NALYSIS, R AND WRITING - · PDF fileSUMMARY OF KEY CONCEPTS Section 1.Legal Analysis Legal analysis is the link between legal research and legal writing. Legal research is the foundation

SUMMARY OF KEY CONCEPTS

Section 1. Legal AnalysisLegal analysis is the link between legal researchand legal writing. Legal research is the foundationfor sound legal analysis. Paralegals engage in legalresearch to:

• answer specific questions;

• find legal principles and authorities that canaffect the client’s interests; and,

• provide guidance for the client to deal withsome situation in a lawful and beneficialmanner.

To be successful in legal research, one must un-derstand her objective. When the legal assistanttakes on a new research assignment, it is custom-ary for the attorney to brief her on the circum-stance and purpose, so that her research can be fo-cused and effective.

When the legal assistant understands the con-text for the research assignment, the next step is todefine the issues. In Chapter 8, a hypothetical situ-ation is used to demonstrate this process. Becausea client’s property has been flooded by runoff fromup-slope development, the attorney wants to knowif the county government has any liability for ap-proving the development without improving thedrainage and storm drain systems. One issue is the

possibility of treating the county’s inadequatestorm drain systems as a public or private nui-sance. Obviously, the legal assistant will have tounderstand the concept of “nuisance” and its pri-vate and public variations. It will be necessary todetermine whether a local government is exemptfrom nuisance liability, either by statute or underthe common law. Although the attorney has notasked the legal assistant to research issues of dam-ages, she should be alert for case law which mightsupport the recovery of damages for emotionaldistress, in case that issue arises later.

When researching these issues, the paralegalwill be using various sources of legal authority. It isessential to understand their differences and howthey can govern or influence the outcome of any le-gal controversy. Primary sources always state thelaw, and are either constitutional, statutory, regula-tory or case law. Primary sources for Texas law aremandatory authority for the courts of Texas—thosecourts are bound to follow and apply them. Thecourts of other states may consider Texas primarysources as persuasive, but they are bound only bythe primary sources of their own states. Thus, pri-mary sources can be mandatory or persuasive, de-pending upon the jurisdiction of that law.

The courts of each state are the final authorityon the law of that state. Even the U.S. SupremeCourt considers itself bound by the decisions ofstate courts on the law of their respective jurisdic-

LEGAL ANALYSIS, RESEARCH,AND WRITING

8 C H A P T E R

tions. Within each state, of course, it is the court oflast resort that has the final word on the meaningand application of that state’s laws.

In special circumstances, a court of one statewill treat the primary sources of another state asthough they were mandatory authority. The mostcommon example arises under contract law. Manycontracts identify the state whose laws are to gov-ern that contract. If a contract states that New Yorklaw is to govern that contract, then Texas courts willapply New York’s primary sources when interpret-ing or enforcing that contract. It is not that a con-tract can change a court’s source for mandatory au-thority—rather, it is the parties to that contract whohave chosen the authority that will govern it.

Secondary sources are very different from pri-mary sources. While primary sources state the law,and are created by government, secondarysources tell us about the law. Secondary sourcescan be created by anyone who is able to get his le-gal theories into print. Examples of secondarysources include legal encyclopedias, legal trea-tises, law review articles, and other publications.Secondary sources are never mandatory for anycourt, and succeed in being persuasive only if theyhave gained some recognition among jurists or le-gal scholars. Since they are not mandatory, a courtmay consider or ignore any secondary source.

To summarize, the only mandatory authorityfor any court is the primary sources of that juris-diction. The primary sources of other jurisdictions,and all secondary sources, are only persuasive au-thority, at best—to be considered or ignored, at thecourt’s own discretion. With primary sources, then,the critical issue is one of jurisdiction.

While Texas courts are not bound by the pri-mary sources of other states, like the courts of allstates, they are bound by the Supreme Law of theLand (i.e., federal law). So primary sources for fed-eral law—the U.S. Constitution, federal statutes,treaties, and regulations—are mandatory author-ity in all state and federal courts. This becomes sig-nificant, however, only when a question of federallaw arises (e.g., when a state law is challenged asviolating the Fourteenth Amendment).

In legal research, the legal assistant should al-ways cite mandatory authority whenever it can befound. Persuasive authority should be cited onlywhen:

• mandatory authority cannot be found;

• mandatory authority is unfavorable to theclient’s position; or,

• persuasive authority clarifies the applicationof mandatory authority.

The second of these circumstances must be ap-proached with care. The researcher must not ig-nore unfavorable mandatory authority, which al-ways must be brought to the attorney’s attention.Favorable persuasive authority also should be re-ported, if it is favorable to the client’s situation. Inmany situations, the mandatory authority isstrictly case law, which the appellate courts maydecide to change.

It may sound contradictory to state that thecourts might change “mandatory” authority, butcase law is mandatory only for the lower courts ofthat jurisdiction. An appellate court that has cre-ated case law may always modify it at a later time.When that happens, the new rule then becomesmandatory for the lower courts of that jurisdiction.

Occasionally, it is difficult to locate case lawwhich governs a novel legal issue. It might be thatit is an issue of first impression in that jurisdiction.In other words, no court of that jurisdiction hasruled on the issue. When this occurs, persuasiveauthority from other jurisdictions becomes veryimportant. The courts of some jurisdictions areconsidered to be particularly influential as persua-sive authority—for example, Delaware for corpo-rate law, Texas and California for tort law.

One approach to legal analysis is called theIRAC method, which most attorneys learn in lawschool. IRAC stands for:

• Issue

• Rule

• Application

• Conclusion

This method ensures that the researcher ap-proaches the problem in a systematic and produc-tive manner. It breaks the analytical process intofour basic steps:

• defining the Issue;

• locating the Rule;

• Applying that rule; and,

• stating the Conclusion.

Sometimes, the rule can be found in a statute. Morefrequently, however, one must search for it in caselaw. Although a single case might state the govern-ing rule, often it is necessary to fashion a “new” rulebased upon the legal principles that apply to similar(though not identical) circumstances.

Cases which confront the legal issue in questionare said to be “on point.” But usually those caseshave significant differences in their factual circum-stance. The legal issue in question might be slightly

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different from the issue at stake in the client’s case,but the legal issue must be close enough to have rel-evance to the client’s case. When a case confrontsthe identical legal issue and is substantially similar inall material facts, it is said to be a case “on all fours.”It is not unusual to find cases that raise the identicallegal issue, but it is unusual to find a case that alsohas substantially similar material facts. The over-whelming portion of legal research relies upon caseswhich are on point, but not on all fours.

To make cases with factual differences rele-vant to the client’s situation, one must apply logi-cal methods, such as analogy. Analogy is a methodfor applying legal principles to different but similarfactual situations. Analogy relies upon identifyingthe similarities between two different situations,and then resolving the new situation by applyingthe legal principle which was used in the earliercase. Obviously, the factual similarities must lendthemselves to application of the same principle,otherwise, analogy will not work.

When the majority opinion is unfavorable tothe position of the client, it is especially importantto read carefully any dissenting opinion. Althoughthe majority opinion (i.e., the court’s opinion) isthe only opinion that may be relied upon as aprecedent, concurring and dissenting opinions areoften helpful in understanding the legal issues atstake. Sometimes, the factual differences in theclient’s case can be distinguished from those in thecourt’s opinion, which creates a basis for arguingthat the same legal principle should not govern inthe client’s case. As legal thought changes over thedecades, a view set forth in an earlier dissentingopinion might be adopted as the modern rule—ashappens when an appellate court overrules an ear-lier decision by that same court.

Section 2. Legal ResearchFor the less experienced, finding a starting pointfor legal research can be intimidating. Often, the at-torney will suggest a statute or court case as astarting point. If the attorney and paralegal do notknow of an appropriate statute or case, the parale-gal should begin with secondary sources:

• digests;

• treatises; and,

• legal encyclopedias.

When using such secondary sources, it is helpfulto have several “key terms” in mind. The most use-ful key terms are known as legal “terms of art,”which have well-defined meanings and are fre-

quently used in court decisions. Negligence, fraud,strict liability and malpractice are examples ofterms of art. These terms will appear in indexes totreatises and legal encyclopedias, and digests areorganized by topics identified by such terms.

The statutes of most jurisdictions are organ-ized into “codes” that include the laws on a giventopic, such as motor vehicles or education. If thelegal assistant does not have a citation to a specificcode section, the key terms can be used in search-ing the topical index that accompanies most statu-tory codes. When using indexes, the skilled re-searcher will try various alternatives until he findsthe reference he seeks. If looking for the statutoryduties of public school teachers, one might need tolook under headings such as “school,” “teachers,”and “public schools.”

The official state codes provide the literal lan-guage of the statute, and little else. Much more use-ful for the researcher is the annotated code. Fol-lowing each statute in an annotated code, theresearcher will find brief paragraphs which sum-marize court decisions interpreting or applyingthat code section. By reviewing those summaries,the legal assistant can identify court opinions ofpossible value for further research. There alsomight be authoritative commentary on the legisla-tive intent for that section.

Court opinions are found in case reporters,bound volumes containing the published opinionsof a court, or of a number of courts. For example,the United States Reports is the official reporter foropinions of the U.S. Supreme Court. Those sameopinions appear in unofficial reporters like West’sSupreme Court Reporter. The unofficial reporterscontain every word of the Supreme Court opinions.However, they also contain editorial commentarynot found in the official reporter. State court opin-ions are similarly published in official and unofficialreporters. West publishes the National Reporter Sys-tem of seven regional reporters, reporters for thefederal courts, and separate state reporters for thecourts of California, Illinois, and New York. Mostsecondary sources (such as treatises and encyclo-pedias) print a list of reporter abbreviations in thefront matter of each volume. From that list the legalassistant can determine that “P.2d” refers to West’sPacific Reporter, Second Series, or that “LE2d”stands for United States Supreme Court Reports,Lawyers’ Edition, Second Series.

A major challenge of legal research is locatingcase law that addresses the legal issue at hand. Di-gests are designed to help the researcher do ex-actly that. A digest is a multi-volume publicationthat groups cases by topic (i.e., by the legal issuesdecided in those cases). Thus, cases on negligence

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law will be in one volume, and cases on breach ofcontract will be in another. Within those volumes,these topics are further subdivided to facilitate lo-cating cases on the “duty of care” under negligencelaw, or “specific performance” under contract law.Each court opinion (on specific performance, forexample) will be summarized in a brief paragraph,followed by a citation to that case. These sum-maries are very similar to the case annotationsfound in an annotated code of statutes.

When using a digest published by West, eachtopic is identified by a Key Number that West hasassigned. The identical Key Numbers appear inother West publications. Thus, a legal assistantcan identify the Key Number for an issue and thenuse it to locate case summaries and citations inother West publications. If the Key Number is notknown, the legal assistant can find his issue in a di-gest by using the “descriptive word index” vol-umes that accompany the digest.

When reading a court opinion, the legal assis-tant must be careful to distinguish the court’s ac-tual opinion from the preceding editorial commen-tary. That commentary appears in a summary (orsyllabus) and in numbered headnotes. The sum-mary and headnotes are not written by the court,and have no official standing whatsoever. Theymust never be quoted or relied upon as authority.The summary and headnotes are prepared by at-torneys who work for the publishing company, orby the reporter of decisions (in an official re-porter). Even in the latter case, however, they haveno legal authority.

The summary is provided to permit the readerto quickly determine if the case appears relevantto his research. If it is, the researcher will then readthe court’s opinion (which follows the headnotes).The headnotes identify each legal issue that thecourt has decided in that case. There is a separateheadnote for each issue. The headnote numbersappear in the body of the court’s opinion as a con-venience for the researcher. If headnote 7 ad-dresses the legal issue of concern, the researchercan go directly to that portion of the opinion by lo-cating the number “[7]” (within brackets and inbold print) within the opinion.

Having found and studied a court opinion onpoint, the researcher has just begun his task. Vir-tually all court opinions cite legal authority to sup-port their own legal conclusions. Most often, thosecitations are to prior case law, although statutesand other legal authorities are commonly cited, aswell. To fully understand a pivotal case, the legalassistant will read also the key precedents cited inthat opinion, and he will locate later cases on thesame issue and read those opinions as well. Finally,

he will have to use a case citator, such as Shepard’sCitations, to verify that any cases relied upon arestill good law.

The “paper chase” is the process of followingclues found in annotated codes, digests, courtopinions, and other sources until the researcherhas found the legal authority that resolves the is-sue at hand. If the authority cannot be found in pri-mary sources, secondary sources must be used. Attimes, the courts rely upon secondary sourceswhen they cannot find primary source authority.

When a court explicitly adopts a legal principlefound in a secondary source, that declares theprinciple to be the common law of that jurisdic-tion. That court opinion then becomes primarysource authority for that principle. When courtsmust rely upon secondary sources, most oftenthey cite a treatise. Over time, particular treatiseshave gained a reputation for their scholarly foun-dation and have become highly persuasive sec-ondary sources.

When leads are found to a very large number ofcases, the paralegal must prioritize them in somefashion so that she can efficiently use her time andlocate the more important precedents among them.Generally speaking, the following criteria can beused (in descending order of importance):

• cases within the jurisdiction;

• decisions by the higher appellate courts; and,

• more recent cases.

So, the most recent opinion by the supreme courtof the state that has jurisdiction over the client’smatter should be read first. If, as often happens, itturns out not to be on point, the researcher worksher way down the list of other appellate opinionsfrom that state. Finally, one must understand thata recent case from the supreme court of a differentjurisdiction has less value than an older case froma mid-level appellate court of the client’s state. Inlegal authority, jurisdiction always trumps both re-cency and appellate level.

When valuable cases have been found, the le-gal assistant must verify that they have not beenreversed or overruled. This is done using a case ci-tator, such as Shepard’s Citations or West’s KeyCite.A case is overruled when the same court adopts acontrary rule of law in a later case, and is reversedwhen a higher court holds that a lower court’s rul-ing was in error. Appellate courts commonly re-verse lower court decisions, but do not often over-rule their own prior holdings.

A second reason for using a case citator is tolocate other cases that discuss the same legalissues. Citators will identify later opinions that

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discuss the issue in headnote 5, for example. Usingheadnote numbers with case citators is a key partof the paper chase. Citators also identify legal pe-riodicals which mention the case in question, andthose articles are often a treasure trove of analysisand case citations.

If the citator reveals that an important casehas been reversed or overruled, that usuallymeans:

• The case may not be relied upon asprecedent; and,

• The case may not be cited as authority for thelegal principles stated in that opinion.

However, many cases decide multiple issues, and areversal on one holding might not affect the court’sholdings on other issues in that case. To be certainabout the opinion’s status as precedent, the re-searcher needs to read the later case in which itwas reversed. This is why one sometimes encoun-ters the statement “reversed on other grounds”when a case has been cited as valid authority in alater court opinion.

Section 3. Legal WritingThe most prevalent problem in legal writing is notthe use of legal jargon, but a disregard for the ordi-nary rules of good writing. Most obscure and inef-fective legal writing results from:

• poor organization;

• excessive use of the passive voice;

• unnecessary and ineffective compoundsentences;

• verbiage; and,

• inadequate editing and revision.

Of course, the unnecessary use of legal jargonwould only make the result worse.

The beginning of good organization is knowingthe purpose for writing. Is it to inform or to per-suade? Is the intended audience the court, an at-torney, the client, or some other party? Once theobjective is clear, the next step is the opening. Injournalism, the opening is the headline or title ofthe article. In legal writing, it might be the headingfor a section within a pleading, or the openingparagraph of a memorandum. The opening shouldhook the reader’s interest and communicate thepurpose of the document.

Paragraph by paragraph, the document shouldlead the reader through a logical development ofthe content. Except for unfamiliar legal concepts(e.g., “strict products liability”), any educated

layperson should be able to understand and followthe general concepts without any prior knowledge.For clarity, the writer should:

• use active language (not passive);

• control sentence and paragraph length;

• use paragraph breaks as markers for contentdevelopment;

• use concise language; and,

• revise and edit several times.

These guidelines apply to all types of writing: legalmemoranda, client correspondence, contracts,and pleadings.

Pleadings are the fundamental documents filedwith the court in a lawsuit or other court proceed-ings. Pleadings contain the parties’ allegations offacts and any legal claims or defenses. However, incommon usage, “pleading” is often applied to anydocument filed with the court for the purpose of in-fluencing the court’s management of the case orthe ultimate outcome of the litigation.

The format and content of pleadings are deter-mined by statute and/or court rules. For example,a complaint must always allege facts which givethe court jurisdiction over the defendant and thesubject matter of the lawsuit. A particular cause ofaction (e.g., breach of contract) requires allega-tions to support that cause of action. A new legalassistant should begin to accumulate a form file(or pleading notebook) with copies of documentswhich have been filed with the courts. These canserve as exemplars for future pleadings, motions,etc., which the legal assistant will be called upon todraft. These exemplars can be maintained on acomputer if they are organized by the type of doc-ument so that they are easy to locate.

Legal assistants and associate attorneys aresometimes called upon to “brief” a case. A casebrief is a summary of that court opinion which canbe quickly read and understood by an attorneywho has not already read that case. A legal assis-tant can brief a case more effectively if he under-stands the facts and legal issues in the client’s le-gal matter. A case brief usually includes thefollowing sections:

• factual background;

• procedural history (if provided in the court’sopinion);

• legal issue(s);

• holding of the lower court (if stated in theappellate opinion);

• holding of the appellate court; and,

• reasoning of the appellate court.


The factual background helps the attorney to com-pare the case to the facts of the client’s legal matter.The reasoning of the court helps the attorney to un-derstand why the appellate court reached the con-clusion it did. Since the holding itself has been sum-marized in the prior section, this latter section mustsummarize the court’s legal analysis which causedit to reach that holding. Inexperienced legal assis-tants tend to include more factual background thannecessary in their case briefs, and to shortchangethe final section on the court’s reasoning.

While a case brief summarizes only a singlecase, a memorandum of law brings into one docu-ment the holdings of various appellate court deci-sions. A memorandum of law is needed when thepertinent legal principles cannot be found within asingle case. Memoranda are used as internal docu-ments that never leave the office, or they are pro-vided to clients. The memorandum of law is in-tended to analyze a situation with objectivity—it isnot intended to persuade. Consequently, it includesboth favorable and unfavorable legal authorities. Acommon format for the memorandum is:

• summary of facts;

• legal question(s) presented;

• brief answer(s);

• legal analysis; and,

• conclusion(s).

The legal analysis is often written in the style ofan appellate court opinion. Statutes, cases, andsecondary authorities are cited. The conclusionwill state in summary form the result of the legalanalysis.

Memoranda of points and authorities are simi-lar to memoranda of law, but they differ in three im-portant ways:

• they are intended to persuade;

• they are not objective; and

• they are intended for an audience outside ofthe law firm (e.g., the court).

Partisanship is the distinguishing characteristic ofmemoranda of points and authorities. Trial briefsand appellate briefs are examples of memoranda ofpoints and authorities. The points are legal propo-sitions (arguments), and the authorities are cita-tions to primary and secondary sources whichsupport those propositions.

A good portion of legal writing aims to persuade.Of course, it isn’t always possible to succeed be-cause some things are beyond the writer’s control.One cannot change the facts of the client’s case, nor

erase the personal biases of judges, but the follow-ing guidelines are helpful for persuasive writing:

• Write clearly and concisely.

• Start with a statement or position agreeableto the reader.

• Soften any bold statements that are likely toarouse an unfriendly bias.

• Lead the reader gently and methodicallytoward the desired conclusion.

• Anticipate objections and refute them withoutantagonizing the reader.

• Quote authority the reader cannot ignore.

• Avoid any hint of arrogance, condescension,or antagonism.

• Remember that the reader should feel goodabout adopting the client’s position.

The legal assistant must cite legal authorities inboth types of memoranda. The court rules of mostjurisdictions follow the format prescribed in TheBluebook: A Uniform System of Citation, publishedby the Harvard Law Review Association. Althoughits rules can appear daunting to the neophyte, mostof these rules are never needed for the typical mem-orandum of law or points and authorities.

REVIEW QUESTIONS1. A primary source is a statement __________

the law. A secondary source is a statement__________ the law.

2. Primary sources are mandatory authoritywhen they state the law of that __________.Primary sources from a different jurisdictionare only __________ authority.

3. The law of __________ is the law governingcivil wrongs that injure another person (e.g.,fraud, slander, negligence, assault, etc.).

4. The IRAC method of legal research stands for __________, __________, __________, and__________.

5. A court may __________ its records to preventanyone from examining them without priorcourt permission.

6. Using the logical process of __________ weapply the same legal principle to different,but similar, fact situations.

7. When an appellate court justice differs fromthe majority on which legal principle shouldbe applied to a given case, she might write a __________ opinion.

STUDY GUIDE � 191

8. At times, it appears that an earlier precedentshould govern the case before the court. But ifthe court determines that factual differencescall for a different legal result, it is said to__________ the case at bar from that earlierprecedent.

9. A statutory __________ is a collection ofstatutes organized by topic.

10. In a statute, an enumerated __________ is adiscrete provision, of one or moreparagraphs, which is to be read andinterpreted as a whole.

11. Published court opinions are found in case__________, which are bound volumescontaining the opinions of one or more courts.

12. The official publication for U.S. Supreme Courtdecisions is the United States __________.

13. Regardless of which reporter one is using toresearch U.S. Supreme Court cases, only the__________ reporter should be cited to thecourts.

14. The decisions of the federal District Courtsare published in the Federal __________.Decisions of the federal Courts of Appeals arepublished in the Federal __________.

15. Regional reporters for the courts of all 50states are published by West as part of the __________ System.

16. A __________ contains brief summaries ofcourt decisions, organized by topic.

17. The text of published court opinions arepreceded by an unofficial __________ of thecase, and by numbered __________ thatsummarize the court’s holding on discretelegal issues. Neither of these may be quotedor cited as legal authority.

18. At the very end of an appellate opinion, thecourt states its __________ of that case.

19. When a court explicitly adopts a legalprinciple found in a secondary source, iteffectively declares that principle to be partof the __________ law of that jurisdiction.Thereafter, that case may be cited as a__________ source for that legal principle.

20. When a very large number of cases have beenidentified for review on a specific legal issue,the legal assistant should prioritize themaccording to the following criteria (indescending order of importance):

1) cases from the client’s __________;

2) cases from the __________ appellatecourts; and,

3) the more __________ cases.

21. A case is __________ when the same courtadopts a contrary rule of law in a later case.

22. A case is __________ when a(n)__________court holds that the lower court’s ruling wasin error.

23. A __________ provides citations tosubsequent cases or publications which havecited or ruled upon the case in question.

24. Shepardizing is not complete until all current__________ have been checked.

25. “Constructive fraud” and “private nuisance”are examples of legal __________ of art.

26. A complaint must allege facts that give thecourt __________ over the defendant and thesubject matter of the lawsuit. To avoiddismissal, the complaint must also allegefacts that establish a valid _______________ ofaction.

27. A memorandum of __________ is an objectiveevaluation of a legal situation, and is usedwithin the law office. A memorandum of__________ is a partisan discussion whichadvocates the client’s interests.

28. The court rules of most jurisdictions requirethe citation format prescribed in The__________: A Uniform System of Citation.

KEY TERMSannotated code

Your “best effort” definition:

Your revised definition:

case of first impression



case brief



dictum




headnote



key number



mandatory authority



memorandum of points and authorities



memorandum of law



on point



on all fours



overrule



parallel citation



persuasive authority



pleading



pocket part



primary source



secondary source



stare decisis



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WORKING ON-LINEGo to the terrific Web site, “Barger on Legal Writ-ing,” which Professor C. M. Barger (University ofArkansas, Little Rock) maintains for law schoolstudents:

http://www.ualr.edu/~cmbarger

Follow the link for “One-L Help” [One-L � 1st yearlaw student] and explore the pages and links under“Class Preparation.” Try an interactive tutorial onbriefing cases or using the IRAC approach for legalresearch. For a treasure trove of research tips,scroll down to “De-Mystify the Tools of Legal Re-search.”

ETHICAL CHALLENGEIt is not unusual for paralegal students to studytogether and to collaborate in working throughtheir homework assignments. Experienced teach-ers appreciate this cooperation because theyknow that students often learn as much from eachother as they do from the instructor. Of course,this “cooperation” should not include copyinghomework or otherwise avoiding the learning ex-periences an assignment is intended to provide.Student-to-student collaboration works bestwhen it helps one another to discover the path-ways to success.

However, collaboration can also reveal the un-ethical conduct of an errant classmate. How wouldyou handle the following situation?

Your instructor has given a fairly simple re-search assignment. You and your classmates areto select a statutory section from the state penalcode and read several of the cases found in thefollowing annotations. You are then to write asummary of how those court decisions inter-preted or applied that statute. As usual, yourgroup of “regulars” are seated at a table in thecounty law library on Saturday morning, workingon the week’s assignment. Each of you has se-lected a different statutory provision, but you aresharing questions, comments, and ideas abouthow to complete the assignment. Gradually, youbecome aware that major portions of a class-mate’s paper appear to be copied word-for-wordfrom the court opinions, without attribution orquotation marks.

The situation makes you uncomfortable be-cause the instructor has insisted that all quota-tions be clearly indicated. He also has made it clearthat he considers anything less to be plagiarism.Finally, to sink his point home, the instructor has

said that there is no place for unethical paralegalsin the practice of law.

How should you handle this situation?

ETHICAL ANALYSIS“There is no place for unethical paralegals in thepractice of law.” It’s pretty difficult to argue withthat proposition. But what does that suggest yourown ethical obligation to be in this situation?

The instructor is absolutely correct in sayingthat it is plagiarism to use another’s words asthough they are your own. It is also lazy, and itavoids the skill development that comes from par-aphrasing the court opinions in one’s own words. Inyour own mind, you also realize that you would becommitting a fraud upon the instructor if you sub-mitted plagiarized text as though it were your own.

Several issues arise here:

1. While it “appears” that your classmate iscommitting plagiarism, are you absolutelypositive?

2. If it does prove to be plagiarism, do you havean ethical obligation to report that offense toyour instructor?

3. Would it be possible to convince theclassmate to eliminate any plagiarism fromthe paper she ultimately submits?

4. Do you have an ethical obligation to “police”the ranks of prospective paralegals andensure that the unethical candidates arediscovered and dropped?

If there is no plagiarism, there is no apparentethical problem. But, is it any of your businesseven to inquire or investigate that question? If youranswer to questions 2 and 4, above, are “Yes,” thenyou might have an ethical obligation to determinewhether plagiarism is occurring. It certainly wouldbe unethical to make unfounded accusations. So, ifyou believe you have an ethical obligation underquestions 2 and 4, you need to explore the issue ofplagiarism. If you believe that you do not have anyobligations under those questions, you could ig-nore the situation.

Whatever your belief about reporting cheaters—and without trying to confirm whether plagiarismis actually taking place or not—you could initiate adiscussion among your regulars about the issue. Aquestion such as, “Why does the instructor makesuch a big deal about us copying from the courtopinions?” should generate some useful discussion.If the consensus is that cheating is O.K., then yourgroup is in serious need of individual ethical self-evaluations, and one would wonder why they are in-


terested in becoming paralegals. If the opposite con-sensus occurs, then your classmate might feel de-terred from submitting a plagiarized paper.

There is more value in deterring or reforming anoffender than in catching them at the crime. If a re-port must be made, it might be best to suggestanonymously to the instructor that additional em-phasis be placed on plagiarism in a class discussion.

READING CASE LAWThe complete text of Olmstead v. United States, 277U.S. 438, 48 S.Ct. 564 (1928) is printed here. This isthe case excerpted in Chapter 8 to illustrate a vig-orous dissenting opinion that prophetically statedlegal principles the Court would adopt as the lawof the land many years later. The Olmstead courtsplit 5-4 on this decision.

The dissent by Justice Brandeis articulated a ra-tionale for excluding illegally obtained evidence.Read the majority and dissenting opinions in Olm-stead. Then, read the Supreme Court’s opinions inBerger v. New York, 388 U.S. 41 (1967), and Katz v.United States, 389 U.S. 347 (1967), the cases in whichthe Court overruled its earlier decision in Olmstead.What do you believe accounts for the Court’s sea-change in constitutional interpretation?

ANSWERS TO REVIEWQUESTIONS

1. A primary source is a statement of the law. Asecondary source is a statement about the law.

2. Primary sources are mandatory authoritywhen they state the law of that jurisdiction.Primary sources from a different jurisdictionare only persuasive authority.

3. The law of torts is the law governing civilwrongs that injure another person (e.g.,fraud, slander, negligence, assault, etc.).

4. The IRAC method of legal research stands forIssue, Rule, Application, and Conclusion.

5. A court may seal its records to preventanyone from examining them without priorcourt permission.

6. Using the logical process of analogy we applythe same legal principle to different, butsimilar, fact situations.

7. When an appellate court justice differs fromthe majority on which legal principle shouldbe applied to a given case, she might write adissenting opinion.

8. At times, it appears that an earlier precedentshould govern the case before the court. But

if the court determines that factualdifferences call for a different legal result, it issaid to distinguish the case at bar from thatearlier precedent.

9. A statutory code is a collection of statutesorganized by topic.

10. In a statute, an enumerated section is adiscrete provision, of one or moreparagraphs, which is to be read andinterpreted as a whole.

11. Published court opinions are found in casereporters, which are bound volumescontaining the opinions of one or morecourts.

12. The official publication for U.S. SupremeCourt decisions is the United States Reports.

13. Regardless of which reporter one is using toresearch U.S. Supreme Court cases, only theofficial reporter should be cited to the courts.

14. The decisions of the federal District Courtsare published in the Federal Supplement.Decisions of the federal Courts of Appeals arepublished in the Federal Reporter.

15. Regional reporters for the courts of all 50states are published by West as part of theNational Reporter System.

16. A digest contains brief summaries of courtdecisions, organized by topic.

17. The text of published court opinions arepreceded by an unofficial summary of thecase, and by numbered headnotes thatsummarize the court’s holding on discretelegal issues. Neither of these may be quotedor cited as legal authority.

18. At the very end of an appellate opinion, thecourt states its disposition of that case.

19. When a court explicitly adopts a legalprinciple found in a secondary source, iteffectively declares that principle to be partof the common law of that jurisdiction.Thereafter, that case may be cited as aprimary source for that legal principle.

20. When a very large number of cases have beenidentified for review on a specific legal issue,the legal assistant should prioritize themaccording to the following criteria (indescending order of importance):

1) cases from the client’s jurisdiction;

2) cases from the higher appellate courts;and,

3) the more recent cases.

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21. A case is overruled when the same courtadopts a contrary rule of law in a later case.

22. A case is reversed when a(n) appellate/highercourt holds that the lower court’s ruling wasin error.

23. A citator provides citations to subsequentcases or publications which have cited orruled upon the case in question.

24. Shepardizing is not complete until all currentsupplements have been checked.

25. “Constructive fraud” and “private nuisance”are examples of legal terms of art.

26. A complaint must allege facts that give thecourt jurisdiction over the defendant and thesubject matter of the lawsuit. To avoiddismissal, the complaint must also allegefacts that establish a valid cause of action.

27. A memorandum of law is an objectiveevaluation of a legal situation, and is usedwithin the law office. A memorandum ofpoints and authorities is a partisan discussionwhich advocates the client’s interests.

28. The court rules of most jurisdictions requirethe citation format prescribed in TheBluebook: A Uniform System of Citation.


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NALYSIS, R AND WRITING - · PDF fileSUMMARY OF KEY CONCEPTS Section 1.Legal Analysis Legal analysis is the link between legal research and legal writing. Legal research is the foundation