The Process of Legal Research - 3

1. West’s Instructional Aids Series The Process of Legal Research - 3 How to Use Print and Online Legal Resources To Your Best Advantage

2. Contents • Introduction • From Facts to Issue • Controlling Statute • Expanding Research • Identifying Cases to Cite • Ensuring Currency and Validity of Law • Conclusion

3. Identifying Cases to Cite Contents

4. Identifying Cases Section 13 of the ALR article analyzes some of the factors that courts have considered when determining whether an employee acted within the scope of his employment when committing a nonsexual assault at the business of a customer. They include: • Did the act further the employer’s business in any way, even if not in the manner or method authorized? • Was the act related to employee’s duties and incident to the performance of the employee’s duties? • Had the business purpose of the interaction between the employee and customer been completed? • Did the action arise out of a job dispute, or was the assault in pursuit of private purposes or grievance? • Did the employee’s duties contemplate the use of force?

5. Identifying Cases • You will need to align these factors with the circumstances that surrounded Ronnie’s assault of the customer. • You could argue that Acme is not liable because • Ronnie’s job did not contemplate assault. • Ronnie’s job was over when he unloaded the goods on the loading dock. It was not necessary for him to pursue the argument to complete his delivery. • Ronnie was pursuing a private grievance. • But the plaintiff is likely to that Acme is liable because • the assault arose out a job dispute and was not personal. • Ronnie’s job was not over, as he remained on the customer’s loading dock. • the assault furthered Acme’s business in that its purpose was to deliver the goods to a customer.

6. Identifying Cases Topic and Key Numbers • You will want to identify relevant cases through sources other than the ALR article to verify that you are using the most relevant cases and the strongest arguments. • Key Number Digests are one option of identifying cases with similar issues. The digests organize the law into approximately 400 broad topics divided into approximately 100,000 narrow issues of law, each assigned to a specific key number. • The McDermott case that is cited in the ALR has only one headnote. That headnote is assigned to 255K302(3) (Assault under Scope of Employment, under Master and Servant topic).

7. Identifying Cases Print Digests • If you were to find Louisiana cases by topic and key number in the print Louisiana Digest you would need to check the digest’s pocket part for the most recent cases. • Louisiana cases have the most precedential value, but the reasoning of courts in other jurisdictions may be persuasive. Topic and key numbers remain constant across jurisdictions.

8. Identifying Cases • Instead of using the print digests, you might go online and search the LA-CS database for relevant key numbers, using the terms of art that we have identified in the print resources and in the ALR database. You might add other terms associated with factors a court considers when determining liability. • Database: LA-CS • Digest field search: di(“vicarious liability” “respondeat superior” /p assault! (inten! /3 tort! act!) & “job dispute” “personal grievance” furtherance)

9. ResultsPlus • The search retrieved 22 cases in the Louisiana Cases database. • On the right of the screen are relevant ALR, Am. Jur. 2d, Am. Jur. Proof of Facts, Am. Jur. Trials articles and Key Numbers that could be used to expand your research. These are your ResultsPlus.

10. Identifying Cases The search retrieved several relevant key numbers under topic 255 (Master and Servant): 302(2) Acts for Which Master is Liable in General 302(3) Assault and Battery 302(6) Acts of a Servant in His Own Behalf 306 Willful and Malicious Acts of Servant 255k302(2) 255k306 Reference to La. C.C. 2320

11. Identifying Cases • We will choose 255k302(3), Assault and Battery, under Scope of Employment as this is the key number assigned to the sole headnote in the McDermott case which was cited in § 13 of the ALR article. • Click Most Cited Cases. Assault and Battery Most Cited Cases

12. Identifying Cases 255k302(3) Most Cited Cases Louisiana • Select Louisiana as the jurisdiction. • The Most Cited Cases feature will retrieve headnotes assigned to key number 255k302(3) in a Custom Digest format. The headnote that has been cited the most will be displayed first, the headnote that has been cited least will be displayed last. • The Most Cited Case feature helps determine which cases are most authoritative.

13. Identifying Cases Cited 147 times • There are over forty headnotes in Louisiana’s Custom Digest for key number 255k302(3). • LaBrane v. Lewis has been cited more than any other case for this issue, indicating that it is an important case. • McDermott is also near the top of the list and the ALR article on assault in the home or business of a customer is also referenced.

14. Identifying Cases • The next step is to read the full text of the cases that seem most relevant. • The critical and often very subtle factors that influence a decision must be isolated and analyzed. This can only be fully accomplished by a thorough reading of the complete text of the cases. • Some cases might seem to be contradictory, but you should be able to detect a trail of consistency drawn from subtle factual distinctions among the cases. • You should read opinions that have imposed liability on the employer and opinions that have not imposed liability on the employer.

15. Identifying Cases Several of the cases retrieved set forth factors a Louisiana court should consider when deciding whether to hold an employer vicariously liable for the intentional acts of employees: “ (1) whether the tortious act was primarily employment rooted, (2) whether the violence was reasonably incidental to the performance of the employee's duties, (3) whether the act occurred on the employer's premises, and (4) whether it occurred during the hours of employment.”

16. Ensuring Currency and Validity of Law KeyCite History Contents

17. KeyCite History • Once you have found the relevant cases and statutes, you must determine the current status of the law. • Check the validity of any relevant case or statute before continuing your research. • A case may be reversed, vacated, remanded or overruled. • A statute may be repealed, amended, declared unconstitutional, or preempted.

18. KeyCite History KeyCite History • Online citators have distinct advantages over print citators: • There is a single source of information. (Checking the validity of a case in print citators involves checking in multiple volumes and updating pamphlets.) • Online citators are extremely current. (Print citators cannot be as current due to the necessity of printing and mailing updating pamphlets.) • KeyCite is the citation research service available on Westlaw.

19. KeyCite History KC History • One of the cases in the results of your key number search, LaBrane v. Lewis, displays a yellow flag in the upper left corner and and on the Links for tab in the left frame. • The yellow flag indicates the case has some negative history, but hasn’t been reversed, overruled, vacated, or remanded. • Click either yellow flag to display this negative history.

20. KeyCite History • The negative history includes cases in which factual distinctions led to a different outcome. • These would be very valuable cases to read as you try to fit the Acme case into the texture of Louisiana cases.

21. KeyCite History • Another case retrieved in your key number search, Moore v. Blanchard, is tagged with a red flag on both the case and the Links for tab. • The KeyCite Direct History of the case indicates that the judgment was reversed by a higher court. • When you see a red flag on a case, you should investigate before relying on that case to support your argument. Judgment Reversed

22. Conclusionor Knowing When to Stop Research Contents

23. Conclusion • You’ve done the research and you feel confident of your understanding of the issue. • You have isolated the most relevant articles, cases, statutes, and key numbers that were found by different methods of research and which cross reference one another. • You’ve carefully read and analyzed relevant Louisiana law. • You’ve ensured the cases you are relying on are good law. • You can support your position with references to primary law and secondary sources, and counter the arguments likely to be presented by opposing counsel

24. Conclusion Knowing When To Stop1 • The Loop Rule • When you start to see the same documents and citations over and over, you should probably realize you are done, especially if you have used the research products of more than one publisher • The Economic Analysis or Diminishing Return Rule • When you are investing more in your research than you are getting in return • The Zen Rule • When you have been working in an area of the law for a long time, you will be so familiar with the primary and secondary law you will have become an expert and will know when to stop. 1JOHNSON, ET AL., WINNING RESEARCH SKILLS, West Group, 2002

25. Good job Conclusion • Now you can write a persuasive memo or brief. • This was just one potential path through the legal research process. • Every research process will differ. You could have competently explored more or less legal resources depending on what is at stake and the time and money available. • You’ll be a successful researcher if you understand how to use the many resources that are available in a flexible and efficient manner.

26. End of The Process of Legal Research - 3