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LEGAL RESEARCH

LEGAL RESEARCH. PART TWO. Legal Research Part 2. Researching Standards of Review Researching Using American Law Reports Researching Procedural Issues Researching Legislative History Researching Administrative Law. Standards of Review. Must Know Where You Are Procedurally

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LEGAL RESEARCH

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  1. LEGAL RESEARCH PART TWO

  2. Legal Research Part 2 • Researching Standards of Review • Researching Using American Law Reports • Researching Procedural Issues • Researching Legislative History • Researching Administrative Law

  3. Standards of Review • Must Know Where You Are Procedurally • Don’t Research the Substantive Issues Before You Know the Standard of Review • Argue the Standard of Review Most Advantageous to Your Position

  4. Standards of Review • At its clearest level, a standard of review prescribes the degree of deference given by the reviewing court to the action or decisions under review. • Alternatively, from an angle of empowerment, a review standard describes the positive authority the appellate court wields in its review function. • … the fundamental notion behind a standard of review is that of defining the relationship and power shared among judicial bodies. • Childress, pages 1-2 -- 1-3

  5. Standards of Review • “Because a thoughtful consideration of the appropriate standard of review will often determine the outcome of the appeal, it is a very bad brief that does not consider the standard of review issue with the same care that is ordinarily lavished on the facts and substantive law.” --Sullivan, Standards of Review in Appellate Advocacy at 59

  6. Standards of Review • “A formalistic statement of the relevant standard of review is no more useful than complete abdication. Far too many lawyers recognize that they ought to say something about the standard of review, but think they need not develop the concept as part of their argument. They tend to think of the standard of review as a formal appendage, rather than as part of the very fabric of the appeal.” Sullivan, Standards of Review in Appellate Advocacy at 61

  7. Standards of Review • Standards of review are critically important in effective advocacy. In large part, they determine the power of the lens through which the appellate court may examine a particular issue in a case. The error that may be ground for reversal under one standard of review may be insignificant under another. It doesn’t matter what you ask the court to do on appeal if the court cannot jump the hurdle posed by the standard of review. You must craft your brief on appeal to reflect the proper standard and to show why, under that standard, your client deserves to win. If your appeal raises more than one issue, then you should state the standard of review for each point. • Aldisert, page 57.

  8. Standards of Review • The appellate process generally reduces to limited types of review: fact finding by judges under the clearly erroneous rule or by the administrative agency under the substantial evidence rule; review of the trial court’s exercise of discretion; and plenary review of the choice, interpretation and application of the controlling legal precedents. The competent advocate will have a clear understanding of the scope of review pertaining to each point in his or her brief. I elevate the necessity of correctly stating the review standard to a question of minimum professional conduct. • Aldisert, page 58.

  9. Good Standard of Review • This court applies the clearly erroneous standard, Rule 52(a), F.R.Civ.P., to a review of facts found by a judge. “It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supporting evidentiary data. Unless the reviewing court establishes the existence of either of these factors, it may not alter facts found by the trial court.” Krasnov v. Dinan, 465 F.2d 1302 (3d Cir. 1971).

  10. Not So Good Standard • The standard of review for issues number 1 through 4 and 6 is whether the district court erred as a matter of law. This court has plenary review over issue number 5.

  11. Standards of Review - Readings • Aldisert, Winning on Appeal • Standards of Review • pages 57-78 • Reserve KF9050.A935 1997 • Schwab, Appellate Practice Manual • Standards of Appellate Review, • pages 16-25 • Reserve KF9050.A75A68

  12. Standards of Review - Readings • Childress, Federal Standards of Review, 3d ed. • Volume 1 - Civil Cases and General Review Principles • Volume 2 - Criminal Cases and Administrative Appeals • Reserve KF4575.C48 1999

  13. Standards of Review - Readings • Sullivan, Standards of Review in Appellate Advocacy (KF 9050.A943) (on reserve under AA-I) • Hesse, Arguing the Correct Standard of Review, 7 Calif Lawyer 92 (Dec. 1987) • Hall, Standards of Review in Civil Appeals, 21 St. Mary’s L.J. 865 (1990).

  14. Standards of Review - Digests • State Law • Use the Appropriate State Digest • Digest Topic “Appeal and Error” • Review, Scope, Standards, and Extent • Appeal & Error key numbers 836-1099

  15. Standards of Review - Digests • Federal Law • Use West’s Modern Federal Practice Digest • Digest Topic “Federal Courts” • Case on Appeal to the U.S. Supreme Court • Federal Courts key numbers 451-520 • Case on Appeal to U.S. Court of Appeal • Federal Courts key numbers 751-780

  16. Key Number Searches on Westlaw • Appeal & Error 944 • Appeal & Error • Review • Discretion of Lower Court • Power to Review • Topic Number • 30

  17. Key Number Searches • Appeal & Error 944 • Appeal & Error • Review • Discretion of Lower Court • Power to Review • Topic Number • 30k

  18. Key Number Searches • Appeal & Error 944 • Appeal & Error • Review • Discretion of Lower Court • Power to Review • Topic Number • 30k944

  19. Key Number Searches • Appeal & Error 944 • Appeal & Error • Review • Discretion of Lower Court • Power to Review • Topic Number • 30k94!

  20. Key Number Searches • Appeal & Error 944 • Appeal & Error • Review • Discretion of Lower Court • Power to Review • Topic Number • 30k94! 30k95!

  21. Key Number Searches • Appeal & Error 944 • Appeal & Error • Review • Discretion of Lower Court • Power to Review • Topic Number • 30k94! 30k95! /p abuse* /s discretion

  22. Research UsingAmerican Law Reports • An Annotated Reporter System • The Reports Series • Research Methods • Updating and Shepardizing

  23. Annotated Reporter System • Selective Publication of Cases • that may resolve a long-standing argument • that set out a new question • that explore issues in an interesting way

  24. Annotation • thoroughly researched survey of a particular legal issue • its development • its judicial treatment in ALL jurisdictions

  25. American Law Reports • 1st Series: 1919-1948, 175 volumes • 2nd Series: 1948-1965, 100 volumes • 3d Series: 1965-1980, 100 volumes • 4th Series: 1980-1992, 90 volumes • 5th Series, 1992 to date • American Law Reports, Federal, 1969 to date • U.S. Reports, Lawyers Edition

  26. A.L.R. Federal • A.L.R. Fed. reports and annotates federal court cases which apply or construe federal law. • Prior to 1969, such cases were included in A.L.R., A.L.R. 2d and A.L.R. 3d. • Federal court cases construing or applying state law are not covered by this series.

  27. U.S. Reports, L.Ed. & L.Ed. 2d • Reports all case from the U.S. Supreme Court • Selectively annotates the cases • Provides short summaries of the briefs of counsel

  28. A.L.R. Annotations • Annotations Cover a Narrow Legal Issue • Features of Each Annotation • Annotation Table of Contents • Index • Jurisdiction Table • Scope of the Annotation • Related Annotation • Summary and Comment

  29. A.L.R. Research Methods • A.L.R. Index • 6 volume topical index • Covers A.L.R. 2d - 5th and Fed. • A.L.R. Index Tables • In volume 6 of the index • U.S.C.S. cite • C.F.R. cite

  30. A.L.R. Research Methods • A.L.R. Index Tables • Federal Rules cite • State Statutes and Constitutions • Uniform Laws • Restatements • Codes of Ethics

  31. A.L.R. Research Methods • A.L.R. Quick Indexes • One Volume • A.L.R. Quick Index covers A.L.R. 3d-5th • A.L.R. Fed. Quick Index covers A.L.R. Fed. and L.Ed.2d

  32. A.L.R. Research Methods • A.L.R. Digests • Seldom used • American Jurisprudence, 2d • Footnotes include references to A.L.R. • Am.Jur. 2d is on Westlaw • LEXIS AND WESTLAW • A.L.R. 2d, 3d, 4th, 5th, Fed.

  33. Updating A.L.R. • 3rd, 4th, 5th and Federal • annual pocket parts • 2nd • Later Case Service • Updated by Annual Pocket Parts

  34. Updating A.L.R. • A.L.R. 1st • Blue Book of Supplemental Decisions • Annotation History Tables • Supplemented or Superseded Annotations • In Last Volume of the Index

  35. Shepards Citators and A.L.R. • Citations TO A.L.R. in State, Regional and Federal Shepards • Citations OF A.L.R. Annotations • Shepard’s Citations For Annotations • KF105.2 .S415 • Volume 2 lists citations to Annotations in court decisions

  36. Researching Procedural Law • Federal Court Rules • State Court Rules • Shepardizing Rules

  37. Court Rules • Rules of Civil Procedure • Rules of Criminal Procedure • Rules of Appellate Procedure • Local Rules • Rules of Evidence

  38. Federal Court Rules - Sources • U.S. Code Annotated • Following Title 28 • U.S. Code Service • Separate Rules Volumes at end of the Set

  39. Federal Court Rules - Sources • Annual West Volumes • Federal civil judicial procedure and rules • Reserve KF8816 .A193 • Federal Criminal Code and Rules • Reserve KF9607.523.A19F4

  40. Federal Court Rules - Sources • Moore’s Federal Practice Rules Pamphlets • Annual Mini-Treatise • Reserve KF 8820.A313M63

  41. Federal Court Rules - Reporters • Federal Rules Decisions • West Key Number Reporter • Rules of Civil and Criminal Procedure • District Court Decisions • Articles on Federal Procedure • Core KF120 .F45

  42. Federal Court Rules - Reporters • Federal Rules Service • Rules of Civil Procedure Only • All Levels of Federal Courts • KF8830 .F45 • Federal Rules Digest • Organized by Rule Number

  43. Major Treatises - Federal Law • Moore's Federal Practice • organized by rule • KF8820.A313 M63 • Wright, Federal Practice and Procedure. • organized by rule • KF9619 .W7

  44. Major Treatises - Federal Law • Federal Procedure, Lawyer’s Edition • organized by subject • KF8835.F43

  45. Federal Local Court Rules • Federal Local Court Rules • Covers Local Rules for the Federal District Courts and the Courts of Appeal • Reserve KF8820 .A193

  46. Rules of Evidence • Treatise • Weinstein's Evidence : commentary on rules of evidence for the United States courts and magistrates • Reserve KF8935 .W39 • Sources (Annotated) • U.S. Code Annotated • U.S. Code Service

  47. Rules of Evidence • Reporter and Digest • Federal rules of evidence service • KF8935 .F4 • Federal rules of evidence digest • State Rules of Evidence

  48. Federal Rules Shepard's • Shepard’s United States Citations, Statutes • covers ALL Federal rules

  49. Federal Rules Shepard's • Shepard’s Federal Rules Citations • Rules of Civil Procedure • Rules of Criminal Procedure • Rules of Evidence • Rules of Appellate Procedure • Similar State Rules

  50. State Court Rules • Publication Varies • Part of State Annotated Code • Separate Annotated Set • Shepard’s Citators • State Citator, Statutes volume • Other Features • A.G.’s Opinions, Ethics Rules • Uniform Jury Instructions • Municipal Ordinances

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