ANALYSIS, RESEARCH & WRITING - Benchmark … LEGAL SERVICES PRACTICE MANUAL: SKILLS LEGAL ANALYSIS: COMBINING LAW AND FACTS astering legal analysis is like riding …

LEGAL SERVICES PRACTICE MANUAL: SKILLS 1

ANALYSIS,RESEARCH &WRITINGExcerpted fromLegal Services Practice Manual: Skills © 2014 by Benchmark InstituteAll rights reserved

LEGAL ANALYSIS:THE HEART OF THELEGAL PROBLEM

SOLVING PROCESS

elping people solve problemsis the essence of what we as advo-cates do. Expertise in how the lawaffects these problems — particu-larly those of low-income people —is our specialty.

Here we present a model of thetasks involved in legal problem solv-ing, showing how legal analysis is acritical part of each task. In yourbusy practice, you don’t have timeto reflect on process — how you dothings — you just do them. Thesematerials present opportunities toreflect on these tasks to help youperform them more skillfully.Awareness of how legal analysis isinvolved in problem solving tasks iskey to understanding how to do itbetter.

Study QuestionsThese study questions highlight thekey concepts in this section andserve as an organizer for your notesas you read it.

1.Describe the key steps in the le-gal solving process.

2.Describe how legal analysis is partof each step.

3.Describe the role of legal memo-randa in legal problem solving.

Legal Problem Solving andAnalysisLegal problem solving — identify-ing and diagnosing problems andgenerating strategies and tactics toachieve client objectives — is a le-gally trained person’s most basicfunction. Most legal problem solv-ing activity involves some legalanalysis — combining law and factsto generate, justify, and assess alegal problem’s merits.

Awareness of the process helps youanalyze your own approach to solv-ing problems, making it easier todevelop your ability to do legal analy-sis.

Your Approach to Solving andAnalyzing Legal ProblemsRecall a case that you handled frombeginning to end. Visualize in yourmind in as much detail as you canwhat happened from your initial con-tact with the case to its final resolu-tion. Focus on the process — whatyou did — rather than the content— type of case, kind of law involved— paying close attention to how youanalyzed the case. Describe thetasks and the order in which youdid them

Legal Problem SolvingProcess: A ModelCompare your process to the modeldiagramed in Illustration 5 - 1. Themodel is designed to help you iden-tify different components of legalproblem solving and the role that le-gal analysis plays in that process. Inpractice, these activities don’t occurin neat little compartments that areperfectly distinct from one another;the boundaries between componentsare usually fuzzy. Moreover, peoplefrequently move through the activi-ties several times before any typeof “solution” is reached.

The first box is labeled GATHERFACTS. The first step in analyzinga legal problem is to gather the facts,

usually from a client interview. Themore familiar you are with the lawthat governs the client’s problem, themore valuable the information youwill obtain at first. If you know noth-ing about the law that affects theproblem, you always can use the five“W’s” — who, what, when, where,why — as a fact gathering guide.You always must identify the clientobjectives and priorities as part ofinitial fact gathering.

ANALYZE THE FACTS involves de-termining which facts may be legallysignificant. Legally significant factsmight be, for example, that a tenantwith an eviction notice has neverbeen supplied with hot water; or aparent who is seeking custody ofher children has been convicted ofa crime; or a SSI recipient’s ben-efits have been terminated becausethe recipient allegedly didn’t reportcertain income.

At this stage, fact analysis can leadto formulating the tentative, overallissues in the case. If you are unfa-miliar with the law that governs acase, then your issue statementtends to be broad, e.g., Can the cli-ent be evicted? Can the client re-tain custody of her children? Wasthe client’s termination from SSIproper?

The more you know about the lawthat affects the problem, the moreprecise your issue statement tendsto be, e.g., Did the landlord’s failureto provide hot water to the premisesconstitute a breach of the impliedwarranty of habitability which thetenant can raise successfully as adefense to the eviction action?dispute at this stage. This analysisalso may change as you research thelaw and gather more facts. Nomatter how tentative, however, suchan analysis serves to focus your re-search and fact discovery.

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2 LEGAL SERVICES PRACTICE MANUAL: SKILLS

Using various research strategies,you SEARCH and ANALYZE THELAW. You must always check thelaw if only to confirm that yourmemory of it is correct. Given theuniqueness of each fact situation andhow quickly the law changes, everyproblem merits a fresh look at thegoverning law’s language.

Since legislation — statutes andregulations — governs the majorityof disputes, you should check it first.Once you find pertinent legislation,you should identify its elements, iden-tify and frame the issues and definethe elements in contention. Follow-ing these steps is critical to formulat-ing legal rules and is discussed in“Introduction to Legal Analysis.”To define the elements in contention,you should search for court opinions,legislative history and definitionallegislation. Each pertinent courtopinion should be briefed — its keyelements identified — and comparedto the client’s case.

If legislation does not govern yourproblem, then using appropriate re-search strategies, you should readand brief all pertinent cases, com-paring them to your client’s case.Analysis of court opinions is dis-cussed in “Introduction to LegalAnalysis,” infra.

In some cases you must go beyondmerely identifying relevant law andformulating legal rules through iden-tifying and defining the key elementsof legislation and case law. You alsomust identify trends in the law’s in-terpretation and application; e.g., bytracing and discussing the legislativehistory or prior versions of legisla-tion or by identifying and synthesiz-ing a rule’s development in a line ofcases. We briefly discusses theseskills in the next section, but do notdeal with them in depth.

Research often reveals fact gaps —information you need to analyze the

problem completely. To close factgaps, you need to GATHER FACTSor do further discovery, which some-times simply means asking your cli-ent for information. Other situationsrequire initiating formal discovery,which usually is available if a law-suit has been filed and in some ad-ministrative agency hearing pro-cesses. Additional facts maychange or modify an initial analysis,The facts and the dispute must bere-analyzed in light of new informa-tion.

Once you have analyzed a problem’sfacts and law, identified the legal is-sues, and closed as many fact gapsas possible, you must FORMULATE,EVALUATE and SELECT LEGALTHEORIES of the case. A legaltheory may be defined as how youconceptualize the relationship be-tween law and facts that entitle theclient to relief.

For example:

• The theory of a tenant seeking to defend against an eviction action may be that the landlord has failed to supply hot water to the tenant’s home for the past six months;

• The theory of a mother asking for custody of her children may be that she has been their primary caretaker for the past five years and the father has never visited the children;

• A TANF recipient’s theory for remaining eligible for benefits is that the children’s father suffers from a severe disability.

Legal arguments support and justifylegal theories. Formulating legaltheories means identifying and or-ganizing arguments and counter-ar-guments in terms of claims, defensesand other legal results. It means in-cluding the theories and arguments

that the opposing party will make.

Once you’ve identified your legaltheories and those of the other side,you must evaluate them. Evaluat-ing legal theories involves predict-ing how the decisionmaker will de-cide the case. The evaluation mustconsider the decisionmaker’spredisposition toward your legaltheories and supporting argumentsand those of your opponent.

This predisposition may be indicated,for example, by patterns of previ-ous decisions, reasons given for pre-vious decisions, or the decision-maker’s particular characteristics.The evaluation should also examineany legal or factual equities that com-pel a particular result in a case. Thelaw, for example, may be so clearthat any other legal theory is unac-ceptable or the facts may be sostrong that any other result wouldbe blatantly unfair.

Theory evaluation ends the diagnos-tic phase of legal problem solving.Legal theories, supporting legal ar-guments and counter arguments, andtheir evaluation are sometimes ex-pressed formally in an internal orinter-office memorandum.

Most public interest advocates do nothave the luxury of writing formalmemos. Minimum standards ofcompetence dictate that you in-clude a written diagnosis of theclient’s problem in the case file insome form of an opening memo-randum. At minimum the openingcase memo should include all pos-sible legal theories, supporting legalarguments and counter argumentsand their evaluation. Although thewriting need not be the quality of amemoranda submitted to a court oradministrative body, it should be writ-

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ten so that someone else can under-understand it.

FORMULATE, EVALUATE, SELECTand IMPLEMENT STRATEGIESmeans that once a problem has beendiagnosed, you must develop andevaluate alternative solutions andstrategies, selecting and implement-ing those that best advance some orall of the client’s objectives. Strate-gies include adjudicating the matterbefore a court or administrative lawjudge, negotiating a settlement orusing other forms of dispute resolu-tion. Strategy implementation mayinvolve writing, drafting, negotiation,and other advocacy skills. Advo-cacy memoranda —hearing, trial, orother appellate briefs, memoranda oflaw that accompany motions or or-ders to show cause — contain thelegal theories and arguments thatsupport the client’s position, omittingthe objective evaluation found in in-ternal memoranda.

USING THE MODELAs you begin to master the legalanalysis process, you’ll understandthat this linear model cannot repre-sent the exact way that legal prob-lems are solved. Legal problems arenot solved by mechanically follow-ing a rote process, completing onestep in its entirety before startinganother. At all of its stages, legalproblem solving incorporates the re-sults of continuous unfolding; likestanding on a hilltop before dawn andwatching the scene below becomeclearer and clearer as the sun rises.

This model is meant to guide you inyour first efforts at legal analysis bymaking you conscious of the tasksand skills involved in legal analysisin the context of solving a client’sproblems. Refer to it whenever thetrees become so dense that you needa sense of the “forest” of legalanalysis.

LEGAL PROBLEM SOLVING PROCESS

GATHER FACTSFive Ws

Client objectives and priorities

ANALYZE FACTSLegally significant facts

Identify issues/key words to enter research materials

ANALYZE DISPUTEFactual? Definitional? Consistent?

Using research strategies

SEARCH/ANALYZE LAW

Go first to If no legislation, go to

Legislation Case Law

Identify elements BriefIdentify issues Compare to client’s caseFrame issues Identify trends in application/Define elements interpretation

To close fact gaps To close fact gaps

GATHER FACTSInterviewsDocuments

Site InvestigationFormal Discovery

Once fact gaps closed

FORMULATE/EVALUATE/SELECT LEGAL THEORIESRelationship between facts and law

Supporting legal argumentsAssess re decisionmaker’s predisposition/equities

WRITEInternal/Opening Memo

FORMULATE/EVALUATE/SELECT/IMPLEMENTSTRATEGIES

WRITEPleadings/Motions/Trial/Hearing Briefs

Business Plan/Business Documents

Illustration 5 - 1*


LEGAL ANALYSIS:COMBINING LAWAND FACTS

astering legal analysis is likeriding a bicycle — onceyou’ve mastered the ba-sics, you never forget how.

And the more conscious you are ofthe processes involved, the quickeryou’ll become better at doing it.

This section describes legal analy-sis as you do it in your work, forexample when you use your knowl-edge of the law to get the relevantfacts. We also look at it from a de-cision-maker’s perspective.Judges do legal analysis when theydecide cases — they determine thelaw that governs a case, decide whatthe law means and apply the law tothe facts as they find them to be.Finally, we describe the differencebetween factual, definitional andconsistency disputes. Decidingwhether a dispute is factual, definiti-onal or one of consistency helps fo-cus your legal analysis. Should youfocus on arguing what the law meansor whether it’s inconsistent withother laws? Or should you concen-trate on gathering persuasive proofto prove your client’s version of thefacts?

Study QuestionsThese study questions highlight thekey concepts in this section andserve as an organizer for your notesas you read it.

1.Define legal analysis.

2.Describe the relationship betweenthe law of a case and the facts of acase.

3.Define findings of fact and con-clusions of law.

4.Describe what decision-makers dowhen they decide a case.

5.Define and distinguish factual, defi-nitional and consistency disputes.

LEGAL ANALYSIS AT WORKLegal analysis involves selecting le-gal rules and applying them to facts.Facts are information describingpersons, things or events. Legalrules, enforceable governmentalstandards of conduct, consist of leg-islation — constitutions, treaties,statutes, executive orders, adminis-trative agency regulations, charters,ordinances and court rules — andcase law — judicial and administra-tive agency opinions.

Legal analysis concerns what legalrules govern a specific factual situ-ation and how the rules apply tothese facts. “Determining what lawgoverns the facts” means siftingthrough the law and selecting therules that apply to the facts. “Apply-ing the law to the facts” means tak-ing the rules that govern a particularfact situation and determining howthey operate on the facts. The ap-plication process is somewhat likeplacing a stencil — legal rules —over a pattern — facts — to deter-mine if the pattern fits the stencil.If the pattern fits, then the rule ap-plies and the consequences of therule pertain.

We don’t believe — as some schoolsof thought hold — that legal analy-sis is a neutral, objective or scien-tific process that always leads toidentical results when applied toidentical key facts. Social, economic,and political considerations do influ-ence courts in how they apply legalrules to facts. We’re using the sten-cil analogy here to help make anabstract process concrete.

For example, suppose that your cli-ent, Florence, says she wants to stopher next door neighbor, Pat, from

spitting on her pet rabbit, Bonzo,which is confined in Florence’sbackyard. You look up “spit” in theindex of your state annotated codeand find two statutes. One “prohib-its any person from spitting in a publicplace” and the other provides that“any person who spits on the chat-tel of another is liable to the ownerfor $100.”

To determine what legal rules gov-ern a situation, you break down leg-islation into elements — conditionsthat must be met if the rule is to ap-ply. You then compare the elementswith your fact situation to see if therule might apply.

You identify the elements in the firststatute as “person,” “spit,” and “pub-lic place.” You decide it does notapply because neither the rabbit norPat was in a public place when thespitting occurred. You identify theelements in the second situation as“person,” “spit,” and “chattel of an-other”. You locate a statute thatdefines a chattel as “any personalproperty” and a court opinion thatholds that a rabbit is considered per-sonal property. You decide that thisstatute governs your case.

Applying the law to the facts, youdecide that Pat is liable to Florencefor $100. If Pat can defeat any ofthese elements, i.e., she’s not a per-son (she’s a robot), she didn’t spit(she sneezed), Bonzo is not a rabbit(he’s a high public official), Bonzodoes not belong to Florence (he’sgovernment property), then the lawwould not apply. And Pat would notsuffer the consequences of the rule’sapplicability; i.e., she would not beliable to Florence for $100.

The Interdependent Relation-ship of the Law and the FactsTo analyze a legal problem, you mustknow the legally significant facts andthe law that governs the problem.A case’s facts and law are inextri-

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cably intertwined; you need the factsto find the applicable law; you needthe law to determine which facts arelegally significant.

Analyzing a legal problem usuallybegins by gathering some facts, mostlikely in a client interview. Knowl-edge of the law that governs theproblem makes this process moreefficient and effective; the more lawyou know, the more legally signifi-cant facts you’ll get. Researchingthe law usually reveals the need togather more facts, because certainfacts do not become significant untilthe law that governs the problem isanalyzed. Armed with additionalinformation, you return to the lawthat sometimes reveals even morefacts that must be investigated.

The interdependent and circular re-lationship between the law and factsinvolves continual sifting and com-paring until the relevant law and thesignificant facts emerge. This rela-tionship can be illustrated as a con-tinuous circle:

law

facts facts

law

Another example: Suppose yourclient, Jerry, wants to know if he isentitled to “NRFA” benefits. Hesays that he’s heard that all retiredfarmers are entitled to these ben-efits. You go to the index in your stateannotated code and look under“farmers” and “retirement benefits.”Luckily, you find a statute entitled“National Retired Farmer’s Act”that says, “All farmers who are re-tired from full-time farming and areover the age of 65 are entitled tobenefits if their lifetime income isunder $1,000,000.” You find a courtopinion that holds that “full timefarming” means that a person mustwork at least thirty years as a

farmer.You return to Jerry with questionsabout his age, income and amountof time as a *farmer. He says he’sworked 29 years as a farmer, al-though Selma, his 65-year -old wife,has farmed for 37 years, earning$800,000 in her lifetime. Returningto the law, you find a court opinionthat says “farmer” means male headof household or female who hasworked at least 20 years growingpeas, tomatoes, and corn. You findanother court opinion that holds that“lifetime earnings” means earningsfrom farming only.

Note how in this example, know-ledge of the law directs and focusesfact investigation. Whether you areresponsible for conducting an entirecase or only for its fact investiga-tion, you must be familiar with thelaw that governs it. If you were fa-miliar with NRFA benefits in Jerry’scase, you would have gotten morepertinent information at Jerry’s ini-tial interview, whether the case wasyours or you were gathering factsfor someone else.

FACTS, FACTS, FACTS: IT’STHE FACTSIn our legal system facts are su-preme. Our job as advocates is todetermine how the legal system willdeal with the facts our clients bringus.

Knowing the facts directs and fo-cuses legal research. To find thelaw, you must know the facts. Rulesof law are meaningless outside thefactual context to which they areapplied. To solve a legal problem,you must know the facts that giverise to it. To resolve disputes, deci-sion-makers require complete fac-tual presentations. An ALJ decid-ing Jerry’s and Selma’s case forexample, would want to know howthe law affects their unique facts;the judge would not be interested ina comprehensive essay on all NRFA

benefit law.Inexperienced advocates, especiallylawyers, tend to place more impor-tance on finding the law than inves-tigating the facts, in large part be-cause fact investigation is given shortshrift in law school. Law studentsread appellate court opinions thatfocus on interpreting and applying thelaw where the facts are “settled,”i.e., not subject to dispute. In re-search projects and examinations,facts are given and not subject tocontroversy and investigation as inreal life.

On the other hand, most inexperi-enced paralegals tend to ignore thelaw, particularly court opinions ap-plicable to the case. This tendencyis probably due to lack of training infinding and analyzing the law and themyth that analyzing the law is solelywithin the province of lawyers.

Experienced advocates have com-plete command of the facts and lawof a case. They understand that thismastery is critical to identifying factsthat must be proved and predictinghow the law will be applied to acase’s factual findings — essentiallegal problem solving skills.

THE DECISIONMAKER’SROLE: DECIDING FACTS ANDLAWA legal dispute is a controversy overthe facts — what happened, whosaid or did what — and the law thatapplies to the facts — what law ap-plies, its meaning and how it applies.A legal dispute occurs between twoor more parties that may or may notbe brought for resolution to an adju-dicatory body such as a court oradministrative hearing. The role ofthe official decisionmaker is to re-solve disputes; their resolution endsin a decision or judgment.

In most disputes, parties do not dis-agree on all of the facts and law ofthe dispute; commonly, they find


several areas of agreement. Mostadjudication systems focus on thefacts and law “at issue;” i.e., overwhich the parties disagree. Judgesreach decisions by determining thefacts at issue and deciding what lawgoverns and how the law applies tothose facts. Decisions about thefacts are called findings of fact;decisions about the law are calledconclusions of law.

As triers of fact, a role played by ajury when one is impaneled, judgesmake findings of fact based on theevidence presented to them. If noevidence such as testimony, docu-ments, or objects is presented toprove the facts in question, then thetrier of fact can make no finding thatthe fact exists.

In determining questions of law,judges consider and often rely onparties’ legal arguments, presentedorally —closing or oral argument —or in writing — advocacy memos.Each party’s legal argument de-scribes its best legal theories sup-ported by authority, i.e., what lawgoverns the case, the law’s mean-ing and how it applies to the dispute’sfacts. Theoretically, judges are notconfined to the legal arguments thatparties present, but must decide thelaw “correctly” regardless of anyargument presented to them. Inpractice, many judges do not lookbeyond the parties’ arguments.Therefore, in all cases each partyalways must present its best possiblelegal arguments to persuade thedecisionmaker to decide the case inthe client’s favor.

Basically, decisionmakers resolvedisputes by finding the facts, decid-ing what law applies to the dispute,interpreting that law, and applyingthe law as interpreted to their fac-tual finding to reach conclusions oflaw. These conclusions form the

basis for the decision in the case.This process is diagramed inDecisionmakers’ Tasks in Resolv-ing Disputes in Illustration 5 - 2.

As an example: suppose Wendy andHenry seek a divorce. The only is-sue is the child support amountHenry must pay for the support ofhis daughter, Debbie. The pertinentlaw is Rev. Stat. Section 222 thatprovides:

“To determine the amount of childsupport , the court must considereach party’s earning capacity, needs,obligations and assets and then apply the payment schedule whichappears in its local court rules.”

The parties agree on Henry’s earn-ing capacity and obligations. Theydisagree over the amount of his as-sets — whether he ownsPurpleacre, a parcel of land valuedat $30,000, and his needs —whether psychological therapy is aneed.

The parties agree that Henry’smonthly income is $1,200, and thathe spends $500 per month for foodand housing. They disagree overwhether Henry owns Purpleacre.

Wendy introduces a document thatshows that a Jake Moran ownsPurpleacre. She also offers a hand-writing expert who testifies thatHenry signed the deed as JakeMoran. Wendy also introducesHenry’s recent conviction for per-jury.

Henry testifies that he did not signthe document as Jake Moran. Hishandwriting expert says the samething.

The factual question to be resolvedis: does Henry own Purpleacre? Thejudge considers and weighs the evi-dence and decides that Wendy’sevidence is more persuasive than

Henry’s. The Judge makes the find-ing of fact that Henry ownsPurpleacre.

The Judge now must apply the lawto the facts. Wendy and Henryagree that Section 222 is the law thatgoverns the case and that “asset”means “thing of value”. Agreeingwith their interpretation of the law,the judge applies the law to the factsand concludes that Henry’s assetsinclude a parcel of real propertyworth $30,000.

Wendy and Henry agree on the factsthat Henry suffers from depressionand requires therapy. They disagreeover the meaning of “needs.” Henryargues that “needs” include psycho-logical needs, while Wendy arguesthat “needs” are confined to physi-cal needs such as food, shelter andclothing. Both parties support theirlegal theories with authority. Thelegal question is whether Henry’stherapy is a “need” which the courtmust consider under Section 222.

After considering the arguments, thejudge decides that Section 222 gov-erns the case and that “needs” in-cludes psychological needs. Apply-ing this interpretation of the law tothe undisputed facts — that Henrysuffers from depression and requirestherapy — the court concludes thatHenry’s therapy is a “need” underSection 222. Taking its conclusionof law — that Purpleacre is Henry’sasset and Henry’s therapy is a need— the court applies the paymentschedule and decides that amount ofchild support Henry must pay.

Note that the parties are not argu-ing over the facts in the needs is-sue; they agree that Henry suffersfrom depression and requirestherapy. They disagree over the in-terpretation of the law; i.e., themeaning of “needs” in Section 222.Contrast this issue with the questionabout Henry’s ownership of the real


DECISIONMAKERS’ TASKS IN RESOLVING DISPUTES

To Resolve Issues(Areas where parties disagree)

Decide Facts Determine Law

Consider the evidence Decide what laws offered to prove facts govern the dispute at issue

Weigh the evidence Interpret the governing laws

Make findings of fact

APPLY LAWS AS INTERPRETEDTO

FACTUAL FINDINGS

To reach

CONCLUSIONS OF LAW

To reach

DECISION

Illustration 5 - 2

property. In that issue, the partiesdisagreed over the facts — whetherHenry owned the property; they didnot disagree over the meaning of“asset” or whether real propertywas an asset.

In summary, decisionmakers in le-gal disputes decide questions of factand law. Triers of fact make fac-tual findings based on the evidencepresented. Based on the parties’legal arguments and sometimes theirown independent research andanalysis, judges formulate conclu-sions of law by deciding what lawgoverns a case, interpreting thelaw’s meaning, and then applying itto the factual findings.As an advocate, your job is to

present decisionmakers with the le-gal analysis that they will adopt. Youpresent the law that should governthe case and demonstrate how itshould be interpreted and applied tothe facts as you prove them to be.

ANALYZING THE DISPUTE:FACTUAL DEFINITIONALCONSISTENTDeciding whether issues in a caseare facutal, definitional or ones ofconsistency helps focus legal re-search and fact investigation.

Factual DisputesIn a factual dispute, the parties agreeon the definition of the rule of lawor the test used to determinewhether the legal rule applies. Thedispute is over whether the facts of

the case fit within the definition ortest. The Wendy-Henry disputeover Henry’s assets was factual;they disagreed over whether Henryowned the property, not over thedefinition of “asset.”

For excample, Ron and Bill disagreeover whether Ron’s pet, Edwin, is aturkey. Both agree that a turkey isa large bird that says “gobble,gobble.” Ron claims that Edwindoesn’t gobble, Bill says he does.The dispute here is not over the defi-nition of turkey, but over whetherEdwin fits the definition, i.e., doeshe gobble?

The welfare department terminatesHilary’s benefits, alleging that shefailed to notify it of a change in in-come. Both agree on the meaningof Reg. Section 111 that provides:“All notices regarding change of in-come must be written and hand-de-livered to a recipient’s eligibilityworker.” Hilary says she handed awritten notice to Barbara, her eligi-bility worker. Barbara denies it. Theparties agree about what constitutesnotice — its definition; they disagreeover whether that definition was metin this case; i.e., did Hilary hand awritten notice to Barbara?

Definitional DisputesIn definitional disputes, the partiesdo disagree over the definition of arule of law or a portion of it. TheWendy-Henry dispute over needswas definitional — Wendy arguedthat “needs” in Section 222 —therelevant legal rule — meant basicphysical needs, while Henry arguedthat “needs” including psychologicalneeds.

For example, on the issue ofwhether Edwin is a turkey, assumethat Ron and Bill agree on the factsthat Edwin is large, gobbles, and hastwo legs. Ron claims that a turkeyis a bird with four legs; therefore,

t

t

t

t

t

t

t

t

t


Edwin is not a turkey. Bill arguesthat a turkey is a bird with two legs;therefore, Edwin is a turkey. Theparties agree on the facts; they dis-agree on the definition of turkey.

For example, on the issue ofwhether Hilary notified the welfaredepartment about her change in in-come, assume that the parties agreethat Hilary hand-delivered a type-written letter to Barbara which de-scribed her income change. Thewelfare department argues Section111 requires written notice to behand-written in the recipients’ blood.Hilary argues that a typewritten no-tice constitutes valid notice. Thisdispute is definitional; the debatecenters on the meaning of writtennotice in Section 111.

Disputes over ConsistencyThe question in a consistency dis-pute is whether one rule violates orcontradicts another. Two laws ofequal with such as two statutes ortwo regulations may contradict oneanother. A statute or regulation maybe inconsistent with a state orhe fed-eral constitution. A regulation maybe inconsistent with its enabling leg-islation. The most common consis-tency problems involve these lattertwo situations — laws that conflictwith higher laws.

ExamplesSection 333 provides that a divorcepetition must be filed 25 days afterservice of the petition. Section 444provides that a response must befiled 30 days after service of thepetition. The consistency question iswhether Sections 333 and 444 con-tradict one another.

Section 666 requires female teach-ers to take a six-month leave duringpregnancy. The Fourteenth Amend-ment to the United States Constitu-tion and a state constitution guaran-tee equal protection of the laws. The

question of consistency is whetherSection 666 violates or is inconsis-tent with the Federal or stateconstitution.

Section 777 of a state legislativecode requires county agencies toinvestigate all allegations of pater-nity to force fathers to fulfill supportobligations. Regulation Section45.68 of its administrative code pro-vides that mothers who do not co-operate in establishing paternity oftheir children shall be denied aid.The Fourteenth Amendment of theUnited States Constitution guaran-tees due process of law.

The consistency questions are: doesSection 777 authorize the agency tocondition aid on cooperation in es-tablishing paternity as required byReg. Section 45.68? Is the regula-tion consistent with the statute?If Reg. 45.68 is validly based onSection 777, does the condition vio-late the constitutional right to dueprocess? Are these laws consistentwith the Constitution?

Consistency disputes almost alwaysinvolve a definitional dispute.Whether a statute violates the con-stitution, or a regulation goes beyondwhat its enabling statute authorizes,depends on its meaning. Consis-tency disputes, therefore, are treatedas definitional disputes as discussedabove.

A case may involve all three typesof disputes, although usually a dis-pute is primarily of one kind or theother. The parties might disagreeabout the facts in one issue, over thedefinition of the law in another, andwhether rules are consistent in stillanother.

The Wendy-Henry dispute involveda factual dispute over assets and adefinitional dispute over the mean-ing of needs. Hilary’s dispute withthe welfare department easily could

involve a consistency dispute. Shecould argue that the regulation, in-terpreted to require a notice writtenin the recipient’s blood, violates bothits enabling statute and constitutionaldue process guarantees.

Analyzing a case in terms of thetypes of disputes involved helps di-rect case strategy. If a dispute isprimarily factual —a “fact” case,efforts should be focused on gath-ering the most persuasive evidenceavailable to prove the facts at issue.Case strategy might entail doing ev-erything possible to win at the hear-ing or trial level, since winning a“fact” case on appeal is difficult. Ifa dispute is primarily definitional orover consistency — a “law” case,efforts should be focused ondeveloping legal arguments. Casestrategy might constitute making arecord for appeal, if the chances forwinning at the lower level are re-mote. Similarly, the nature of a dis-pute can affect a negotiation stra-tegy.

Emphasizing the facts or law aspectof a case, does not mean ignoringthe law in a fact case or the facts ina law case. Remember the interde-pendent relationship between thetwo as discussed earlier in this chap-ter. Presenting the facts persua-sively in a law case makes explicitthe relevance of the facts.

Finally, analyzing a dispute in thisfashion might lead to developing aneffective legal theory that otherwisemight have been missed. Somepeople, for example, view the lawas unchallengeable; i.e., the law isas written and ever shall be. As aresult, regulations that may be incon-sistent with their enabling statutes orlaws that may be unconstitutional,are not challenged in appropriatecases. If each case is analyzed asto whether it involves factual, defi-nitional or consistency disputes, thepossibility of missing a good legal


theory is minimized.In summary, every legal disputeshould be analyzed to determine if itis primarily factual, definitional, orone of consistency. This analysisfocuses legal research and issue for-mulation at the diagnostic stage oflegal problem solving and provideshelpful information in planning andimplementing problem-solving stra-tegies.

SummaryThis chapter presented a broadoverview of legal analysis and howit operates in resolving disputes.Basically, legal analysis is combin-ing the law that governs a legal prob-lem with its facts; it involves select-ing legal rules and applying them tofacts. We emphasized the interde-pendence of the law and facts, show-ing that mastery of both is critical inanalyzing a case. We outlined howdecisionmakers, by deciding factualand legal questions, resolve disputes.We discussed how to analyzewhether a dispute primarily involvesfactual or legal issues and the ben-efits of such an analysis.

A

ASSIGNMENT1.True/FalseSince judges must determinewhat law governs a case andhow it applies to a dispute’sfacts, advocates need notpresent arguments on the law.

2.True/FalseIn administrative hearings,judges make findings offact based on testimony,documents and objectspresented on the hearingrecord.

3.State whether the statementsbelow are findings of fact orconclusions of law.

a. The claimant leftemployment for good cause.

b. The claimant moved herresidence 250 miles.

c. The claimant hit anotherworker with a bottle.

d. The claimant did not readthe notice.

e. The claimant is disabled.

f. When the claimant moveshis right foot, he experiencespain.

4. State whether the disputesdescribed below are factual,definitional or ones overconsistency.

a. Mary, a recipient of publicbenefits, receives $1,000. Sheargues that according to theagency’s regulations, Section 100,is a resource.

The welfare department says thatper Section 100, the sum isincome.

b. Mary argues that shereceived $1,000. The welfaredepartment alleges that shereceived $1,500.

c. Mary argues thatsection 100 contravenesSection 560.9 of the statewelfare code which statesthat her sum is a resource.The welfare department saysthat Section 560.9 hasnothing to do with recipients.

d. Mary owns a bicycle witha motor attached to it. Thewelfare department arguesthat per Section 209, the bikeis a vehicle. Mary arguesthat it is not a vehicle withinthe meaning of that section.

e. Mary owns an automobile.She says it is worth $200.The welfare department saysthat it is worth $1,000.

G


LEGAL RESEARCH:FINDING THE LAW THATGOVERNS THE PROBLEM

nalyzing the law requires re-search skills. To analyze aproblem, you must know the

law that governs it. Except in thesimplest cases, no one is familiar withall the law. Therefore, knowing thelaw is tantamount to an ability to findit.

This section is designed to help youresearch and analyze the law bymaking explicit the relationship be-tween legal research and legalanalysis skills and by providing in-formation about the law and the in-stitutions that create it.

This section also describes the rela-tionship between enacted law or leg-islation and court opinions. Under-standing this relationship and howcourts deal with enacted law in theiropinions is critical to being able toanalyze a client’s problems and writeobjective and persuasive memo-randa.

Study Questions1.Define and give examples oflegislation and case law.

2.Define constitutions,statutes, regulations, courtopinions and administrativeagency opinions.

3.Describe the information re-ported in a court opinion.

4.Define legislative historyand describe why it is important ininterpreting statutes.

5.In what books are federalstatutes found?

6. Define subject matter jurisdic-tion, original and appellate jurisdic-tion.

7. How many federal districtcourts are in your state?What federal circuit is yourstate in?

8. In what reporters are thesefederal courts opinions found:• District Courts• Court of Appeals• Supreme Court

9.What is a petition for a writ ofcertiorari?

10. What West regional reportergoverns your state?11. Does your state have anintermediate court of appeal?

12. Define the following:

Precedent

Stare decisis

Case of first impression

On point decision

13.Under what circumstances docourts create law.

14. Describe how courts interpretenacted law.

15. Describe two rules ofstatutory construction thatcourts use in interpretingenacted law.

16. Define judicial review.

17.Describe these administrativeagency functions:

Executive

Legislative

Adjudicative

18. Where do you find federalregulations and where are theyupdated?

19. Define primary and secondaryauthority.

20.Describe the relationshipbetween case law and legislation.

Discovering Ambiguities Legalresearch is searching for the law tosolve legal problems. Legal researchis not about finding answers; the“correct” law that governs a client’sproblem does not pop up like toastfrom a toaster. Legal research con-cerns discovering ambiguities thatcan be clarified and manipulatedto formulate legal theories andarguments that further client ob-jectives.

Legal research skills come into playrepeatedly during the course of le-gal problem solving. During the di-agnostic stage, for example, you dolegal research to find the law to for-mulate legal theories and arguments.You might also research points ofprocedure — how to subpoena wit-nesses to a hearing, what evidenceis admissible — while formulating orimplementing your case strategy.

Researching the law requires ana-lytical skills. Finding the law thatgoverns a problem’s facts requiresselecting the applicable law fromlaws that do not apply. Making thisselection requires the analytical skillsof identifying and defining the ele-ments of each law examined andapplying the elements the facts. Ifthe elements of the law might possi-bly govern the problem, the law issubjected to further analysis.

For example, in our earlier hypo-thetical involving Pat spitting onFlorence’s pet rabbit, Bonzo, wefound two statutes that might haveapplied to the problem. To deter-mine whether one or both laws gov-erned the problem, we identified anddefined their elements. We theneliminated the statute that prohibitedany person from spitting in a “public

A


place” because we were reasonablysure that neither Pat nor Florencewould claim that the spitting oc-curred there. However, if the spit-ting might have occurred in a publicplace, we would have analyzed thatstatute in more depth.

Researching a legal problem requiresmore than the ability to use the re-source materials that contain, collate,describe, explain and update the law,the emphasis of traditional legal re-search courses. Besides analyticalskills, researchers must understandsome essential characteristics of law— the object of their research.Researchers must also develop re-search strategies to find the appro-priate law efficiently and effectively.

This section generally discusses thecreation of law, its forms and theirrelationship, its operation as author-ity, and various strategies for re-searching the law. It does not ex-plore the resource materials thatcontain, collate, describe, explain andupdate the law except in passing.Many books do describe these ma-terials and their use.

Forms Of American LawThe two forms of American law arelegislation — constitutions, treaties,executive orders, statutes, regula-tions, charters, ordinances and courtrules — and case law —opinionsor decisions of courts or administra-tive agencies.

Like most English-speaking coun-tries, the United States is considereda “common law” jurisdiction, be-cause American law is based on thecommon law system of England.Except Louisiana, whose laws arebased on the Civil Law System, eachstate has incorporated English com-mon law into its own body of law bystatute. As a result, old Englishcases still are good law, unless theirrules have been changed or abro-gated by legislation.

AMERICAN LAW

Constitutions The fundamental law which creates thegovernment framework, e.g., threebranches — Executive, Legislative, Judicial —and identifies basic governmental obligationsand citizens’ rights and liberties. Provides thestandards against which all laws are measured.

Treaties Agreements between two or more sovereigncountries, including Indian treaties. The exclu-sive prerogative of the federal government, thePresident has the sole power to initiate andmake treaties that the Senate must approve.

Executive Orders Laws issued by the Chief Executive to directand govern the activities of governmentofficials and agencies.

Statutes Laws or acts passed by a legislature whichprescribe conduct, define crimes, createinferior governmental bodies and appropriatepublic monies.

Regulations/ Laws promulgated by administrative agenciesRules which implement or explain the statutes or

executive orders that govern the agency.

Charters The fundamental law of a local governmentalunit which authorizes it to perform governmen-tal functions, a local government’s “constitu-tion.”

Ordinances Laws passed by the legislative branch of alocal government, ordinances regulate mattersof local concern, e.g., zoning, parking, refusedisposal and crimes such as loitering.

Court Rules Laws governing court operations and practicebefore a particular court, e.g., timing, filing andform of court papers and pre-trial procedures.Promulgated by courts, court rules are usuallysubservient to statutes governing procedure.

Opinions/Cases A court’s explanation of why it reached itsdecision.

Administrative Agency’s resolution of specific controversiesDecisions by applying regulations, statutes, or executive

orders.

Illustration 5-3


As first developed, case law was thecommon law system’s only form oflaw. Statutes were enacted later, butplayed an insignificant role in theEnglish and early American legalsystems. In the process of settlingdisputes at common law, the courtsmade rules that were followed bycourts deciding later disputes withsimilar facts. As is done to this day,Judges wrote opinions, official casestatements, which reported:

1. facts necessary to understand thedispute and which influenced thecourt’s decision;

2. issues or questions that were re-solved;

3. past cases or precedents that thecourt examined and found to con-trol the dispute;

4. court’s reasoning or explanationof how it reached its decision; and

5. disposition or result reached inthe case. In order to find the lawthat governed a dispute, lawyers andjudges had to extract the rules of lawfrom those cases with similar facts.

Codification of LawsIn mid-nineteenth century, Ameri-can statutory law began to grow.This legislative explosion reflectedthe need for a comprehensive set oflaws, responsive to a changing, in-dustrial society. The proliferation ofstatutes resulted in the “codifi-cation” of the laws, which involvedorganizing and enacting statutes andcommon law into codes. Codifica-tion of statutes involved organizingexisting statutes into codes by sub-ject matter, e.g., all laws dealing withcrimes were put into a CriminalCode.

Codification of the common lawinvolved enacting large bodies ofthe common law —rules extractedfrom cases — into statutes. This

process eventually resulted in a setof codes, arranged by subject mat-ter, which contained acts passed bythe legislature and common law rulesfirst developed in case law by thecourts.

All common law has not been codi-fied. Rules developed at commonlaw that have not been enacted intoor abrogated by legislation still aregood law. In areas where no legis-lation exists, courts continue to makelaw in the process of deciding dis-putes. Courts are also responsiblefor interpreting legislation and deter-mining whether it conforms to theFederal and state constitutions.

LEGISLATIVE SYSTEMSLegislatures are branches of thefederal, state and local govern-ments which are responsible forenacting legislation. Congress andall state legislatures but Nebraska,have two chambers, called the Sen-ate and House of Representativesin Congress and in most states.Locally, legislative bodies consist ofone chamber and have various titles,e.g., boards of supervisors, alder-men/women or city councils.

Legislative ProcessMaking legislation is similar at alllevels of government. Most lawsbegin as bills which members of alegislature introduce into a chamber.The few bills that become law mustsurvive a torturous process throughvarious committees and subcommit-tees where they are amended sev-eral times. Consequently, the lawas enacted is rarely a replica of thebill as introduced. See “How BillsBecome Law” Illustration 5-4 foran example of the legislative pro-cess.

Each law has a legislative history,a record of all the events that takeplace before the bill became law. Inthe federal system, the legislativehistory of “important laws” —laws

that are new or controversial, wouldbe costly to implement, or affectgreat numbers of people — usuallyhave an exhaustive legislative his-tory, because these bills are subject-ed to extensive hearings,committee reports and debateon the congressional floor. Legisla-tive histories of state laws are farless complete and in many instancesare not recorded at all. Legislativehistories of local legislation are al-most non-existent.

Legislative history may become im-portant when a law’s meaning is atissue. The key to a law’s meaningdepends on legislative intent, i.e.,what the legislature intended to ac-complish by enacting the law. Courtssometimes examine legislative his-tory to determine a law’s legislativeintent. For example, a court mightexamine the changes made in thebill’s language before it became lawor any testimony given in commit-tees that discussed the bill as evi-dence of what the legislature in-tended the law to mean.

In a definitional or consistency dis-pute, advocates should analyze alaw’s legislative history, especiallywhen no cases exist which interpretthe law in a manner favorable to theclient. Where possible, advocatesshould include statements in the leg-islative history of laws that affectclients, to facilitate later favorablecourt interpretations of these laws.

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Primary Sources ofLegislationMost federal and state statutes arecollected in books called codes, lawsor revised statutes. Each set is gen-erally organized according to subjectmatter, e.g., crimes, education, pub-lic health and welfare. Research-ers almost always use annotatedcodes that contain the law and in-formation pertaining to each statutein the form of “annotations.” Theannotations include notes about thestatute’s research guides, and sum-maries of case decisions that haveinterpreted the statute. Each anno-tated set of statutes also includes theapplicable constitution.

Federal statutes are contained in theUnited States Code Annotated(U.S.C.A.) and the United StatesCode Service Lawyer’s Edition(U.S.C.S.). Each State has its ownset of annotated statutes, e.g., Cali-fornia Annotated Codes, Michi-gan Compiled Laws Annotated,Oklahoma Statutes Annotated,and Revised Code WashingtonAnnotated.

Local government laws are calledordinances. Since local governmenttakes many different forms, re-searching ordinances may be diffi-cult. Generally speaking, ordinancesare often divided into local codes,i.e., building code or traffic code andcan be found in the offices of theagency to which they pertain. Par-ticularly in larger cities or counties,ordinances are sometimes collated,indexed and found in law librariesand the county or city clerks office.

JUDICIAL SYSTEMSThe judiciary is the governmentalbranch that decides disputes. In theprocess of deciding disputes, courtscreate, interpret, and apply the law.

Fifty-one court systems exist in theUnited States: one system for eachstate and federal court system.Each system is self-contained, ex-cept when highest state decisionsare reviewed by the United StatesSupreme Court. Laws within eachsystem define their courts’ subjectmatter jurisdiction and their struc-ture.

Subject Matter JurisdictionThe power of each court to hear anddecide cases is called a court’s sub-ject matter jurisdiction. Legislaturesenact laws that define the types ofcases that its courts may decide.“Type” of case usually refers to thedispute’s subject, e.g., civil, crimi-nal or family, monetary amount in-volved, or stage of the dispute, e.g.,appeal or trial.

The first question a court must de-cide is whether it has subject matterjurisdiction over a case, i.e., is thedispute the type of case that it maydecide? If a court lacks subjectmatter jurisdiction over a dispute,then it must dismiss the case with-out deciding on its merits. A judg-ment rendered by a court whichlacks subject matter jurisdiction isvoid, i.e., has no effect.

Subject matter jurisdiction is classi-fied as exclusive, limited, general,original, appellate and concurrent.

Exclusive jurisdiction: A courtwith exclusive jurisdiction is the onlycourt that may decide the matter,e.g., federal courts have exclusivejurisdiction over appeals from SSIdisability cases. Such an appeal filedin a state court would be dismissedfor lack of subject matter jurisdic-tion.

Limited or special jurisdiction:A court of limited jurisdiction mayonly decide cases that deal with sub-ject matter specifically defined bylaw, e.g., some state courts are lim-ited to hearing only family cases. Allfederal courts are courts of limitedjurisdiction; if federal law does notspecify that a federal court may de-cide a type of case, then it has nosubject matter jurisdiction over thecase.

General jurisdiction: A court ofgeneral jurisdiction may decide allcases that are not within the exclu-sive jurisdiction of another court; i.e.,if no law gives jurisdiction to anothercourt, then a court of general juris-diction has the power to hear thedispute. State courts of general ju-risdiction may decide all cases thatarise in the state, except those caseswithin the exclusive jurisdiction ofanother court.

Concurrent jurisdiction: Whentwo courts both may hear the sametype of case, their jurisdiction is con-current, e.g., the federal and statecourts have concurrent jurisdictionover cases involving interpretation ofthe federal constitution.

Original jurisdiction: The courtof original jurisdiction is the firstcourt where a legal dispute is taken.It hears the evidence and legal ar-guments, makes findings of fact andconclusions of law upon which itbases its decision. A court of origi-nal jurisdiction is usually called thetrial court or court of first in-stance.

Appellate jurisdiction: Courtswith appellate jurisdiction hear ap-peals of disputes from lower tribu-nals. Usually these courts do nottake evidence, but decide on the“record” — the evidence introducedin the court of original jurisdiction—whether any errors of law weremade below.

x


Courts may have several types ofsubject matter jurisdiction. Courtsof general and limited jurisdictionmay have original jurisdiction —be the first place a case is heard—appellate jurisdiction —hear ap-peals from disputes, exclusive juris-diction — be the only place a casemay be heard — and concurrent ju-risdiction — share power to heardisputes with other courts. Onlycourts of limited and general subjectmatter jurisdiction are mutually ex-clusive, because they are opposites.A court of general jurisdiction — acourt which may hear all cases un-less power is granted to anothercourt — cannot be a court of lim-ited jurisdiction —a court that mayhear only what the law specificallysays it may hear.

Court StructureThe federal and state systems con-tain two basic types of courts: trialcourts and appellate courts. Trialcourts have original jurisdiction inmost disputes, i.e., they are the firstplace disputes are taken. Trial courtshear evidence to determine adispute’s facts and interpret and ap-ply the law to its findings of fact toreach a decision.

The party who loses in a trial courtusually has the right of appeal to anappellate court. Appellate courtsdetermine whether the trial courtcommitted errors of law, i.e., appliedthe wrong law or incorrectly appliedthe law to the facts. These courtsdo not receive evidence to makefactual determinations, but rely onthe facts as determined by the trialcourt.

Some systems have two types ofappellate courts: intermediate ap-pellate courts and final courts ofappeal or courts of last resort. In asystem with an intermediate appel-late court, a party who loses in thetrial court has a right to appeal thecase to an intermediate appellate

court. This appeal is called an “ap-peal of right,” which means thatthe court must hear the appeal. If aparty loses in the intermediate ap-pellate court, it may seek review inthe court of last resort. In a systemwith no intermediate appellate court,a losing party must appeal to thecourt of last resort.

In most cases, courts of last resort’sreview of lower courts’ decisions isdiscretionary. The court chooses tohear only cases with important legalissues or where lower courts’ rul-ings conflict with one another. Aparty who appeals a case to a courtof last resort must convince thecourt that the case falls within thesecategories. In a system with no in-termediate appellate court, partieshave no appeal of right; they mustpetition the appellate court to exer-cise its discretion to hear the case.

Federal CourtsAs the trial court, the federal dis-trict court is the court of original ju-risdiction of most cases filed in thefederal system. The United Statesis divided into about 98 districts withat least one in each state, the Dis-trict of Columbia, the Virgin Islands,Puerto Rico and Guam. Some stateshave more than one district, e.g.,California and Texas have four dis-tricts. No district court has jurisdic-tion over an area that covers morethan one state.

Federal law defines the cases that afederal district court may hear; if nostatute directs that the court mayhear a matter, the court has no sub-ject matter jurisdiction to decide thedispute. Because the district courtis a court of limited jurisdiction, allinitial pleadings filed in federal courtmust specify the law that conferssubject matter jurisdiction on thecourt.

Generally, federal district courtshave original subject matter jurisdic-

tion over cases that involve the in-terpretation and application of fed-eral law and where the constitution-ality of state or federal laws is ques-tioned. Several specialized federalcourts exercise original jurisdictionover particular types of cases: theTax Court, Claims Court, and theCourt of International Trade. Thetrial court exercises appellate juris-diction over appeals of federal ad-ministrative agency decisions like theSocial Security Administration’s de-cisions on SSI eligibility.

Federal district court opinions arereported in the Federal Supplement(F. Supp.) or Federal Rules Deci-sions (F.R.D.).. Most district courtopinions are not reported; opinionsare issued when a court decides sig-nificant issues of law as designatedby federal court rules. Unreportedopinions usually may be obtainedfrom the court which issued the opin-ion.

The federal intermediate court ofappeals is the United States Courtof Appeals, sometimes called “Cir-cuit Courts”. There are thirteen cir-cuits, eleven of which consist ofstates and territories grouped geo-graphically, the twelfth for the Dis-trict of Columbia — “the D.C. Cir-cuit” and the Federal Circuit forpatent and customs cases. EachCourt of Appeals hears appeals fromthe district courts within its circuit.

The Court of Appeals only reviewserrors of law; it does not hear evi-dence, but limits its review to thedistrict court record. Certain fed-eral agencies may appeal to theCourt of Appeals directly withoutgoing to district court. The Court ofAppeals for the Federal Circuit wasestablished in 1982 to review deci-sions of the Claims Court and theCourt of International Trade.


The opinions of the courts of appealsare found in the Federal Reporter(F ) Federal Reporter, Second Se-ries (F.2d). The Federal Reporteralso reports opinions of the Court ofClaims and the Court of Customsand Patent Appeals.

The Court of last resort which is thefinal review of all federal courts andagencies is the U.S. Supreme Court.The Court may review state courtdecisions only when these casesraise questions involving the U.S.Constitution or other federal law.Court review is discretionary and isgranted only on rare occasions.Parties must file a petition for awrit of certiorari (cert.) which con-tains their arguments about why theCourt should hear their case. Onlyif the Court grants the petition forcertiorari, will the case be heard onits merits.

The Court is a court of original ju-risdiction in a few matters such ascases involving disputes betweentwo states. Moreover, the Court willreview a decision directly from aDistrict Court in certain instances,e.g., when a District Court rules afederal law unconstitutional.

United States Supreme Court opin-ions appear in three separate report-ers: United States Reports (U.S.),Supreme Court Reporter (S.Ct.),and United States Supreme CourtReports, Lawyer’s Edition (L.Ed).Like most court opinions, they arearranged roughly in chronologicalorder.

i


LINES OF APPEAL IN THE FEDERAL COURT SYSTEM

The United States Court System

(Court of Final Appeals)

United StatesSupreme Court

(Court of Middle Appeals)

United StatesCourts ofAppeals

United StatesCourt of Customs

and Patent Appeals

(Courts of Original Jurisdiction)

U.S.Tax Court

U.S.CustomsCourt

U.S. Courtof Claims

Direct Appealsfrom State Courts

in 50 States

U.S. DistrictCourts

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The chart on the following page illustrates the division of the federal court system into elevengeographic cirecuits (each with its own United States Court of Appeals), and its further subdivisioninto ninety-four geographic distrcits (each with its own United States District Court). Note that eachdistrcit falls within one of the eleven circuits. (In addition to these eleven circuits, the District ofColumbia has its own circuit.) Appeals from a District Court go to the Court of Appeals for thegeographic circuit in which that District Court is located.


Circuits of the U.S. Court of Appeals

1st CircuitMaine New Hampshire Rhode IslandMassachusetts Puerto Rico

2nd CircuitConnecticut New York Vermont

3rd CircuitDelaware Pennsylvania Virgin IslandsNew Jersey

4th CircuitMaryland South Carolina West VirginiaNorth Carolina Virginia

5th CircuitCanal Zone Mississippi Texas Louisiana

6th CircuitKentucky Ohio TennesseeMichigan

7th CircuitIllinois Indiana Wisconsin

8th CircuitArkansas Missouri North Dakota IowaNebraska South Dakota Minnesota

9th CircuitAlaska Hawaii NevadaArizona Idaho OregonCalifornia Montana WashingtonGuam

10th CircuitColorado New Mexico UtahKansas Oklahoma Wyoming

11TH CircuitAlabama Florida Georgia

District of Columbia Circuit

Federal Circuit

Illustration 5 - 6

State CourtsAlthough state trial court structuresvary, a common arrangement is atwo-tier system of trial courts. Atthe first level are courts with limitedsubject matter jurisdiction. Thesecourts usually hear cases involvingsmall claims, divorce or small sumsof money. Local courts such as Jus-tice of the Peace and Police Courtsoften fall into this category.

At the second level are courts ofgeneral jurisdiction which handlecases involving large sums of moneyor serious violations of state law.These courts may be called Supe-rior Courts, Courts of CommonPleas, District Courts or CircuitCourts. In some instances, the twolevels may be divided into depart-ments or divisions, e.g., a commonarrangement in a large court is tohave separate departments or divi-sions for civil and criminal matters.Many state courts of general juris-diction exercise appellate jurisdictionover appeals from their courts of lim-ited jurisdiction and state administra-tive agency decisions.

Each state has a final court of ap-peal usually called the SupremeCourt. About half the states haveintermediate courts of appeal calledCourts of Appeal or Circuit Courtsof Appeal. Some states have sepa-rate appeal courts for criminal andcivil matters. Other states are di-vided into appellate districts witheach court of appeals hearing ap-peals from the courts of general ju-risdiction in its district. Like federalappellate courts, state appellatecourts only review errors of law. Anappeal to an intermediate court ofappeal is an appeal of right, while anappeal to a final court of appeal iswithin the discretion of the court togrant or deny.

State trial courts rarely write opin-ions. Occasionally, a trial court ex-ercising appellate jurisdiction willwrite an opinion; these opinions areseldom published. Some states do


not publish every intermediate ap-pellate opinion. Cases are desig-nated for publication according tocriteria usually found in their courtrules, e.g., the opinion establishes anew rule, alters or modifies an ex-isting rule, involves an issue ofcontinuing public interest, or criti-cizes an existing law. Unpublishedopinions have no value as precedent.

The published opinions of the high-est state court and any intermediateappellate court are collected in oneof the seven regional reporters (At-lantic, Northeastern, Northwestern,Southeastern, Southwestern, South-ern, and Pacific) of West’s NationalReporter System. Each regionalreporter contains all the publishedstate court decisions arising from thestates in its region, e.g., the North-east Regional Reporter contains pub-lished opinions from Illinois, Indiana,Ohio, New York (highest court only),and Massachusetts. West also pub-lishes the California Reporter and theNew York Supplement that containall the published appellate decisionsof their respective states.

In addition to the National ReporterSystem, many states have a sepa-rate system of “official” reports,published in accordance with statelaw, for their appellate cases. Instates with intermediate appellatecourts, the opinions from thosecourts and the highest court’s deci-sions are published in separate re-porters. For example, Illinois Su-preme Court opinions are found inIllinois Reports (Ill.), while IllinoisCourt of Appeal Opinions are con-tained in Illinois Appellate Reports(Ill. App.).

In the states that no longer publishtheir own official reports, the re-gional reporter is the only place theopinion is reported. West publishesspecial state editions for most states,which only contain the opinions ofall individual state that are reportedin the regional reporter, e.g., PacificReporter, Kansas cases only con-tains Kansas decisions.


STATE ORGANIZATION AND LINE OF APPEAL

State Supreme Court

(Court of final resort. Some states call it Court of Appeals,Supreme Judicial Court or Supreme Court of Appeals.)

(Only 23 states have intermediate appellate courts, which are an intermediateappellate tribunal between the trial court and the court of final resort. A major-

ity of cases are decided finally by these appellate courts.)

Superior Court

(Highest trial court with general jurisdiction. some states call it Circuit Court,District Court, Court of Common Pleas, and in New York, Supreme Court.)

Probate Court*

Some states call it Surrogate Courtor Orphans’ Court (PA). It is a

special court which handles wills,administration of estates, guardian-ship of minors and incompetents.)

County Court*

(These courts, sometimes calledCommon Pleas or District Courts,have limited jurisdiction in both civil

and criminal cases.)

Municipal Court*

(In some cities, it is customary tohave less important cases tried by

municipal justices or municipalmagistrates.)

Justice of the Peace**and

Police Magistrate

Domestic Relations Court

(Also called Family Court orJuvenile Court.)

(Lowest courts in judicial hierarchy.Limited in jurisdiction in both civiland criminal cases.)

*Courts of special jurisdiction, such as Probate, Family or Juvenile and the so-called inferior courts, such as CommonPleas or Municipal courts, may be separate courts or may be part of the trial court of general jurisdiction.**Justices of the Peace do not exist in all states. Their jurisdictions vary greatly from state to state where they do exist.

State and Local Judicial System-SOURCE: American Bar Association, Law and the Courts, 20 (1974)

Intermediate Appellate Courts


The National Reporter System

Reporter Abbreviation State Courts Included

Atlantic Reporter A. and A.2d Supreme and intermediate appellate courts in D.C.,Connecticut, Delaware, Maine, Maryland, NewHampshire, New Jersey, Pennsylvania,Rhode Island, and Vermont

Northeastern Reporter N.E. and N.E.2d Court of Appeals in New York and supreme andintermediate (First and Second Series) appellatecourts in Illinois, Indiana, Massachusetts and Ohio

Northwestern Reporter N.W. and N.W.2d Supreme and intermediate appellate courts in Iowa,Michigan, (First and Second Series) Minnesota,Nebraska, North Dakota, South Dakota andWisconsin

Pacific Reporter P. and P.2d Supreme and intermediate appellate courts inAlaska, Arizona, (First and Second Series)California (Sup. Ct.only since 1960), Colorado,Hawaii, Idaho, Kansas, Montana, Nevada,New Mexico, Oklahoma, Oregon, Utah,Washington and Wyoming

Southeastern Reporter S.E. and S.E.2d Supreme and intermediate appellate courts inGeorgia, North (First and Second Series) Carolina,South Carolina, Virginia and West Virginia

Southern Reporter So. and So.2d Supreme and intermediate appellate courts inAlabama, Florida, (First and Second Series)Louisiana and Mississippi

Southwestern Reporter S.W. and S.W.2d Supreme and intermediate appellate courts inArkansas, Kentucky, Missouri, Tennessee andTexas

New York Supplement N.Y.S. All New York supreme and intermediate appellate

California Reporter Cal. Rptr. All California supreme and intermediate appellate

Illustration 5 - 8


How Courts Create LawUnder a common law system, courtscreate law in the process of decid-ing disputes before them. Each ju-dicial decision not only resolves adispute, but becomes a precedentfor the guidance of other courts indeciding future cases. Precedentsare decisions in individual cases thatmay serve as authority for decisionsin future cases.

Decisions are converted into bind-ing authority by the doctrine of staredecisis, literally “let the decisionstand.” Stare decisis is the doctrinethat once a court has set down aprinciple of law as applied to a par-ticular set of facts, it will adhere tothat principle and apply it in all caseswhere the facts are substantially thesame.

Simply, a court has two1 choiceseach time it is required to decide acase which is not governed by leg-islation: it can apply an existingrule—follow precedent) or it candevelop a new or variant rule (refuseto follow precedent or conclude noprecedent exists).Cases of “first impression”, caseswhich are not governed by any ex-isting precedent, make obvious howcourts create law when no prece-dent exists. For example, supposeMary and Jack, an unmarriedcouple, have lived together for tenyears in the state of Independence.Jack alleges that he gave up his ca-reer as a paralegal to manage thehousehold in return for Mary’s prom-ise to support him. Mary and Jackseparate and Mary refuses to sup-port him in the style to which he hasbeen accustomed. Jack sues Maryfor support in an Independence trialcourt.

Mary alleges that Jack did not giveup his career to manage the house-hold; she alleges that he quit hisparalegal job because he didn’t want

to work hard and has sat around thehouse eating chocolate bon-bonsever since he quit. She also allegesthat she never promised to supporthim. After considering the evidence,the court makes the factual findingsthat Jack and Mary lived togetherfor ten years, Jack gave up his ca-reer to manage their household, andMary promised to support Jack.

No Independence legislation gov-erns this dispute and no court deci-sions have ever considered such acase. The court therefore, must cre-ate a new rule of law without theguidance of precedent. To createsuch a rule, the court will consider“public policy” questions, relying onsocial utility, ethics, general standardsof justice, custom, business practiceor expediency. It may consider theundesirable consequences if otheravailable choices were adopted. Inthis case, the court might ask: shouldan unmarried person be allowed toget support from a partner? Underwhat circumstances? How wouldsuch a rule affect society and theinstitution of marriage? What resultif the court refused to adopt such arule? Jack urges the court to adopta rule that enforces an unmarriedpartner’s promise of support, whileMary argues against such a rule.

After examining public policy ques-tions, the court agrees with Jack anddecides that unmarried partnersshould be awarded support whentheir partner promises to supportthem. Applying this rule to its fac-tual findings, the court awards Jack$200 a month for support. By thisdecision, the court has accomplishedtwo tasks: it has decided the disputebetween Mary and Jack and cre-ated a precedent to be followed infuture cases.2

Cases of first impression are rare;as the body of case law increases,the possibility of a case of first im-pression decreases. More com-

monly, courts are presented withcases governed by precedent or leg-islation. When no legislation con-trols the dispute, the court examinesprior cases that have resolved dis-putes similar to the case before it.Examining these cases, the courtcompares the key facts in the pre-cedent case with the case before it.If the key facts are substantiallysimilar, the court determines the ruleestablished by the precedent case.The court then applies the rule to thedispute before it to reach a decision.

For example, suppose Donnie andMarie, an unmarried couple, havelived together for five years in Inde-pendence. The parties agree thatMarie gave up her job as a waitressto manage their household and, inreturn, Donnie promised to supporther. After they separate, Donnierefuses to support Marie and shesues him. Assume that Jack v.Mary is the only relevant precedentand no factual dispute exists.

Marie argues that Jack v. Mary isa “directly on point” or an “on point”decision, since the facts of her caseare substantially similar to the factsin Jack v. Mary. She argues thattherefore, the court should bow tothe authority of Jack v. Mary andaward her support. Donnie arguesthat Jack v. Mary is not disposi-tive of — applicable to — his caseand therefore should not be followed.Donnie tries to distinguish —showthe differences in — Jack v. Maryfrom his case. He argues that hissex — he is a male, Mary is a fe-male — Marie’s former occupation— she was a waitress, Jack was aparalegal — and the relationship’slength — five years for Marie andhim and ten years for Mary and Jackshould mean that Jack v. Maryshould not control his case.

Analyzing Jack v. Mary, the courtfinds that its key facts were that anunmarried partner gave up a job to


manage the household in return fora promise of support. ComparingJack v. Mary’s facts to this dispute’sfacts, it finds them to be substantiallysimilar. The court then determinesthat the rule in Jack v. Mary is thatan unmarried partner who gives upa job to manage a household in re-turn for support is entitled to sup-port from the promising partner evenafter the relationship ends. Apply-ing that rule to the facts, the courtdecides that Marie is entitled to sup-port from Donnie.

When confronted with precedentthat a party argues is controlling, acourt can also refuse to follow it. Ifa court concludes that theprecedent’s and dispute’s significantfacts are not substantially similar tojustify the same result, it may distin-guish or limit the precedent case andrefuse to follow it. Had the courtagreed with Donnie’s argument thatthe key facts in Marie v. Donniewere different than the key facts inJack v. Mary, it could have distin-guished Jack v. Mary, thereby re-fusing to apply it to Marie v. Donnie.

Even if the court concludes that thesignificant facts are substantiallysimilar, it can still refuse to followthe precedent and overrule it, stat-ing public policy reasons forabandoning the rule, e.g., the rule isno longer just, expedient, or servessociety. Courts do not like to over-rule precedent directly; when con-fronted with a precedent they don’twish to follow, they prefer to distin-guish or limit it to its facts. More-over, this option is open only whenthe rejected precedent is a decisionof the same or lower court, e.g., theU.S. Court of Appeal Fifth Circuitmay overrule its own decision or adecision of a district court in the FifthCircuit; the California SupremeCourt may overrule itself or a Cali-fornia Court of Appeal decision. Alower court cannot overrule a di-

rectly on point decision of a highercourt in the same jurisdiction.

Courts “making law” then, usuallyrefers to situations where courts cre-ate precedent when legislation isabsent. Courts also create prece-dent however, when they decide dis-putes that are governed by legisla-tion. These disputes constitute atleast 80% of all reported cases.

How Courts Interpret EnactedLawEnacted law is superior to commonlaw. In deciding a dispute, courts firstdetermine whether legislation gov-erns the dispute. When it does, thecourt’s duty is to interpret the legis-lation in light of its legislative intent,i.e., what the legislature intended toaccomplish by enacting the law.Although a court may violently dis-agree with a legislature’s wisdom inenacting a law, its duty is not to sec-ond-guess legislative judgment, butto interpret the law to carry out themeaning the legislature intended.Such duty is easier said than done.

Rules of statutory interpretation arenumerous and difficult to apply. Asa general rule, however, the courtuses several techniques to determinea law’s legislative intent.

First, a court will examine any priorcases that have interpreted and ap-plied the legislation. If the key factsin these cases are similar to the keyfacts in the pending case, the courtmay bow to the authority of the pre-cedent case, applying it to the pend-ing case as described in the contextof case law in Marie v. Donnie.Courts also may refuse to apply theprecedent case, distinguishing it fromthe pending case on its facts or over-ruling it.

If no prior analogous cases exists,the court will use other techniquesto interpret the legislation such as

examining its language, history or thepolicy behind the legislation.

Courts’ construction of enacted lawusually begins with the law’s lan-guage. Some courts use the plain-meaning approach, which looks atlaw’s words and gives them theirnatural and normal meaning. Thisapproach is based on the theory thata legislature’s intent is best reflectedin the language that it selects. Inthe early days of statutory construc-tion, courts refused to examine any-thing outside a law’s words, if theirmeaning was clear and unambigu-ous.

Words do not have absolute mean-ings. And legislators do not alwaysknow precisely what they intend tosay or can imagine all future caseswhere a law might apply. Recog-nizing these limitations, courts cre-ated the golden rule exception tothe plain-meaning approach. Thisexception provides that the literalmeaning is followed unless it leadsto absurd or unjust results. Althoughrejected by the U.S. Supreme Courtin favor of the purpose approach, afew state courts still follow the plain-meaning approach.

Considered contradictory to theplain-meaning approach, is the pur-pose approach, whereby courts in-terpret enacted law to accomplishlegislative objectives. Through thisapproach, courts seek to understandthe objectives that a law is designedto achieve by examining its language,the circumstances surrounding itsenactment and its legislative history.Courts will examine a law to deter-mine if its language and “plain-meaning” is consistent with its pur-pose.

Courts sometimes invoke rules orcanons of construction to aid theirinterpretations of enacted law.Some canons call for “strict” —narrow—or “liberal” — broad —


construction, depending on the typeof law involved. For example, pe-nal laws — designed to punish theirviolators— and laws in derogationof common law are construedstrictly; remedial laws — designedto give relief to those harmed by theirviolation — are construed liberally.

Sometimes courts refer to canons bytheir Latin names. For example,ejusdem generis (a-yus’-demjen’er-is), literally, “of the same kind,class, or nature,” means that wheregeneral words follow lists of particu-lar classes, persons, or things, thegeneral words shall be construed asapplicable only to persons or thingsof the same general nature or kindas those listed. Hence, in a lawwhich prohibits importing oranges,lemons, grapefruit and other suchfruits, the term “other such fruit,”may be interpreted to mean only cit-rus fruits and not all fruit, e.g., apples,bananas or plums

Expressio unius est exclusioalterius (ex-pre’-she-o u-ne’-us estex-klu’ she-o al-ter’ -e-us), literally,“expression of one thing is the ex-clusion of another,” means that men-tion of one thing within a law im-plies exclusion of something that isnot mentioned. Thus, a law whichgrants certain rights to “city librar-ians, lawyers, and police officers”would be interpreted to exclude othercity employees not mentioned in thelaw.

Some canons artificially limit themeaning of words; while others logi-cally guide in assigning a law mean-ing when other means are absent.Nevertheless, even logical canonscan be applied to reach results in-consistent with a law’s purpose.Most courts use canons to supportfurther a result suggested by otherapproaches or to aid in interpretinglaws which have no published legis-lative history.

American courts have not generallyaccepted and consistently appliedtheory of interpreting enacted law.The techniques a court uses candepend on its attitude toward thesubstance of the law it is interpret-ing, i.e., whether it approves or dis-approves of the law. These attitudesin turn depend on the political, so-cial, and personal values of its judges.In preparing arguments to support aparticular interpretation, advocatesmust consider these attitudes as af-fecting a court’s choice of tech-niques and fashion arguments fortheir clients accordingly.

Judicial ReviewOne of the most important powersof courts is judicial review— thepower to strike down unconstitu-tional laws. All legislation is subjectto judicial scrutiny to determinewhether it conforms to constitutionalprinciples. When a court declares alaw “unconstitutional,” the law is in-valid. Determining a law’s consti-tutionality involves interpreting bothits meaning and the meaning of ap-plicable constitutional provisions.

Federal courts have the power todetermine whether a federal or statelaw contravenes the United StatesConstitution. State courts can de-clare state legislation invalid if it con-flicts with either the U.S. or theirstate constitution. The United StatesSupreme Court has the final author-ity to decide whether state and fed-eral legislation conflict with the U.S.Constitution; while each state courtof last resort is the final authority asto whether its state laws contraveneits own state constitution.

As an example, suppose the Stateof Independence enacts Penal CodeSection 33 which provides that noleft-handed person may read outloud in a public place. Ms. MarieSinister, a left-handed person, is ar-

rested while reciting the Declarationof Independence on the state capi-tol steps. At her trial in the Inde-pendence Superior Court, Ms. Sin-ister raises Section 33’s unconstitu-tionality as a defense. She arguesthat Section 33 is an invalid law, be-cause it contradicts the First Amend-ment (Free Speech) and the Four-teenth Amendment (Equal Protec-tion of the Laws) of both the Inde-pendence and U.S. constitutions.

Using various statutory constructiontechniques, the court interprets Sec-tion 33 and the First and FourteenthAmendments. It then comparesthem to decide if Section 33 as in-terpreted conflicts with the consti-tutional provisions. The court couldbase a decision that Section 33 isunconstitutional on the grounds thatit conflicts with: 1) both the Inde-pendence and U.S. constitutions; or2) the Independence Constitutiononly; or 3) the U.S. Constitution only.Courts will rule a law unconstitu-tional only as a last resort. For ex-ample, where possible, courts willattribute a constitutional meaning toa law on the theory that legislaturesintend laws to have constitutionalmeanings. Rather than rule a lawunconstitutional, a court will also at-tempt to resolve a dispute on other,non-constitutional grounds.

ADMINISTRATIVE AGENCIESFederal, state and local administra-tive agencies are governmentalauthorities, other than courts or leg-islatures, which administer and carryout the laws enacted by the legisla-ture. Agencies are considered partof the Executive Branch of govern-ment because their function is tocarry out and administer the laws.

Most agencies perform legislativeand judicial functions. In their quasi-legislative capacity, they promulgate


rules; in their quasi-judicial capac-ity, they adjudicate disputes. Agen-cies are authorized to perform thesefunctions only because a legislaturehas delegated the power to themthrough specific statutes called en-abling legislation. If regulations donot carry out the provisions of en-abling legislation, they are invalid.

Rule-Making PowerThe United States and many stateshave enacted Administrative Pro-cedure Acts (APA) which governthe manner in which agencies mustexercise their rule-making power.For example, like many state APAs,the Federal APA provides that anagency must publish proposed no-tices of rule-making, allow publicparticipation in rule-making, and pro-cedures for interested parties to re-quest the issuance, amendment orrepeal of a rule. The federal APAdoes not govern all federal agencies.Unfortunately, many state agencieswith which legal services clients dealare non-APA agencies. Althoughnon-APA agency rule-making issubject to some procedural require-ments, they usually are more lenientthan APA requirements.

To be valid, an agency regulationmust:

• interpret, implement, make spe-cific or carry out the provisions ofenabling legislation,

• be promulgated according to rule-making procedures, and

• be constitutional.

Most administrative rule-making issubject to court review. The fed-eral and most state APAs providethat “any interested party” maychallenge a rule on the grounds itdoes not conform to APA promul-gation standards; e.g., a party mayfile a case in court asking that a rule

be invalidated. However, most of-ten agency rule-making proceduresare challenged in the context of anindividual case; e.g., a party raisesa rule’s invalidity in response to anagency’s attempt to apply the ruleto the party’s situation.

1For a listing of sixty-four tech-niques courts use in dealing with pre-cedents, see K. Llewellyn, The Com-mon Law Tradition: Deciding Ap-peals 77-91 (1960). 2Many trial courts and intermedi-ate appellate courts would probablynot be so bold as to establish a newrule on their own in this fact situa-tion. More likely, the court woulddismiss Jack’s action without a trial.Jack would appeal and the higheststate court (if it decided to hear thecase) would create the new rule oflaw. The court then would remandthe case to the trial court to makefindings of fact to which it wouldapply the new rule of law.

u


HOW COURTS DECIDE LEGAL ISSUES

START

Governed by no Governed by no Consider public policylegislation? existing

case law?

YES YES

On point case Examine Key facts similar? no Formulate rule legislative intent; purpose, language

history.

YES YES

Apply Overrule Interpret Apply Overrule Apply

Apply

Illustration 5 - 9


Courts will rule a law unconstitu-tional only as a last resort. For ex-ample, where possible, courts willattribute a constitutional meaning toa law on the theory that legislaturesintend laws to have constitutionalmeanings. Rather than rule a lawunconstitutional, a court will also at-tempt to resolve a dispute on other,non-constitutional grounds.

ADMINISTRATIVE AGENCIESFederal, state and local administra-tive agencies are governmentalauthorities, other than courts or leg-islatures, which administer and carryout the laws enacted by the legisla-ture. Agencies are considered partof the Executive Branch of govern-ment because their function is tocarry out and administer the laws.

Most agencies perform legislativeand judicial functions. In their quasi-legislative capacity, they promulgaterules; in their quasi-judicial capac-ity, they adjudicate disputes. Agen-cies are authorized to perform thesefunctions only because a legislaturehas delegated the power to themthrough specific statutes called en-abling legislation. If regulations donot carry out the provisions of en-abling legislation, they are invalid.

Rule-Making PowerThe United States and many stateshave enacted Administrative Pro-cedure Acts (APA) which governthe manner in which agencies mustexercise their rule-making power.For example, like many state APAs,the Federal APA provides that anagency must publish proposed no-tices of rule-making, allow publicparticipation in rule-making, and pro-cedures for interested parties to re-quest the issuance, amendment orrepeal of a rule. The federal APAdoes not govern all federal agencies.Unfortunately, many state agencieswith which legal services clients dealare non-APA agencies. Although

non-APA agency rule-making issubject to some procedural require-ments, they usually are more lenientthan APA requirements.

To be valid, an agency regulationmust:

• interpret, implement, make spe-cific or carry out the provisions ofenabling legislation,

• be promulgated according to rule-making procedures, and

• be constitutional.

Most administrative rule-making issubject to court review. The fed-eral and most state APAs providethat “any interested party” maychallenge a rule on the grounds itdoes not conform to APA promul-gation standards; e.g., a party mayfile a case in court asking that a rulebe invalidated. However, most of-ten agency rule-making proceduresare challenged in the context of anindividual case; e.g., a party raisesa rule’s invalidity in response to anagency’s attempt to apply the ruleto the party’s situation.

Adjudicative PowerWhen an agency exercises its adju-dicatory power, it acts as courts doin resolving disputes; it determinesfacts and interprets and appliesthe law to those facts in order torender a decision. The first stepin this process is usually a hearingpresided over by an official; e.g.hearing officer, examiner or ALJ.This officer takes evidence, deter-mines facts, decides what law gov-erns the facts, and makes a deci-sion. Many hearing officers issuewritten decisions which contain theirfindings of fact and conclusions oflaw.

In some agencies, the hearing deci-sion is not final, but a recommenda-tion to higher officials who adopt or

reject the decision. In many otheragencies, decisions may be appealedto a body that determines whetherthe hearing officer made any errorsof law. Most agency decisions aresubject to judicial review, where thecourt exercises its appellate jurisdic-tion to determine whether theagency erred as a matter of law.

Sources of LawMost federal regulations are pub-lished in the Code of Federal Regu-lations (C.F.R.), a multi-volumepaperbound set organized by subjectmatter. The C.F.R. is organized intofifty titles. Each title covers a gen-eral subject matter, e.g., Title 20contains Social Security regulations;Title 42 contains Medicaid regula-tions. Regulations are initially pub-lished in the Federal Register, whichis issued every business day.

At least thirty states have a stateadministrative code which containssome of its agencies’ regulations.Almost all state or local agenciesmaintain their regulations in loose-leaf manuals that should be availableat the agency responsible for pro-mulgating them. Some agenciespublish “guidelines” or “interpretive”memos that operate much like regu-lations. If these agencies will notgive you access to these documents,research whether a Freedom ofInformation Act gives you access orcontact your friendly legislator.

Some agencies publish their deci-sions that may be cited as precedentin future administrative hearings.These decisions usually can be foundat agency offices. If you have prob-lems with access, follow the sug-gested strategy for regulations.Even if agency decisions are notregarded as officially precedent,reading them —especially those de-cided by your local hearing officers— provides useful information forpreparing your cases.


Hierarchy of AuthorityAuthority is legislation, case law andother statements of the law that par-ties cite to an adjudicatory body tosupport their legal position and thatan adjudicatory body uses to supportits decision. An advocate cannotpresent an argument, and adecisionmaker cannot justify a de-cision, without citation to some au-thority.

Authority is either primary or sec-ondary. Primary authority is thelaw — cases and legislation. Sec-ondary authority consists of state-ments of the law contained in legalencyclopedias, textbooks, treatises,or law review articles.

In investigating the law, the advo-cate looks for the best possible au-thority to support the client’s posi-tion. Not all authority is of the sameweight; therefore, the researchermust be familiar with the hierarchyof authority.

Mandatory authority is law thatmust be followed, while persuasiveauthority may be disregarded. Sec-ondary authority is never mandatoryand at best, is persuasive. Hence astatement from a legal encyclope-dia or law review article is nevermandatory authority; an adjudicatorybody is never bound to follow it, butmay if it wishes. Practically, somesecondary authority may be more“persuasive” than others. For ex-ample, the opinion of an expert incontracts probably will be more per-suasive than a statement on con-tracts from an encyclopedia. Checkwith other advocates familiar withthe courts in your jurisdiction, to dis-cover how your courts rank second-ary authority.

LegislationLegislation is mandatory in the ju-risdiction where it was enacted, e.g.,federal legislation must be followedin the United States. Outside its

enacting jurisdiction, legislation hasno weight, not even as persuasiveauthority. For example, a West Vir-ginia statute has no weight in anyother state; it must be followed onlyin West Virginia. Case interpretinglegislation, however, are persuasiveauthority outside its enacting jurisdic-tion. For example, assume thatMichigan adopts a statute that isfashioned after a West Virginiacourts’ interpretation of the statute.The Michigan court need not followWest Virginia decisions, but it may.

Legislation exists in a hierarchy; a“lesser” law that conflicts or is in-consistent with a superior law, is in-valid. At the top of the legislationhierarchy is the U.S. Constitution.It contains the fundamental prin-ciples by which all laws are mea-sured. To be valid, all federal, stateand local laws must conform and beconsistent with the U.S. Constitution,i.e., they cannot violate constitutionalprinciples. Next in the hierarchy arestatutes, treaties, and executive or-ders, followed by agency regulationsand court rules. Each state has simi-lar hierarchy which also includes lo-cal legislation.

A complex situation arises whendealing with a federal-state programsuch as Medicaid. Because the statereceives federal monies, the statelaws that govern the program mustbe consistent with federal law. Forexample, a state Medicaid regula-tion must clarify, explain, implementits state enabling statute and be con-sistent with federal agency regula-tions and its state and the federalconstitutions. If the regulation doescomport with its enabling state stat-ute, that statute also must be con-sistent with federal law.Case LawCase law is mandatory and must befollowed when the precedent caseis directly on point — its rules andkey facts are identical or substan-tially similar to the law and facts are

identical or substantially similar tothe law and facts of case it is ap-plied to — AND decided by thesame court or a higher court.

For example, the U.S. Ninth Cir-cuit Court of Appeals must followits own on point precedents andthose of the United States SupremeCourt; all state trial courts must fol-low all on point decision of its appel-late courts.

All case law that is not mandatoryis persuasive; it may sway a courtbecause of its cogent reasoning, buta court need not follow it.

Decisions are persuasive when theyare:1.From coordinate courts of thesame jurisdiction, e.g., a federaldistrict court is not bound by thedecision of another federal districtcourt; or

2.From courts of another state, e.g.,a decision from any court in Ohio isonly persuasive in any other state;or

3. Not on point; e.g., a federalDistrict Court is not bound by a U.S.Supreme Court decision that doesnot have similar key facts or inter-pret the identical law.

Practically, some persuasive author-ity may be more influential in cer-tain courts than authority that is theo-retically of the same weight. Forexample, the Third Circuit Court ofAppeals may respect Sixth Circuitdecisions in employment discrimina-tion matters more than the NinthCircuit, but hold the Ninth Circuit inmore esteem in Social Securitycases. Likewise, Oklahoma courtsmay be more convinced by Texasdecisions on housing than Californiadecisions. As with secondary au-thority, it’s important to find out howyour courts rank “persuasive” au-thority.


The hierarchy of authority is dia-gramed in Illustration 5 - 10.

HIERARCHY OF AUTHORITY

PRIMARY Secondary (Law) (Non-law)

Never mandatory; some-times persuasive

MANDATORY Persuasive (Must be followed) (May be followed)

Legislation Legislation

All in force in the None, but cases interpreting jurisdiction, roughly similar laws may be persuasive in this order:

U.S. Constitution Federal Statutes/Treaties Federal Regulations State Constitution State Statutes State Regulations Charters Ordinances

Case Law Case Law

On Point On Point

and and

from from

1. Same Court 1. Coordinate Courts in the Same jurisdiction;

or or 2. Higher court 2. Another state in the same jurisdiction

Not on point, but persuasive reasoning

Illustration 5 - 10


Relationship between CaseLaw and LegislationCase law and legislation differ intheir origin and literary and textualform. Courts make case law in theprocess of deciding particular dis-putes, while legislative bodies enactgeneral laws to govern future con-duct. Case law is found in case re-ports; legislation is found in volumescalled “Acts,” “Resolves,” or “Stat-utes.” Case law is textually flexiblebecause the rule of law it establishesmay be stated several differentways. Legislation is textually rigidbecause its precise wording is theexclusive statement of the rule.

Legislation governs most areas regu-lated by law, although courts con-tinue to make law where legislationis silent, e.g., the law of torts is pri-marily judge-made. Legislation issuperior to common law and if a leg-islature enacts a law that abrogatesa common law rule, the legislationprevails. For example, suppose acourt establishes the rule that un-married partners’ promises to sup-port their partners are enforceable.If the legislature enacts a law thatprovides that these promises areunenforceable, the common law ruleis abrogated and superseded by thelegislation.

Courts are not powerless, however,when faced with legislation, sincethey are charged with interpretingthe meaning of legislation. Given theambiguous wording of much en-acted law, court have numerous op-portunities to shape the meaning oflegislation. The power to determinea law’s constitutionality also in-creases the court influence on thelegislative process.

DEVELOPING RESEARCHSTRATEGIESWhere to begin research is a com-mon difficulty shared by many ad-vocates. As many different re-search strategies exist as law books

and researchers. The strategy youselect depends primarily on your fa-miliarity with the law that governsthe problem and the research mate-rials available. These basic strate-gies are diagramed on Illustration5 - 11.

The first approach directs you tobegin research with NarrativeSources. This strategy is useful ifyou are unfamiliar with the area youare researching, because narrativesources give an overview of the law.This overview helps you identifyterminology, any agencies involved,some of the issues and any primaryauthority which governs the problem.

Once you have a general understand-ing of the area, you should go to leg-islation, checking the citations foundin the narrative sources. Be sure tocheck all forms of pertinent legisla-tion, e.g., if a problem is governedby regulations, also check the en-abling statute.

If narrative sources did not refer toany legislation, check sources of leg-islation anyway unless you’re surethe problem is governed solely bycommon law. After reading andidentifying the elements in the gov-erning legislation, check the annota-tions for cases that interpret the ele-ments at issue. If no cases inter-pret the legislation, you should com-pile a legislative history. Many textson legal research will describe howto compile a legislative history.Check the card catalog in a law li-brary to find these sources.

Taking all pertinent case citations,locate and read each case. Nevercite a case that you have not readand analyzed. Finding administra-tive hearing decisions that may becited as precedent is more difficult.Check with the agency or an expert,experienced advocate in your officeor a state or national back-up cen-ter, to locate any decisions or inter-

pretative policy memos that theagency relies on.

If you have not located any casesthus far or to find more cases,shepardize the legislation and usecase digests. Shepardize all casesto make sure cases are good lawand to find other court opinionswhich have discussed the case.

A second strategy is to begin byexamining sources of legislation.This approach is useful when youare familiar with a legal area and youhave a citation to pertinent legisla-tion. After you have analyzed thelegislation, you then would read allpertinent cases as discussed in thefirst strategy. Finally, you mightcheck certain narrative sources tocollect primary authority, e.g.,looseleaf service or identify any re-cent trends in the law, e.g., legalperiodicals or treatises.

When you have a case that is di-rectly on point, you might follow thethird strategy which is to begin withthat case. You should use thismethod only if common law governsthe problem or you have alreadyanalyzed any governing legislation.As in the second strategy, you shouldcheck narrative sources, e.g., toidentify trends in case law.

%


SOME RESEARCH STRATEGIES

NARRATIVE SOURCES(Overview and Authority)

Legal Services Practice Manuals Clearinghouse Review

START Encyclopedias Legal Periodicals Hornbooks Treatises Looseleaf Services

Go To

LEGISLATION(Read and Analyze)

Annotated Codes/Pocket Parts CFR/Federal Register

START State Administrative Codes/Manuals Ordinances and Codes Court Rules

Go To

CASES(Read and Analyze)

Case Reports START Advance Sheets

Administrative Hearing Decisions

Go To Go To

DIGESTS SHEPARD’S(To find similar cases) (To Update Cases)

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Whatever your research startingpoint, you will use legal indexes andtables of content to gain access tothe information in most legal resourcematerials. Legal research expertshave devised systematic ways forbreaking a problem into words andphrases that are looked up in tablesand indexes. Perhaps the most thor-ough is William Statsky’s cartwheelapproach1 discussed below.

Suppose your problem involves awedding. Using the descriptive wordindex and table of contents in anylaw book, you look up “wedding”.Suppose you don’t find “wedding”in either an index or table or its ref-erences don’t lead to relevant ma-terial. Using the CARTWHEEL,you think of as many differentphrasings and contexts of the word“wedding” as possible.

1.Identify all the majorwords from the facts of theclient’s problem. Most ofthese facts can be obtainedfrom the intake memorandumwritten following the initialinterview with the client.Place each word orsmall set of words in thecenter of the CARTWHEEL.

2.In the index and table of contents, look up all of these words.

3.Identify the broader categories of these major

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weddingantonyms synonyms

broaderwords

closelyrelatedwordsagencies

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words.

4.In the index and table of contents, look up all of these broader categories.

5.Identify the narrower categories of these words.

6.In the index and table of contents, look up all of these narrower categories. 7.Identify all of the synonyms of these words.

8.In the index and table of contents, look up all of these synonyms.

9.Identify all of the antonyms of these words.

10.In the index and table of contents, look up all of these antonyms.

11.Identify all closely related words.

12.In the index and table ofcontents, look up all of theseclosely related words.

13.Identify all proceduralterms related to these words.14.In the index and table ofcontents, look up all of theseprocedural terms.

15. Identify all agencies, ifany, which might have someconnection to these words.

16.In the index and table ofcontents, look up all of theseagencies.

17.Identify all long shots.

18.In the index and table ofcontents, look up all of these long shots.

If we were to apply these eighteen

steps of the CARTWHEEL to theword “wedding,” here are some ofthe words and phrases that wouldbe checked in the index and table ofcontents of every law book that youexamine:

BROADER WORDS: celebration,ceremony, rite, ritual, formality, fes-tivity, etc.

NARROWER WORDS: civil wed-ding, church wedding, golden wed-ding, proxy wedding, sham wedding,shot-gun marriage, etc.

SYNONYMS: marriage, nuptial,etc.

ANTONYMS: Alienation, annul-ment, divorce, separation, etc.

CLOSELY RELATED WORDS:matrimony, marital, domestic, hus-band, wife, bride, anniversary, cus-tom, children, blood test, pre-mari-tal, spouse, relationship, family, homeconsummation, cohabitation, sexualrelations, betrothal, minister, wed-lock, oath, contract, name change,domicile, residence, etc.

PROCEDURAL TERMS: action,suit, statute of limitations, liability,court, complaint, discovery, defense,petition, jurisdiction, etc.

AGENCIES: Bureau of Vital Sta-tistics, County Clerk, License Bu-reau, Secretary of State, Justice ofthe Peace, etc.

LONG SHOTS: dowry, commonlaw, single, blood relationship, fraud,religion, license, illegitimate, remar-riage, antenuptial, alimony, bigamy,pregnancy, gifts, chastity, communityproperty, impotence, incest, virgin-ity, support, custody, consent,paternity, etc.

Developing a research strategy notonly involves where to begin, but

when to stop. How do you knowwhether you’ve found everythingyou should? Rest assured that nobells will ring. Although experiencehelps, you’ll never be sure you’vefound everything. To help minimizethis anxiety, at the point when youthink you should stop:

1.Make sure the law you cite is valid;always shepardize.

2.Look at the authority youhave cited with the criticaleye of an opponent, a supervisor or teacher. Areyour interpretations of thelaw supportable? Have youquoted accurately? Did youomit important law thatshould have been mentioned?

Being reasonably certain aboutwhere to start and end research doesno good if you don’t have access toproper research materials. A majordifficulty that many legal servicesadvocates face in doing research isfinding a comprehensive law library.Your office library may be insuffi-cient. Sometimes you’ll have to useinvestigation and advocacy skills andingenuity to locate and get accessto a decent library. Fellow legal ser-vices workers, advocates in privatepractice, judges, friends, businessacquaintances, and legislators aresome of the people that might helpyou in this task.

Some places you might check are:law and paralegal schools, state andcounty libraries, court libraries, pri-vate law firms, bar association librar-ies, administrative agencies, otherpublic interest law firms and librar-ies of corporations or associations,e.g., insurance companies, unions.Some of these sources may evenallow you access to Lexis andWestlaw.

Finally, here are some guidelines to


keep in mind when you do legal re-search.

1.Enjoy it. Legal research isexciting and challenging, likehunting for treasure orsolving a mystery.

2.Thrive on the law’sambiguity. The library is nota repository of answers, buta storehouse of ambiguitieswaiting to be clarified andmanipulated on behalf of aclient.

3.Be patient. Research can be frustrating; the frustration becomes more manageable with practice.

4.Be curious andadventuresome. Figure outhow to use law books you’venever used before. Not onlyare there plenty of “how to dolegal research” books, butmany research tools contain asection entitled “How to UseThis Book.”

5.Be flexible. Sometimesyou don’t know what you’relooking for until you find it.Be receptive to differentperceptions or approaches toa problem that are revealedduring research.6.Ask questions. Almosteveryone who does research --colleagues, lawyers, paralegal, librarians—is willing toshare research techniques orapproaches to a problem inhis or her substantive area ofexpertise. Get to know thepeople in the national andstate support centers.

7.Read and analyze everycase and piece of legislationyou cite. Always look forcase law which interprets thelegislation that governs your

problem.

8.Update all law you rely on.Outdated law is bad law, worsethan no law at all.

9.Use the authority that will best persuade the decisionmaker to decide in your client’s favor.

10.Practice. Practice.Practice. Like other skills,research is only learned anddeveloped through practice.Since knowing the law equalsan ability to find it, researchskills are among the mostimportant advocacy skills todevelop.

SummaryThis chapter has presented somebasic information that will help youanalyze and research the law inthe process of solving clientproblems. We pointed out that inorder to analyze the law, you mustbe able to find it, and to select thepertinent law, you must be able toanalyze it.

We discussed how legislation andcase law are created, the primarysources where they can be found,and their relationship to oneanother. We emphasized thatanalyzing enacted law involvesanalyzing either case law thatinterprets it or its legislativehistory. We also described thehierarchy of authority, emphasizingthe importance of supporting yourclient’s position with the authoritythat is most persuasive to thedecisionmaker in a case.

Finally, we described some basicstrategies in researching the lawand how to overcome suchproblems as when to stop re-searching and finding an adequatelaw library.

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ASSIGNMENT

1.True/False Courts make law.

2.True/False Most bills intro-duced into the legislature becomelaw.

3.True/False Appellate courtsusually do not hear evidence.

4.True/False The federaldistrict court exercisesappellate jurisdiction overappeals from many federaladministrative agencies.

5.True/False Most trial courtswrite opinions.

6.In arguing to a judge about themeaning of enacted law, it wouldbe important to cite the following:a) its legislative historyb) its plain meaningc) court opinions that interpreted itd) what the advocate thinkse) all but (d)

7.True/False A state court coulddeclare a person bankrupt.

8.True/False Almost every casecan be appealed to the U.S.Supreme Court.

9.In a case of first impression, where there is nogoverning legislation or court


c) an on point decision from aCalifornia intermediate appellatecourt

d) a) and c)

e) all of the above

16.The federal district courtsitting in the eastern districtof California must follow theon point decisions of the:(check all that apply)a) U.S. Supreme Courtb) the DC Circuitc) the southern district of Califor-niad) the 9th Circuite) none of the above

17.True/False A Florida onpoint supreme court decisioncould be persuasive authorityto a Oklahoma court.

18.True/False An Ohiocourt opinion interpreting astatute with identicalwording to a Nebraskastatute could be persuasiveauthority to a Nebraskacourt.

19.True/False Legislation is superior to court decisions.

20.True/False Advocatesin an administrative hearingbrief should try to find courtopinions which support theirinterpretation of agencyregulations.

1 Statsky, William P., Introduc-tion to Paralegalism, Perspectives,Problems and Skills, West Publish-ing, Second Edition, pp. 495 - 498.

decisions which haveconsidered the circumstancespresented in the case, thecourt will consider publicpolicy questions and rely on:

a) social utilityb) ethicsc) generalstandards of justiced) customse) business practicesf) all of the above

10. In deciding a dispute the courtwill first:a) Determine whether legislationgoverns the disputeb) Consider what would be thebest public policyc) Look for cases that had similarfactsd) a) and c)e) all of the above

11.True/False A court candetermine a statute to be invalid.

12.True/False Courts often rulelaws unconstitutional.

13.In attacking anadministrative agencyregulation, advocates canargue that the regulation is:a) inconsistent with a state lawb) inconsistent with a federal lawc) unconstitutionale) a) and c)f) all of the above

14.True/False Mostadministrative agencyhearing decisions are subjectto judicial review.

15.If you are arguing an unemployment insurancecase in California, the bestauthority to cite would be:a) an on point decision from theCalifornia Supreme Court

b) an on point decision from theAlabama Supreme Court

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