1 / 39

Externship Research Refresher

Externship Research Refresher. Faye Jones Director and Professor fjones@law.fsu.edu ; 644-7486 Reference Desk: 644-4095 Evening Service: The Hotline aka The Red Phone at Reference. General Research Tips. Rock Scissors Paper & Legal Research 1. Legislature/Congress enacts statute

Leo
Télécharger la présentation

Externship Research Refresher

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Externship Research Refresher Faye Jones Director and Professor fjones@law.fsu.edu; 644-7486 Reference Desk: 644-4095 Evening Service: The Hotline aka The Red Phone at Reference

  2. General Research Tips • Rock Scissors Paper & Legal Research • 1. Legislature/Congress enacts statute • 2. Court rules statute unconstitutional • 3. Legislature/Congress enacts revised statute superseding case law • 4. And so on and so on… • Always bring your research up-to-date • Always be sure to Shepardize • Lexis is preferable • Lexis or Westlaw for research? Why?

  3. Primary vs. Secondary Materials Primary = THE LAW Statutes, Cases, Regulations Secondary = Analysis & Commentary 1

  4. Legal Research Rule #1: Never Recreate theWheel! • Start with Secondary Sources • Practice Materials, Treatises, Monographs, Loose-leaf Services, Legal Periodicals, Encyclopedias (FLA.JUR.2d) • Best starting point for research • Analysis & commentary by experts • Currency: interfiled update pages, pocket parts, and/or supplements in print or online

  5. How To Find Materials • ALEPH catalog via Strozier, http://www.lib.fsu.edu/ • FSU Law Library home page, http://www.law.fsu.edu/library/ • Florida Practice materials -- shelved at Reserve Desk; on the Library’s 2d floor; on Lexis and Westlaw • Treatises, Monographs, and Loose-leaf services by call number on third floor or online in Lexis or Westlaw • Legal periodicals: Bound by call number on third floor; newest issues in Lexis, Westlaw, Hein Online or at Reserve • Other journals: FSULL home page under FSU e-journals

  6. Federal Practice Materials • 1. Use ALEPH advanced search to find titles • 2. Major publishers • Aspen • Lexis Law Publishing • Matthew Bender Authority • Commerce Clearing House • Bureau of National Affairs • Research Institute of America (mainly tax)

  7. Question: If the U.S. Supreme Court grants certiorari on only limited issues in a case, can the court consider other issues raised by the parties in their briefs if the issues are outside the limited grant of cert? • RESEARCH OPTIONS • 1. Consult treatises • Stern/Gressman’s Supreme Court Practice • Moore’s Federal Practice • 2. Check Rules of Court for the U.S. Supreme Court • 3. Research cases on WL/Lexis

  8. Stern/Gressman Supreme Court Practice, 8th ed., Reserve KF 9057 S8 2002 In index look up certiorari If not helpful, see Checklists, AND use Table of contents to find a general discussion Chapter 4.11, Importance of Issues Involved Moore’s Federal Practice, Treatise KF 8837 M6 1997 v. 22 Table of Contents sends you to Chapter 405, skim Synopsis & go to 405.03 [2] (vi) “Supreme Court may address issues not raised in petition…” Check the latest supplement for changes or more cases What research strategy works best for this question?

  9. Florida Practice Materials • Florida Bar CLE • At FSULL Reserve; Online in Lexis and Westlaw • Written by Judges or Practitioners • Single Topic How-to-do-it • Fast Eddie Publishing Company? • Legal Periodicals • Online in Lexis, Westlaw or Hein Online • Legaltrak (Current Law Index; InfoTrac) • Index to Legal Periodicals, Ref K 33 .I56 • Current Index to Legal Periodicals; Westlaw CILP 6

  10. Florida Landlord/Tenant Research • Facts: As required by statute, Landlord served tenant 3-day notice to pay or get out. The notice included late fees in the calculation of the amount of rent due in the notice. • Issues: Is the notice sufficient? If the landlord files an eviction notice, will the court grant the tenant’s motion to dismiss forfailure to state a cause of action because the landlord failed to properly notify the tenant?

  11. Research Strategy • 1. The Florida Bar FasTrain Series, Residential Landlord/Tenant Disputes, 3d ed., Reserve KFF117.Z9 R47 2003 • Consensus: For late fees to be included, they must be designated as rent in the lease, O’Connor v. Washington, 10 FLW Supp. 749 (Broward Co. 2003) • Online in Lexis and Westlaw • 2. Florida Statutes Annotated 83.46(6) notice must demand an exact amount of overdue rent • Case citations include Bell v. Kornblatt, 705 So.2d 113 (Fla. 4th DCA 1998) a proper statutory notice is a precondition to the maintenance of an eviction action • 3. Periodical articles: Robbins, Land Mines and Other Surprises in Residential Landlord and Tenant Cases, 75 Fla. Bar J. 42 (Dec. 2001) • Discusses cases on this issue decided in Circuit Courts; available online at the Florida Bar’s website, http://www.flabar.org/DIVCOM/JN/JNJournal01.nsf/76d28aa8f2ee03e185256aa9005d8d9a/0ccc01d00a40a67685256b0b0058b151?OpenDocument)

  12. Florida Child Custody Research • Facts: An FSU graduate student seeks to modify the visitation schedule in the final divorce decree issued by a court in Minnesota, where she and her spouse lived when they were married, where the divorce took place, and where her ex-husband still lives. If she files a Petition for Modification of Visitation in Leon County, FL., will a Florida judge grant the respondent’s motion to dismiss for lack of jurisdiction?

  13. Research Strategy • FL statute in this area is confusing • Secondary source is the best research choice • FSULL routinely obtains all FL-CLE titles in print & online • Lexis, Florida CLE Course Materials & Publications, http://www.lexisnexis.com/lawschool/ • Westlaw FL-CLE • http://lawschool.westlaw.com/shared/signon02.asp?path=/DesktopDefault.aspx • Answer: You’ll have to be your most persuasive! • Fla.Stat 61.516, Uniform Child Custody Jurisdiction and Enforcement Act • A state may not modify the custody determination of another state • unless it has jurisdiction to make an initial custody determination under F.S. 61.514(1), and• the court of the other state determines • that it no longer has jurisdiction under F.S. 61.515, or• that a Florida court is a more convenient forum under F.S. 61.520, or• a court of this state or the other state determines that the child, parents, and person acting as parent no longer reside in the state issuing the original order.F.S. 61.516. See III.K. regarding the procedure to domesticate a child custody order under the UCCJEA.

  14. Forms Drafting in Florida • Task: You need to draft a complaint for fraud for a client who has been cheated by a store. Find a sample complaint for fraud in a sales transaction. • Research Strategy: • 1. Use Florida Pleading & Practice Forms • 2. Table of Contents key is the fastest way to find a sample form • 3. Note that most formbooks include sample (boilerplate) forms. The lawyer has to draft the specific form needed.

  15. Federal Codes & Statutes • Slip Laws • Session Laws • Statutes at Large (Stat.) • Positive Law • Statutory Compilations • U.S. Code (U.S.C.) • THOMAS, http://thomas.loc.gov/ • Annotated Codes • USCA or USCS • Access by Citation, Tables or Index • Popular Name Table 2

  16. Florida Laws & Statutes • Laws of Florida • Official Statutes • Florida Statutes • Annotated Codes • West’s Florida Statutes Annotated • Advance Legislative Services • Florida Session Law Service 5

  17. Federal Legislative History • Debate or documentation developed in the course of making a specific law • Used to determine legislative intent • Nancy Johnson, Sources of Compiled Legislative Histories, Reference KF1 .J65 • U.S. Code Congressional & Administrative News (USCCAN) • Congressional Information Service (CIS) 3

  18. Florida Legislative History • 1. Check FSA for Session law year and chapter, bill number, and any historical notes. • 2. Check the Journals of the legislature for messages on vetos. • 3. Check on Legislature’s site for bill tracking and Staff Analysis, http://www.flsenate.gov/Welcome/index.cfm. • 4. Check Florida law reviews, newspapers (St. Petersburg Times), bar journals, or magazines. • 5. Visit the State Archives to see original documents. • Before 1969, legislators took their papers with them when they left at the end of a legislative session. 1969-1988 documents are available only from the archives. After 1988, a set of legislative histories, organized by session law, is available. • 6. Research guide – Pick up a copy at the FSU Law Library Reference Desk • 7. In practice, hire a commercial service

  19. Florida Legislative History Research • The Jimmy Ryce Act • For what offenses can the state keep prisoners incarcerated past their sentences? Who is a sexual predator under the statute? When was the statute enacted, or amended, what evidence can you find about why it was enacted or changed? • Research Strategy • Short Google search • Search Florida Statutes on the Internet, http://www.flsenate.gov/Statutes/index.cfm • Work through the other legislative history research steps • Two Caveats: 1. May be a process of elimination and 2. Can be time consuming! Don’t wait until the last minute to begin this research.

  20. Federal Regulatory Law • “Delegated legislation” • Administrative Procedures Act, 5 USC 701 et. Seq. • Code of Federal Regulations • www.access.gpo.gov/nara/#cfr • Federal Register • http://fr.cos.com • Updating the CFR & FR • Secondary Sources • James T. O’Reilly , Food and Drug Administration, Shepard’s/McGraw-Hill, 1993

  21. Kunz, The Process of Legal Research, 4th ed., p. 279

  22. Federal Regulatory Research • 1. Are Air Force & Army regulations deemed to be “law” for the purposes of: • (a) the federal question statute, or • (b) the Administrative Procedures Act, 5 USC 701 et seq. • 2. Are there any cases in which the APA has been held applicable/inapplicable to: • (a) AAFES decisions or • (b) decisions by non-appropriated fund instrumentalities (“NAFIs”)

  23. 3. Is there an equal protection issue that could arguably provide the basis for jurisdiction under sec. 1331 and the APA? • 4. Can a marital settlement to which AAFES was not a party nevertheless be a contract enforceable against AAFES under sec. 1346(a)(2)? • How to do it: • 1. If there is no practice set available, look at annotated statutes for cases or an article in a military law review or Federal Bar Journal • 2. If you represent AAFES, call military experts

  24. Florida Regulatory Law • Also delegated legislation resting on Administrative Procedure Act, see http://www.law.fsu.edu/journals/lawreview/frames/242/rossfram.html • Florida Administrative Code Annotated (FAC) • http://election.dos.state.fl.us/fac/index.shtml • Florida Administrative Weekly (FAW) • Florida Administrative Law Reports (FALR)

  25. Florida Regulatory Research • 1. Find the enabling statute • FSA, FL Legislature web site, Lexis or Westlaw • 2. Find case law interpreting the enabling statute • FSA, Lexis or Westlaw • 3. Find regulations under the enabling statute • FSA, DOAH site, Lexis or Westlaw • 4. Find administrative and judicial interpretation of regulation • FALR, DOAH site, Westlaw FL-ADMIN • Research Strategy:Use FLA.JUR.2d or a secondary source, like Florida Administrative Practice (in print or on Lexis/WL) to find the relevant FAC section or use the FAC statute tables to find subject area; Update in FAW and find cases in FALR, FSA or by Shepardizing. • 5. Find a hearing: http://www.doah.state.fl.us/internet/default.cfm

  26. Selected Rules, Forms & Directories • West’s Rules of Court • Local Information & Forms – Leon County http://www.clerk.leon.fl.us/ • By Court http://www.flcourts.org/ • Martindale-Hubbell • Law Digests • Uniform Acts

  27. Criminal Law Research • Defendant’s moved to suppress evidence of tape recordings made by individual in conversation with Defendant • Govt argued motion should be denied because: • 1. Defendant did not raise motion prior to trial, FRCP 12(b)(3); Defendant had copies of recordings 3 months prior to trial, Rule 2(f) • 2. Recording should be admissible under 18 USC 2511 • 3. State v. News-Press Pub. Co., 338 So.2d 1313 (Fla. 2d DCA 1976, interpreting Fla. Stat. 934.03(2)(d) held that the tape recording of a telephone conversation by one party to the conversation without the consent of the other party was an illegal intercept. • 4. Testimony regarding the conversation was admissible even if tape recording itself could not be admitted.

  28. Federal & State Criminal Research • 1. Look at both federal and Florida criminal procedure • 2. For FL, start with Florida Criminal Practice and Procedure, Reserve KFF575 .C73 1999 • Use the table of statutes to find where in the text the statutes in question are discussed • 3. For U.S., start with Moore’s Federal Practice or a title such as Contemporary Federal Criminal Practice, KF9219 .G46 1992

  29. Ethics Research • Issue 1. What are the ethical responsibilities of an attorney when (1) discovery sanctions are sought against the attorney and the client, and (2) such sanctions are awarded against the attorney and the client, or against the attorney alone? • Research Strategy: 1. Refer to a major treatise on Rule 11 sanctions, see Sanctions : the federal law of litigation abuse, Gregory P. Joseph, KF8887 .J66 2000; and 2. Follow-up in case law, annotated court rules, and law reviews. • Issue 2: What ethics rules and opinions apply in such a case in Florida? • Research Strategy: Search Florida Bar site, http://www.flabar.org/newflabar/lawpractice/adreg/adguide.html

  30. Summary • 1. Look for secondary materials to shortcut your research and for easy entry into primary sources • 2. Ask FSULL Reference for help • 3. Use Florida Legal Research, 2d. Ed, KFF75 R69 2002. • 4. Verify secondary source information in primary sources • 5. Bring research up-to-date & Shepardize • 6. Review with supervising attorney during research process and at result • 7. Practice skills: Knowing where to start, how to proceed, and when to stop is like driving a car: • Skills improve with repetition!

More Related