,
or other documents. Each exhibit should be fully described in the brief itself and then
should be appended after the end of the brief and clearly labeled. Do not insert exhibits
into the middle of your argument because they will disrupt the flow of your narrative and
detract from the persuasive nature of your brief. Use tabs to make it easier for the judge to
locate your exhibits. If there are several exhibits, prepare a table of contents for your
exhibits.

i. Order
Many courts require the parties to submit a proposed order with the brief so that if the
judge agrees with a party, an order is ready for the judge’s signature.
Remember these three techniques for effective brief writing:

(i) Be scrupulously accurate in your statement of the facts of the case. Include
unfavorable facts, and resist the temptation to over-emphasize facts in your
favor.
(ii) Focus on your best arguments. If some arguments are “long shots,” do not

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 include them. Inclusion of weak or ludicrous arguments causes readers to
question your credibility.
(iii) Analyze the cases you rely on rather than merely summarizing them.
Describe the cases relied upon, giving sufficient facts so the reader will see
how and why these cases are similar (or dissimilar) to your case. Give the
holding and reasoning from the cited cases. Then compare and contrast the
cases you rely on with the facts of your case. Convince by applying the
holding and reasoning from the cited authorities to your case.

See Appendix C for a sample brief for a trial court.

Ethics Alert
Know the Rules

Always check the court’s rules to ensure that your brief complies with all requirements as to form, contents,
and filing. In a recent case, an appeal brief was filed six minutes late, and the court dismissed the appeal as
untimely. Alva v. Teen Help, 469 F.3d 946 (10th Cir. 2006). Thus, failure to comply with even seemingly
minor court rules and requirements may well be malpractice.

D. Appellate Briefs

1. Introduction

After a trial court decision or other final ruling, the losing party may appeal the decision.
Although the trial court judge who rules on a motion supported by a memorandum of law
may be familiar with the case and the facts presented in a trial brief and may, in fact, have
been assigned to a case from its filing, appellate judges will have no such familiarity with
cases before them. You will thus have to be as articulate and persuasive as possible to
convince the appellate court to rule in a client’s favor. An appellate brief is a formal
document filed with a reviewing court. The appellate brief seeks reversal, affirmance, or
some modification of a lower court’s action. A sample appellate brief is found in Appendix
D.

2. Steps in the Appeal Process

After a judgment is entered in a case, the losing party, usually called the appellant but
sometimes called the petitioner, initiates an appeal by filing a notice of appeal. This serves
to notify the adverse party, called the appellee or occasionally the respondent, that an
appeal has been instituted. This notice of appeal must be timely. In federal court, in a civil
case, the notice of appeal must be filed within 30 days (60 days if the United States is a
party) after the date the judgment is entered by the trial court. Most state courts have
similarly limited time periods for filing the notice of appeal. Failure to timely file the notice

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of appeal is fatal, and usually no relief can be granted from the untimely filing of the notice.
The notice of appeal is usually filed not in the appellate court but with the trial court.
A filing fee is required when the notice of appeal is filed. The appellant then must order
the transcript (or selected portions of it) from the court reporter who transcribed the trial
proceeding because it is this record of the proceedings upon which the appeal is based. The
trial court record also includes all pleadings filed in the case together with all exhibits
entered at the trial.
Rules governing appeal briefs are usually more stringent than rules for any other
documents submitted to courts. Moreover, these rules are rigidly adhered to, and a brief
that is too long or lacks the proper color cover sheet will be rejected. Briefs submitted to
appellate courts may be required to be commercially printed rather than merely word-
processed. Know the rules.
The appellant sets forth his or her grounds for the appeal in a document called the
appellant’s brief or opening brief. The appellee will then prepare and file his or her reply
brief. The appellee’s brief must usually be filed within a specified time period (often 30
days) after the appellant’s brief is filed. Some courts allow the appellant to submit a brief in
response or rebuttal to certain issues raised by the appellee’s brief. In many cases, however,
the appellate court will determine the appeal solely on the basis of the appellant’s brief, the
appellee’s brief, and the record from below. No testimony is received.
The clerk of the appellate court will then schedule oral argument. Each side typically
has only a half-hour to present the oral argument. The appellate judges usually sit as a panel
of three and may ask questions of the parties. Parties should not make the mistake of
believing they will save a persuasive issue for oral argument and omit it from the brief.
Briefs should contain all of the arguments to be presented to the appellate court because a
party may be interrupted by questions from the judges and never have the opportunity to
present a certain issue during oral argument.
After oral argument, the appellate court will take the case under advisement or
submission and will review the briefs and records, reach a decision, and write the appellate
opinion. This may take several months. The parties will then be notified of the decision. If
the losing party believes the appellate court has overlooked something, he or she may
request a rehearing. Requests for rehearings are usually denied.
The losing party may then proceed to the next higher court, if it exists. In most states,
there is an intermediate appellate court, and then the highest state court, usually called the
supreme court. Adverse decisions of the highest court in a state may be appealed to the
United States Supreme Court only if a federal question is at issue. Even then, the United
States Supreme Court may deny certiorari and refuse to take the appeal.
In federal cases, after a party loses a trial in the district court, an appeal is taken to the
appropriate circuit court of appeals. For most litigants, this is the end of the process because
an appeal from the circuit courts of appeal to the United States Supreme Court is
dependent upon issuance of the writ of certiorari by the Court. As you will recall from
reading Chapter 2, issuance of the writ is discretionary with the Court, and the vast
majority of petitions for writs of certiorari are denied. Because appellate work is

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complicated, some firms specialize solely in appellate practice and prepare appeals for cases
tried by other firms.

3. Standards of Appellate Review

The appellant is not entitled to a reversal of the trial court decision simply because he or
she is unhappy with the outcome. The appellant must show that an error of law occurred at
the trial. For purposes of appeal, the appellate court will assume that the facts found at the
trial were true (unless these facts are totally unsupported by the record). Thus, if a jury
determines a defendant was driving at a speed of 70 miles per hour and this caused an
accident injuring a plaintiff, an appellate court cannot substitute its judgment for that of
the jury and determine the defendant’s rate of speed was 45 miles per hour. It may,
however, decide that a prejudicial error of law was committed at the trial and that this
affected the jury’s verdict. Examples of such errors of law include admission of evidence,
such as hearsay, that should have been excluded, errors given in the instructions to the jury,
and exclusion of evidence that should have been admitted.
Even if an error of law occurred at the trial, the appellate court will not reverse the
lower court decision unless this error was clearly erroneous or prejudicial to the appellant.
Many errors can occur in a trial. Harmless errors, however, are not reversible. A prejudicial
error is one that likely affected the outcome of the case. Additionally, appellate courts
review only those errors that were raised at trial. Otherwise, trial judges would not have the
opportunity to correct their own mistakes.
Generally, appellate courts give great weight to the trial court’s conduct of a trial
because the trial court was in the best position to evaluate the credibility of witnesses and to
make “on the spot” determinations. Only if the trial court clearly erred or abused its
discretion will its decisions be reversed.
Because of the difficulty in meeting these strict requirements and because of the high
costs involved, the vast majority of trial court decisions are not appealed.

4. Amicus Curiae Briefs

On occasion, an issue being appealed is of importance not only to the litigants but also to a
wider group of people. The case may involve constitutional issues that will have a
substantial impact on a significant number of individuals. In such cases, these individuals,
companies, or entities who were not parties to the suit may request that the court allow
them to file amicus curiae (“friend of the court”) briefs. Appellate courts have discretion to
accept or reject such requests, though they will permit amicus curiae briefs if they believe
such briefs would be of assistance to the court.

5. Elements of an Appellate Brief

Many of the elements of an appellate brief are the same as the elements of a memorandum
of law or trial brief. In some instances, portions of an earlier memorandum or trial brief

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may be used for the appellate brief. (See Figure 18-1 for a comparison of the elements of
trial court briefs and appellate court briefs.)
Following are the elements typically found in an appellate brief, although, as always,
you should carefully review the rules of the appellate court to which you are submitting the
brief to determine whether there are required rules as to format or elements for the brief.

a. Cover Sheet
The front cover or cover sheet identifies the following information about the case:

• the docket number of the case

• the specific appellate court hearing the appeal
• the names of the appellant and appellee
• the lower court that handled the trial or prior appeal
• the title of the document, such as “Appellant’s Brief”
• the attorneys representing the party submitting the brief

Some courts require the party instituting the appeal to be identified first in the caption.
This often results in a reversal of the plaintiff’s and defendant’s names. For example, if the
original case was Davids v. Stephenson and Stephenson appealed the trial court’s decision,
some courts require that Stephenson’s name be listed first. Due to the confusion caused by
this rule, most courts retain the original listing of the parties, no matter who appeals.
Many courts require that the cover sheet be a certain color. For example, the United
States Supreme Court requires that the appellant’s cover color be light blue, the appellee’s
cover color be light red, and an amicus curiae brief (in support of the petitioner) cover color
be light green. This assists the Justices reading the briefs because they can identify at a
glance whose brief they are reading.

b. Identification of Parties
Unless all of the parties are identified on the cover sheet, a list of all parties to the lower
court proceeding usually must be given, including parent companies and related entities.
This identification statement (often called a “corporate disclosure statement”) allows judges
to review for conflicts and disqualify themselves from cases involving parties they know or
with whom they have financial involvement.

Figure 18-1
Elements of Trial Court Briefs and Appellate Court Briefs

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c. Table of Contents
A table of contents or index, with page references, must be included. Although the primary
purpose of a table of contents is to identify for the reader the location of each element in
the brief, a secondary purpose is to serve as an outline of a party’s contentions. Many
software programs will automatically generate a table of contents.
The table of contents should include all of the headings and subheadings contained in
the brief. These should be phrased as persuasively as possible. Thus, a heading such as
“Trademark Infringement Does Not Require Actual Confusion” is considerably stronger
than the neutral heading “Trademark Infringement.” Headings are usually presented in
uppercase letters. Subheadings appear with initial letters capitalized (or with capitalization
following Bluebook Rule 8) and are usually underlined.
Judges reviewing the table of contents will be able to comprehend quickly the scope of
your argument. If you organize your brief effectively and phrase your headings persuasively,
you are able to make a favorable impression on the judges reviewing the brief even before
the argument is begun.

d. Table of Authorities
An appellate brief must include a list of every primary and secondary authority referred to
in the brief together with an indication of the page(s) on which it appears. Complete
citations in Bluebook form must be given (unless court rules provide otherwise). Reference
the location of all full citations and all short forms.
Authorities should be grouped together so that all cases are listed together
(alphabetically), then all constitutional provisions and statutes (in ascending numerical
order or alphabetically for state statutes), followed by secondary authorities (listed
alphabetically). For cases, include subsequent history but not pinpoints. If several cases
begin with the same name (for example, if the United States is a plaintiff in several actions),
alphabetize by the defendant’s name, so that United States v. Baker appears before United
States v. Coyle. For secondary authorities with author names, alphabetize by the author’s last
name, so that a journal article written by Bethany Adams appears before a journal article

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written by Ann Branson. For additional guidance, review the briefs filed with the United
States Supreme Court on the Court’s website at http://www.supremecourt.gov. The
Bluebook provides no guidance on preparing a table of authorities.
The table of authorities allows readers to identify quickly the location in a brief of a
discussion of a certain case or statute. It may be helpful for a reader to compare the
appellant’s discussion of Smith v. Jones with the appellee’s discussion of this same case. The
table of contents and table of authorities cannot be prepared until the brief is in final form
because it is only then that you will know on which page a certain topic or case is
mentioned.
Paralegals often play a major role in preparing the table of contents and table of
authorities. The task requires painstaking care to ensure you have carefully noted each time
a case is discussed and the exact location of each authority. Moreover, because this task
cannot be undertaken until the brief is completed with no insertions or deletions to cause
changes in pagination, it is often a pressure-filled task done at the eleventh hour.
Many software programs will automatically generate a table of authorities from your
document. The program “reads” your document, locates the cites, sorts them, alphabetizes
them, and then notes where the cites appear in your writing. These programs correct some
common citation errors. Because the programs extract citations from your document, case
citations will undoubtedly appear in both “stand-alone” and “textual sentence” format,
meaning that, depending on your usage and placement of citations, the word “Technology”
may appear as “Tech.” in one case name and as “Technology” in another. Thus, you will
need to do some revising to ensure consistency in appearance. Remember from Chapter 8
that Lexis for Microsoft Office and Thomson Reuters’s Drafting Assistant will both create
tables of authorities. The software program Best Authority (https://www.levitjames.com) is
another popular tool for creating tables of authorities.
Many authors prefer to write out case names in full rather than using abbreviations
such as “Sur.” or “Hosp.” in the table of authorities, although citations in a table are clearly
in stand-alone format. The preference toward using full case names is based upon the fact
that the table will be one of the first pages reviewed by a reader, and the presentation of full
case names is polished and complete.
If your word processor software does not automatically prepare the table of authorities,
use index cards to list each authority and then shuffle them until they are in correct order.
Be sure to note if a case is discussed on more than one page. Carefully review the footnotes
because they may also include citations you will need to include in the table of authorities.
Although most word processors automatically compile a table of contents and a table of
authorities, you should always double-check for accuracy. See Appendix E.

e. Jurisdictional Statement
The appellate brief should include a concise statement of the grounds upon which the
court’s jurisdiction rests, including a reference to the pertinent authority. This jurisdictional
statement simply tells the appellate court which statute allows the appeal.

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 A sample jurisdictional statement would read:

This Court of Appeals for the Eighth Circuit has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1254(1)
(2012).

f. Constitutional and Statutory Provisions

If the case involves constitutional provisions, statutes, ordinances, or regulations, they must
be set forth in full together with their citation in Bluebook or other appropriate form. If the
provisions involved are especially lengthy, you can set forth their pertinent parts.
Alternatively, their citation alone will be sufficient so long as they are set forth verbatim in
an appendix to the brief.

g. Questions Presented
Many courts require the parties to set forth the issues or questions presented for review.
Some writers prefer true question format while others rely on the “whether” format. These
questions are somewhat similar to the questions presented in an office memorandum but
should be drafted in such a persuasive manner that the desired answer is obvious. An
example would be as follows:

Whether the trial court erred in excluding evidence showing the Plaintiff provoked the disagreement between the
parties.

This question includes sufficient facts so the reader understands the issue you intend to
address. It suggests an affirmative answer and is written persuasively from a defendant’s
point of view. The plaintiff’s version of such an issue might read thus:

Whether the trial court properly excluded hearsay evidence relating to Plaintiff’s alleged involvement in the
incident in which Defendant battered her.

List your stronger issues first, and then proceed to address weaker issues.
Although questions in an office memorandum are immediately followed by brief
answers, there is no answer section in an appellate brief because the issues should be
phrased such that a “yes” answer is obvious.

h. Statement of the Case

Next to the argument itself, the statement of the case (often called the statement of facts) is
the most important part of the brief. This statement of the case includes neither argument
nor allegations. The only facts to be included are those that have already been proven at
trial. Thus, each fact you state must be followed by a reference to the location in the record
or clerk’s transcript where such fact was established, as follows:

Defendant Smith was found to be driving at a speed of 70 miles per hour at the time the accident occurred. R. at

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 74.

Although you are restricted solely to facts established at trial, you should still strive to
present these in a persuasive manner.
In most ways, the statement of the case for an appellate brief will parallel the statement
of facts for a brief submitted to a trial court. You must be honest and straightforward.
Establish credibility by being accurate and including all facts, even those unfavorable to the
client’s position. Remember the techniques of passive voice and placement to deemphasize
unfavorable facts.
The facts are best set forth in a narrative rather than outline form because a narrative is
more readable. Present your facts in chronological order in the past tense. Use descriptive
words, verbs, and adjectives to describe favorable fact scenarios. Use parallel structure and
careful repetition for drama and impact.
Do not include argument or legal conclusions in your statement of the case. Thus, do
not state that the defendant “battered” the plaintiff (unless such a legal conclusion is
supported by the record below). You can, however, recite the facts that the defendant
“pushed and shoved” the plaintiff (with a reference to the court record), which will lead the
reader to the logical conclusion that a battery occurred. This section may also include a
brief overview of the case’s procedural history, namely, a review of what happened below
and how the case arrived at this reviewing court.

i. Summary of the Argument

A concise summary of the argument is often included. This is a preview or condensation of
the argument to follow. This is the first section of the brief that allows advocacy, and you
should take advantage of this opportunity to persuade the reader to rule in favor of the
client.
Because judges are so busy, they may only have time to skim the entire argument
quickly. This summary of the argument, then, may be the best opportunity to win the
reader over. Avoid citations in this summary and keep it brief — no more than one page if
possible. A mere recitation of the point headings is not sufficient. Present the summary in a
narrative fashion.

j. Argument
Like the argument in a brief submitted to a trial court, the argument in an appellate brief is
the heart of the document. This section analyzes the authorities and convinces the
reviewing judges to rule in favor of the client.
Divide the brief into separate sections with each section receiving its own point
heading. These point headings should correspond to the questions or issues you set forth
earlier. Work at making your point headings persuasive and relevant to your case. If
possible, discuss topics in the order in which they were presented in the statement of facts.
Compare the following point headings drafted for a plaintiff:

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 A BATTERY IS AN INTENTIONAL AND UNPERMITTED
TOUCHING OF ANOTHER.

DEFENDANT SMITH BATTERED EVELYN WOODALL BY

REPEATEDLY PUSHING HER AND SHOVING HER
TO THE GROUND.

The second point heading is far more likely to grab the reader’s attention and persuade
the reader that Smith is a horrible fellow. This impression is conveyed as follows:

• By the use of a label, the reader is reminded that Smith is the defendant, that is,
“the bad guy”;
• The plaintiff is personalized by the use of her name and a reminder of her gender;
• Smith’s acts are described in vivid detail.

Written from Smith’s perspective, the point heading may read as follows:

BECAUSE PLAINTIFF PROVOKED THE MUTUAL

DISAGREEMENT, DAMAGES FOR BATTERY WERE
IMPROPERLY AWARDED.

This point heading focuses on the plaintiff’s actions rather than the defendant’s and
provides the critical fact to the reader that the plaintiff provoked the incident. Moreover,
the vivid description of the fight is now minimized to a mere “mutual disagreement.”
Remember to ensure your point headings have parallel structure so that, read in sequence,
they provide an outline of the argument.
Use subheadings within your point headings if needed. Although the point headings
should consist of one persuasive sentence, subheadings are often mere phrases consisting of
just a word or short phrase such as “provocation” or “punitive damages.”
Through analysis and discussion of legal authorities, the body of the argument will
demonstrate to the reviewing court the errors of law made by the lower court. Do more
than merely summarize cases you have located. Compare and contrast the authorities with
your particular fact situation so the reader can readily see why the authorities are
controlling. Consider using the CRAC method (or one of its variants, such as CREAC) and
set forth your Conclusion and the Rule that applies; Explain the rule; Analyze and Apply
this rule; and then reiterate the Conclusion. Always analogize and compare the facts in the
cases you cite with the facts before the court. Use a thesis statement (see Chapter 17) to
encapsulate the central argument to follow. In essence, your main point headings serve as
thesis statements because they forcefully preview the argument.
Because your argument will be more credible and respected if you discuss unfavorable
precedents and because the adversary will undoubtedly raise them, acknowledge these
problem areas. Do so, however, only after you have set forth the strongest part of your

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argument and have, perhaps, already gotten the reader “on your side.” Discuss why these
precedents are not applicable. Explain that the fact pattern in the unfavorable case is so
different from the fact pattern in the case being appealed that it cannot serve as precedent;
or you may argue that public policy or public interest favors the result for which you argue.
If the unfavorable case is older, you can challenge it as antiquated or outmoded. Of course,
expect your adversary to characterize it as the landmark or seminal case on the subject. If
there are no legal authorities to support your position, argue that public policy and the
interests of society compel a change in the law.

k. Conclusion
The conclusion of an appellate brief often does not summarize the argument section. This
summary has already been given before the argument. Instead, the conclusion may merely
specify the relief sought, such as requesting that the court affirm or reverse the lower court’s
decision.

l. Signature and Date

The name of the attorney representing the party is set forth after the conclusion together
with an address and telephone number and an identification of the party on whose behalf
the brief is submitted. The document should be dated.

m. Certificates of Service and Compliance

All documents filed with a court must also be served on all other parties in the action. A
certificate of service demonstrates to the court that the brief has been provided to all parties
and specifies the date and manner of such service, such as hand delivery, electronic service,
or first class mail. A certificate of compliance verifies that the document submitted complies
with word or page count limits or other court rules.

n. Appendix
Appellate briefs often include an appendix. This may consist of portions of the transcript,
pleadings, and the judgment from the lower court action, or exhibits entered as evidence in
the trial. When you refer to these materials in your argument, set forth the relevant
portions in the argument and then refer the reader to the appendix, where the entire
document can be found. Do not interrupt the flow of your narrative with pages of
testimony, maps, or graphs. Your aim is to present a logical, persuasive argument.
Insertions of extraneous materials disrupt the argument and distract the reader. Make it
easy for the reader by using exhibit tabs, including a table of contents for the appended
materials, and highlighting relevant material. See Appendix D of this book for a sample
appellate brief.

E. Ten Pointers for Effective

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 Brief Writing

Whether you are submitting a brief to a trial court or to an appellate court, remember the
following ten tips:

1. Know the rules of the court to which the brief will be submitted.
2. Do more than summarize cases. Consider using the IRAC or CRAC methods (or a
variant), and show the reader how and why the cases and other authorities apply to
the client’s situation. Use a strong thesis statement to give direction to the argument
to follow.
3. Write from the client’s perspective. Omit any references to yourself as the writer,
such as “we believe” or “we argue.” The brief is not a forum for your personal
opinion but a logical and persuasive argument. Use the third person, as in “The
Appellant moved . . . .
4. Avoid a rote or routine method of writing. If each paragraph discusses one case and
ends with a citation to that case, the brief will have a rigid appearance and tone.
Variety in the method of analysis of the cases will enhance readability.
5. Avoid string-citing unless there is a definite need to do so. Select the best case
supporting a contention and use that case.
6. Avoid sarcasm, humor, or irony. Although these techniques may provide drama in
oral argument, they are often misinterpreted in written documents. Maintain a
respectful tone toward the court and all parties.
7. Avoid the overuse of quotations. It is often the case that a judge has said something
so articulately and eloquently that you prefer to use a direct quote. Used sparingly,
quotations give force and impact to your writing. Overuse of quotations, however,
dilutes their strength. Anyone can retype language found in a case. Do more:
Analyze why this language applies to the case at hand.
8. Keep the focus on your argument. If you spend too much time refuting the
opponent’s position you will shift the focus of the brief from the client’s point of
view to that of the opponent. Fully argue the client’s position before you respond to
the opposition.
9. Do not distort or overstate your position. If any portion of the brief is not
supported by valid authority, the entire brief is undermined.
10. Use prominent placement to emphasize the strongest arguments. Bury weaker
portions of the argument in the middle of the brief, the middles of paragraphs, and
the subordinate clauses of sentences.

Appellate Brief Dicta

1. The highest number of amicus curiae briefs filed for one United States Supreme Court case is more than 140
(filed in the 2014 term’s marriage equality case). More than 90 percent of all United States Supreme Court cases

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 include at least one amicus brief, often filed by organizations such as the ACLU or AARP.
2. The United States Supreme Court accepted its first brief in CD-ROM form in 1997. Effective October 2007,
the Court requires that all briefs be submitted electronically at the same time they are filed in hard copy.
3. The private company that printed most briefs for the United States Supreme Court ended its hot-metal printing
process and went digital in mid-2000. Printing a brief using the hot-metal process generally took three weeks,
while digital printing enables reproduction of a brief in three days.
4. Supreme Court rules recognize brief writers’ tendency to try to squeeze additional wording into a brief by using a
small typeface and yet still complying with page limits. Thus, effective October 2007, the Court imposed word
count limits on briefs, and clarified that words in footnotes count toward these word limits. Sup. Ct. R. 33.

Internet Resources

Court Brief Exercise for Chapter 18

Our client is Oak Hill Public School District, located in the State of Anywhere. Education
Code section 1442 in the State of Anywhere provides that all school districts in the state
must authorize a period of time during the school day for the recitation of the pledge of
allegiance. It further provides that student participation in the recitation of the pledge is
voluntary; students who do not participate may silently stand or remain seated.
The District was sued in federal court last year by Stephen and Judith Osborn, parents
of two children who attend elementary school in the District. The Osborns are atheists who
contend that the statute violates the First Amendment’s Establishment Clause because the
pledge of allegiance includes the words “under God.”
Please prepare a brief (or memorandum of law) in support of a motion for summary
judgment that will persuade the U.S. District Court for the Anywhere District that the

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statute and the recitation of the pledge do not violate the First Amendment. The Anywhere
District has no cases interpreting the Education Code provision. Therefore, do not restrict
your research to the law of any one district or circuit.
Court rules impose a ten-page limit on all briefs. In addition, court rules require that
the brief be word-processed and double-spaced and that current Bluebook citation form be
followed.

Assignment for Chapter 18

You have been asked to prepare the table of authorities for an appellate brief to be filed
in the United States District Court for your district. There are no special rules for citation
form. You should use the citation rules set forth in the current edition of The Bluebook. Do
not worry about the page numbers. The following citations will appear in the brief.

29 U.S.C. § 201
Chevron v. National Resources Defense Council, 467 U.S. 837
Reiter v. Sonotone Mfg. Corp., 442 U.S. 330 (1979)
Integrity Staffing Solutions v. Busk, 135 S. Ct. 513, 520 (2014)
Dunlop v. N. Bros. Ford, 529 F.2d 525 (Sixth Circuit 1976), reversed, 539 U.S. 990
(1978)
Lawrence v. City of Philadelphia, 525 F.3rd 299 (3rd Cir. 2008)
Margot Schlanger and Giovanna Shay, “Preserving the Rule of Law in America’s Jails &
Prisons,” 11 Univ. Pa. J. Constitutional Law 139 (2008)
15 U.S.C. §1226
Yenney v. Cass Cty. Motors, 687 N.W.2d 118 (Neb. 1977)
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978)
FCC v. Fox Television Stations, 556 U.S. 502 (2009)
Amendola v. Bristol-Myers Squibb, 558 F.Supp.2d 459 (S. Dist. N.Y. 2008)
Yi v. Sterling Collision Centers, 480 F.3d 505 (7th Circ. 2007)
Del. Code, tit. 6, section 142
Brian J. Ostrom, “Congress, Courts, & Corrections: An Empirical Perspective on the
Prison Litigation Reform Act” 78 Notre Dame Law Review 1525 (2003)
28 U.S.C. 1254
29 C.F.R. § 799.372
29 C.F.R. § 779 373(c)

Internet Assignment for Chapter 18

1. Access the rules of the U.S. Supreme Court. Review Rule 24. How should the

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 summary of the argument be presented?
2. Access the website of the U.S. Court of Appeals for the Seventh Circuit at
http://www.ca7.uscourts.gov. Select “Practitioner’s Handbook.” Review Section
XII.
a. What advice is given about including cases on point in the argument section?
b. What advice is given about including quotations in the argument section?
c. What general writing style should be used in the argument section?
d. Review the information about amicus curiae briefs. When might a court
grant permission for the filing of such a brief?
3. Use http://www.uscourts.gov to access the Federal Rules of Appellate Procedure.
a. Review Rule 28. How should references to parties be made?
b. Review Rule 32.
i. Do headings and footnotes count in determining the length of a brief?
ii. What color should be used for the cover of a reply brief?

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 Chapter 19

Postwriting Steps

The best writing is rewriting.

E. B. White

A. Reviewing and Revising: Stage One

B. Reviewing and Revising: Stage Two
C. Proofreading
D. Proofreading Projects by Others
E. Proofreaders’ Marks
F. Polishing Your Writing
G. The Final Review
H. Conclusion

Chapter Overview
Paralegals not only engage in the drafting of documents for themselves but also are often
asked to review and revise the writing of others or perform proofreading for others.
Although these tasks are typically accomplished at the end of a writing project, their
importance cannot be overlooked. It is at this stage of the writing process that unclear
passages should be revised, redundant phrases should be deleted, and spelling and
grammatical errors should be corrected. Even a minor typographical error will impair the
professionalism of your project.
This chapter focuses on reviewing and revising your writing, proofreading, and
polishing the finished product so its appearance enhances readability.

A. Reviewing and Revising: Stage One

When you have the first draft of your project in hand, the difficult tasks of reviewing and
revising begin. Your initial review should be to ensure that the writing accurately conveys
all the information needed. At this stage, usually called copyediting, focus on content. Try
to review the project from the perspective of the intended reader, and ask if the reader will
understand the writing. Consider the following strategies:

• Keep the purpose of the project in mind. If the project is a brief, its purpose is to
persuade. If the project is a memorandum, its purpose is to inform. Ask yourself if

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 the writing meets these goals. Consider whether the tone is appropriate for the
reader and whether the project is either too formal or too informal.
• Review to ensure the writing flows smoothly and that its organization assists the
reader’s comprehension. Move paragraphs and sections to other locations if you
believe they would be better placed elsewhere.
• Be careful not to engage in micro-revision during the writing process itself.
Agonizing over the choice of each word and continually striking out or rephrasing
sentences may be a waste of time and energy because you may eventually omit a
section you spent considerable time revising during the first effort.
• Do not interpret this advice to mean that no revisions should be done during the
writing stage. It is both necessary and helpful to revise throughout the process of
writing. Do not, however, write your initial draft expecting that the first version
will be suitable for submission to court. You may even wish to insert reminders to
yourself in the initial draft such as “work on this” or “revise” to remind you that
further work needs to be done for a certain section. When writing, if you cannot
decide between two ways of expressing an idea, initially include them both. When
you read through your completed first draft, you can then decide which version to
retain.
• Try to allow at least a few hours (and, if possible, overnight or longer) to pass
between the completion of your first draft and your initial review. It is extremely
difficult to review effectively a project with which you are too familiar. If you can
come to the review “cold,” you will be better able to detect flaws and gaps in the
writing.
• Focus 100 percent on the review. Ask someone to hold your calls, and find a quiet
space where you can concentrate on your task. If you attempt to review a project
and are interrupted by phone calls and e-mails, you will be unable to devote the
effort you need to make a critical evaluation of the project and may unintentionally
skip over sections.
• You may find it helpful to close the door to your office or the library and read
aloud. This will enable you to hear repetition or awkward phrasing or to realize
something is missing from the project. Make sure each draft of a project includes a
date. Often, several versions of a project will accumulate in a file. Because some
drafts will vary only slightly from each other, sorting out the current version can be
nearly impossible unless each draft is identified by date, and perhaps even time, for
example, “DRAFT 5/16/16 10:30 a.m.”
• If you have collaborated on the project with another writer, be especially alert to
ensure your headings, numberings, and presentations of lists are consistent.
• If you are aiming to improve your writing skills in general, focus on one or two
problem areas (such as overly long sentences or overuse of nominalizations); work
on correcting these, and then move on to other weak spots.

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 Practice Tip

Using a Style Sheet

Most professional editors develop a style sheet that they rely on when editing. The style sheet is their
blueprint for the correct spelling of names, how they intend to present headings, how issues will be
numbered, and so forth. For example, will the writer use “Section I” or “Section One”? Will the writer use
“email” or “e-mail”?

During the process of review, they then have a quick guide they can consult to ensure accuracy and
consistency. Develop your own style sheet and include a list of planned exhibits so you can readily ensure
consistency in their names and numbering. See Figure 19-2 for a sample project checklist you can use to
ensure all projects are in final form.

B. Reviewing and Revising: Stage Two

The first review and revision of your project should alert you to major problems in content
and organization. Use the second review to focus on four specific areas.

1. Sentence Length

Go through your second draft and place a red slash mark at the end of each sentence.
Observe whether a pattern of overly long sentences emerges. If most sentences are several
lines in length, you need to trim your writing. Use sentences of varying length to create
interest. Various software programs assist by informing you of average sentence length in a
project.

2. Needless Words and Phrases

Read through the project looking for unnecessary words. It is easy to become attached to
your product. Writers often have difficulty omitting words and phrases because they are
reluctant to omit anything after hours of research and hours of writing. Be merciless. Most
writers are far better at adding words than at deleting them. Watch carefully for modifiers
such as “clearly,” “obviously,” or “naturally.” These should be omitted for two reasons:
They add nothing to a sentence, and they often create a patronizing tone.

3. Legalese

Keep alert to the use of jargon and legalese, including the overuse of archaic words and
phrases and the overuse of nominalizations such as “discussion” or “exploration” instead of
stronger words like “discuss” or “explore.” You can detect nominalizations by looking for
words ending in -ent, -ant, and -ion.

4. Passive Voice

The overuse of passive voice will result in a distant and weak project. The active voice,

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coupled with the selection of forceful words, will lend strength and vigor to your writing.
You can detect passive voice by looking at a noun introduced with the phrase by the (as in
“The report was filed by the company”).

C. Proofreading

The third and final review of your writing, usually called proofreading, should focus on
technical errors such as grammatical errors, spelling mistakes, and typos. The more familiar
you are with a project, the more difficult this task becomes. Your mind will automatically
supply the word you intended, and you will not be able to see your errors. Do not rely
exclusively on the spelling and grammar checker programs of your word processor. A
spelling checker will not inform you to use “from” rather than “form” because both words
are properly spelled. Do not proofread on a computer screen. Print a copy of the document
and work from that. Reading a hard copy is easier on your eyes. Moreover, it is presented in
the way it will be to the ultimate reader, allowing you to see it as it will be seen by its
audience. Consider photocopying the document in an increased size, for example, to 120
percent of its original size, to allow you to read the document easily and make notes in the
margin.
Although there are a few techniques you can use to assist you in proofreading, the best
tip is to allow as much time as possible, preferably two to three days, to elapse before you
begin this final step in writing. This break will allow you to come to the project with a fresh
approach and will counterbalance the familiarity that hampers a careful scrutiny of your
writing. In many instances, and in busy law firms, it is not always possible to allow time to
elapse between drafting and proofreading. Energy levels are often higher in the morning, so
try to schedule your proofreading as the first thing you do in the day.
Do not underestimate the difficulty of proofreading and editing. All major publishers
require that writings be edited by professional editors and proofreaders for the very reason
that authors are notoriously unlikely to catch their own errors.
Because a normal reading of your project will naturally focus on content, and you will
read groups of words and phrases rather than isolated words, you need to force yourself to
slow down and focus on each word. Try the following techniques:

(i) Slide a ruler or piece of paper under each line as you read the document.
This will prevent you from jumping ahead to the next sentence or thought
and force you to focus on each word.
(ii) Touch each word in the project with a pencil to ensure each word is
correctly spelled and that no words have been omitted.
(iii) Read the project backwards, from the last page to the first page and from
right to left. Although this technique is excellent for finding typos and
spelling errors, it is time-consuming and will not help you pick up a missed
word or ensure that you have used a word such as “united” rather than

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 “untied.”
(iv) Read the document aloud with a partner. Each of you will concentrate on
the individual words, but the listener will focus more on the mechanics of the
writing instead of the content. If your partner stumbles over certain sections,
you will know these need to be fixed.
(v) Read sections of the project out of order. Read Section V first, then the
Conclusion, then Section III, then the Statement of Facts, and so on. You
will not be able to focus on the flow of ideas, and your concentration will
then be aimed at the mechanics of spelling, grammar, and typos.
(vi) Devote extra attention to the parts of the project that were prepared last.
More errors occur when you are tired.
(vii) To ensure accuracy in complicated passages, such as in patent claims and in
descriptions of real property in deeds, read the original description into an
iPhone or similar device, and then play it back, listening and proofreading
against your text.

If you find yourself getting tired or losing concentration, stop and take a quick break.
Get up and walk around the office. Get some juice or a fresh cup of coffee and then return
to the task. Because you are not reading for content, but for mechanics, these interruptions
will do no harm.
You can also ask someone else to proof the project for you. Having someone else review
the project can be extremely helpful because this newcomer will have no familiarity with
the writing. He or she will be able to review the writing with a fresh approach and no
preconceived ideas or expectations. If you want the reader to review only for mechanical
errors, say so, or you may receive a project with substantial corrections and suggestions. It is
an intrusion on someone else’s time to review your work; therefore, if you have asked for
help, you should give the reviewer the courtesy of considering his or her comments or
suggestions without becoming defensive. If you have difficulty accepting comments and
criticism from others about your writing, do not ask for help. It is a waste of the other
person’s time if you are not able to keep an open mind about accepting suggestions.
Be alert to the dangers of over-reliance on word processor spell checking programs.
Although these programs can be of great assistance and can offer suggestions for word
choice, they do not recognize contextual misspellings. Thus, if you mistakenly referred to
the complaint as “compliant,” the spelling program will not alert you because the word
“compliant” is correctly spelled. Although spell checking programs help speed up the
editing and proofing process, they also encourage complacency. There is no substitute for
human proofreading, as witnessed by the fact that a review of some recently published
court decisions disclosed 23 cases referring to “Santa Clause” and 817 cases referring to the
“trail court.”
Similarly, the use of templates and forms prepared for an earlier transaction increases
the risk of importing incorrect terms into later documents. Thus, a document prepared for
a tenant needs to be scrupulously checked when it is later used for a subtenant. Make sure

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that defined terms are used consistently. For example, if an agreement uses the term
“Franchisor,” check to make sure the term is defined in the agreement, that it is always
capitalized, and that it is consistently spelled and used. Use the “find and replace” feature in
your word-processing program to check for consistent presentation and use.

Ethics Alert

Competency in All Aspects of the Representation

Remember that the duties imposed on those in the legal profession are the highest duties of competency and
that they extend to every aspect of the representation. In one case, a United States Magistrate reduced an
attorney’s fees from $300 per hour to $150 per hour, in part because of numerous typographical errors in
pleadings. Devore v. City of Phila., Civ. A. 00-3598, 2004 WL 414085 (E.D. Pa. Feb. 20, 2004). Thus, your
duty to represent the client competently is broad enough to encompass even seemingly minor matters such as
proofreading, editing, and cite checking.

D. Proofreading Projects by Others

If you are asked to review someone else’s work, obtain clear instructions so you know if you
should review for content or review only for mechanics such as typos, spelling mistakes, and
grammatical errors. Reviewing for technical errors in someone else’s writing is fairly easy. If
you are not familiar with the content, the errors will fairly leap off the page at you (just as
they will for the ultimate reader, such as the client or the judge).
If you are asked to review for content, be judicious. All writers are sensitive about their
product, and overcriticizing may result in the writer believing you have a grudge and then
discounting everything you suggest.
Recognize that each writer has a unique style. Just because a thought is not expressed in
the exact way you would express it does not mean it is inaccurate or vague. Limit your
corrections to meaningful items. It is unproductive to change “glad” to “happy” or
“concerning” to “regarding.” Your credibility as an effective reviewer will be jeopardized if
you engage in such meaningless changes.
Comments such as “weak,” “poor,” or “expand” placed beside a paragraph are nearly
useless. Specifically explain to the writer why the section is weak, and make a suggestion for
improving it. Harsh comments such as “What are you thinking?” or “Ridiculous!” will
cause the writer to avoid seeking your help and to become a passive writer. Try phrasing
suggestions diplomatically, such as “Have you considered . . . ?” or “Let’s discuss some
alternatives . . . .” These approaches focus on the two of you as colleagues committed to
producing a quality product rather than on the writer’s perceived inadequacies.

Practice Tip

Remember that software packages such as Lexis for Microsoft Office and Thomson Reuters’s Drafting

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 Assistant can help with proofreading by spotting errors and inconsistencies. These tools will also locate
unpaired quotation marks and parentheses and will find inconsistent numbering, varying presentation of
defined terms, and more.

E. Proofreaders’ Marks

Although there is some variety in the marks writers use to show errors, most legal writers
employ the standard marks, called proofreaders’ marks, used by professional editors. Many
attorneys learned these marks while writing articles for law reviews. Their use in law firms
and among legal professionals is common.
Most dictionaries (and many Internet sites) will provide descriptions and illustrations of
proofreaders’ marks. These marks are designed to show where and how to make corrections
in your project. Be sure all of your working drafts are double-spaced with generous margins
so you will have sufficient room to note corrections. The most commonly used
proofreaders’ marks are shown in Figure 19-1.

Figure 19-1
Commonly Used Proofreaders’ Marks

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 F. Polishing Your Writing

Even if your project is well written, clear, and readable, it should be presented in such a
manner that it creates a favorable impression on the reader. One of the reasons some
appellate courts insist that briefs submitted must be commercially printed rather than
merely typed or produced on a word processor is that printed briefs are easier to read and
present a uniform appearance.
Many factors play a part in making a project readable, including quality of paper,
typeface, margins, and headings. If your goal in writing is to communicate, you must avoid
producing a document so messy in appearance that it frustrates a reader or one that is
simply not read because of its physical appearance.
Visually appealing documents are easier to understand. Replace blocks of text with
headings, tables, lists, and more white space. Make sure the layout of your project is
uncrowded.

1. Paper

Use the highest-quality paper possible. Some courts require that the paper used for
documents submitted be of a certain quality. The United States Supreme Court, for
example, requires certain documents to be produced on unglazed, opaque, white paper.
Sup. Ct. R. 33.2(a).
Select a paper of sufficient weight so that page two of a document doesn’t show
through to page one. Although some law firms use cream or ivory colored paper, most use
white. White is the more traditional color, and many readers find it easiest to read because
black type provides a greater contrast on white paper than on cream-colored paper.

2. Typeface

Use ordinary Roman type for most of your writing. Italics (or underscoring) must be used
for names of cases, titles of books and law review articles, citation signals, and foreign words
and phrases. Italics (or underscoring) may be used to emphasize certain words or phrases.
Use boldface only for headings or special purposes, such as emphasizing a deadline date in a
letter to a client.
Word processors can easily create italics. Some writers prefer italics to underscoring
because they create an elegant look. Other writers believe underscoring draws more
attention to a word or phrase. Some courts, such as the appellate and supreme courts in
Illinois, prohibit underscoring in lieu of italics because underscoring is now the standard
way of indicating an Internet link.
As to type of font, many experts prefer a “serif” style, which is one that adds small
decorative strokes to the edges of letters. Serif styles are generally viewed as enhancing
readability because they draw the eye from one word to the next. Old-fashioned typewriters
always used a serif style. Well-known serif styles include Garamond, Times New Roman,

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and Century Schoolbook. This text is presented in a serif style. “Sans serif” styles (those
without extra strokes) such as Arial might be acceptable and dramatic for headings. In any
case, do not select a font style that is so different as to be distracting to a reader. Do not use
all capital letters, except for short headings, because they are difficult to read.

Practice Tip

Document Design

Consider the following tips to ensure the design of your document enhances its readability:

• Don’t mix typefaces in a document. Variations in typeface make a project look too much like an
advertisement. Moreover, readers assume that headings in the same size and font style signal information of the
same importance.
• Use visuals (graphs, charts, and so forth) sparingly. Keep visuals simple, and make sure they are helpful rather
than merely “eye candy.”
• Typefaces may be monospaced (meaning that every letter takes up the same amount of room) or proportional
(meaning that, for example, a capital M takes up more room than a capital I). Most readers find proportionally
spaced typefaces (such as used in this text) easier to read.

3. Type Size

Word processors can provide you with numerous choices for type size. Type size is
measured in “points,” such as 10-point type or 12-point type, with the larger the number
showing larger print. Many courts require documents to be printed in a certain size type.
Similarly, some statutes require certain information, such as language disclaiming a
warranty, to be of a specified type size. If there are no rules you must follow with regard to
type size, select 12-point type, which is easily read. Rules of the United States Supreme
Court dictate that the text of booklet-format documents submitted to the Court be typeset
in a “Century family” (such as Century Schoolbook) in 12-point type. Sup. Ct. R. 33.1(b).
Most readers prefer 12-point type due to its ease of readability.
On occasion a client may insist that certain information be included in a contract,
invoice, or other form. In order to fit all of the information or terms in the document, you
may need to use a much smaller type size, such as 6-point or 8-point. Alternatively, many
photocopy machines and software programs will reduce an image. These reductions,
however, impair readability.

4. Length of Document

If court rules require that a document not exceed a specified page limit, you will need to be
able to calculate and estimate the length of a project. The average typewritten or printed
page, measuring 8 × 11 inches, double-spaced, contains about 250 words. If you are
handwriting a document, count the words on any one sheet of your handwritten draft.
Multiply this by the number of pages in your draft and divide this figure by 250. This will
provide a rough estimate of how many typed pages your handwritten draft will produce.

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Some courts exclude certain sections, such as tables of contents and tables of authorities,
from page or word limits. Always check your court rules. Word-processing programs easily
provide statistics on document length and word and character counts.
If your project exceeds a maximum length requirement, you have several alternatives:

• Revise the project, omitting extraneous material.

• Use one space rather than two after sentence-ending periods, which is the current
accepted approach.
• Alter your margins so that more words fit on each page.
• Use a smaller point type size to include more text on each page.

Although these last two techniques will allow you to squeeze extra material into the
document, many court rules mandate margin size and type size. The rules of the United
States Courts of Appeal flatly require one-inch margins on all sides of each page of a brief.
Fed. R. App. P. 32.
It is increasingly common for courts to require that documents comply with word- or
character-count limits rather than page limits (otherwise, writers would “cram” extra text
into footnotes, using smaller typeface than in the body of the page). For example, the
United States Supreme Court requires that principal briefs not exceed 15,000 words
(including footnotes) and that a certificate be attached to all documents verifying that they
comply with the word count limitations. Sup. Ct. R. 33.1(g), (h). Additionally, briefs on
the merits must now be submitted electronically to the Court (which easily allows the Clerk
of the Court to verify compliance with the word count limits). Id. at 25.9.
The chief disadvantage of squeezing material into a document is that it creates a more
cramped appearance, and few, if any, readers will be fooled by artificial techniques adopted
to meet length requirements. Pages filled with text from the upper-left corner to the lower-
right corner cause eyestrain and frustration. Using adequate white space will cause headings
and quotations to be more easily noticed. Although the technique of leaving ample white
space on a page, including adequate or generous margins, may seem like an artificial device,
reading studies have demonstrated that it results in a more readable project.
Another formatting device is the use of right justified margins. A right justified (or
“fully justified”) margin is one in which all of the words end at the exact same location at
the right side on the page, as shown in this text. This type of margin creates a clean and
crisp-looking document. The only disadvantage is that to ensure the margin is even at the
right side, spacing between letters and words may be uneven from one line to the next. This
uneven spacing can reduce ease of reading. Carefully proofread any document with right
justified margins to make sure the spacing is acceptable. If it is not, use a ragged right edge.

5. Headings

Headings not only provide the reader with an idea as to what will follow, but also create
visual drama on a page. Main headings are often in all capital letters, centered, and single-

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spaced. Each should be given a Roman numeral or Arabic number. Some writers use
boldface print to make sure the headings stand out. Subheadings that occur with a main
heading should use capital letters only for the first letter in each major word, such as nouns,
verbs, adjectives, and adverbs. Do not capitalize the first letter in articles and short
prepositions, such as “in,” “of,” or “for,” but be sure to capitalize “is,” “its,” “be,” and other
short verbs, nouns, and adverbs. Follow Bluebook Rule 8 for instructions on capitalizing
words in headings. Label each subheading with a capital letter and underline or use
boldface for emphasis. All headings should be separated from the remainder of the narrative
by double-spacing above and below. If the heading is a complete sentence, follow it with a
period.
The structure and labeling of headings and subheadings may be as follows:

Do not use an “I” or an “A” unless a “II” or a “B” follows. On your final proofreading
effort, scan through your project examining only the lettering and numbers of the headings
to make sure you haven’t skipped over or repeated a letter or number.

6. Quotations and Lists

Quotations and lists can serve to provide relief from a long narrative. Select quotations with
care and be careful not to overquote. Follow Bluebook rules and keep quotes of 49 or fewer
words in text. Indent quotes of 50 words or more.

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 Lists also create interest and are an effective tool for presenting information. Overuse of
lists, however, can make your project have an outline-look to its appearance. Be consistent
in presentation of lists. Don’t use bullets in some lists and dashes to introduce others.
Review lists to make sure the presentation of the material is in parallel structure.

G. The Final Review

Just before your writing is sent to the reader, check these four items:

(i) “Widows and orphans.” A “widow” or “orphan,” respectively, is a heading or

isolated line occurring at the top of a page or an isolated line occurring at the
bottom of a page. Correct that awkward placement. It is distracting to the
reader and results in an unprofessional-looking project. Remember to keep at
least two lines of text together.
(ii) Numbering. Quickly scan the project to make sure the page numbering is
correct. If the document has a table of contents, review it to make sure all
references to pages are correct. If footnotes are used, check their accuracy.
(iii) Dates, Names, and Amounts. Do one final check to make sure dates, names,
and money amounts are accurate.
(iv) Exhibits. Make sure all exhibits or attachments to the project are included
and are properly marked.

See Figure 19-2 for a Project Checklist you can use to ensure all projects are in final
form.

Figure 19-2
Sample Project Checklist

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 H. Conclusion

Although the foregoing comments relating to paper quality, type size, and white space may
seem inconsequential, remember that if your objective is to inform or persuade your reader,
any device that keeps the reader’s interest is significant. View these techniques as weapons
in your arsenal of writing tools. Your goal is to produce a writing that is accurate and
readable. Errors and typos impair the accuracy of a writing, and an unprofessional project
impairs the readability of a writing. If you discover errors, don’t be afraid to send the
document back for correction. Better that you are viewed as a perfectionist than as someone
uninterested in quality.
Strive for excellence. Make every project something you and your fellow legal
professionals will be proud to sign.

Common Writing Errors

Watch for the following common errors:

• Repeated words at the end of one line and the beginning of another.
• Errors in figures, dates, monetary amounts, and names.
• Substitutions of letters in small words, such as a change of “now” to “not” or “of” to “or.”
• Errors in presentation of commonly used and easily mistyped legal words, such as “statue” rather than “statute.”
• Transpositions of letters such that “complaint” becomes “compliant” and “trial” becomes “trail.”
• Misspellings of compound words such as “every one” rather than “everyone” or “can not” for “cannot.”

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Internet Resources

Assignment for Chapter 19

CAREFULLY PROOFREAD THE FOLLOWING PASSAGE AND MAKE THE

NECESSARY CORRECTIONS.

SHAREHODLER PROPOSALS IN PROXY MATERIALS

There are too types of proposlas that our made at shareholder’s meetings for publically
traded companies in the Untied States: management proposals (those proposed by the
company’s management teem) and sharehodler proposals (those proposed by the the
company’s shareholders). Shareholders may circulate there own procy materilas to
shareholders (which in expensive and time consuming or they may seek to have their
proposals included in the company’s proxy statements, which allows them to reach all other
sharedholders at little cost.
The SEC’s Rule 14a-8 provides the process by which shareholder may seek to have
their proposals inlucded in the company’s proxy materials. First, a shareholder may only
submit a proposal if he has hled, for one year or more, at least $2,000 in market value or
one percent of the company’s stock entitled to vote in the proposal. Only 1 proposal may
be sumbitted per year per shareholder. Other reguirements are imposed as well.
Sum proposals are not elgible for inclusion in the company’s materials. For example, a a

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proposal that deals with a matter relating to the company’s ordinary business operations
such as employee hiring, or one that has all ready been substnatilly implemneted can be
excluded. If the proposal is eligible for inclusion in the company’s materials, the board of
directs then indicates in the proxy mateials whether it supports or opposes it’s own and the
sahreholder’s proposal.

Internet Assignment for Chapter 19

1. Review Rule 32 of the Rules of Court for the U.S. Court of Appeals for the
Second Circuit. What does the Second Circuit require with regard to typeface?
2. Review Section A.1 of the article Painting with Print. What do studies on
readability disclose with regard to the use of all capital letters in a heading?
3. Review the advice on proofreading found at the Purdue Online Writing Lab at
https://owl.english.purdue.edu/owl/resource/561/01. What three strategies should
you undertake before you proofread?
4. Access the guide on Editing and Proofreading Strategies at
http://writing.colostate.edu/guides/guide.cfm?guideid=45. What is the “Final
Advice” given?

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 Appendix A

Using Shepard’s
in Print Form

A. Using Shepard’s in Print Form

to Shepardize Cases

1. Introduction
Very few people validate their authorities manually — using print rather than electronic
sources — because validating electronically is quicker and provides more current
information. In fact, most law firms and law libraries no longer subscribe to Shepard’s in
print, relying exclusively on electronic updating. Nevertheless, a thorough grounding in the
way the conventional print versions of Shepard’s work may enhance your understanding of
the techniques and value of online updating.
There is a set of Shepard’s Citations for each set of case reports. Thus, for example, there
are sets called Shepard’s Arizona Citations and Shepard’s Atlantic Reporter Citations. A set of
Shepard’s usually consists of two or three hardbound volumes (always a deep maroon color)
and one or two softcover supplements or advance sheets. Each advance sheet displays a
notice labeled “What Your Library Should Contain,” which lists the volumes of Shepard’s
you will need to complete your task.

2. Locating Shepard’s References to Your Case

Assume the case you are Shepardizing is People v. Briceno, 99 P.3d 1007 (Cal. 2004).
Because this is a case published in the Pacific Reporter, you will need to locate the volumes
of Shepard’s Pacific Reporter Citations. Open the first volume in the set and scan the upper
corners of each page looking for a reference to Vol. 99, the volume of the Pacific Reporter,
Third Series, in which Briceno is reported. This process is similar to looking at the guide
words in the upper corners of each page in a dictionary to determine which page will
contain the word you need.
When you have located the page or pages for Vol. 99, scan this page looking for the
black boldfaced typed reference –1007–, because this is the page on which Briceno begins
(see Figure A-1). There are three possibilities.

• No Reference. It is possible that there is no reference at all to –1007–. Lack of a

reference to your page is an indication that during the period of time covered by that
volume of Shepard’s, no case or other authority mentioned Briceno in any manner. If this
occurs, proceed to examine the next Shepard’s volume, and so forth.

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 • References in Parentheses. Citations or references appearing in parentheses are
parallel citations for Briceno. The first time a volume of Shepard’s mentions your case, you
will be given parallel citations (assuming they exist). This is an easy and efficient way of
locating parallel citations.
• References Not in Parentheses. Citations listed below –1007– that do not appear in
parentheses are references to the history of Briceno as it has traveled through the courts and
treatment by sources that have mentioned, discussed, or commented on Briceno.

3. Analysis of Shepard’s References

a. Abbreviations
You may have already observed that the presentation of citations in Shepard’s is not in
Bluebook format. In fact, the citations given you by Shepard’s have a uniquely cramped
appearance. Because Shepard’s is tasked with presenting so much information as efficiently
as possible, it has developed its own “shorthand” references for cases and other legal
authorities. You will quickly learn how to correctly interpret the Shepard’s references. If you
have any difficulty, check the Table of Abbreviations placed in the front of each Shepard’s
volume.

b. History References
Shepard’s will provide you with the subsequent history of your case, meaning you will be
informed how your case has been dealt with as it has progressed through the courts. Thus,
you will be informed whether your case has been affirmed, whether certiorari was denied,
and so forth. Shepard’s provides you with this information, called history references, relating
to the later history of your case by means of an identifying letter placed immediately before
the citation. Most of the letters are easy to understand. For example, “a” means “affirmed,”
“r” means “reversed,” and “m” means “modified.” If you have difficulty understanding the
meaning

Figure A-1
Sample Page from Shepard’s Pacific Reporter Citations

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of a history letter, locate the Table of Abbreviations in each Shepard’s volume.

c. Treatment References
Shepard’s will not only tell you how your case has been dealt with by higher courts, but it
will also refer you to every other case as well as selected law reviews, annotations, and other
authorities that discuss or even mention your case in passing. These sources, called
treatment references, have been thoroughly analyzed, and Shepard’s will inform you
specifically how your case has been treated by these other sources, namely, whether it was
mentioned in a dissenting opinion or criticized or questioned by a later authority. Some of
the most common treatment abbreviations are as follows: “c” (for “criticized”); “d” (for
“distinguished”); “e” (for “explained”); “f” (for “followed”); “o” (for “overruled”); and “q”
(for “questioned”).
Shepard’s provides you with this information by means of an identifying letter placed
immediately before the reference. Once again, most of the letters are easy to interpret, but if
you have difficulty interpreting the letters, check the Table of Abbreviations in each
Shepard’s volume.
Pay careful attention in examining the treatment of your case. If the case you are relying
upon is continually being questioned or criticized, you may wish to reevaluate your research
strategies and attempt to locate a case that is more authoritative. If there is no identifying
letter before a citation reference, the later case likely mentions your case only in passing or
in a string cite, without significant analysis.

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4. Arrangement of Later Case References

Although Shepard’s does not provide dates for the cases it lists, it arranges the references in
chronological order so you are first sent to earlier cases mentioning your case and then to
more recent cases, allowing you to easily select more recent cases. Also, Shepard’s references
are precise; they direct you to the very page within a case on which your case is being
discussed, rather than directing you to the first page of a case. Finally, Shepard’s will arrange
the cases by jurisdiction, when relevant, grouping together entries by circuit or state so you
can readily locate cases from a specific jurisdiction that discuss your case.

5. References to Headnotes

Recall that when a case is reviewed by editors at a publishing company, they will assign
headnote numbers for each legal issue in a case. It is possible that you are relying on only a
portion of a case for a research project. Assume, for example, that you are relying on
headnote 1 of Briceno. Shepard’s will not only provide you with information relating to the
treatment by later cases of Briceno, but will also focus on the cases that have discussed
specific headnotes of Briceno.
These references are accomplished by small elevated or superscript numbers placed
within the case citation given to you by Shepard’s. For example, when Shepardizing Briceno,
you observe that one of the Shepard’s entries is 33CaR3d2635 (see Figure A-1). This
indicates that page 635 of volume 33 of the California Reporter, Third Series, discusses the
point of law discussed in headnote 2 of Briceno. This feature of Shepard’s allows you readily
to locate later cases discussing the specific points of law discussed in your case.
Thus, if you relied solely on the issue discussed in the first headnote of Briceno, you
could quickly run your finger down the column of Shepard’s entries looking for elevated
“1s.” Similarly, if, when you Shepardize, you discover that only headnote 4 of Briceno has
been criticized or questioned, and you are relying solely on the point of law discussed in
headnote 1 of Briceno, you may be able to bypass those references with elevated numbers
other than “1.” If a case is listed without an elevated number, this indicates that the later
case discusses your case only in a general fashion.

6. References to Sources Other Than Cases

In addition to validating the case you rely on, Shepard’s will direct you to a wide variety of
other sources that mention or discuss your case. Thus, Shepard’s functions as a finding tool
to expand your research efforts by sending you to a variety of sources, including the
following: attorneys general opinions, law review articles, and A.L.R. annotations. See
Figure A-2 for steps in Shepardizing cases using the print volumes of Shepard’s.

Figure A-2
Steps in Shepardizing a Case Using Print Sources

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 • Locate the volumes of Shepard’s you need (state Shepard’s, regional Shepard’s, or
federal case Shepard’s).
• Examine the front cover of the most recent issue of Shepard’s and read the box
labeled “What Your Library Should Contain.” Gather all of the volumes needed.
• Examine the upper right and left corners of the pages in Shepard’s to locate the
volume number of the case you are Shepardizing.
• Scan down the page looking for the bold page number identical to the page on
which your case begins.
• Carefully examine the entries listed, paying particular attention to the parallel
citation, the history of the case as it progressed through the court system, its
treatment by later cases, and any other sources, such as annotations and law review
articles that cite your case.
• If desired, verify that you are Shepardizing correctly by checking one or two cites
listed by Shepard’s to ensure your case is, in fact, mentioned by these cites.
• Repeat, as needed, in other volumes of Shepard’s.
• Examine and analyze troublesome entries, including later cases that criticize or
question your case.

7. FAQs: Using Shepard’s and Analyzing Negative Letters

Following are some of the most frequently asked questions relating to the Shepardizing
process:

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683
 B. Using Shepard’s in Print Form to Shepardize Other Authorities

1. Shepardizing Statutes, Constitutions, and Administrative Regulations

Just as you must Shepardize a case to determine whether it is still “good law,” you must
Shepardize the other primary authorities you rely on: statutes, constitutions, and
administrative regulations (such as the regulations of the Federal Communications
Commission). The process of Shepardizing these authorities is the same as that for cases.

• Locate the volume(s) of Shepard’s you need, titled Shepard’s [State] Citations [for
Statutes], Shepard’s Federal Statute Citations, or Shepard’s Code of Federal Regulations
Citations.
• Examine the upper right and left corners of the pages in Shepard’s to locate the title
or article of the provision you are Shepardizing.
• Scan down the page, looking for a boldfaced entry for the particular section in
which you are interested.
• Carefully examine the entries listed, paying particular attention to the history of
your statute, constitutional provision, or regulation (for example, whether the
statute has been repealed by the legislature) and then to its treatment by later cases
(for example, whether a case merely discussed your statute or decided your statute
was unconstitutional). Each volume of Shepard’s will contain a Table of
Abbreviations for any abbreviations used. Examine other sources, such as law
review articles and annotations, if desired.
• Carefully analyze all troublesome entries. For example, “A2012C37” means that
your statute has been amended and that the amending language can be found in
Chapter 37 of your state’s session laws for 2012.

2. Shepardizing Other Authorities

There are several other authorities that you can Shepardize, including Restatements, court
rules, and treaties. You will then be directed to authorities that have discussed your
Restatement provision, court rule, or treaty.

Help Line
Shepard’s Update Service

The print volumes of Shepard’s are updated approximately every six weeks. To make sure that nothing has
happened in the past six weeks that negatively affects your case or statute, use Shepard’s Product Support Line.
Call (800) 899-6000 to determine treatment of your case since your last print supplement arrived.

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RESEARCH ASSIGNMENT USING PRINT VOLUMES OF SHEPARD’S
An assignment requiring you to demonstrate use of the print volumes of Shepard’s is
found in Chapter 9 of this text.

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 Appendix B

Sample Legal
Memorandum

MEMORANDUM

To: Jessica Andrews, Esq.

From: Michael Taylor, Senior Paralegal
Re: Noise as a Private Nuisance
Date: April 9, 2016

ISSUE

Under Illinois law, may noise emanating from a lawfully operated business constitute a
private nuisance?

BRIEF ANSWER

Yes. If noise invades another’s property in a manner than is substantial, negligent or

intentional, and unreasonable, it constitutes a private nuisance, which may be abated.

FACTS

Our clients are eight residents of a high-rise condominium complex in Chicago. The
ground floor of the complex is occupied by several commercial establishments. Five months
ago, one of the commercial units was rented to Cross-Train Gym (“CTG”). The gym offers
fitness classes starting at 5:30 a.m. and ending about midnight. All classes are accompanied
by very loud music. Moreover, the gym’s clients hoist barbells, weights, and medicine balls
and then slam them onto the gym’s floor. Our clients have claimed that noise generated by
CTG has become intolerable, disturbing their sleep, causing vibrations of windows and
doors, and requiring them to keep their windows closed at all times. The residents
complained to CTG two months ago, but CTG has not taken any action or responded.
CTG’s business is lawful, and it obtained all appropriate permits and licenses to operate the
business in the complex.

DISCUSSION

Private Nuisance

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 A private nuisance is a substantial invasion of another’s interest in the use and
enjoyment of his or her land. Willmschen v. Trinity Lakes Improvement Ass’n, 840 N.E.2d
1275, 1281-82 (Ill. App. Ct. 2005). For conduct to be actionable as a private nuisance, the
invasion must be substantial, negligent or intentional, and unreasonable. Patterson v.
Peabody Coal Co., 122 N.E.2d 48, 51 (Ill. App. Ct. 1954). A nuisance does not require a
physical invasion; noise can constitute a “substantial invasion.” City of Chi. v. Reuter Bros.
Iron Works, 75 N.E.2d 355, 388 (Ill. 1947).

Substantial Invasion

In order to be considered “substantial,” an invasion must be severe enough to constitute

a material annoyance to adjoining landowners. Woods v. Khan, 420 N.E.2d 1028, 1030 (Ill.
App. Ct. 1981). This is an objective test. Id. Moreover, the complainants cannot be unduly
sensitive, delicate, or fastidious, pursuing a “dainty way of life.” Belmar Drive-In Theatre v.
Ill. State Toll Highway Comm’n, 216 N.E.2d 788, 791 (Ill. 1966).
In In re Bloomingdale Partners, 160 B.R. 101, 108-10 (Bankr. N.D. Ill. 1993), the
court held that noise caused by an apartment complex’s various heating and air
conditioning units was substantial and constituted a nuisance when it severely affected the
ability of adjoining landowners to use and enjoy their land. The adjoining landowners, like
the residents in this case, complained that the excessive noise impaired their sleep and
affected their ability to keep their windows open and enjoy their property.
Similarly, in Dobbs v. Wiggins, 929 N.E.2d 30, 39-41 (Ill. App. Ct. 2010), the court
found the barking of dogs in a kennel constituted a nuisance when the adjoining
landowners testified about having to curtail their activities because of the noise. The court
noted that the test for determining whether noise is a “substantial” invasion is the effect the
noise would have on a normal person of ordinary habits and sensibilities. Id. at 40.
Although whether complained-of activity constitutes a nuisance is a question of fact, id.
at 39, if the residents can show that the noise from CTG makes their lives uncomfortable
and impairs the use and enjoyment of their property, such would seem to demonstrate a
“substantial” invasion of their property, as required by case law. In this regard, having
numerous residents testify as to the effect of the noise on them would be helpful in showing
that the residents are not unduly sensitive or delicate.

Intentional Invasion

To constitute a private nuisance, an invasion must be either intentional or negligent. Id.

at 40. For purposes of an intentional invasion, it is not necessary to find that a party acted
for the purpose of creating noise; instead, an intentional invasion occurs when a party
knows that an invasion of another’s interest in the use or enjoyment of his or her property
is resulting or is substantially certain to result. Id. In Dobbs, the court found that due to the
number of dogs being kenneled and the fact that wildlife or other noises would cause a
chain reaction of barking, the kennel owner knew the barking was substantially certain to
be invasive to his neighbors.

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 Similarly, in the present case, CTG arguably knows that the invasion of the residents’
interest in the use or enjoyment of their property is resulting or is substantially certain to
result from the loud music from the gym in the early morning and late night hours and the
thumping caused by the dropping or throwing of weights. Moreover, CTG has actual
knowledge (due to notice from the residents) that noise from its unit is substantially
interfering with the residents’ use and enjoyment of their property. Thus, the invasion by
noise is intentional, both by virtue of CTG’s knowledge that the acts of its patrons are
substantially certain to affect the residents’ enjoyment of their premises and by virtue of the
actual notice it has received.

Unreasonable Invasion

Like the determination of whether a “substantial” invasion has occurred, the

determination of whether an invasion of land is “unreasonable” is also a question of fact.
Patterson, 122 N.E.2d at 52. An invasion is not unreasonable unless the gravity of the harm
done to the plaintiffs outweighs the utility of the defendant’s business and the suitability of
the location of that business. Woods, 420 N.E.2d at 1030. In balancing these two factors,
courts may consider the ease of abatement of the offensive conduct. Thus, in Dobbs, the
court required the kennel owner (whose business was legal and found to be socially useful)
to reduce the number of dogs on his property, 929 N.E.2d at 42, and in Bloomingdale, the
court found that the complex owner could easily alleviate the noise arising from the heating
and air conditioning units. 160 B.R. at 109-10.
In the present case, CTG is operating a lawful business that serves a socially useful
purpose (providing fitness classes). The factor that “tip[s] the balance,” however, is the
relative ease with which a party can alleviate a noise problem. Bloomingdale, 160 B.R. at
109. In this case, CTG can easily abate the nuisance by scheduling classes at times that do
not interfere with the residents’ sleep, turning the music down, and perhaps putting pads
on the floors to absorb the sound of the weights and heavy equipment being dropped on
the floor. Thus, because modification of CTG’s facility is easily accomplished, CTG’s
present invasion of the residents’ interests is unreasonable.

Violation of Illinois Environmental Protection Act

Finally, the Illinois Environmental Protection Act provides that no person shall emit
beyond the boundaries of his or her property any noise that unreasonably interferes with
the enjoyment of life or with any lawful business activity, depresses property values, offends
the senses, creates public nuisances, and in other respects reduces the quality of the
environment. 415 Ill. Comp. Stat. 5/23 (2009). Thus, noise emissions are a nuisance if the
noise interferes with another’s enjoyment of life and the interference is unreasonable. Id.
5/24. Private citizens have standing to maintain causes of action before the Illinois
Pollution Control Board for violations of the Environmental Protection Act’s noise
pollution provisions. Roti v. LTD Commodities, 823 N.E.2d 636, 644 (Ill. App. Ct. 2005).
Thus, in this case, the residents may maintain a cause of action before the state Pollution

688
Control Board for CTG’s violations of the Act.

CONCLUSION

Because the noise created by CTG is likely substantial, intentional, and unreasonable,
the residents may bring an action against CTG for abatement of a private nuisance or may
initiate a noise pollution action before the state Pollution Control Board.

689
 Appendix C

Sample Brief
for Court

The following trial court brief was submitted by the United States government in the
Microsoft Corporation antitrust case. Note that not all citations comply with Bluebook
rules.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PLAINTIFFS’ RESPONSE TO MICROSOFT’S OBJECTION TO

PARTICIPATION BY PROFESSOR LAWRENCE LESSIG AS AN

AMICUS CURIAE

Microsoft has objected to participation by Professor Lawrence Lessig of Harvard Law

School as an amicus curiae. Professor Lessig’s participation in that role is proper, and

690
Microsoft’s objections are ill conceived and unfounded.

I.

Background

By Order dated November 19, 1999, the Court invited Professor Lessig to participate
as amicus curiae. The Court also permitted the two plaintiffs and Microsoft each to
designate an amicus curiae. In a conference with counsel the day before its Order, the
Court explained that it asked Professor Lessig to submit a brief that addresses the legal issue
of technological tying. Transcript of Proceedings, November 18, 1999, at 10-11. The
Court’s Order followed the entry of the Court’s detailed findings of fact. There is no
suggestion in Microsoft’s papers, nor could there be, that the amicus process has anything
to do with issues of fact.

II.

Legal Standard

Although there is no federal rule or statute governing participation by amicus curiae at

the district court level,1 see United States v. Gotti, 755 F. Supp. 1157, 1158 (E.D.N.Y.
1991), a federal district court has the inherent authority to invite participation by amicus
curiae to assist the court in its proceedings. United States v. Louisiana, 751 F. Supp. 608,
620 (E.D. La. 1990); United States v. Michigan, 116 F.R.D. 655, 660 (W.D. Mich. 1987).
The decision to invite or accept participation by an amicus is committed to the sound
discretion of the court. Alexander v. Hall, 64 F.R.D. 152, 155 (D.S.C. 1974).
The classic role of the amicus curiae is to assist in a case of general public interest,
supplement the efforts of counsel, and draw the court’s attention to law that may otherwise
escape consideration. Miller-Wohl Co., Inc. v. Commissioner of Labor and Indus., 694 F.2d
203, 204 (9th Cir. 1982); see also New England Patriots Football Club, Inc. v. University of
Colorado, 592 F.2d 1196, 1198 n. 3 (1st Cir. 1979) (historically, the role of an amicus was
“to aid the court in resolving doubtful issues of law”). There is no requirement that an
amicus be disinterested. Funbus Systems, Inc. v. California Public Utilities Commission, 801
F.2d 1120, 1125 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982),
although in this case there is no reason to believe that Professor Lessig is other than
disinterested.

III.

Argument

A. Microsoft’s Arguments

First, Microsoft asserts, without any explanation of its foundation or reasoning, that the

691
Court’s Order inviting Professor Lessig’s participation is sufficiently broad to constitute a
request for proposed conclusions of law. Microsoft also contends that Professor Lessig does
not meet requirements to participate as an amicus because he does not have a
“particularized ‘special interest’ ” in the legal issues presented in the case, but then goes on
to argue, seemingly paradoxically, that he should not participate because he is not impartial.
These objections are specious.

B. Legal Argument By Amici Will Not Usurp the Judicial Function

The intended import of Microsoft’s puzzling suggestion that the invitation to Professor
Lessig to submit an amicus brief “is sufficiently broad as to constitute an invitation to
submit proposed conclusions of law from a non-party,” Microsoft’s Objection at 2, is
unclear and, in any event, does not provide any basis for revoking the invitation. First,
Microsoft’s suggestion ignores the Court’s clear statement to counsel that Professor Lessig
was being specifically requested to address the issue of technological tying. Transcript of
Proceedings, November 18, 1999, at 10-11. Indeed, the Court made clear the
straightforward purpose of its invitation of the limited brief of Professor Lessig and those of
other amici: “I am asking for amici help.” Id. at 10.
More importantly, that Professor Lessig and the other potential amici may discuss how
they believe that the Sherman Act should be applied to the facts as the Court has found
them is neither unusual nor improper, and indeed is the traditional role of an amicus. See,
e.g., Funbus Systems, Inc. v. California Public Utilities Commission, 801 F.2d 1120, 1125
(9th Cir. 1986) (“perfectly permissible role” for amicus to “take a legal position and present
legal arguments in support of it”). Submitting a brief as amici involves no delegation of
judicial authority or duties, raises none of the same concerns that appointment of a special
master would raise, and is unobjectionable.

C. If the Court Believes That Professor Lessig Would Bring a Helpful Perspective to
Legal Issues in the Case, It Is Appropriate for Him to Participate as Amicus

“There are no strict prerequisites that must be established prior to qualifying for amicus
status; an individual seeking to appear as amicus must merely make a showing that his
participation is useful to or otherwise desirable by the court.” United States v. Louisiana,
751 F. Supp. 606, 620 (E.D. La. 1990). Although some courts have required that the
amicus possess some “unique information or perspective,” this does not require any
particular quantum of expertise beyond the expectation that the amicus will add
significantly to, not merely parrot, the contributions from the lawyers from the parties. See
Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997); see also United States v. Gotti, 755 F.
Supp. 1157, 1158-59 (E.D.N.Y. 1991) (rejecting proffered amicus brief that merely
parroted arguments of defendants).
In this case, Professor Lessig has written at length and taught law school and
multidisciplinary courses on the Internet and the law. Contrary to Microsoft’s current
assertion, see Microsoft’s Objection at 3, Professor Lessig does possess expertise in antitrust

692
law, having taught antitrust law at Harvard and elsewhere. See Microsoft’s Memorandum
in Support of Its Motion to Revoke Reference to the Special Master, CV-94-1564, at 7. If
the Court believes that he brings a special perspective to the issues raised in this litigation
and that his contribution would be useful to the Court, it is appropriate and well within
the Court’s discretionary authority to invite him to submit his views.

D. Microsoft Has Not Demonstrated That Professor Lessig Is Biased Against It

Microsoft again raises the issue of Professor Lessig’s purported bias against it. These
allegations are not only wholly meritless; they also are irrelevant as there is no requirement
that an amicus be impartial in order to participate.
When Microsoft first raised the issue of Professor Lessig’s purported bias in connection
with the consent decree enforcement proceeding, this Court found that Microsoft’s bases
for its allegations of impartiality were “both trivial and altogether non-probative.” United
States v. Microsoft, CV 94-1564, Memorandum and Order, at 2 (January 14, 1998).
Having scoured Professor Lessig’s record since that time, Microsoft renews its allegations of
bias based on two items: (1) that Professor Lessig serves on the advisory board of a non-
profit organization devoted to open-source software which is affiliated with, and has
received financial support from, Linux vendor Red Hat Software, and (2) that he has
expressed the view that the experience of United States v. AT&T may be of some interest
when thinking about the instant case. Underlying its specific allegations of bias seems to be
Microsoft’s concern about one theme of Professor Lessig’s work, that the open nature of the
Internet has engendered tremendous competition and innovation, that this openness is
neither accidental nor inevitable, and that society will benefit if this openness continues.
Like Microsoft’s previous allegations about Professor Lessig, its current allegations of
bias are unfounded. Professor Lessig’s affiliation with a non-profit organization devoted to
open source software is a non-issue. Microsoft has not shown that this organization has any
purpose beyond its stated one, i.e., “to take the principles of open-source software and
apply them in a variety of scientific and educational projects ‘for the greater good of the
general public.’ ” Exhibit A to Microsoft’s Objection, at 1. Indeed, the article Microsoft
attached to its motion notes that the group will have a “board of academics and technology
experts.” Id. That the group has connections with Red Hat, a participant in the open-
source movement, is also of little moment. Microsoft has not alleged, nor are the plaintiffs
aware of, any economic interest of Professor Lessig in the outcome of this litigation. At
most, Microsoft has shown that Professor Lessig has views about the public welfare
implications of developments in the software industry. None of this indicates that Professor
Lessig has any bias against Microsoft that would disqualify him to participate as an amicus.2
Microsoft’s allegations concerning Professor Lessig’s comments about the AT&T break-
up are even more puzzling. Read in context, Professor Lessig’s comments merely reflect his
recognition of the seriousness of the issues presented by this litigation, not any animus
toward Microsoft. Exhibit B to Microsoft Opposition, at 3-4.

693
 IV.

Conclusion

For the foregoing reasons, the plaintiffs submit that it is entirely proper and appropriate
for the Court to invite Professor Lessig (and others solicited by the parties) to participate as
amicus curiae in this important case. Microsoft’s motion is nothing more than an attempt
to manufacture some appellate point to use to distract attention from defendant’s clear and
continuing violation of the antitrust laws. Having no plausible basis for appealing any of
this Court’s findings of fact, and having no plausible argument that those findings do not
make out a clear violation of the antitrust laws, Microsoft resorts to an attempt to create an
appellate question by unfounded attacks on Professor Lessig and this Court’s procedures.
The Court may wish to consider whether it should accede to Microsoft’s tactics simply to
avoid adding another issue to this case. However, the law is clear that either decision is well
within the Court’s discretion.

DATED: December 20, 1999

Respectfully submitted,
__________/s/ __________
Christopher S Crook
Chief
Phillip R. Malone
John F. Cove, Jr.
Jeremy Feinstein
Attorneys
David Boies
Special Trial Counsel
U.S. Department of Justice
Antitrust Division
325 7th Street, NW, Rm. 615
Washington, DC 20530
(202) 514-8276

1 Federal Rule of Appellate Procedure 29 governs participation by amici in the Courts of Appeal.
2 In any event, there is no requirement that an amicus be impartial or disinterested. E.g., Funbus Systems, Inc., 801
F.2d at 1125; Hoptowit, 682 F.2d at 1260; Krislov, The Amicus Curiae Brief: from Friendship to Advocacy, 72 Yale L.J.
694 (1963). Indeed, “by the nature of things an amicus is not normally disinterested.” Strasser v. Doorley, 432 F.2d 567,
569 (1st Cir. 1970); see Tigar, Federal Appeals: Jurisdiction and Practice, at 133 (1993) (“An amicus brief is rarely
disinterested; usually it supports one party or the other.”). For example, to the extent that Microsoft and the plaintiffs
invite amici who are themselves or who represent participants in the software industry, these persons will have economic
interests that may be affected by this litigation or by Microsoft’s conduct far more directly than the non-profit board
position that Professor Lessig holds. Thus, even if there were any merit to Microsoft’s allegations of some degree of

694
partiality, those allegations would provide no grounds for rescinding the invitation to participate as an amicus.
In an excess of caution and in the interests of full disclosure, the plaintiffs suggest that the Court may wish to
consider whether there is any merit in Professor Lessig filing a statement of interest, such as that required by Fed. R.
App. P. 29, or disclose in some other format any interest he may have in the litigation, including any relevant
information about his role in the Red Hat Center for Open Source.

695
 Appendix D

Sample Appellate Brief

The attached appellate brief (a Brief in Opposition to a Petition for a Writ of

Certiorari) was submitted to the United States Supreme Court. Note that not all citations
comply with Bluebook rules.
No. 03-878

In the Supreme Court of the United States

_________________

PHIL CRAWFORD, INTERIM FIELD OFFICE DIRECTOR, PORTLAND, OREGON, UNITED

STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS

V.

SERGIO SUAREZ MARTINEZ

_________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals
for the Ninth Circuit

_________________

BRIEF IN OPPOSITION

_________________

Christine Stebbins Dahl

Assistant Federal Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Counsel for Respondent

QUESTION PRESENTED

In Zadvydas v. Davis, 533 U.S. 678 (2001), this Court considered the government’s
authority under 8 U.S.C. § 1231(a)(6) to continue to detain for the purpose of removal

696
those persons whose removal from the United States could not be accomplished in the
reasonably foreseeable future. This Court interpreted the statute to limit such detention to
a “reasonable time,” and applied it to former permanent residents. In this case, the Ninth
Circuit Court of Appeals, citing Lin Guo Xi v. INS, 298 F.3d 832 (9th Cir. 2002),
summarily affirmed the application of Zadvydas to Sergio Suarez Martinez, a Mariel Cuban
who had been paroled into the United States in 1980 and was ordered removed in 2001.
Although it detained Mr. Martinez under section 1231(a)(6) for nearly two years, the
government made no effort to remove him, conceded it was unable to do so within the
foreseeable future, and ultimately asked the Ninth Circuit to summarily affirm the district
court’s conditional release order pursuant Lin Guo Xi.
Given that section 1231(a)(6) draws no distinction between individuals who are
removable on grounds of inadmissibility and those removable on grounds of deportability,
this case presents the question whether the Ninth Circuit correctly applied Lin Guo Xi, in
which it adhered to this Court’s statutory construction of section 1231(a)(6) in Zadvydas.

TABLE OF CONTENTS

Page
QUESTION PRESENTED i
TABLE OF AUTHORITIES iii
OPINIONS BELOW 1
JURISDICTION 2
STATEMENT 2
REASON FOR DENYING THE PETITION 4
CONCLUSION 8

TABLE OF AUTHORITIES

FEDERAL CASES

Benitez v. Wallis, 337 F.3d 1289 (11th Cir. 2003),

cert. granted, 2004 WL 67860 (U.S. Jan. 16, 2004) 1, 4, 8
(No. 03-7434)

Brown v. Gardner, 513 U.S. 115 (1994) 6

Elmendorf v. Taylor, 23 U.S. (10 Wheat) 152 (1825) 7

697
Lin Guo Xi v. INS, 298 F.3d 832 (9th Cir. 2002) 1, 4, 5, 6, 7

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) 7

United States v. Frade, 709 F.2d 1387 (11th Cir.

2
1983)

Zadvydas v. Davis, 533 U.S. 678 (2001) 1, 4, 5, 6, 7

FEDERAL STATUTES

8 U.S.C. § 1182(d)(5) 2, 4

8 U.S.C. § 1231(a)(6) 1, 4, 5, 7

28 U.S.C. § 1254(1) 1

8 C.F.R. § 212.12(g) 3

BRIEF IN OPPOSITION

Petitioners Phil Crawford, Interim Field Office Director, Portland, Oregon, U.S.
Immigration and Customs Enforcement, and John Ashcroft, Attorney General of the
United States, seek a writ of certiorari to review the judgment of the United States Court of
Appeals for the Ninth Circuit. The government has asked this Court to hold its petition
pending final resolution of the petition to review Benitez v. Wallis, 337 F.3d 1289 (11th
Cir. 2003), cert. granted, 2004 WL 67860 (U.S. Jan. 16, 2004) (No.03-7434). The
respondent, Mr. Martinez, opposes the issuance of a writ in his case. Although the question
presented here cannot seriously be distinguished from that in Benitez, the Ninth Circuit
resolved it correctly and the Eleventh Circuit did not. Because his conditional release is at
stake, Mr. Martinez opposes holding this petition pending final disposition of Benitez.
Instead, Mr. Martinez requests consolidation with Benitez for argument should the Court
grant the writ.

698
 OPINIONS BELOW

The order of court of appeals is unreported and appears at 1a of the Appendix to the
Petition for Writ of Certiorari. The order of the district court is unreported and appears at
2a of the Appendix to the Petition.

JURISDICTION

This Court has jurisdiction to review the judgment by writ of certiorari under 28
U.S.C. § 1254(1). The government’s petition appears to have been timely filed.

STATEMENT

Certain errors in the government’s statement require correction. The government has
never before suggested that Mr. Martinez attempted to enter the United States illegally.
Petition at 2 (“Respondent is one of approximately 125,000 Cuban nationals, many of
them convicted of crimes in Cuba, who attempted to enter the United States illegally
during the 1980 Mariel boatlift.”). In fact, he did not. He fled Cuba by boat as part of the
“Freedom Flotilla” that enjoyed U.S. government approval.1 Mr. Martinez arrived in Key
West, Florida on June 8, 1980, and was immediately paroled into United States pursuant
to 8 U.S.C. § 1182(d)(5). Gov’t Supp. Mtn. to Hold in Abeyance (CR 12) at 2.

The government omits to state that it identified section 1182(d)(5) as an independent

source of authority to detain Mr. Martinez for the first time before the Ninth Circuit.
Compare Petition at 3. In its district court pleadings, the government identified only section
1231(a)(6) as the source of its authority and made no attempt to distinguish Lin Guo Xi.
E.g., Gov’t Supp. Mtn. to Hold in Abeyance (CR 12) at 4; Appellants’ Response to Petitioner-
Appellee’s Motion for Summary Affirmance and Request for Summary Affirmance (CA 03-
35053) (July 9, 2003) at 2. The government did not suggest section 1182(d)(5) provided
independent authority to detain Mr. Martinez until it moved for summary affirmance in
the Circuit. Appellants’ Response to Petitioner-Appellee’s Motion for Summary Affirmance and
Request for Summary Affirmance (CA 03-35053) (July 9, 2003) at 7.
Finally, while noting annual custody reviews pursuant to parole regulations applicable
to Mariel Cubans, 8 C.F.R. § 212.12(g), Petition at 8, the government omits to state Mr.
Martinez alleged these regulations were constitutionally deficient and yielded an unreliable
result because they do not provide detainees a meaningful opportunity to challenge
continued detention and are so lacking in important safeguards as to create a significant risk
of erroneous deprivation of liberty interests. See Brief in Support of Petition (CR 9) at 25.
The government never addressed this argument, and the district court’s order granting the
habeas petition did not disclose whether this argument informed its decision. Compare
Order Granting Petitioner’s Motion to Dissolve Stay and for Immediate Release (CR 24).

REASON FOR DENYING THE PETITION

699
 The petition should be denied because the Ninth Circuit correctly concluded it was
bound by this Court’s statutory construction of section 1231(a)(6) in Zadvydas, and
applied the same statute in the same manner. Because Congress chose to treat all of the
categories of aliens the same in section 1231(a)(6), this Court has no occasion to rewrite the
statute. It has the same meaning for everyone to whom it applies.
Contrary to the Eleventh Circuit’s analysis in Benitez, the Ninth Circuit began with the
statutory construction issue, and having resolved the issue in favor of the petitioner,
concluded it had no occasion to address the underlying constitutional issues.

Just a year ago the Supreme Court held that 8 U.S.C. § 1231(a)(6) “limits an alien’s post-removal-period
detention” to a reasonable time period and “does not permit indefinite detention” by the Immigration and
Naturalization Service (“INS”). Zadvydas v. Davis, 533 U.S. 678, 689 (2001). We are now presented with the
question of whether this statute bears the same meaning for an individual deemed inadmissible to the United
States under 8 U.S.C. § 1182. The answer is yes. Our analysis of § 1231(a)(6) begins and ends with Zadvydas.
Because the Supreme Court construed the statute, we are bound by that framework and thus are not called upon
to address the scope of any constitutional claims of an inadmissible alien.

Lin Guo Xi, 298 F.3d at 833-34.

The Ninth Circuit, employing traditional canons of statutory construction, looked first
to the language of the statute and concluded that it expressly applies to both inadmissible
(formerly referred to as excludable) and removable (formerly referred to as deportable)
aliens. Id. The plain language of the detention statute provides:

An alien ordered removed who is [A] inadmissible under section 1182 of this title, [B] removable for violations of
[nonimmigrant status or entry conditions, violations of criminal laws, or threatening national security,] or [C] who
has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order
of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of
supervision in paragraph (3).

8 U.S.C. § 1231(a)(6) (emphasis added).

The Ninth Circuit found that although Zadvydas only concerned the second category
(removable aliens), this Court’s construction addressed the statute as a whole, and thus, the
holding of Zadvydas was not limited to the second prong:

Although Zadvydas concerned the second prong of the statute—relating to deportable aliens—the Court’s ultimate
holding addresses the statute as a whole: “we construe the statute to contain an implicit ‘reasonable time’
limitation, the application of which is subject to federal court review.” 533 U.S. at 682. In assessing the
applicability of the statute, the Court spoke broadly, noting that it “applies to certain categories of aliens who have
been ordered removed, namely inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant
status conditions, and aliens removable for certain national security or foreign relations reasons . . . .” Id. at 688
(emphasis added). Concluding that the statute “does not permit indefinite detention,” the Court pointedly used
the term “aliens” as opposed to “deportable aliens”:

[W]e read an implicit limitation into the statute before us. In our view, the statute, read in light of the
Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to
bring about that alien’s removal from the United States. It does not permit indefinite detention.

700
Lin Guo Xi, 298 F.3d at 835 (quoting Zadvydas, 533 U.S. at 689).
The Ninth Circuit rejected the INS’s argument that the statute should be construed
differently depending upon the category into which the alien fell. The Ninth Circuit found
the plain language of the statute forbids such a “bifurcated construction,” and such an
approach would be “untenable.” Lin Guo Xi, 298 F.3d at 836-37. Because the statute no
longer distinguishes between “excludable” and “deportable” aliens, there is no sound or
principled basis to interpret and to apply it one way for one category, but a different way
for the other. See Zadvydas, 533 U.S. at 710 (Kennedy, J., dissenting) (“Section 1231(a)(6)
permits continued detention not only of removable aliens but also of inadmissible aliens,
for instance those stopped at the border before entry. Congress provides for detention of
both categories within the same statutory grant of authority”).
The INS argued as much in its briefing to this Court:

[The Supreme] Court has long recognized that, when Congress uses the same language even in different parts of
the same statute, it generally intends the language to have the same meaning. That rule is “at its most vigorous
when a term is repeated within a given sentence.” Brown v. Gardner, 513 U.S. 115, 118 (1994). A fortiori here,
where Congress enacted a single grant of authority to the Attorney General over several categories of aliens,
Congress must be understood to have intended the same language to confer the same authority with respect to each
category.

Brief for the Petitioners at 47, Ashcroft v. Ma (No. 00-38) (U.S. June 28, 2001)
(emphasis added). Any argument by the government that the statute should now be
interpreted differently for inadmissible aliens must be rejected. See also Zadvydas, 533 U.S.
at 710 (Kennedy, J., dissenting) (“[I]t is not a plausible construction of § 1231(a)(6) to
imply a time limit as to one class but not to another. The text does not admit of this
possibility.”); id. at 717 (“[T]hat Mariel Cubans and other illegal, inadmissible aliens will
be released . . . would seem a necessary consequence of the majority’s construction of the
statute.”).
The Ninth Circuit properly concluded it was bound by this Court’s construction of
section 1231(a)(6).

We thus abide by the Supreme Court’s interpretation of § 1231(a)(6) and hold that Lin may not be subjected to
indefinite detention. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) (“It is [the Supreme
Court’s] responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to
respect that understanding of the governing rule of law. A judicial construction of a statute is an authoritative
statement of what the statute mean[s] . . . .”); Elmendorf v. Taylor, 23 U.S. (10 Wheat) 152, 160 (1825) (“[T]he
construction given by this Court to the constitution and laws of the United States is received by all as the true
construction . . . .”)

298 F.3d at 836. The Ninth Circuit’s having correctly applied in Lin Guo Xi this Court’s
binding precedent and the clear language of section 1231(a)(6), there is no reason for this
Court to disturb the order pursuant to which the government released Mr. Martinez on
reasonable conditions.

CONCLUSION

701
 The petition for writ of certiorari should be denied. In the alternative, Mr. Martinez
requests consolidation for argument with Benitez.

Respectfully submitted,

_________________________
Christine Stebbins Dahl
Assistant Federal Defender
101 S.W. Main Street, Suite 1700
Portland, OR 97204
(503) 326-2123
Counsel for Respondent

January 2004

1 Comments by President Carter at a press conference in Miami on May 5, 1980, indicated government approval of
the flotilla:

[L]iterally tens of thousands of others will be received in our country with understanding, as expeditiously as we
can, as safely as possible on their journey across the 90 miles of ocean, and processed in accordance with the law
. . . . But we’ll continue to provide an open heart and open arms to refugees seeking freedom from Communist
domination and from economic deprivation, brought about primarily by Fidel Castro and his government.

United States v. Frade, 709 F.2d 1387 (11th Cir. 1983).

702
 Appendix E

Sample Table of Authorities

The following Table of Authorities is from an actual brief filed with the United States
Supreme Court and offers guidance on compiling a table that refers to numerous sources.
Note that not all citations comply with Bluebook rules.

TABLE OF AUTHORITIES

CASES Page

Bailey v. USX Corp., 850 F.2d 1506 (11th Cir. 1988) 18-21

Bayer v. United States Dept. of Treasury, 956 F.2d 330 (D.C. Cir. 1992) 24, 26

Berry v. Stevinson Chevrolet, 59 Fair Empl. Prac. Cas. (BNA) 1571 (D.
Colo. 1992) 18

Bilka v. Pepe’s Inc., 601 F. Supp. 1254 (N.D. Ill. 1985) 21

Caudill v. Farmland Indus., Inc., 698 F. Supp. 1476 (W.D. Mo. 1988),
aff’d, 919 F.2d 83 (8th Cir. 1990) 18

Caudill v. Farmland Indus., Inc., 919 F.2d 83 (8th Cir. 1990) 19-20

Christopher v. Stouder Mem. Hosp., 936 F.2d 870 (6th Cir.), cert. denied,
112 S. Ct. 658 (1991) 18, 22

Doe v. St. Joseph’s Hosp., 788 F.2d 411 (7th Cir. 1986) 22

Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir. 1977) 19-21

EEOC v. Commercial Office Prods. Co., 486 U.S. 107 (1988) 20

EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987)

19-21

Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303

(5th Cir. 1972) 22

703
Irwin v. Veterans Admin., 498 U.S. 89 (1990) 27-29

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) 21

O’Brien v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir. 1982) 18

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) 20

Pacheco v. Rice, 966 F.2d 904 (5th Cir. 1992) 26

Pantchenko v. C.B. Dolge Co., 581 F.2d 1052 (2d Cir. 1978) 18-19, 21

Passer v. American Chem. Soc’y, 935 F.2d 322 (D.C. Cir. 1991) 19-21, 23

Reed v. Shepard, 939 F.2d 484 (7th Cir. 1991) 18

Rennie v. Garrett, 896 F.2d 1057 (7th Cir. 1990) 26

Richardson v. Frank, 946 F.2d 901 (10th Cir. 1991) 26

Roberts v. Thomas, 884 F.2d 1395 (9th Cir. 1989), cert. denied, 493
U.S. 1058 (1990) 26

Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir.

1977) 18-20, 22

Shea v. Tisch, 870 F.2d 786 (1st Cir. 1989) 26

Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711 (D.C. Cir.
1978) 18

Sherman v. Burke Contracting, Inc., 891 F.2d 1527 (11th Cir.), cert.
denied, 111 S. Ct. 353 (1990) 18

Sibley Mem. Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) 18

South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940) 21

United States v. American Trucking Ass’ns, 310 U.S. 534 (1940) 21

STATUTES AND REGULATIONS Page

704
Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (1988) 19, 23

Civil Rights Act, 42 U.S.C. § 1981 (1992) 23

Coal Mine Safety and Health Act, 30 U.S.C. § 820(b)(1) (1976) 23

Fair Labor Standards Act, 29 U.S.C. § 215(a) (1976) 19, 23

National Labor Relations Act, 29 U.S.C. § 158 (1976) 23

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-

17 passim

28 U.S.C. § 1254(1) 2

42 U.S.C. § 2000e-(3)(a) 3, 17-18, 21-22

42 U.S.C. § 2000e-(5)(e) 12

42 U.S.C. § 2000e-16 3

29 C.F.R. § 1613.204(f)(4) 5, 27

29 C.F.R. § 1613.214(a)(1)(i) 23

29 C.F.R. § 1613.214(a)(4) 5, 23-26

29 C.F.R. § 1613.215(a)(4) 6

OTHER
H.R. Rep. No. 914, 88th Cong., 2d Sess., reprinted in U.S.C.C.A.N.
2391 20

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 Glossary

A.L.R.: See American Law Reports.

ALWD citation system: A system introduced in 2000 by the Association of Legal Writing
Directors (“ALWD”) to provide an easier, more readily understood citation format; now
identical to The Bluebook.
Act: A series of statutes related to one topic.
Adjudication: An administrative proceeding before an administrative law judge.
Administrative agency: A governmental body that enacts rules and regulations on a
specific topic and settles disputes relating thereto, for example, the FCC, FDA, or NLRB.
Administrative law: The law relating to administrative agencies.
Administrative law judge: An individual who presides over an administrative adjudication.
Advance sheets: Temporary softcover books that include cases prior to their publication in
hardbound volumes.
Alerts: Electronic services offered by Lexis, Lexis Advance, and Westlaw that automatically
update research results and notify users by email of updated results.
Am. Jur. 2d: See American Jurisprudence 2d.
American Digest System: West’s comprehensive set of digests designed to help researchers
find cases.
American Jurisprudence 2d: A general or national encyclopedia published by West covering
all United States law.
American Law Reports: Sets of books publishing appellate court decisions together with
comprehensive essays or annotations relating to the legal issues raised by those cases.
Amicus curiae: Literally, “friend of the court”; a brief submitted to a court by one who is
not a party to the action or proceeding.
Annotated: Literally, “with notes”; generally, a reference to one-sentence descriptions of
cases that follow statutes in codes such as U.S.C.A. or a state code.
Annotated code: A set of statutes organized by subject matter that contains material
accompanying the statutes, chiefly references to cases.
Annotated law reports: See American Law Reports.
Annotation: A one-sentence description of a case; an article or monograph about a legal
topic published in A.L.R.
Appeal: Review by one court of a lower court’s decision.
Appellant: A party who initiates an appeal; sometimes called a petitioner.

706
Appellate brief: A document presented to a reviewing court to obtain affirmance, reversal,
or some alteration of a lower court’s ruling.
Appellee: A party who responds to an appeal; sometimes called a respondent.
Apps: Law-related databases accessible on iPhones, iPads, and other similar devices,
allowing legal professionals access to federal laws and other materials.
Attorneys general opinions: Opinions by executive officials on various legal topics;
opinions by the U.S. Attorney General or individual state attorneys general.

BCite: Bloomberg Law’s citation validation service, used to ensure cases are still good law.
Bicameral: A two-chamber legislature.
Bill: A proposed law.
Bill of Rights: The first ten amendments to the United States Constitution.
Binding authority: Legal authority that must be followed by a court.
Blawg: An online journal related to legal topics.
Block form: Style of letter writing in which all the elements, including the date and the
closing, begin at the left-hand margin.
Block quotation: A quotation from another source of 50 words or more, indented
(typically ten spaces) left and right, that appears without opening and closing quotation
marks.
Blog: An online journal or diary (short for “weblog”).
Bloomberg Law: The computerized legal research system offered by Bloomberg Finance
One L.P.
Blue and White books: Books published by West for individual states that include
conversion tables for locating parallel cites; publication has been discontinued.
Bluebook: The best known and used guide for citation form; subtitled A Uniform System of
Citation, now in its twentieth edition.
Bluepages: Section of The Bluebook printed on light blue paper, providing rules and
examples for practitioners (rather than the citation form used for law review articles).
Boolean searching: A method of conducting research online using symbols and characters
rather than plain English.
Brainstorming: A prewriting strategy that results in a type of outline listing all words
related to a project.
Brief: A summary of a case; or a written argument presented to a court; see also
Memorandum of Law.
BriefCheck: Lexis Advance service that automatically Shepardizes citations and generates a
report indicating the validity of citations.
Browser: Software that helps access and review information on the Internet and translates
HTML-encoded files into text and images that one can read and view; Safari and Google
Chrome are examples of browsers.

CALR: See computer-assisted legal research.

CD-ROM: Literally, “compact disc, read-only memory”; a hard disc containing thousands

707
of pages of information.
C.J.S.: See Corpus Juris Secundum
CRAC: An acronym for “Conclusion,” “Rule,” “Application or Analysis,” and
“Conclusion”; a method used to analyze legal authorities and issues in a brief or other
document.
CREAC: An acronym for “Conclusion,” “Rule,” “Explanation,” “Application or Analysis,”
and “Conclusion”; a method used to analyze legal authorities in a document.
Cable modem: Equipment used to connect to the Internet over cable TV lines, allowing
faster connection than a telephone line.
Case of first impression: An issue not yet decided by a jurisdiction.
“Case on point” approach: System used by a researcher following West’s headnotes and
Key Numbers to locate other similar cases by inserting a topic name and Key Number into
the various units of the Decennial Digest System.
Certificate of Compliance: A verification that a document or pleading complies with court
rules as to word count, page count, or other rules.
Certificate of Service: A verification that a document or pleading has been “served on” or
presented to a party.
Certification: The process by which a court of appeals refers a question to the United
States Supreme Court and asks for instructions and direction.
Certiorari: Writ of certiorari; the most widely used means to gain review of a case by the
United States Supreme Court; issuance of the writ (meaning a decision to review a case) is
discretionary with the Court.
Cert pool: The group of United States Supreme Court law clerks that takes turns
evaluating petitions for certiorari and writing memos.
Cert worthy: A case for which certiorari has been granted.
Chamber opinion: An opinion written by a United States Supreme Court Justice in his or
her capacity as the Justice assigned to a particular circuit rather than in the capacity of
writing for the majority of the Court; also called “in-chambers opinion.”
Charter: The governing document for a municipality.
Checks and balances: The system whereby each division of the United States government
is to exercise its own powers and function separately from the others.
Chief Justice: The presiding Justice of the United States Supreme Court or perhaps of a
state court.
“Chron” copy: A copy of a legal document placed in a chronological file for law office
purposes.
Circuit: A geographical area in which courts are located; the United States is divided into
11 numbered circuits and two unnumbered circuits, each with its own court of appeals.
Citators: Online or print sources that direct one to other materials discussing or treating
legal authorities.
Cite-checking: The process of verifying that citations in a document are accurate and in
compliance with rules for citation form and then verifying that the authorities are still
“good law.”

708
Civil law: A body of law depending more on legislative enactments than on case law, often
seen in non-English-speaking countries.
Cloud computing: Storing and accessing information over the Internet (on someone else’s
server) rather than on a user’s computer’s hard drive.
Code: A compilation of statutes or regulations arranged by subject or topic.
Code of Federal Regulations: The codification of administrative rules and regulations, by
subject, into 50 titles.
Codification: The process of organizing laws or regulations by subject matter rather than
chronologically.
Comment: A shorter piece in a law review authored by a student; also called “Note.”
Committee print: A report or study prepared for a congressional committee.
Committee report: Document reflecting decisions reached by legislative committees
considering proposed legislation.
Committee transcript: Report of proceedings before committees considering proposed
legislation.
Common law: The body of law that develops and derives through judicial decisions rather
than from legislative enactments, usually seen in English-speaking countries.
Compilation of Presidential Documents: Publication including materials relating to the
executive branch.
Compiled legislative history: “Prepackaged” legislative history, usually compiled for
significant legislation.
Complimentary close: The ending of a letter, such as “Sincerely.”
Computer-assisted legal research: The process of conducting legal research through
computer rather than conventional print sources.
Concurrent jurisdiction: The sharing of jurisdiction over a case by federal and state courts
so that a litigant can select which forum in which to bring the action.
Concurring opinion: Opinion written by a member of the majority who agrees with the
result reached in a case but disagrees with the reasoning of the majority.
Congress: The lawmaking body of the federal government, composed of the Senate and the
House of Representatives.
Congress.gov: Website for legislative information, provided by the federal government,
that offers text of proposed and enacted legislation since 1973.
Congressional Index: Set of books used to compile legislative histories.
Congressional Information Service: Sets of books used to compile legislative histories;
publication ceased in 2009.
Congressional Record: A publication that publishes the remarks of the speakers debating a
bill prepared for each day Congress is in session as well as other remarks and speeches made
on the floor of the House or Senate.
Constitution: The document that sets forth the fundamental law for a nation or state.
Constitutional courts: Courts such as the United States Supreme Court that exist under
the United States Constitution and whose judges are protected as to tenure and salary
reductions.

709
Convention: A type of treaty, usually relating to a single topic.
Corpus Juris Secundum: West’s general or national encyclopedia covering all United States
law.
Court reports: Sets of books that publish cases.
Courts of appeal: Intermediate appellate courts; in the federal system, these are sometimes
called circuit courts.
Courts of first resort: Trial courts.
“Current Awareness Commentary”: A section of the monthly issue of U.S.C.S. Advance
that includes summaries of pending legislation.
Current Law Index: Separately published index designed to direct researchers to
periodicals, such as articles in law reviews.
Cyberspace: The electronic or computer world in which vast amounts of information are
available; sometimes used as a synonym for the Internet.

Database: A collection of information organized for access through a computer system.

Decennials: Digest books published by West that arrange cases in ten-year (or more
frequent) groups; see also American Digest System.
Decision: Technically, the final action taken by a court in a court case; generally, the term
“decision” is used synonymously with “opinion,” “judgment,” or “case.”
Demand letter: A letter setting forth a client’s demands or requirements.
Depository library: A library designated by the United States government to receive
selected government materials and publications.
Descriptive word approach: A method of locating legal materials by looking up words
describing a problem or issue in an index or search engine that then directs the reader to
relevant information.
Dictionary (legal): An alphabetical arrangement of words and phrases providing the
meaning or definition of those words and phrases.
Dictum: Technically, “obiter dictum”; a remark in a case said for purposes of illustration or
analogy; dictum is persuasive only.
Digests: Books or indexes that arrange one-sentence summaries or “digests” of cases by
subject.
Directory: A list of lawyers.
Dissenting opinion: An opinion written by a judge in the minority who disagrees with the
result reached by the majority of a court.
District courts: The 94 trial courts in our federal system.
Diversity jurisdiction: A basis upon which federal courts take cases, due to the different or
diverse citizenship of the parties in the case.
Docket number: A number assigned to a case by a court to track its progress through the
court system.
Domain name: The name that identifies an Internet site, such as “www.ibm.com.”
Domain names have two parts: the “generic top-level domain,” which is the last part of the
domain name, such as “com,” or “gov,” and which usually refers to the type of provider of

710
the information; and the “secondary domain,” which is more specific and is to the left of
the generic top-level domain, such as “ibm” in the above example.
Download: Transferring files or information from the Internet to one’s personal computer.
Drafting Assistant: Thomson Reuters/West’s software program that helps ensure correct
citation form, creates tables of authorities, checks the status of citations in a document, and
assists with proofreading.

ebook: Book available in electronic form.

E-mail: Electronic mail or messages sent through the computer rather than in physical
form (which is often called “snail mail”).
E-mail memo: Condensed version of a traditional memo that is suitable for reading on a
small screen such as an iPhone screen.
Electronic index: Fully cumulative electronic or online index, some require user account or
subscription.
Ellipsis: Three periods separated by spaces and set off by a space before the first and after
the last period, used to indicate omission of a word or words.
Enabling statute: A statute that creates an administrative agency such as the FDA or FCC.
En banc opinion: Literally, “in the bench”; an opinion in which all judges in an appellate
court participate.
Encyclopedias: Sets of books that alphabetically arrange topics related to legal issues;
treatment of legal issues is somewhat elementary; the best-known general sets are C.J.S. and
Am. Jur. 2d; some state-specific sets exist.
Engrossed bill: A final version of a bill passed by one legislative chamber.
Enrollment: A process wherein a bill that has been passed by both the House and the
Senate is then printed by the Government Publishing Office, following which the bill is
certified as correct and signed by the Speaker of the House and by the Vice President.
Exclusive jurisdiction: The basis upon which a court’s ability to hear a case is exclusive to
the federal court, such as a bankruptcy case, and which cannot be heard by another court.
Executive agreement: An agreement entered into with a foreign nation by a president
acting without Senate approval.
Executive branch: The branch of the United States government that enforces laws.
Executive order: Regulations issued by a president to direct government agencies.
Extranet: An internal company or law firm intranet that provides access to select outsiders
on a case-by-case basis.

FAQ: “Frequently asked questions,” often included on websites and that respond to the
most commonly asked questions about the site or about the information provided by the
site.
FIOS: Fiber Optic Service, a digital technology providing Internet access with maximum
connection speed.
FTP: File Transfer Protocol, a common method of moving files or communicating
between two Internet sites.

711
Federal Appendix: West’s set of books that prints unpublished federal courts of appeal
cases.
Federal Digital System (FDsys): Website maintained by the federal government offering
easy and free access to official, authenticated government documents, including federal
statutes, Code of Federal Regulations, and numerous other primary sources; formerly GPO
Access; FDsys is being replaced by a new system called GovInfo.
Federalism: Sharing of powers by the federal and state governments.
Federal question jurisdiction: The power of a federal court to hear a case based upon the
fact the case arises under the United States Constitution or a United States law or treaty;
sometimes called “subject matter jurisdiction.”
Federal Register: A pamphlet published every weekday relating to administrative law and
publishing proposed and final agency rules and regulations.
Federal Reporter: West’s unofficial publication containing cases from the federal courts of
appeal.
Federal Supplement: West’s unofficial publication containing cases from the federal district
courts.
FindLaw: Internet site providing free access to many legal authorities.
Flesch Reading Ease Test: A test used to determine the readability of a written document.
Form books: Sets of books including forms for use in the legal profession; may be general
or related solely to one area of law.

G20: A group comprising the major industrial democracies.

GPO Access: See Federal Digital System.
General encyclopedia: See Encyclopedias.
Google Scholar: A free search service offered by Google allowing one to access federal and
state court cases by case name or topic.
GovInfo: See Federal Digital System.

HTML: Hypertext Markup Language, a standard language of computer code.

HTTP: Hypertext Transfer Protocol, a common method of moving files or
communicating between two Internet sites.
Header: Information found on the second and any following pages of letters in the upper
left-hand corner listing the addressee, page, and date.
Headnotes: Short paragraphs prepared by editors, given before a case begins to serve as an
index to the points of law discussed in a case.
History references: References provided by Shepard’s relating to the subsequent history of a
primary authority.
Home page: The first or main page sent when accessing a person’s or business’s website.
Hornbook: A one-volume treatise devoted to one area of the law, such as contracts, torts,
or real property.
Hyperlink: A method of instantaneous transport to another destination in cyberspace;
hyperlinks are often underscored or appear in different color on the computer screen; by

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clicking the colored line, you will be immediately transferred to that particular site or page.

IRAC: An acronym for “Issue,” “Rule,” “Application” or “Analysis,” and “Conclusion”; a

method used to analyze authorities and legal issues in an exam, memo, or brief.
Id.: A signal used in citation form to direct a reader to an immediately preceding citation.
Indefinite pronoun: A pronoun that does not refer to a specific person, such as “anyone.”
Index: An alphabetical arrangement of words and terms designed to direct researchers to
relevant cases, statutes, or legal information; usually contained in the last volume of a set of
books or in separate volumes after the last volume.
Index method: See Descriptive word approach.
Index to Legal Periodicals & Books: Separately published index (both in print and online)
designed to direct researchers to periodicals such as articles in law reviews.
Infra: A signal used in books or citation form meaning “below” directing a reader to a later
(though not immediately following) citation.
Interfiling: An updating technique used in looseleaf binders or sets by replacing individual
pages.
International Court of Justice: A court under the responsibility of the United Nations,
created to hear and decide disputes between and among nations; also called the World
Court.
International law: The law relating to relations among nations.
Internet: A collection of worldwide interconnected computer networks originally
developed for defense purposes and which are linked together to exchange information; the
Internet is not owned by any one person or company.
Internet Service Provider (ISP): A company that provides Internet access, such as Verizon,
for a monthly fee.
Intranet: A private network inside a company or law firm that provides access only for
internal use to those in the company or firm and not to outsiders; for example, a law firm’s
intranet could be used only by those in the firm and could not be accessed by any member
of the general public.

Judge: Individual who sits on a lower court.

Judiciary: The branch of the government that interprets laws.
Jump cite: See Pinpoint cite.
Jurisdiction: The power of a court to act.
Jurisdictional statement: A statement in a brief explaining the grounds upon which the
court’s jurisdiction to hear the case rests.
Jury instructions: Sets of books containing proposed instructions to be used to charge a
jury in a civil or criminal case.
Justice: Individual who sits on the United States Supreme Court or the highest court in a
state.
Justia: Website offering free access to legal materials.

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KeyCite: A citation service offered through Westlaw providing information relating to the
validity of primary authorities cited in a document.
KeyCite Alert: A software update service that automatically notifies a researcher of changes
in the treatment of a legal authority.
Key Number: West’s assignment of a number to a particular topic of law, allowing
researchers to retrieve numerous cases dealing with the same point of law.
Law: See Statute.
Law review: The periodic publication by a law school providing scholarly treatment of a
legal topic; sometimes called “law journal.”
Legalese: The overuse of legal terms and foreign words and phrases in legal writing.
Legal Looseleafs in Print: A publication that identifies which topics are covered by looseleaf
publications.
Legislative courts: Specialized courts, such as the United States Tax Court, which do not
exist under the Constitution and whose judges are appointed for specific terms.
Legislative history: The documents reflecting the intent and activity of a legislature at the
time it enacts a law.
Legislature: The branch of the government that makes law.
Letterhead: Information printed on stationery identifying the correspondent.
Lexis: The computerized legal research system offered by Reed Elsevier; also called
Lexis.com.
Lexis Advance: Lexis’s new research system allowing easy “Google-style” searching across
all of Lexis’s content without requiring researchers to select a database.
Lexis for Microsoft Office: LexisNexis’s software that helps ensure correct citation form,
creates tables of authorities, checks the status of citations in a document, and assists with
proofreading.
“Library References”: A feature of U.S.C.S. comparable to that of U.S.C.A. in that it
provides cross-references as well as directing the researcher to books, encyclopedias,
annotations, and a wide variety of law review articles relating to statutes.
Link: See Hyperlink.
Link rot: Changes to or disappearing websites and hyperlinks making it impossible to find
Internet sources.
Listserv: A system that allows groups of people to e-mail each other and participate in
group discussions, usually about a topic of common concern; for example, there may be a
group comprising law students, and when one message is sent by a user, it is automatically
sent to all others in the group; sometimes called “newsgroup” or “discussion group.”
Log in: (v.) To gain access to one’s account on a computer system by entering one’s user
name and password.
Login: (n.) The account name that is used to gain entry to a computer system and that is
not secret, as is a password; also called a “user name.”
Looseleaf (or looseleaf service): A set of materials collected in ringed binders due to the
need for frequent updating and related to a specific area of law such as labor law or tax;
includes both primary and secondary authorities.

714
Majority opinion: Any judicial opinion written by a member of the majority after a court
reaches a decision.
Maroonbook: A citation manual published by the University of Chicago and used in the
Chicago area.
Martindale-Hubbell Law Directory: A comprehensive directory of lawyers in the United
States and in foreign countries.
Memorandum (legal): A document explaining legal issues involved in a case in a neutral
and objective manner.
Memorandum of Law: Document presented to a court to persuade the court to rule in a
party’s favor; also called a brief; occasionally called Memorandum of Points and
Authorities.
Memorandum of Points and Authorities: See Memorandum of Law.
Memorandum opinion: An opinion that provides a result but offers little or no reasoning
to support that result.
Merged closing: The disfavored combination of a complimentary close with the last
sentence of a letter.
Metadata: Information relating to the history, management, and tracking of electronically
created documents.
Microfiche: A strip or sheet of celluloid film containing images of archived documents.
Microfilm: 16-mm or 35-mm film containing images displayed on screens and often used
for efficient storage of voluminous records.
Microform: A type of technology embracing microfilm, microfiche, and ultrafiche, based
on photography and that stores material more efficiently than print sources.
Model act: Proposed law intended to be used as a guideline for actual legislation.
Modem: A device that connects to a computer and to a phone line, allowing the computer
to communicate with other computers, much the way telephones allow humans to
communicate with each other; see also Cable modem.
Moot: Resolved; cases that have been resolved or settled in some manner are said to be
moot.

National Reporter System: A set of unofficial court reporters published by West and
including federal and state cases.
Natural language: A “plain English” computer method of conducting legal research in
contrast to using Boolean connectors.
Netiquette: The code of etiquette or conduct for the Internet.
Network: The connecting of two or more computers so that they can communicate with
each other and share resources and information.
Neutral citation: See Public domain citation.
Newsgroup: Electronic communications method allowing its participants to view, post,
and reply to messages; also called “discussion group.”
Nominalization: The conversion of an adjective, verb, or adverb into a noun, for example,
the conversion of the verb “decide” into “render a decision.”

715
Noncritical: Treatment of a legal topic in explanatory rather than analytical or critical
manner.
Note: See Comment.

Obiter dictum: See Dictum.

Official: Publication of cases, statutes, or other legal materials as directed by a statute.
On all fours: See On point.
Online: The condition of being connected to the Internet through electronic
communication.
Online catalog: An electronic database used by libraries in place of a conventional print
card catalog to catalog materials owned by the library.
Online journal: A journal that is published exclusively online, not in print form.
On point: A case that is factually similar and legally relevant and that controls another case;
sometimes called a case “on all fours.”
Opinion: A court’s explanation of the law in a particular case; also called “case” or
“decision.”
Opinion letter: A letter setting forth advice to a client.
Ordinance: A local law.
Original jurisdiction: The ability of a court to act as a trial court.
Overrule: The overturning of a case by a higher court considering a different case on
appeal.

PACER: Service of the United States Judiciary, allowing access to documents filed in
federal courts.
PDF: Portable Document Format, a format that duplicates on a computer screen what a
conventional print source looks like.
Parallel citation: Two or more citations to the same case allowing researchers to read a case
in two or more sets of reports.
Parallel structure: The requirement that the grammatical structure of all items in a list be
identical or parallel.
Password: The secret code used to gain access to a computer system.
Per curiam: An opinion by a court in which no author is identified.
Periodical: A publication issued on a periodic, such as monthly or quarterly, basis; for
example, the Computer Law Journal.
Permanent law: A law that remains in effect until it is expressly repealed.
Personal digital assistant (PDA): A handheld computer device such as the BlackBerry,
which provides wireless access for updating and validating through both Shepard’s and
KeyCite.
Persuasive authority: Legal authorities that a court is not required to follow but might be
persuaded to do so; secondary authorities are persuasive.
Pinpoint cite: A reference to the exact page in a source to which a reader is directed; also
called a “pincite,” “jump cite,” or “spot cite.”

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Plain English movement: A modern approach to legal writing calling for the use of plain
English and an end to stuffy, archaic, and jargon-filled writing.
Plurality opinion: The result reached when separate opinions are written by members of a
majority.
Pocket part: A booklet or pamphlet inserted into the back of a hardbound volume to
provide more current information than that found in the volume.
Popular name: A name used to refer to a statute or case, such as the names of the
sponsoring legislators, the parties to the case, or a name coined by the media.
Popular name approach: A method of locating cases or statutes by looking up their
“popular names.”
Posting: The entering of information or messages into a network, for example, cases are
“posted” to the website of the United States Supreme Court and legal professionals “post”
messages on social media.
Primary authority: Official pronouncements of the law, chiefly cases, constitutions,
statutes, administrative regulations, and treaties, all of which are binding authorities.
Private international law: The law relating to which country’s law will govern a private
contractual transaction or arrangement.
Private law: A law affecting only one person or a small group of persons, giving them some
special benefit not afforded to the public at large.
Procedural history: The path a case has taken, for example, from trial to appellate court.
Proclamation: A statement issued by a president that usually has no legal effect.
Proofreading: The process of reviewing a writing to correct errors, especially technical
errors.
Public domain citation: A citation that does not refer to a particular vendor or to a
particular type of source; also called neutral citation or universal citation.
Public international law: The law relating to the conduct of nations.
Public law: A law affecting the public generally.

Query: A search request used to access a computer-assisted legal research system.

Quick Index: An easy-to-use one-volume index published by West that directs the
researcher to annotations in A.L.R.3d through A.L.R.7th. Note that there is also an A.L.R.
Federal Quick Index.

RSS: Abbreviation for “rich site summary” or “really simple syndication,” a format for
automatically delivering updated web content.
Ratio decidendi: The “reason of the decision”; the holding of a case.
Redlining: A method of showing changes to a document.
Reference notation (“Re”): An indication of the subject matter of a document.
Regulation: A pronouncement by an administrative agency; sometimes called a rule.
Regulatory body: An administrative agency.
Remand: An order by a higher court that returns a case to a lower court, with directions.
Removal: Sending of a case from one court to another.

717
Report: Set of books publishing cases, generally official sets.
Reporter: Set of books publishing cases, generally unofficial sets.
Resolution: A proposed local ordinance.
Restatements: Publications of the American Law Institute designed to restate in a clear and
simple manner legal doctrine in specific areas, such as contracts, torts, or trusts.
Reverse: The overturning of a lower court decision by a higher court considering that same
case on appeal.
Root expander: A device used in computerized legal research, such as an asterisk or an
exclamation point, that substitutes for a character or any number of additional letters at the
end of a word, respectively.
Rule: See Regulation.
Rule of Four: The decision by four of the nine United States Supreme Court Justices to
grant certiorari and take a case.
Rules of court: Procedural requirements issued by courts and that must be followed by
litigants.
Rules of procedure: Rules governing practice before a court, such as the Federal Rules of
Civil Procedure, which govern significant matters.
Running head: The printed line across the top of published cases that identifies the parties’
names and case citation.

Salutation: The greeting in a letter, such as “Dear Ms. Howard.”

Sans serif style: Print style without embellishments of extra lines on letters, such as the
Arial font.
Scope note: A brief paragraph outlining the matters treated in a legal discussion and those
to be treated elsewhere.
Search box: A blank box on a computer screen, in which you type or key in the word or
terms you are interested in researching.
Search engine: A service that locates information on the Internet, usually through key
words. Common search engines are Yahoo!, Google, and Bing. A search engine is a website
that looks for and retrieves other websites. Search engines look for words in the millions of
web pages on the Internet and direct users to websites.
Secondary authorities: Legal authorities that are not primary law and which explain,
discuss, and help locate primary authorities; persuasive authority; includes encyclopedias,
A.L.R. annotations, law reviews, texts, and treatises.
Selective enforcement: A defense raised whereby a party asserts that he or she has been
singled out for prosecution.
Selective publication: The process whereby not all cases are published but rather only
those that advance legal theory are published.
Serial Set: Conventional bound pamphlet set of books publishing congressional committee
and subcommittee reports.
Series: Newer or more recent editions of cases or other legal materials.
Serif style: A style of print that adds small decorative strokes to the edges of letters,

718
generally viewed as enhancing readability, such as Garamond and Times New Roman
fonts.
Server: A computer or software package that provides or serves information to other
computers.
Session laws: The chronological arrangement of laws prior to their arrangement in a code.
Shepardize: The process of ensuring that authorities are still “good law” using Shepard’s
print volumes or Lexis.com or Lexis Advance.
Shepard’s: Sets of books or Lexis’s computerized service that allows researchers to verify that
primary authorities are still “good law.”
Short form citation: An abbreviated form of a citation used after a citation has been given
in full.
Signal indicator: A symbol showing on the computer screen that informs the user of the
precedential status of a case or other authority by indicating through colors or letters the
history and treatment of the case or other authority.
Signals: In citation form, words indicating how a citation supports or contradicts an
assertion; references to preceding or later-given citations in a legal writing.
Slip law: A piece (or pieces) of looseleaf paper containing language of a law; the manner in
which laws are first published.
Slip opinion: A court decision available on looseleaf sheets of paper; one not yet available
in a published reporter.
Spamming: Sending blanket, unsolicited e-mail messages to others, similar to “junk mail.”
Spot cite: See Pinpoint cite.
Stack: Shelf in a library.
Standing: Personal injury or damage sustained by a plaintiff enabling the plaintiff to bring
suit.
Stare decisis: The concept whereby courts follow and adhere to previous cases.
Star paging: A technique to convert page numbers in cases published in unofficial sets to
page numbers in cases published in official sets or showing on a computer screen where
page numbers occur in print volumes.
Statute: An act of a legislature declaring, commanding, or prohibiting something.
String citing: The somewhat disfavored practice of citing more than one authority in
support of a proposition.
Style sheet: A guide to presentation of terms and words used by copyeditors to ensure
consistent presentation.
Subject matter jurisdiction: See Federal question jurisdiction.
Supplement: A softcover pamphlet that updates material found in a hardbound volume.
Supra: A signal used in books or citation form meaning “above,” directing a reader to a
preceding (though not immediately preceding) secondary authority.
“Supreme Court Update”: A feature of U.S.C.S. Advance that includes summaries of
recent United States Supreme Court cases.
Surfing the ’Net: The process of moving or linking from one site to another in the course
of reviewing information.

719
Syllabus: A comprehensive but unofficial summary preceding an opinion of a court,
prepared by the court’s reporter of decisions or the publisher.
Synopsis: A brief summary of a case prepared by editors to provide a quick overview of the
case and given before the case begins.

TAPP: An acronym for “Thing, Action, Person, and Place” and referring to a technique
used to determine words to insert into an index to locate relevant research materials.
Table of Authorities: List of authorities cited in a brief or document and that must be
arranged in a certain order.
Table of Cases approach: Locating a discussion of a case by searching a table of cases by
name.
Table of Statutes approach: Locating a discussion of a statute by searching a table of
statutes by citation.
Temporary law: A law that has specific language limiting its duration.
Terms and Connectors: A method of searching on a computer, using words, symbols, and
characters rather than plain English; often called “Boolean searching.”
Text messaging: A style of communication using wireless electronic devices and using
abbreviated words and symbols.
Thesaurus: A book providing synonyms and antonyms for words and terms.
Thesis statement: An initial sentence or two at the beginning of a project that encapsulates
the central argument to follow; also called umbrella statement.
Thomson Reuters: A law book publisher; formerly West Publishing Co.; often referred to
by legal professionals as “West.”
Titles: Categories of statutes or regulations.
Topic approach: A method of locating legal materials by bypassing the general index and
going directly to the appropriate title or topic in a source.
Total Client-Service Library: Collectively, the sets of books published by the former
Lawyers Co-op and including U.S.C.S., Am. Jur. 2d, A.L.R., Proof of Facts, Am. Jur. Trials,
and various form books.
Transitions: Words or phrases that connect preceding language with that which follows.
Treatise: A scholarly book (or set of books) devoted to the treatment of a particular legal
topic, such as Treatise on the Law of Contracts.
Treatment references: References provided by Shepard’s relating to the later treatment and
discussion of primary authorities by other cases, attorneys general opinions, law review
articles, and so forth.
Treaty: An agreement between two or more nations.

URL: Uniform Resource Locator, one’s address on the Internet. Most Internet addresses
begin with “www” or “http://www.” The URL of IBM is “www.ibm.com.”
Ultrafiche: An enhanced microfiche holding a great many images.
Unicameral: A one-house legislature.
Uniform law: Model legislation prepared by the Uniform Law Commission on various

720
legal topics, such as the Uniform Commercial Code, and designed to be adopted by the 50
states.
Uniform Resource Locator: See URL.
United States Code: The official publication of all federal laws, arranged by topic.
United States Code Annotated: West’s annotated version of the United States Code,
including all federal statutes arranged by subject.
United States Code Congressional and Administrative News: A publication including public
laws, legislative history of selected bills, summaries of pending legislation, presidential
proclamations and executive orders, various federal regulations, and court rules.
United States Code Service: Annotated set of federal statutes arranged by subject and
published by RELX PLC.
United States Government Manual: A manual or handbook providing information about
the United States government, particularly the administrative agencies.
United States Law Week: A weekly publication that prints the text of U.S. Supreme Court
cases and information about the Court.
United States Reports: The official publication containing cases from the United States
Supreme Court.
United States Statutes at Large: The set of books containing all federal laws, arranged in
chronological order.
Universal Citation Guide: The citation system promulgated by the American Association
of Law Libraries.
Universal symbols: Symbols and characters used in constructing a search on Lexis Advance
or Westlaw; sometimes called root expanders.
Unofficial: Publication of cases or statutes not directed by statute.
Unreported case: A case marked “not for publication” by a court; persuasive authority
only, although it may be available from Lexis Advance, from Westlaw, or on the Internet.
Unwritten law: A reference to the common law tradition of dependence upon cases.
User name: See Login (n.).

Versus Law: A commercial legal research system offering cases via the Internet for a
moderate fee.

WWW: World Wide Web, commonly used to refer to the entire collection of resources
that can be accessed in cyberspace through the Internet.
Web: See WWW.
Web page: A particular file or “page” included in a website.
Website: A collection of web pages; for example, IBM’s website (www.ibm.com) will
consist of numerous Web pages, each of which is devoted to a specific topic. A website
always begins with a “home page,” which is the first screen viewed when the website is
accessed.
WestCheck: A West software program providing automatic validation of all cases cited in a
document.

721
Westlaw: The computerized legal research system offered by West. Its new, user-friendly
research platform (previously called WestlawNext but now called simply “Westlaw”) allows
easy “Google”-type searching of Westlaw, with results ranked in order of importance.
Widows and orphans: Headings or isolated words or lines occurring at the top (widows) or
bottom (orphans) of a page.
Words and Phrases: A multivolume set of books directing researchers to cases that have
construed certain terms.
World Court: The United Nations court, officially named the International Court of
Justice, which provides final decisions regarding international disputes.
World Wide Web: See WWW.
Writ of certiorari: See Certiorari.
Written law: A reference to statutes.

Zotero: A free tool that allows the saving, storing, and management of bibliographic
references and assists in citing the materials.

722
 Index

AALL (American Association of Law Libraries), 6

ABA. See American Bar Association
Abbreviations
citation form, 296, 301
commonly used, 136, 154, 567
district courts, 305–308
ordinal numbers, 296
practice tip, 10
Above the Law website, 503
Active voice, 585–586, 600, 686
Adams, John, 58
Administrative law and regulations, 398–413
citation form, 429
Code of Federal Regulations (C.F.R.), 404, 406, 406–407, 408
decisions, 409–410
e-CFR, 408, 430
electronic and online methods, 408–409
federal, 398–413
Federal Register, 404–405, 406, 408
Internet tutorial, 409
KeyCiting, 368
overview, 398, 400
publication of, 400–401
research techniques for, 408–409
review of agency decisions, 410–411
Shepardizing, 410
as source of law, 12, 15
state, 412–413
The United States Government Manual, 412
Advance sheets, 124
affect/effect, 578
Affordable Healthcare Act, 57
African Union, 421
Alberts v. Kappos (2013), 117
Alito, Samuel, 47
A.L.R. See American Law Reports
Alva v. Teen Help (2006), 668

723
ALWD Citation Manual
block quotations, 319
Bluebook citation form compared, 319–320
court name abbreviations, 320
ellipses, 320
5th edition, 319
history of, 285
omitted paragraphs in quotations, 320
overview, 285, 319–320
typeface conventions, 319
website, 352
American Association for Paralegal Education (AAfPE), 3–4, 481
American Association of Law Libraries (AALL), 6
American Bankruptcy Law Journal, 220
American Bar Association (ABA)
ABA Journal, 219
ABA Law Review Search, 226
Legal Technology Resource Center, 20, 505
Model Guidelines for the Utilization of Paralegal Services, 4
Model Rules of Professional Conduct, 19, 482
website, 226, 240, 499, 503
American Digest System
Descriptive Word Index, 167–168, 177
Key Numbers, 162, 167–173, 177
National Reporter System, relationship to, 161
organization of, 161–164
Table of Cases, 178
Table of Words and Phrases, 178
topics, 164–167
use of, 173–175
American Journal of International Law, 416, 419
American Jurisprudence (Am. Jur.), 203
American Jurisprudence 2d (Am. Jur. 2d)
Corpus Juris Secundum compared, 203, 205–206
cross-referencing in, 178
overview, 201, 203
research strategies, 206–210, 260
sample pages, 204, 208
American Jurisprudence Legal Forms 2d, 210, 211, 212, 253, 257
American Jurisprudence Pleading and Practice Forms, Annotated, 209–210, 253, 257, 267
American Jurisprudence Proof of Facts, 209
American Jurisprudence Trials, 209

724
American Law Institute, 233–234, 240
American Law Reports (A.L.R.)
Annotation History Table, 188, 189
annotations, finding, 183–187
annotations, updating, 187–189
citation form, 188
cross-referencing, 178
cybersites, 192
features of, 182–183
KeyCiting, 369
organization of, 181–182
overview, 18, 180–189
pocket parts, 188
sample pages, 184–186, 189
as secondary source, 271
The American Lawyer, 221
American Legal Publishing Corp., 423
American Society of International Law, 418
Amicus curiae briefs, 670, 679
among/between, 578
Anastasoff v. United States (2000), 109
and/or, 578
Animals and the Law: A Sourcebook, 228
Annotations, 15, 88, 315–316. See also individual annotated sources
Apostrophes, 561–562
Appellate briefs
amicus curiae briefs, 670, 679
appeal process, steps in, 668–669
appendices, 678
arguments, 676–677
Certificates of Service and Compliance, 677
conclusions in, 677
constitutional and statutory provisions, 674
cover sheets, 671
elements of, 670–678
identification of parties, 671
jurisdictional statements, 674
questions presented, 674–675
signatures, 677
standards of appellate review, 670
statement of facts, 675
statement of the case, 675

725
 summary of the arguments, 675
Table of Authorities, 672–674
Table of Contents, 672
apprise/appraise, 579
Arbitration, Permanent Court of, 419
arbitration/mediation, 579
argue/rule, 579
Armed Forces, United States Court of Appeals for, 52
ASPCA v. Feld Entm’t, Inc. (2009), 38
Aspen Publishers, 18
Associated Press v. District Ct. for the Fifth Dist. of Colo. (2004), 121
Atlantic Reporter, 123
Attorney-client relationship, 4
Attorneys general opinions
citation form, 270, 318
cybersites, 276
research strategies, 246–247
as secondary source, 246, 272
use of, 250
Authority Check, 371

Bailey v. Talbert (1989), 56

Bankruptcy Reporter, 139, 141, 144
Bar association publications, 219–220
Batson v. Kentucky (1986), 132
BCite, 371
Bender’s Federal Practice Forms, 253, 427
Bender’s Forms of Discovery, 253
beside/besides, 579
Bills. See also Legislative history
citation form, 428
enactment of legislation, steps in, 64–67
engrossed, 65
numbering of, 64
pending, tracking, 393–394
tracking, 393–394
versions of, 381
Black’s Law Dictionary
abbreviations, table of, 136
“common law” defined, 10
“dictum” defined, 24
online availability, 504

726
 overview, 247–248
sample page, 249
Block quotations, 319
Blogs, 460, 482, 503
Bloomberg BNA, 18–19, 261, 409
Bloomberg Law, 371, 464
Blue and White Books, 142
The Bluebook: A Uniform System of Citation
abbreviations, table of, 136
ALWD citation format compared, 319–320
app for, 285
archived materials, citation of, 343, 496
capitalization in court documents and other legal memoranda, 339–340
citation signals, 331–333
citing to court documents, 344
court name abbreviations, 320
electronic sources, databases, and the Internet, 340–344
ellipses, 320, 329
hereinafter, use of in citations, 339
id., use of in citations, 335–337
infra, use of in citations, 339
Internet, citing to, 290, 340–344
link rot in citations, 343, 496
local rules, 154
mobile application, 285
omitted paragraphs in quotations, 320
organization of, 287
overview, 283–285
primary authorities, citation rules and examples for, 291–315
public domain formats, 345–346
punctuation, 321–323
quick reference, 349–352
quotations, 324–330
secondary authorities, citation rules and examples for, 269, 315–318
short form citations, 333–334
string citing, 269, 323–324
supra, use of in citations, 337–339
Supreme Court cases, citation of, 137
20th edition, revisions to, 290–291, 320
typeface conventions, 288–290
underlining, 26
updates to, 288

727
 website, 352
BlueLine, 353
BNA. See Bloomberg BNA
Books. See Looseleaf services; Treatises
Boston College Law Library website, 27, 392, 536
Bowen, Catherine Drinker, 511
Boyd; State v. (2004), 151–152
Bradwell v. State (1872), 21
Brandeis, Louis D., 63
Brennan, William J., Jr., 21
Brevity, 593–596
answers, legal memoranda, 642–643
redundancy, avoiding, 595
repetition, avoiding, 596
“throat-clearing” introductions, avoiding, 594–595
unnecessary words, omitting, 593–594, 686
Breyer, Stephen, 47, 57, 121
Briefing cases. See Case briefing
Briefs, legal
appellate, 668–678, 679, 724–735
case briefs, distinguished from, 657
cybersites, 679
honesty in, 661
legal memoranda, distinguished from, 657
overview, 657–658
persuasiveness in, 658–660
purpose of, 657
rules for, 660
sample, 716–722, 724–735, 738–740
table of authorities, sample, 738–740
tips on writing, 658–662, 678–679
trial court, 662–668, 716–722
Brief Suite, 353, 364, 369
Brown, Wesley, 43
Brown v. Board of Education (1954), 21, 26, 369
Brownlie’s Principles of Public International Law (Crawford), 415
Buffett, Warren E., 576
Burton’s Legal Thesaurus, 248
Bush v. Gore (2000), 57, 119, 121
Butterick, Matthew, 697

California Legal Forms: Transaction Guide, 253

728
California Reports, 122, 124
California Style Manual, 286
Capitalization, in court documents and other legal memoranda, 339–340
Case briefing, 144–153
definition of, 144
elements of a brief, 147–151
format for, 146
formulating issues, 148–149, 150
legal briefs, distinguished from, 657
procedural history, determination of, 148
purpose of, 146
reading the case, importance of, 144
sample form, 153
Case law, 107–158
advance sheets, 124
best websites for locating, 497
case name, 111–115
chamber opinions, 121
citation, 291–310, 333–334, 349–350
concurring opinions, 119
cybersites, 155
deciding courts, 116
decision date, 116
decisions, 121–122
dictum, 24, 118
digests to locate, 160–180. See also Digests
dissenting opinions, 119
docket numbers, 116
elements of opinion, 111–122
en banc opinions, 121
federal cases, publication of, 130–136
“first impression,” case of, 22
Google Scholar, 140
headnotes, 116–117, 121
history and treatment of a case, 369
holding, identification of, 23–24
KeyCiting, 364–368
Lexis Advance search for, 446
majority opinions, 118
memorandum opinions, 119
names of counsel, 118
non-majority opinions, 122

729
 “on point” cases, 22, 160
opinions, 118–121
parallel cites, how to find, 141–143
per curiam opinions, 119
plurality opinions, 119
as primary source, 15, 517–518
publication of, 122–124, 143, 145
published cases, sample of, 112–114
selective publication, 108–110
series of cases, publication of, 123–124
Shepardizing, 360–363
slip opinions, 123
as source of law, 10–11
standards for publishing, 108–109
star paging, 136–138
state cases, publication of, 125–130
synopsis, 116
unpublished opinions, 109–110
Westlaw search for, 455, 457
Casemaker, 371, 464–465
Case on Point approach, 22, 170–173
CCH Inc., 18, 261, 409
CD-ROMs, 467, 679
Certiorari, petition for writ of, 47–48
C.F.R. (Code of Federal Regulations), 404–407, 408
Chamber opinions, 121
Chicago-Kent College of Law website, 239
The Chicago Manual of Style, 544
Circuit courts. See Courts of Appeal, United States
CIS Congressional Bills, Resolutions, & Laws on Microfiche, 466
Citation form. See also specific systems and manuals
abbreviations, in case citations, 296, 301
administrative law and regulations, 429
American Law Reports, 188
annotations, 315–316
appeal, different case name, 310
attorneys general opinions, 270, 318
availability of sources in print form, 341
bills, 428
books, 317, 334
capitalization in court documents and other legal memoranda, 339–340
case history, 308–309

730
case names, 291–296
cases, 291–310, 333–334, 349–350
cautions about, 282–283
cite checking, 346–349
Citing Legally blog (Martin), 285
clauses, citations in, 322–323
committee hearings, 428
committee reports, 428
constitutions, 315, 334, 350
court documents, 344
court rules, 52, 429
Courts of Appeal, United States, 304–305
cybersites, 352
dictionaries, 270, 318, 351
digests, 192
district courts, United States, 305
electronic media, cases available on, 300–301
electronic sources, 340–344
encyclopedias, 238, 316, 350
errors in, 115, 283
executive materials, 429
federal cases, 26, 56, 154, 303–308, 350
federal statutes, 101, 312, 350
footnotes, 337
hereinafter, use of, 339
id., use of, 335–337, 351
infra, use of, 93, 339
internal cross-references, 338–339
Internal Revenue Code, 312
international materials, 429
Internet, 340–344, 352, 505–506
Internet, cases available on, 301
jury instructions, 270
law review articles, 350
legislative materials, 428
Lexis Advance cases, 351, 468
link rot in, 343, 496
local manuals, 286
local rules, 346
looseleaf services, 270, 318
multiple sections of a statute, 313
municipal materials, 429

731
 neutral formats, 310
non-majority opinions, 122
obscure sources, 346
official cite unavailable, 300
order of preference, 310
overview, 282–283
parallel citations, 126, 129, 136–137, 141–143, 297–299, 336
parenthetical information, 309–310, 314
periodicals, 227, 238, 316–317, 334
pocket parts and supplements, 313
presidential materials, 429
prior history, 309
public domain formats, 310, 345–346
publishers, 314
punctuation, 321–323
quotations, 324–330, 351
recent cases, 300–301
Restatements, 238, 317, 351
rules, 314–315
section reference, statutes, 313–314
sentences, citations in, 321–322
short forms, 333–334, 351
signals preceding citation, 331–333
slip form, 300
software programs, 352–353
spacing, 312
spacing rules, 302–303
state cases, 26, 57, 154, 349
state manuals, 286
state statutes, 101, 310–311, 350
statutes, 310–314, 334
string citation, 323–324
subsequent history, 308–309
superscripts, 302
supra, use of, 93, 337–339, 351
Supreme Court cases, 136–137, 303–304
treaties, 422
treatises, 238, 317, 350
typeface conventions, 288–290, 319, 691–692
uniform laws, 270, 317–318
Westlaw cases, 351, 468
Citation manuals, 285–286

732
Cite-Checker: Your Guide to Using The Bluebook Mobile Application, 285
Cite-checking, 346–349, 688. See also Citation form
CiteGenie, 353
City University of New York School of Law website, 683
Civil law tradition, 13–14
C.J.S. See Corpus Juris Secundum
Clarity in writing
elegant variation, 583
negatives, overuse of, 584
poor writing, risk of, 585
word order, 584
Class Action Fairness Act of 2005, 35
Cloud computing, 504
Code Napoleon, 14
Code of Federal Regulations (C.F.R.), 404–407, 406
Code of Federal Regulations Annotated, 410
Collective nouns, 546
Collier on Bankruptcy, 16th Edition, 228, 253
Colons, 563
Commas, 559–560
Commerce Clearing House Inc. See CCH Inc.
Commissioner v. See name of opposing party
Common law tradition, 10–11, 13
Compilation of Presidential Documents, 397–398, 399
compose/comprise, 579
Computer-assisted legal research, 437–471
Bloomberg Law, 371, 464
Boolean searching, 438, 440–441
Casemaker, 371, 464–465
CD-ROMs, 466
DVDs, 466
eBooks, 466
Fastcase, 371, 464, 504
future of print publishing, 462–463
introduction to, 438–442
JuriSearch, 465
Lexis Advance. See Lexis Advance
limitations of, 462
PACER, 109, 465
plain English searching, 441–442, 453–454
Ravel Law, 465
Shepardizing, 360–364

733
 U.S. Supreme Court cases, 132
use of, 19–20
VersusLaw, 465
Westlaw. See Westlaw
when to use, 461–462
Computer literacy, need for, 439
Concise Restatement of Property, 237
Concise Restatement of the Law Governing Lawyers, 237
Concise Restatement of Torts, 237
Concurrent jurisdiction, 36
Concurring opinions, 119
Conference calls, 605
Congress, U.S.
assistance with legislative histories, 389
enactment of legislation, steps in, 64–67
representatives, requests for information from, 71
Congress.gov, 71–72, 385, 386, 390, 418, 429, 498
Congressional Index, 383, 393
Congressional Information Service (CIS), 383
Congressional Record, 381, 384
Conroy v. Aniskoff (1993), 394
Constitution, U.S.
Article I, Section 8, 32
Article III, Section 1, 33
citation of, 315
enactment of legislation, 64
framing of, 32
“reserve clause,” 33
as source of law, 11
Tenth Amendment, 14, 33
treaties, 416
in U.S.C.A., 95
in U.S.C.S., 95
Constitutions
citation form, 315, 334, 350
legal research process, 517
Lexis Advance search for, 446
as primary source, 15
as source of law, 11
Westlaw search for, 455
Copyright infringement, 495
Copyright Office website, 500

734
Cornell University Law School website, 59, 102, 155, 392, 487, 497, 499
Corpus Juris Civilis, 13
Corpus Juris Secundum (C.J.S.)
abbreviations, table of, 136
American Jurisprudence 2d compared, 203, 205–206
cross-referencing, 178
overview, 201
research strategies, 206–207, 260
sample page, 202
Council of Europe, 421
Court of Appeals for the Federal Circuit, 40, 42
Court reports, 19
Court rules. See Rules of procedure and court rules
Courts of Appeal, United States
cases, publication of, 133–134
citation form, 304–305
district courts compared, 39–40
overview, 39–42
CRAC method of analyzing cases, 648
CREAC method of analyzing cases, 648
Criminal Justice Periodicals Index, 226
Cumulative Later Case and Statutory Service, 86
Current Index to Legal Periodicals, 225
Current Law Index (C.L.I.), 223, 225, 227, 229
Current Legal Forms with Tax Analysis, 253
Cybersites
American Law Reports, 192
attorneys general opinions, 276
case law and judicial opinions, 155
dictionaries, 276
digests, 192
directories, 276
encyclopedias, 239
executive materials, 429–430
federal court system, 59
federal statutes, 102
forms, 276
international materials, 430
jury instructions, 277
KeyCiting, 372
legal briefs, 679
legal memoranda, 653

735
 legal research process, 26–27, 536
legal writing, 568, 608, 697
legislative materials, 429–430
letterwriting, 634
Lexis Advance, 470
municipal research, 430
periodicals, 239
research process, 536
research validation, 372
Restatements, 240
Shepardizing, 372
state court systems, 59
state statutes, 102
treaties, 429
treatises, 239
uniform laws, 276
U.S. Supreme Court, 59
Westlaw, 470

Dangling participles, 550

Dashes, 565
Databases, electronic, 19. See also Lexis Advance; Westlaw
Deadlines, 602–603
Department of Justice website, 276, 388
Department of Labor website, 500
Descriptive word approach, 89–92, 98, 167–168, 169, 177, 183, 186, 206–207, 232
Devore v. City of Phila. (2004), 688
Dictation, 603
Dictionaries
citation form, 270, 318, 351
cybersites, 276
overview, 247–249
as secondary source, 273
use of, 15, 240
A Dictionary of Criminal Law Terms, 248
Dictum, case law, 24
Digest approach, 171, 187
Digest of International Law (Hackworth), 415
Digest of International Law (Whiteman), 415
Digests, 160–180
162, 167–173
177, 167–173

736
 American Digest System. See American Digest System
citation form, 192
cross-references, 178
cybersites, 192
Decennial Digest System. See American Digest System
Federal Practice Digests, 175–176, 178
Key Numbers, 167–173
non-West, 179
overview, 160–161
parallel citation, 143
pocket parts, 178
purpose of, 160
regional, 176
sample page, 169, 171, 172, 174
specialty, 177
states, 143, 176–177
United States Supreme Court Digest, 175, 178
use of, 173–175, 179–180
West’s, common features of, 177–178
Directories, 250–252
citation form, 258
cybersites, 276
Internet, 252
local, 251
Martindale-Hubbell Law Directory, 250–251
purpose of, 250
as secondary source, 273
specialty, 251
use of, 258
Directory of Corporate Counsel, 251
Discovery
Bender’s Forms of Discovery, 253
Paralegal Discovery: Procedures and Forms, 253
disinterested/uninterested, 579
Dissenting opinions, 119
District courts, United States
abbreviations, 305–308
caseload of, 16
cases, publication of, 134–135
circuit courts compared, 39–40
citation form, 305
overview, 38–39

737
Diversity jurisdiction, 34–36
Domain name, 483
Douglas, William O., 44
Drafting Assistant, 353, 369–370, 468, 689
Dropbox, 504
Duke Law School website, 430
Duty of competence, 4, 558, 650, 688
DVDs, 466

eBooks, 466
e-CFR, 408, 430
eCode, 423
Edison Mission Energy, Inc. v. FERC (2005), 283
E-Government Act of 2002, 110
EISIL (Electronic Information System for International Law), 418, 430
Elder Law Journal, 220
Electronic communications, 604–607
e-mail, 483, 605–607
facsimile, 605
phones and voice mail, 605
text messaging, 607
Electronic Information System for International Law (EISIL), 418, 430
The Elements of Style (Strunk & White), 544
Ellipses, 320, 329
E-mail, 483, 605–607
Employer Health Care Plans After the Affordable Care Act, 229
En banc opinions, 121
Encyclopedias, 200–215
American Jurisprudence (Am. Jur.), 203
American Jurisprudence 2d (Am. Jur. 2d), 201, 203, 206–210
American Jurisprudence Legal Forms 2d, 210, 211, 212
American Jurisprudence Pleading and Practice Forms Annotated, 209–210, 267
American Jurisprudence Proof of Facts, 209
American Jurisprudence Trials, 209
citation form, 215, 238, 316, 350
common features, 212–213
Corpus Juris Secundum (C.J.S.), 136, 178, 201, 202, 203, 205–207, 260
cybersites, 239
ethics of using, 210
general or national, 200–215
KeyCiting, 369
Lexis Advance database, 239

738
 noncritical approach of, 200
reference to cases through footnotes, 200, 214
research strategies for use of, 206–207, 213–214
as secondary source, 271
special subject, 214
starting your research with, 210
state or local, 210–214
Total Client-Service Library, 207–210
use of, 210, 214–215
Westlaw database, 239
West’s Encyclopedia of Employment Law, 214
EndNote, 353
ensure/insure, 579
Entertainment and Sports Lawyer, 220
Environmental Protection Agency (EPA) website, 500
E-research, 479–508
advantages/disadvantages of, 506–507
advertising and solicitation, 494
best websites, 496–504
blogs, 503
bookmarks, 492
cautionary notes regarding, 504–505
citation form, 340–344, 505–506
confidentiality, 493–494
copyright infringement, avoiding, 495
disclaimers, 493
Dropbox, 504
encryption, 493–494
ethical concerns, 493–495
Facebook, 504
getting started, 485–486
Google Scholar, 489
history lists, use of, 491–492
information gaps, 492
learning how to conduct, 485–490
LinkedIn, 504
link rot, 343, 496
Listservs, 484, 502–503
mobile applications, 503–504
newsgroups, 502–503
newsletters, 493
notes, 491

739
 overview, 480–482
paralegal sites, 498–499
practical concerns, 495–496
privacy, 493–494
reading the screen, 492
search boxes, 491
search engines, 484, 502
as sole source, 492
strategies and tips for, 491–493
Twitter, 504
using RSS to obtain updates, 484, 493
websites, assessing the credibility of, 489–490
Establishment Clause doctrine, 119
Estate of Hubert; Commissioner v., 360–361, 365–366, 367
Ethics
corresponding with parties, 621
court rules, abiding by, 668
duty of competence, 4, 558, 650, 688
duty to understand technology, 482
duty to update and validate cases, 371, 524, 530
economical research and, 9
e-research, 493–495
research accuracy and, 4–5, 95
websites about, 499
European Union, 421
Evidence
Federal Rules of Evidence, 315
Wigmore on Evidence, 229
Exclamation marks, 565
Exclusive jurisdiction, 36–37
Executive branch of the federal government
citation form, 429
Compilation of Presidential Documents, 397–398, 399
executive orders, 13, 15, 397
federalism and, 32
proclamations, presidential, 395–396
as source of law, 12–13
Executive orders, 13, 15, 397
Expert opinions, 15

Facebook, 343, 504

Facsimile communications, 605

740
fact/contention, 580
Facts & Findings, 220
Fastcase, 371, 464, 504
FDsys, 20, 27, 71–72, 102, 385–387, 390, 408, 412, 418, 422, 429, 430, 486, 497, 498
Federal agencies, functions of, 12
Federal Appendix, 110, 128, 134, 144
Federal cases
citation form, 26, 56, 154, 303–308, 350
publication of, 130–136
Federal Cases, 139
Federal Claims Reporter, 139, 141, 144
Federal court system, 33–53
actual cases and controversy requirement, 37
advisory opinions, 37
caseloads, 43–44
citation form, 56
“constitutional courts,” 53
Courts of Appeal, 39–42
cybersites, 59
district courts, 38–39
establishment of, 33
ground rules for cases, 37–38
jurisdiction, 33–37
“legislative courts,” 53
moot cases, 37
specialized courts, 52–53
specialty courts, 52–53
standing, 37–38
structure, 38–53
Supreme Court. See Supreme Court, U.S.
website, 497
Federal Depository Library, 5–6, 70
Federal Digital System (FDsys), 7, 20, 27, 71–72, 102, 385–387, 390, 408, 412, 418, 422,
429, 430, 486, 497, 498
Federalism, 14, 32–33
Federal judges and justices
appointment of, 33, 38–39, 42, 55
Article III and, 33
circuit courts, 42
district courts, 38–39
impeachment of, 43
salaries of, 39, 42

741
 Supreme Court. See Supreme Court, U.S.
Federal judiciary website, 155
Federal Legislative History Research: A Practitioner’s Guide to Compiling the Documents and
Sifting for Legislative Intent, 380
Federal Plain Language Guidelines, 574
Federal Practice and Procedure (Wright and Miller), 426
Federal Practice Digests, 175–176, 178
Federal Procedural Forms, 253, 427
Federal question jurisdiction, 34
Federal Register, 404–404, 406, 408, 429
Federal Register Act, 401
FederalRegister.gov, 406
Federal Reporter
coverage, 135
federal appellate cases, source of, 133–134
Federal Cases compared, 139
list of judges, 141
National Reporter System, part of, 161
series of cases, publication of, 123
Federal Rules Decisions, 135
Federal Rules Digest, 3d, 426
Federal Rules of Appellate Procedure, 42, 110, 283, 425–427
Federal Rules of Civil Procedure, 135, 315, 425–427
Federal Rules of Court, 427
Federal Rules of Criminal Procedure, 135, 315
Federal Rules of Evidence, 315
Federal Rules Service, 3d, 426, 427
Federal Sentencing Guidelines, 50, 290
Federal-State Court Directory, 55, 251
Federal statutes, 63–105
citation form, 101, 312, 350
classification of, 67–69
cybersites, 102
enactment of, 64–67
enforcement of, 13
exact wording, sources of, 70–72
KeyCiting, 368–369
legislative history. See Legislative history
Lexis Advance search for, 446
numbering of, 64
permanent laws, 67
private laws, 67

742
 publication of, 70–95
public laws, 67
research techniques, 89–93, 100–101
Shepardizing, 363
“sunset clauses,” 67
temporary laws, 67
Westlaw search for, 455
Federal Supplement, 134, 135, 139, 467
fewer/less, 580
FindLaw website, 18, 155, 239, 252, 276, 487, 497, 503
FirstGov website, 498
Flesch Reading Ease Formula, 592
Fonts, 288–290, 691–692
Footnotes, 200, 214, 337, 664–665
Foreign Relations of the United States, 415–416
forgo/forego, 580
Form books, 252–258
annotated, 257
annotations, 254
citation form, 258
customizing forms, 257–258
how to find, 257
Internet as source of, 254
metadata and, 254
overview, 252
for paralegals, 253
pocket parts, 257
research strategies, 257
sample pages, 255–256
as secondary source, 274
states, 253, 254
treatises as source of, 253
use of, 258
well-known, 253–254
Forms, cybersites, 276, 498
“Forum shopping,” 35
Frontiero v. Richardson (1973), 21
Fuller, Melville W., 45
Furman v. Georgia (1972), 119

G8, 421
G20, 421

743
Gallacher, Ian, 281
Garner, Bryan A., 501
Gender-linked pronouns, 554–555
General Code, 423
Georgetown Law School website, 27, 239, 392, 409, 501, 523, 536
Germain’s Transnational Law Research: A Guide for Attorneys (Germain), 415
Gonzales, Elian, 44
Google Scholar
case law, 140, 155
e-research, 489
Gosnell v. Rentokil, Inc. (1997), 371
Government Publishing Office (GPO), U.S.
access to, 385
FDsys, 7, 20, 27, 71–72, 102, 385–387, 390, 408, 412, 418, 422, 429, 430, 486, 497,
498
federal statutes, publication of, 70
GovInfo, 7, 21, 385–387
Style Manual, 501, 544, 568
GovTrack, 393
Grammar, 545–555
dangling participles, 550
modifiers, 548–549
old rules, following, 555
pronouns, 550–555
run-on sentences, 548
sentence fragments, 548
split infinitives, 549–550
subject-verb agreement, 545–547
Guide to Law Online website, 102
Guide to State Legislation, Legislative History, and Administrative Materials, 391
guilty/liable, 580

Hart v. Massanari (2001), 22, 159, 199

Harvard Law School website, 239
Headings, in legal writing, 598, 639–641, 694–695
Headnotes, 116–117, 121, 362
HeinOnline, 225
Henry, Patrick, 32
Hereinafter, use of in legal citation, 339
HG website, 26, 239, 499, 500
Hornbooks, 228
Hughes, Charles Evans, 3, 10

744
Hurlbert v. Gordon (1992), 283
Hyperlinks, 483
Hyphens, 565–566

Id., use of in legal citation, 335–337, 351

Impeachment, federal judges, 43
Indexes
A.L.R. annotations, 183–187
Code of Federal Regulations, 407
digests, Descriptive Word Indexes in West’s, 167–168, 177
periodicals, 223–226
Restatements, 237
state statutes, 97
United States Code Annotated, 79, 89–92
United States Code Service Lawyers Edition, 79, 89–92
United States Statutes at Large, 72
Index to Canadian Legal Periodical Literature, 226
Index to Federal Tax Articles, 226
Index to Foreign Legal Periodicals, 223
Index to Legal Periodicals & Books (I.L.P.), 223, 224, 225, 227, 229
Index to Periodical Articles Related to Law, 223
Index to the Code of Federal Regulations, 407
Indiana University website, 392
The Indigo Book: A Manual of Legal Citation, 286, 352
Infra, use of in legal citation, 93, 339
In re. See name of real party
Instagram, 343
Internal Revenue Code, 312
International law, 413–422
basic texts and sources, 415–416
definition, 413–414
international organizations, 421
international tribunals, 420–421
Internet sources, 418
overview, 414–415
research, Internet tutorials on, 420
research procedure, overview of, 414–415
sources of, 414
treaties, 416–420
International Law Institute website, 421
International Paralegal Management Association website, 499
Internet. See also Websites

745
 advantages/disadvantages, 506–507
cases published on, 133
citation form, 340–344, 352, 505–506
Congress.gov, 71–72, 385, 386, 390, 418, 429, 498
definition, 483
directories on, 252
glossary of terms, 482–485
legal professionals, uses of by, 480–482
legal research on. See E-research
legislative history, use of, 383–388
Lexis Advance/Westlaw compared and, 491
link rot, 343, 496
long URLs, 344
municipal research, 423, 424
periodicals available on, 225–226
reasons for use, 480–481
as research tool, 19–20
as source of federal statutes, 71–72
as source of legal forms, 254
Uniform Laws on, 260
U.S. Supreme Court cases on, 133
Internet Archive Wayback Machine, 343, 496
Internet Law Library, 26
Internet Litigation, 221
Internet Tax Freedom Act, 67
Interstate Commerce Act, 45–46
Introduction to Basic Legal Citation, 285
iPhoneJD blog, 503
IP Mall website, 500
IRAC method of analyzing cases, 646–648

Janson v. Keyser (1976), 57

Jargon, 574, 588–589
John Jay College of Criminal Justice website, 155
Journal of Catholic Legal Studies, 220
Journal of Health Politics, Policy and Law, 221
Journal of Law & Politics, 221
Journal of Taxation, 220
judgment/judgement, 580
Judicial branch of the federal government, 15, 32
Judiciary Act of 1789, 33
Jurisdiction

746
 concurrent jurisdiction, 36
courts of appeal, 40
district courts, 38
diversity jurisdiction, 34–36
exclusive jurisdiction, 36–37
federal courts, 33–37
federal question jurisdiction, 34
state courts, 53
U.S. Supreme Court, 45–46
JuriSearch, 465
Juris-M, 353, 526
Jurist website, 503
Jury instructions, 265–268
citation form, 270
cybersites, 277
overview, 265–266
paralegal’s role in preparing, 266
research strategies, 267
sample instruction, 268
as secondary source, 275
use of, 267, 268
Jury Trials and Tribulations, 221
Justia website, 102, 254, 276, 277, 487–488, 497, 498, 503

Kagan, Elena, 47
Kennedy, Anthony, 44
KeyCite, 364–371
Administrative law and regulations, 368
alerts, 368
A.L.R. annotations, 369
case law, 364–368
Citing References, 366, 367
court rules, 369
cybersites, 372
encyclopedias, 369
features of, 366–368
Filings, 366
headnote references, 368
History, 366
Law review articles, 369
legislative history, 392
Most Negative Treatment, 366

747
 parallel citations, 142
quotation marks, 368
research strategies, 519
Restatement provisions, 369
saving results, 368
Shepardizing compared, 370–371
statutes and regulations, 368–369
symbols, 365
Table of Authorities, 366
treaties, 419
WestCheck compared, 370
Westlaw, use of, 226, 457, 460
King, In re (2006), 585

Lanham Act, 66
Law, definitions of, 10, 11, 24
Law Librarians’ Society of Washington, D.C., 381, 388, 392
Law libraries, 5–10
arrangement of, 7–8
courtesy, 9
interlibrary loans, 10
online public access catalog (OPAC), 7
print and digital, fast facts, 505
reshelving books, 9
services offered by, 9–10
staff, 8–9
types of, 5–7
Law of Water Rights and Resources, 228
Law Review Commons, 226, 240
Law reviews
citation form, 350
KeyCiting articles, 369
legislative history and, 389, 392
overview, 15, 216–218
sample cover, 218
websites, 226
Lawyers Cooperative Publishing, 18
’Lectric Law Library website, 276, 498
Ledesma; People v. (1987), 5
Legal Assistant Today, 220
Legal briefs. See Briefs, legal
Legal correspondence. See Letterwriting

748
Legalese, 574, 588–589, 686
Legal Looseleafs: Electronic and Print, 265
Legal memoranda. See Memoranda, legal
Legal research process, 511–537
adequate, failure to provide, 5
beginning, 511–523
blueprint for, 535
complex projects, 530–531
constitutions, 517
as core competency for paralegals, 3–4
cybersites, 26–27, 536
descriptive words and phrases, 514–515
established and newly emerging issues, 532
Evernote, 526
familiarization, 515, 517
final steps, 93–95
inflexible rules of, 84–86, 511–512
issues of first impression, 644
issues to consider, 513–514
Juris-M, 526
JUST ASK acronym, 523
knowing vs. finding the law, 4
Lexis Advance, 526
miscellaneous research guides, 519, 521
note-taking, 523–528
number of authorities to cite, 534
paralegals, role of, 3–5
planning ahead, 511–515
practical considerations, 529–530
primary sources, 517–518
quick questions, 532
Research Game Plan, 522
scenarios for, 24–25
secondary sources, 518–519, 520
statutes, 517
staying focused, 528–529
strategies for. See Research strategies
“TAPP Rule,” 513
tips for effective, 536
websites, 496–504
Westlaw, 526
when to stop, 529–535

749
 Wikipedia, 488, 495–496
worksheet, 516
Zotero, 526
Legal Resources Index (LegalTrac), 225
Legal systems
non-U.S., 13–14
U.S., 10–13, 14–16, 21–23
LegalTrac, 225
Legal writing
active vs. passive voice, 585–586, 600, 686
audience and writing style, 575–577, 614
brevity, 593–596
common errors, 697
as core competency for paralegals, 3–4
cybersites, 568, 608, 697
deadlines, 602–603
dictation, 603
electronic communications, 604–607
exhibits, attaching, 667, 695
final review, 695–696
getting started, 602
goals of, 696
grammar rules, 545–555
by hand, 603
headings, use of, 598, 694–695
internal organization, 597–601
jargon, 574, 588–589
legal briefs, 657–679
legalese, 574, 686
letters, 613–634
lists, use of, 586–587, 695
mechanics of, 543–544
memoranda, 637–653
nominalizations, avoiding, 588
outlines, 596–597
paragraphs, 598
plain English movement, 574
polishing, 691–695
poor writing, risk of, 585
position and voice, using for emphasis, 599–601
postwriting activities. See Postwriting activities
precision, need for, 577–583

750
 prewriting activities, 575–577
proofreading, 686–688
punctuation, 558–567
purpose, determining, 575
readability, 585–592
redundancy, 595
repetition, 583, 591–592, 596
reviewing and revising, 684–686
sample project checklist, 696
sentence length, 592, 685–686
spelling, 555–558
transitions, 598–599
unnecessary words, eliminating, 593–594, 686
vague words, 582
word choice, 577–582, 591
Word Clouds, 601
word connotation, 582–583
word order, 584, 590
on a word processor, 604
Legislative branch of the federal government, 15, 32
Legislative history, 380–395
bills and their amendments, 387
commercial services, 389, 391
committee hearings, transcripts of, 381, 387
committee reports and prints, 381, 388
compiled histories, 388, 391
compiling, process of, 381–388
Congress.gov, 71–72, 385, 386, 390, 418, 429, 498
congressional assistance, 389
debates, 381, 388
documents needed for, obtaining, 387–388
electronic sources, 383–388
federal, 380–390
GovInfo, 385–387
GPO access, 385
hierarchy of documents, 395
KeyCite, 392
law reviews and annotations, 389, 392
legislative assistance, 393
on Lexis Advance, 384
pending legislation, tracking, 393–394
public law numbers, 382–383, 390

751
 reference assistance, 389, 392
Shepardizing, 392
state, 390–392
summary, 394–395
versions of a bill, comparing, 381
Web-based tutorials, 392
on Westlaw, 384
worksheets, 389
Legislative Intent Service, 389, 391
Legislative Source Book (Law Librarians’ Society of Washington, D.C.), 381, 392
Letterwriting, 613–634
audience, 614
body, 617
central purpose of, 614–615
closing and signature, 618
copies, 619
corresponding with parties, 621
cybersites, 634
date, 615
demand letters, 621, 626–629
enclosures, 619
format considerations, 620
general correspondence, 620–621
inside address, 616
letterhead, 615
opinion letters, 630–633
overview, 613–615
protection clauses, 633
reference initials, 619
reference or subject notation, 616
salutations, 617
sample letters, 622–625, 628–629
special mailing notations, 615
types of, 620–633
unknown addresses, 617
Lexis Advance, 442–450
About This Document, 448
administrative and legislative materials, search for, 447
administrative law, 408, 413
Affiliated Services, 450
Alerts, 393, 449
Boolean searching, 440–441, 445

752
BriefCheck, 364
Briefs, 449
Briefs and Records, 449
case law, search for, 446, 451
Case Summary, 448
citation assistance, 320, 353, 449
citation form, 341, 468
constructing a search, 445–446
contact information, 439
content overview, 448, 450
Content Sources, 442–443
cybersites, 470
encyclopedias, 239
favorites feature, 445
federal statutes, 72
50 State Surveys, 449
filters, 448–449
folders, 449
getting started, 442–443
highlighting, 449
history feature, 445
home screen, 444
hyperlinking, 448
interactive tutorials, 461
Internet searching, 449
keyword search, 445
law reviews and journals, search for, 447
Legal Issue Trail, 449
legislative history research, 384
Live Support, 450
looseleaf services, 261
Microsoft Office software, 352–353, 364, 468, 689
mobile applications, 450
Natural Language search, 445
notetaking in, 526
periodical articles online, 225
plain English searching, 441, 445
practice area searching, 445, 446
procedural history of case, 148
quick review of, 450
red search box, 442
research assistance, 533

753
 Restatements, 237, 240
search results, display of, 445–446
secondary authorities, search for, 448
Segment Searching, 445
Shepardizing with, 360–364, 448, 450
Shepard’s, 445
statutes and constitutions, search for, 446
support, 449–450
Terms and Connectors search, 445
treaties, 419
treatises, 229, 239
uniform laws on, 260
viewing results, 446
website, 26
Westlaw compared, 469–470
when to use, 461–462
Lexis for Microsoft Office, 352–353, 364, 468, 689
LexisNexis Congressional, 384, 393
LexisNexis Legal & Professional (Lexis), 18
Lexology website, 503
liable/libel, 580
Libraries, law. See Law libraries
Library of Congress
access and use of, 6
classification system, 8
website, 27, 421, 487
Liebert, June, 496
Liebler, Raizel, 496
LinkedIn, 504
List of C.F.R. Sections Affected (LSA), 408
Lists, use of, 586–587, 695
Listservs, 484, 502–503
Long URLs, 344
Looseleaf services. See also Treatises
arrangement of, 264
citation form, 270, 318
overview, 261, 264
primary and secondary authorities in, 264
research strategies, 264–265
as secondary source, 275
use of, 18–19, 268
Los Angeles and San Francisco Daily Journal, 221

754
LSA (List of C.F.R. Sections Affected), 408
Lynch v. Donnelly (2001), 119

MacLachlan, Lawrence Duncan, 481

Majority opinions, 118
Margolis, Ellie, 496
Maroonbook (University of Chicago Manual of Legal Citation), 285, 352
Marshall, John, 44, 57, 58
Martin, James W., 634
Martin, Peter W., 285, 320, 352, 353, 664
Martindale-Hubbell Law Directory, 250–251, 252, 276, 499
Matthew Bender, 18, 261, 409
McCarthy on Trademarks and Unfair Competition, 228, 264
McIntosh, Brittany M., 488, 495
Meadowbrook, LLC v. Flower (1998), 359
Medical Trial Technique Quarterly, 220
Memoranda, legal, 637–653
analysis or discussion, 644–649
applicable statutes, 644
blueprint for preparing, 650–652
brief answers, 642–643
case law, citation to, 645–646
completeness, need for, 639
conclusion, 649–650
CRAC/CREAC methods of analyzing cases, 648
cybersites, 653
elements of, 639–650, 652
formats, 639–650
headings, 639–641
IRAC method of analyzing cases, 646–648
issues or questions presented, 641–642
objectivity in, 638–639, 650
overview, 638–639
purpose of, 684
quotations and paraphrasing, 649
readability, 646
sample, 710–714
specificity in, 639
statement of facts, 643–644
thesis statements, 645
tips for writing, 653
uses for, 637–638

755
memoranda/memorandum, 580
Memorandum opinions, 119–120
Metadata scrubbing, 254
Microfiche, 466
Microfilm, 466
Microforms, 466
Microsoft Office, Lexis for, 352–353, 364, 468, 689
Military Justice Reporter, 139, 144
Mobile applications, 503–504
Bluebook, 285
Cite-Checker: Your Guide to Using The Bluebook, 285
Lexis Advance, 450
Westlaw, 460
Model Punitive Damages Act, 259
Modern Federal Jury Instructions, 267
Modifiers, 548–549
Moore’s Federal Practice, 426, 427
Moot cases, 37
Municipal Code Corporation, 423, 430
Municipal research, 422–424
citation form, 429
cybersites, 430
Internet, use of, 423, 424
municipal ordinances, interpretations of, 424
overview, 422
procedure for, 424
research materials, 423
terminology, 422–423
Murphy’s Will Clauses: Annotations and Forms with Tax Effects, 252

National Archives and Records Administration website, 608

National Association of Attorneys General website, 276
National Black Law Journal, 220
National Center for State Courts, 16, 53
National Conference of Commissioners on Uniform State Laws. See Uniform Law
Commission
National Conference of State Legislatures website, 102, 392
National Federation of Paralegal Associations website, 498
National Labor Relations Board, 40
National Law Journal, 221
National Paralegal Reporter, 220
National Reporter Blue Book, 142

756
National Reporter System, 125–129
advantages of, 128
American Digest System, relationship to, 161
features of, 140–141
Key Number System, 141
lists of judges, 141
parallel cites, 126, 129
specialty sets, 139
summary of, 143–144
tables of cases, 140
tables of statutes and rules, 140–141
tables of words and phrases, 141
units of, 125–126, 143
as unofficial publication, 125, 142
National Vaccine Injury Compensation Program, 53
NATO, 421
Neibarger v. Universal Cooperatives (1992), 129
Newsgroups, 484, 502–503
Newsletters, legal, 221
Newspapers, legal, 133, 221
New York Law Journal, 221
Nominalizations, avoiding, 588
Non-majority opinions, 122
Nonprint research tools
CD-ROMs, 466
DVDs, 466
eBooks, 466
microforms, 466
sound recordings and videocassettes, 466–467
use of, 19–20, 465–468
North Carolina Reports, 123
North Eastern Reporter, 141
North Western Reporter, 125
Note-taking, 523–528
N/S Corp. v. Liberty Mut. Ins. Co. (1997), 657

Obiter dictum, 24
Occupational Safety and Health Administration website, 500
Occupational Safety and Health Reporter, 261
O’Connor, Sandra Day, 119
Office of the Federal Register website, 501
Office of the Law Revision Counsel (U.S.), 102

757
Official reports, discontinuation of, 129–130
Online legal research. See E-research
Opinions, types of, 118–121
oral/verbal, 580–581
Ordinal numbers, abbreviation of, 296
Ordinance Law Annotations, 424
ordinance/ordnance, 581
Organization of American States, 421
“Orphans,” 620, 695
Outlines, 596–597
overrule/reverse, 369, 581
OWL website, 568, 608, 634, 697

PACER, 109, 465, 498

Pacific Reporter, 122, 140
Page numbers, 695
Panama Refining Co. v. Ryan (1935), 401
Paper, choice of, 691
Paragraphs, 598
Paralegal association publications, 220
Paralegal Association website, 498
Paralegal Discovery: Procedures and Forms, 253
Paralegal Litigation: Forms and Procedures, 253
Paralegal Society website, 503
Paralegal Today, 220, 222
Paralegal websites, 498–499
Parallel citations
Blue and White books, 142
Bluebook rules for, 297–299
cross-references, 142
exception for U.S. Supreme Court cases, 136–137
finding, 141–143
id., use of, 336
National Reporter Blue Book, 142
National Reporter System, 126, 129
state digests, 143
Paraphrasing, in legal memoranda, 649
Parentheses, 565
Passive voice, 585–586, 600, 686
Patent and Trademark Office, U.S. (USPTO), 500
People v. See name of opposing party
Peoples, Lee F., 488, 495

758
Per curiam opinions, 119
Periodicals, legal, 215–227
articles in, location of, 221–226
bar association, 219–220
citation form, 227, 238, 316–317, 334
citation of, 227
cybersites, 239
indexes, 223–226
law school publications, 216–218
newsletters, 221
newspapers, 221
overview, 215–216
paralegal association, 220
as secondary source, 271
specialty, 220–221
summary of, 226–227
types of, 215–216
Perma.cc, 496
Permanent Court of Arbitration, 419
Permanent Court of International Justice (World Court), 420–421
Personal Injury: Paralegal Forms and Procedures, 253
Personal pronouns, 550–551
Peters v. May (1988), 56
Plain English movement, 574
Plain Language Action and Information Network website, 608
Plain Writing Act of 2010, 574
Plessy v. Ferguson (1896), 21, 369, 581
Plurality opinions, 119
Pocket parts
American Law Reports, 188
citation form, 313
digests, 178
form books, 257
importance of using, 95, 531, 532
state statutes, 97
United States Code Annotated, 79, 81–87
United States Code Service Lawyers Edition, 81–87
Pocket veto, 66
Poe, Edgar Allen, 543
Popular name approach, 92–93, 99
Postwriting activities, 683–697
common errors, spotting, 697

759
 cybersites, 697
document design and length, 693–694
exhibits, attaching, 695
final revision, 695–696
headings, structure and labeling of, 694–695
legalese, eliminating, 686
lists, use of, 695
margins, 693–694
page numbering, 695
paper, choice of, 691
passive voice, 686
proofreader’s marks, 689–690
proofreading, 686–688
quotations, use of, 695
reviewing and revising, 684–686
sample project checklist, 696
sentence length, 685–686
typeface, selecting, 691–692
type size, selecting, 692
unnecessary words, elimination of, 686
Powell, Jr., Lewis F., 107
Precedents, legal. See Stare decisis
Prentice Hall website, 697
Prepositional phrases, 547
prescribe/proscribe, 581
President
Compilation of Presidential Documents, 397–398, 399
executive orders, 13, 15, 397
judicial appointments, 42–43
pocket vetoes, 66
proclamations, 395–396
signing of bills by, 66
vetoes and veto overrides, 66
Primary authorities. See also specific publications
chart of, 519
judicial hierarchy and, 23
Prince’s Bieber Dictionary of Legal Citations, 136
principal/principle, 581
Print publishing, future of, 462–463
Prior history, 309
Prisoner Litigation Reform Act, 39
Project checklist sample, 696

760
Pronouns, 550–555
gender-linked, 554–555
personal, 550–551
reflexive, 551–552
relative, 552–553
Proofreading, 686–688
computer spell checking programs, dangers of, 688
projects by others, 689
proofreader’s marks, 689–690
techniques for, 687
ProQuest Congressional, 384, 393
Prosser and Keeton on the Law of Torts, 229
Protection clauses, 633
Public domain materials, 345–346
Public Law Electronic Notification Service, 385
Public law numbers, 382–383, 390
Publishing, law books, 16–19
Punctuation, 558–567
apostrophes, 561–562
citation form, 321–323
colons, 563
commas, 559–560
dashes, 565
exclamation marks, 565
hyphens, 565–566
overview, 558–559
parentheses, 565
quotation marks, 351, 564
semicolons, 563–564
slashes or virgules, 567
Purdue University’s Online Writing Lab website, 568, 608, 634, 697

Quotations, 324–330
alterations of, 327–328
block quotations, 319
ellipses, use of, 320, 329
emphasis, adding, 328
indented, 326–327
jump cite, 324
in legal memoranda, 649
length of, 695
non-indented, 326

761
 omissions from middle or end of quote, indicating, 329
omitted citations, indicating, 328
overuse of, 324, 646, 649, 678
page numbers, 324–325
paragraph structures, 330
passim, use of, 325
phrases or clauses, using quoted language as, 329–330
pinpoint citation, 324
quotation marks, 351, 564
spot cite, 324

Ratio decidendi, 24
Ravel Law, 465
Readability, 585–592
active vs. passive voice, 585–586, 600, 686
jargon, avoiding, 588–589
legal memoranda, 646
lists, use of, 586–587
nominalizations, avoiding, 588
sentence length, 592
tests of, 592
word choice, 591
word order, 590
Redundancy, avoiding, 595
Reflexive pronouns, 551–552
RefWorks, 353
Regulations.gov, 408, 430
Rehnquist, William H., 35, 45, 58, 119
Relative pronouns, 552–553
RELX PLC, 18
Repetition, 583, 591–592, 596
Reports of Judgments, Advisory Opinions and Orders, 420
Research process. See Legal research process
Research strategies. See also specific types of materials
Case on Point approach, 22, 170–173
checklist, 522
descriptive word approach, 89–92, 98, 167–168, 169, 177, 183, 186, 206–207, 232
Digest approach, 171, 187
locating state statutes, 99
popular name approach, 92–93, 99
table of cases/table of statutes approach, 170, 172, 207, 232–233
title/topic approach, 92, 98, 168–170, 171, 207, 232

762
respectfully/respectively, 581
Restatement (Third) Foreign Relations Law of the United States, 415
Restatement of the Law Citations, 238
Restatements, 233–238
arrangement of, 235
chart of, 234
citation form, 238, 317, 351
citation of, 238
cybersites, 240
effect of, 237–238
KeyCiting, 369
Lexis Advance database, 237, 240
location, how to find, 237
overview, 233–234
purpose of, 234
research strategies, 235–237
sample page, 236
as secondary source, 272
Shepardizing, 364
use of, 238
Westlaw database, 237, 240
R.L.C.; United States v. (1992), 379, 437
Robbins, Ruth Anne, 697
Roberts, John G., Jr., 47, 58
Rodell, Fred, 573
Roe v. Wade (1973), 37
Roman law, civil law tradition based on, 13
Roosevelt, Franklin D., 43
Rose v. Locke (1975), 245
Rules of procedure and court rules
citation form, 314–315, 429
failure to follow, 52
Federal Rules of Appellate Procedure, 42, 110, 283, 425–427
Federal Rules of Civil Procedure, 135, 315, 425–427
Federal Rules of Court, 427
Federal Rules of Criminal Procedure, 135, 315
interpretation of, 427
KeyCiting, 369
legal briefs, 668
overview, 425–428
states, 428
Run-on sentences, 548

763
Scalia, Antonin, 57, 119, 394
Schiavo, Terri, 44
Schiess, Wayne, 634
Schroeder, Chief Judge Mary, 40
SCOTUSBlog, 503
Scout, 393
Scrubbing metadata, 254
Search engines, 484, 502
Secondary authorities
chart of, 271–275, 520
judicial hierarchy and, 23
legal research process and, 518–519
overview, 15–16
starting research projects with, 199
summary of, 269
Securities and Exchange Commission (SEC), 40, 499, 574, 608
Selective enforcement defense, 13
Semicolons, 563–564
Senate, U.S., 390, 418
Sentence fragments, 548
Sentence length, 592, 685–686
Serial Set, 388
Session laws, 70, 96–97
Shepardizing, 359–372. See also KeyCite and Appendix A
administrative law and regulations, 410
Alerts, 363
appellate history, 362
BriefSuite, 364
case law, 360–363
Citing Decisions, 362, 365
court rules, 364
cybersites, 372
defined, 359
features, 362–363
headnotes, references to, 362
KeyCiting compared, 370–371
law review articles, 226, 364
legislative history, 392
with Lexis Advance, 448, 450
Map, 362
miscellaneous citators, 371
online, 360–364

764
 Other Citing Sources, 362
regulations, 363
Restatement provisions, 364
saving results, 363
searching within results, 363
Signal Indicators, 360–362
statutes, 363
steps in, 360–361
Table of Authorities, 363
Timeline, 363
treaties, 419
Shepard’s Citations, 142, 359, 372, 519. See also Appendix A
Shepard’s Code of Federal Regulations Citations, 410, 707
Shepard’s Federal Statute Citations, 419, 707
Shepard’s Pacific Reporter Citations, 701
Shepard’s United States Administrative Law Citations, 410
Sierra Club v. Morton (1972), 38
since/because, 582
Slashes, 567
Slip form, 123, 300
Slip laws, 70
Slip opinions, U.S. Supreme Court, 132
Smith v. Lewis (1975), 5
SMU Science and Technology Law Review, 220
Social media, 343, 504
Sotomayor, Sonia, 57
Sound recordings, 466–467
Sources of law
administrative rules and regulations, 12, 15
case law, 10–11
common law, 10–11
constitutions, 11
executive branch of the federal government, 12–13
statutes, 11–12
Southern Reporter, 124
South Western Reporter, 124
Spacing
in citations, 312
in documents, 690, 692, 694
in letters, 620
Spelling, 555–558
commonly misspelled words, 556–557

765
 computer programs for checking, 557
errors, 283, 556–557
tips to better, 557–558
Split infinitives, 549–550
Standby and Commercial Letters of Credit, 229
Standing, 37–38
Stare decisis
changes in our legal system and, 21–23
definition, 11
effect of, 23
judicial hierarchy and, 23
purpose of, 11
rejection of by lower courts, 21
Star paging, 136–138, 446, 455
State v. See name of opposing party
State cases
citation form, 26, 57, 154, 299–300, 349
official reports, discontinuation of, 129–130
publication of, 125–130
State court systems. See also Rules of procedure and court rules
appeals to U.S. Supreme Court from, 50
appellate courts, 54
citation form, 57
cybersites, 59
highest courts, 54–55
judges or justices, 55
jurisdiction, 53
organization of, 53–56
structure of, 53–56
State Department, 418, 419, 430
StateNet, 389, 391, 393
State statutes, 96–100
annotations, 97
citation form, 101, 310–311, 350
codification, 96–97
conversion tables, 97
cybersites, 102
enactment of, 96
historical notes, 97
indexes, 97
KeyCiting, 368–369
legislative history. See Legislative history

766
 Lexis Advance search for, 446
locating, 99
numbering systems of state codes, 97
pocket parts, 97
publication of, 96–97
research techniques, 98–100
sample page, 98
session laws, 96–97
Shepardizing, 363
Westlaw search for, 455
Statutes. See also Federal statutes; State statutes
best websites for locating, 497
citation form, 101, 310–314, 334, 350
classification of by code, 310–311
definition, 11–12
judicial interpretation of, 22–23
legal research process, 517
research overview, 100–101
session laws, 96–97
as sources of law, 11–12, 15
Steiner, Peter, 479
Stevens, John Paul, 44, 394
Stone, Harlan Fiske, 58
Story, Joseph, 15, 58
String citing, 323–324
Style sheets, 685
Subject-verb agreement, 545–547
achievement, 547
collective nouns, 546
intervening words, 547
multiple word subjects, 545–546
prepositional phrases, 547
Subsequent history, 308–309
Superscripts, use of, 302
Supra, use of in legal citation, 93, 337–339, 351
Supreme Court, U.S., 42–52
appeals to, 45–46, 50
case load of, 45
certification, 50
certiorari, writ of, 47–48
citation form, 136–137, 303–304
cybersites, 59

767
 facts about, 57–58
in federal court structure, 33
“June crunch,” 44
jurisdiction, 45–46
justices. See Supreme Court justices
law clerks, 47, 57
legal briefs, 660, 661–662, 679
location of, 44
opinions, 49
oral arguments before, 48–49
overruling of its precedents, 21
publication of opinions of, 118, 130–133
reversal statistics, 57–58
“rule of four,” 47
rules of, 52, 315, 660, 661–662, 679
SCOTUSBlog, 503
terms of, 44
traditions, 45
website, 155, 497
Supreme Court justices. See also specific justices
appointments of, 42–43
Chief Justice, 42
“conference handshake,” 45
number of, 42, 43
salaries of, 42, 57
seating by seniority, 45, 47
special and emergency matters of circuit courts, 44
terms of, 44
Supreme Court Reporter, 120, 122, 131, 137, 140
Supreme Court Reports, Lawyer’s Edition, 137, 138
Supreme courts
state, 54–55
U.S. See Supreme Court, U.S.
Supreme Court Today, 133

Table of Authorities, 662, 672–674

Taft, William Howard, 44, 48, 57
Tax
Current Legal Forms with Tax Analysis, 253
Index to Federal Tax Articles, 226
Internet Tax Freedom Act, 67
Journal of Taxation, 220

768
 Murphy’s Will Clauses: Annotations and Forms with Tax Effects, 252
United States Tax Court, 52
websites, 501
Taylor, William A., 371
Texas Disposal Sys. Landfill, Inc. v. Tex. Comm’n on Envtl. Quality (2008), 31
Texas Rules of Form, 286
Text messaging, 607
Texts. See Treatises
Thesauri, legal, 248
Thesis statements, 645, 660–661
Thomas, Clarence, 57, 119
Thomson Reuters Corporation, 18, 26, 653, 689
T.I.A.S. (Treaties and Other International Acts Series), 417
TinyURL, 344
Title/topic approach, 92, 98, 168–170, 171, 207, 232
Torts
Concise Restatement of Torts, 237
Personal Injury: Paralegal Forms and Procedures, 253
Prosser and Keeton on the Law of Torts, 229
Total Client-Service Library, 207–210
Tracking bills, 393–394
Tracking Current Federal Legislation and Regulations: A Guide to Basic Sources (Davis), 380
Trademark Trial and Appeal Board, 42
Transitions, 598–599
Treaties, 416–420
citation form, 422
current status of, determining, 418–419
interpreting, 419–420
post-ratification sources, 417–418
pre-ratification sources, 417
publication of, 12–13, 15
Treaties and Other International Acts Series (T.I.A.S.), 417
Treaties in Force, 419
Treatises, 228–233. See also Looseleaf services
as casefinders, 228
CD-ROM versions, 467
citation form, 233, 238, 317, 350
credibility of, 229
critical, 228
cybersites, 239
features of, 229–230
formats, 228, 229–230

769
 as forms source, 253
hornbooks, 228
Lexis Advance, 229, 239
overview, 228–229
research strategies for, 232–233
sample page, 231
as secondary source, 272
use of, 230–232, 233
Westlaw, 229, 239
Trial court briefs, 662–668
adversary’s brief, responding to, 666
argument, 664–666
captions, 662–663
certificates of service, 667
conclusions, 666
elements of, 672
exhibits, 667
footnotes, 664–665
introductory statement, 663
overview, 662
rules for, 668
signatures and dates, 666
statement of facts, 663
Turner v. Fendall (1801), 131
Twitter, 343, 504
Typeface, 288–290, 319, 691–692
Type size, 692

UCLA website, 27, 352, 536

Ueland, Brenda, 637
Ultrafiche, 466
Umbrella statement, 645. See also Thesis statements
Uniform Adoption Act, 259
Uniform Commercial Code (UCC), 259, 497
Uniform Law Annotated, 260
Uniform Law Commission, 276, 497
Uniform laws, 258–261
citation form, 270, 317–318
cybersites, 176
on Internet, 260
Lexis Advance, 260
and Model Acts compared, 259

770
 overview, 258–259
research strategies, 260
sample page, 262, 263
as secondary source, 274
state adoption of, 100, 259
use of, 260–261, 268
Westlaw, 260
Uniform Laws Annotated, 262
Uniform Laws Annotated Directory of Acts, 260, 263
Uniform Partnership Act, 100, 259
Uniform Simultaneous Death Act, 259
UnitedHealth Grp. Inc. S’holder Derivative Litig., In re (2011), 437
United Nations, 420–421, 430, 500
United Nations Treaty Series (U.N.T.S.), 417, 418
United States v. See name of opposing party
United States Bankruptcy Courts, 36
United States Claims Court Reporter, 139
United States Code (U.S.C.), 72–74
annotated versions. See United States Code Annotated; United States Code Service Lawyers
Edition
Constitution in, 95
“official,” 74
supplements, 74
titles of, 73–74
use of, 87–88
United States Code Annotated (U.S.C.A.), 75–79
arrangement of, 75–76
Code of Federal Regulations, 78
Constitution in, 95
conversion tables, 81
cross references, 78
features of, 76
historical and statutory notes, 78
indexes, 79, 89–92
library references, 78
notes of decisions, 78–79
pocket parts, 79, 81–87
Popular Name Table, 93, 94
sample pages, 76–77, 90, 94
supplements, 79, 86–87
unofficial, 75
updating statutory research, 87

771
 U.S.C.S. compared and, 79–80, 87–88
use of, 87–88
United States Code Congressional and Administrative News Service (USCCAN), 71, 383
United States Code Service Lawyers Edition (U.S.C.S.), 79–87
arrangement of, 79–87
citation form, 286
Code of Federal Regulations, 80
Constitution in, 95
conversion tables, 81
cross references, 80
features of, 81
history, ancillary laws and directives, 80
indexes, 79, 89–92
interpretive notes and decisions, 81–87
pocket parts, 81–87
Popular Name Table, 93
research guides, 80–81, 87
sample pages, 82–83, 91
supplements, 86–87
treaties, judicial decisions interpreting, 419
“unofficial,” 80
updating statutory research, 87
U.S.C.A. compared, 79–80, 87–88
use of, 87–88
United States Court of Appeals for the Armed Forces, 52
United States Court of Appeals for Veterans Claims, 42, 52
United States Court of Federal Claims, 42, 52
United States Court of International Trade, 42, 52
United States Courts of Appeal. See Courts of Appeal, United States
United States Federal Depository Libraries, 5–6, 70
United States government, organization of, 32, 33
The United States Government Manual, 412
United States Law Week, 132–133
United States Reports, 15, 44, 49, 118, 122, 130–131, 137
United States Statutes at Large
arrangement of, 72
deficiencies of, 70
indexes, 72
legislative histories, 382
state statutes, 96
United States Supreme Court. See Supreme Court, U.S.
United States Supreme Court Digest, 175, 178

772
United States Supreme Court Reports, Lawyers’ Edition, 131–132, 143
United States Tax Court, 52
United States Treaties and Other International Agreements (U.S.T.), 417
Universal Citation Guide, 286
University Law Review Project, 226, 239
University of Akron School of Law website, 27
University of Chicago Manual of Legal Citation, 285. See also Maroonbook
University of Chicago website, 430
University of North Carolina website, 697
University of Wisconsin Law School website, 683
Unpublished opinions, 109–110
U.N.T.S. (United Nations Treaty Series), 417, 418
Updating and validating research, 358–373
cybersites, 372
difference between history and treatment, 369
electronic, 360–372
with KeyCite, 364–371
as legal duty, 371, 524, 530
Shepardizing, 359–372, Appendix A
summary, 371–372
USA.gov website, 429
U.S.C.A. See United States Code Annotated
USCCAN (United States Code Congressional and Administrative News Service), 71, 383
U.S.C.S. See United States Code Service Lawyers Edition
U.S.C.S. Advance, 71, 86
U.S.T. (United States Treaties and Other International Agreements), 417

Vague words, 582

VersusLaw, 465
Vestron, Inc. v. Lowell (1965), 56
Veterans Appeals Reporter, 139, 144
Veterans Claims, United States Court of Appeals for, 42, 52
Vetoes, presidential, 66
Videocassettes, 466–467
Virgules, 567

Washburn University Law School website, 155, 276, 413, 487, 489, 497, 498, 499
Washington, George, 32, 37
Websites. See also Internet
Americans with Disabilities Act, 499
archiving URLs, 343, 496
attorney and ethics, 499

773
 best for E-research, 496–504
case law, 497
corporate, business, and securities, 499–500
environmental, 500
forms, 498
government materials, 498
intellectual property, 500
international, 500
labor and employment, 500
legal research and writing, 487–489, 501
link rot, 343, 496
non-legal sites, 501–502
paralegal sites, 498–499
reference materials, 501
specialty sites, 499–501
start sites, 497
statutes, 497
strategies for using, 491–493
taxes, 501
West, Horatio, 125
West, John, 125
WestCheck, 370
Westlaw, 450–461
administrative and legislative materials, search for, 455–456
administrative law, 408, 413
Affiliated Services, 460
Alerts, 458
blog, 460
Boolean searching, 440–441
briefing cases, guide to, 155
Briefs, 458
case law, search for, 455, 457
citation assistance, 320, 353, 369–370, 459
citation form, 341, 468
constructing a search, 453–454
contact information, 439
content overview, 460
Court Express Document Research and Retrieval, 133
cybersites, 470
encyclopedias, 239
federal statutes, 72
50 State Surveys, 459

774
 filtering searches, 458
folders, 459
getting started, 450–453
Global Search Box, 451, 453
Graphical Display of Direct History of Cases, 459
Graphical Display of Timelines for Statutes, 459
Help, 459
highlighting, 458–459
Home Screen, 452–453
hyperlinking, 458
interactive tutorials, 461
Internet searching, 459
KeyCiting. See KeyCite
Key Numbers, 458
law reviews and journals, search for, 456
legal memoranda, guide to preparing, 683
legislative history, 384, 393
Lexis Advance compared, 469–470
mobile applications, 360, 460
notetaking in, 526
pending legislation, tracking of, 393–394
periodical articles online, 225
plain English searching, 441–442, 453–454
practice area searching, 454
Procedural history of case, 148
quick review of, 460
research assistance, 533
Restatements, 237, 240
results screens, 451, 456
search results, display of, 456, 458
secondary authorities, search for, 457
Selected Topics, 458
statutes and constitutions, search for, 455
Sticky Notes, 458–459
treaties, 419
treatises, 229, 239
Uniform Laws on, 260
when to use, 461–462
Westlaw Classic, 438, 450–451
West Publishing, 18, 26. See also Thomson Reuters; Westlaw
West’s digests. See American Digest System
West’s Encyclopedia of Employment Law, 214

775
West’s Legal Forms, 253
West’s National Reporter System. See National Reporter System
Who’s Who in American Law, 229
who/whom, 552
“Widows,” 620, 695
Wigmore on Evidence, 229
Wikipedia, 488, 495–496
Willison on Contracts, 4th, 228
Wilson, Woodrow, 21
Wolters Kluwer, 18, 261
Wolters Kluwer Bouvier Law Dictionary, 248, 276, 504
Women’s Rights Law Reporter, 220
Word choice, 577–582, 591
Word Clouds, 601
Word connotation, 582–583
Word order, 584, 590
Word processing
find and replace feature, 583
spell checkers, 557, 604, 688
Table of Authorities, automatic preparation of, 673–674
track changes feature, 604
Words and Phrases, 190–192, 248
World Court (Permanent Court of International Justice), 420–421
World Intellectual Property Organization website, 418, 500
Writing. See Legal writing

Zotero, 353, 526

776