Doing Legal Research
The purpose of legal research is to find "authority" that will aid in finding a solution to a legal problem. “Authority” can be a law, a regulation, or a legal precedent (a previous case that was very similar to the subject of this research.)
Tip: Find a research guide before you start. Your local library will probably have research guides on a wide variety of topics. Also, each county has a law library with staff who are trained to help people with legal research.
Tip: Also before you start, find the rules on how to create and understand legal citations. The court will need to know where you got your information, and there is a whole set of rules about how to explain that.
Authority: Primary versus secondary
Primary authority is the set of rules of laws that are binding upon the courts, government, and individuals. Examples are statutes, regulations, court orders, and court decisions. They are generated by legislatures, administrative agencies, and courts.
Secondary authority is commentary on the law that does not have binding effect but aids in explaining what the law is or should be.
Tip: A common research tactic is to begin by using secondary sources to get a general overview of the area of law being reviewed, and then to use the secondary authority footnote references to guide the researcher to relevant statutes, regulations and cases.
Authority: Mandatory versus persuasive
- Mandatory authority is an authority that the court must follow. For a trial court, an example of mandatory authority would be a prior court decision by an appeals court that normally hears appeals from that particular trial court.
- Persuasive authority is one which the court may optionally follow. For example, a California state court is not required to follow a decision of a Nevada state court but a Nevada judge may have used a line of reasoning in deciding a case that a California judge might find helpful.
Jurisdiction is the area in which a court or other government body is empowered to act. Jurisdiction is most commonly geographical but can be by subject, such as bankruptcy.
There is a jurisdiction for the United States federal government as well as for each of the 50 states. Within each of these jurisdictions, there are the Legislative, Executive and Judicial branches of government.
Each branch of government is a source of law within its jurisdiction:
- Legislatures pass statutes (laws)
- The executive branch agencies and departments issue regulations,
- The courts interpret the meanings of these various laws and regulations (“case law).
What you’re looking for:
Clearly you need to know the statutes and regulations that apply to your case. However, when attorneys think about a case, their basic assumption is that if there is a case from the past having facts and legal issues similar to this case, the outcome of the past case should control the outcome of the present case. This concept is referred to as precedent. A lawyer spends a lot of time trying to find a case that is "on point," or as close to his or her fact situation as possible.
This means that it is often quite difficult to determine what "the rule" is for any given legal issue. In many instances figuring out what the law is consists of comparing many different cases to the fact situation at hand. Rather than an absolute yes/no or true/false answer, the resolution may have to be considered on a strong/weak scale.
Steps in doing legal research:
There is no one right way to do legal research. However, there are practices that have proven to be relatively efficient and cost effective:
- First, try to figure out what the case is about from a legal point of view. What legal issues you will need to research?
- Next, find a research guide that will help you sort through the material available.
- Think creatively about search terms (think up synonyms – divorce? dissolution? legal separation?)
- Work out the jurisdiction in which this case would be tried, and check for any statutes of limitations that might apply.
- Locate, read, and update secondary sources to get a general understanding of your case.
- Locate read and update primary authority (cases, statutes, and regulations) related to your case.
- Lookup rules of procedure, ethics, non-legal and other materials if needed.
- Repeat the above steps, as needed, depending on your search results.
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