CONDUCTING LEGAL RESEARCH

BY: Douglas J. Moditz, Appellate Practice Paralegal
On-Point Paralegal Services, LLC
Toll Free: (866) 330-7878

This document will explain some basic legal research procedures. It should be bore in mind that volumes are written on the topic of legal research and that this is only a concise Internet article. I will also provide an overview of the structure of the various state and federal court systems and describe the primary legal research sources (case reporters, statutory and regulatory compilations) where the law on a given topic may be found. This is written in layman’s terms.

I. Federal Courts.

The federal court system has three levels: the District Court, the Circuit Court of Appeals and the United States Supreme Court. The lowest tier of federal courts, where lawsuits are first brought and trials are held, is called the District Court. District Courts hear every type of federal case, whether civil or criminal in nature. There are usually several different District Courts for each state with each court serving a certain number of select counties each.

There are 13 different Circuit Courts of Appeal (the 1st-11th Circuits, plus D.C. and the Federal Circuit.) Most of the Circuit Courts review appeals from several different states. The Third Circuit Court of Appeals, for example, reviews federal appeals originating in trial courts in New Jersey, Pennsylvania, Delaware and the Guam and Virgin Islands. The Second Circuit Court of Appeals hears appeals from New York, Connecticut and Vermont.

On top of the federal pyramid is the United States Supreme Court. The United States Supreme Court hears appeals from the Circuits Courts, appeals brought directly from the highest courts of a given state if a federal issue is involved or sometimes directly from a District Court decision. The Court also occasionally acts as a trial court over certain constitutionally defined categories of cases, such as lawsuits between states or the impeachment of a president as we recently seen concerning former President William J. Clinton.

The United States Supreme Court is not obliged to entertain an appeal. Rather, litigants petition the court for “certiorari” where the Justices vote on whether or not to hear the case. Traditionally, a vote of 4 in favor is sufficient to qualify the case for a hearing. Certiorari is denied in most cases. A denial of certiorari has no precedential effect, and is not to be taken as a reliable indicator of the Court's views on the merit of the appeal. The Supreme Court serves as the final authority of law in the United States.

II. State Courts.

Most state courts are designed in the same manner as the federal system: a trial court, an intermediate appellate court and a court of final appeal (usually the "Supreme Court", although in some states such as New York, the “Supreme Court” is the trial court and the highest court is the Court of Appeals).

III. Understanding Court Reporters.

This chapter describes briefly how to do legal research to find a case if you have a cite for it, the functions served by the respective reporters and the format in which printed cases appear.

A. Federal; United States Reports (U.S.):
The official reporter for decisions of the U.S. Supreme Court is the U.S. Reports, designated as “U.S.” such as ____ U.S. _____ (2005). The actual opinion of the Court is preceded by a "syllabus," written by a Court employee, summarizing the issues decided. The Syllabus is not part of the opinion, and should be relied on only for a quick overview of the case. Citing a Syllabus is not the same as citing law.

B. Federal: Supreme Court Reporter (S. Ct.):
West Publishing Group is a private corporation that publishes legal research and reference materials. The West Publishing reporter for the Supreme Court is designated as “S. Ct”, such as _____ S. Ct. ____ (2005). Cases published in the S. Ct. introduce each case with a series of so-called "headnotes" that categorize major legal conclusions in the opinion for referencing purposes. This will be discussed in more detail below.

C. Federal: Lawyers Edition (L. Ed., L. Ed. 2d):
This is an alternative legal research collection of Supreme Court decisions from the private publisher, Lawyers Cooperative, that is rarely used. It is referred to as “L. Ed.”. I would not concern myself if I were you with this set of reporters. I have never seen a brief written that cites only to the Lawyer’s Edition reporters.

D. Federal Reporter (F., F.2d, F.3d):
These set of legal research reporters published by West Publishing cover decisions of the Circuit Courts of Appeal. Like all West reporters, these sets include headnotes before each case as a reference tool. This is the only set of reporters that publish Circuit Court opinions.

E. Federal Supplement (F. Supp.):
This is the primary West reporters reprinting decisions of the District Courts. Unlike F.2d/F.3d, which includes almost all Circuit Court decisions, the Federal Supplement represents only a fraction of the orders issued by federal trial courts. Instead of appearing in F. Supp., a decision may appear in one of two specialized reporters, Federal Rules Decisions (F.R.D.) or Bankruptcy Reporter (B.R.), if it relates to bankruptcy law or certain federal rules of court.

F. State Law Reporters.
Nearly every state has an official legal research reporter reprinting decisions of that state's highest court. This reporter invariably has as its title the name of the state (sometimes abbreviated), e.g., ____ N.J. _____, _____ Fla. _____, _____ N.Y. _____ and so on. Alaska and Wyoming no longer publish official reporters. The only printed resource for such cases is the West regional reporter.

In some states, the official legal research reporter also includes the decisions of lower appellate and trial courts, while other states publish one or more separate official reporters for these courts. New Jersey, for example, publishes its Supreme Court cases in the New Jersey Reporters (“N.J.”) and its trial and appellate opinions in the New Jersey Superior Court Reports (“N.J. Super.”). In New York, the current official reporters are N.Y.2d for the state’s highest court (the Court of Appeals), the “N.Y. A.D. 2d” for its Appellate Division cases and the “N.Y. Misc. 2d” for its trial court opinions.

West Publishing publishes various “regional reporters,” each collecting the combined case law of a region of the U.S. These are N.W.2d (Minnesota and Wisconsin region), N.E.2d (New York, Illinois, Ohio & parts of New England), A.2d (Atlantic coast), So.2d (South), S.E.2d (Southeast), S.W.2d (Texas, Arkansas, Kentucky, Tennessee), and P.2d (Pacific).

Take heed that what is true for the U.S. Supreme Court syllabus (not valid as law) may not be true for some of the state supreme courts. In Ohio, for example, the Supreme Court itself writes the syllabus, which is part of the official opinion (and binding as law). As can be determined at this point, legal research is a very involved process.

IV. Rules of Citation.

A. United States Code.

The basic structure of a federal statutory citation from the United States Code is _____ U.S.C. Sec. ______. A sample is 42 U.S.C. Sec. 1983. U.S.C." is United States Code, the official government codification of all U.S. statutes. U.S.C. is divided into roughly 50 different "titles", each with a name and number. This title number is used as the [volume] marker at the start of a citation. The “42” in the same provided above, for example, is Title 42 of the United States Code. The “1983” in the sample is the section of Title 42 that I am referring to.

Most people do research in U.S.C.A., which just means United States Code Annotated. The Annotated versions of the statutes have highly relevant notes (sometimes a hundred or more pages of notes) that pertain to the statute and how it has been applied and construed by the courts.

This annotation section after each statute generally begins with an alphabetical index of the topics covered by the cases. Each topic corresponds to a number, which tells you where to find case summaries ("squibs") on that topic. The alphabetical index is followed by groups of squibs under the numbered topic headings. Annotation topic number 1 is almost invariably either "Constitutionality" [i.e., of the statute] or "Generally" (collecting cases discussing the statute broadly).

There are two important things to keep in mind as you use U.S.C.A. First, U.S.C.A. does not list every case that has ever referred to the statute; it is only a selection, albeit usually a helpful one that includes most or all major decisions. Second, you should not rely on the case summaries as authority. Because the squibs occasionally misstate a court's holding, it is essential that you read the cases themselves.

As with other legal research tools, make certain to consult the pocket part when using U.S.C.A. so you don't overlook revisions to the statute or recent court decisions interpreting it.

(You may occasionally hear people refer to certain laws as "Title so-and-so", such as Title IX (barring sex discrimination in education), Title III (regulating wiretaps), and Title VII (barring race/sex-based employment discrimination). These are not titles of U.S.C.; rather, they refer to specific portions of particular Acts of Congress. Title III, for instance, is the third major section in the Omnibus Crime Control and Safe Streets Act of 1968.)

B. State Statutes.

State laws are not organized in a uniform manner. Every state is different with its statutes and is outside of the scope of this article for that reason. The citation for the State of New Jersey’s Statutes is N.J.S.A. (New Jersey Statues Annotated) and the Florida Statutes is “F.S.”.

V. Federal Practice Digest (FPD).

We use the Federal Practice Digest in conjunction with West Publishing’s “headnotes” that, as discussed above, precede just about all cases it the reports that it publishes. Its reporters include just about everything other than the United States Supreme Court Reports (“U.S.”) and the Lawyer’s Edition of the United States Supreme Court Reports (“L.Ed.2d”).

West has created a vast taxonomy of legal issues, referred to as the "West key number system". A West reference has the form

[subject] [key number]

where [subject] is a gross division like "Jurisdiction," "Venue," "Constitutional Law," or "Contracts." The key number, usually of the form xx, xx.yy, or sometimes xx.yy(nn), corresponds to a subdivision of the larger topic, such as "Freedom of speech: prior restraint" or "Anticipatory repudiation of contract." The volumes of F.P.D. are organized alphabetically by subject; a list of numbered subdivisions (with helpful short descriptions) appears at the start of each major subject entry.

In the volumes of FPD itself, West organizes the headnotes from every reported decision according to these systematic groupings. Thus, if your case has a headnote labeled "Perjury 36", you can open the FPD "Perjury" volume to section 36 and read a summary of similar decisions rendered in other courts. You can then locate the actual opinions that seem useful, read them, and make a note of any other key numbers in those cases that may be relevant. Repeat as necessary.

If you don't have a case to start from, you can use the F.P.D. subject index volumes (near the end of the set) to locate potentially useful key numbers.

A final word about the FPD series: There is more than one. Because courts are constantly churning out opinions, West creates a new set of FPD every 10-20 years. The current series, FPD 4th, covers cases starting around 1987; its predecessor, FPD 3d, covers the period
from 1975 to roughly 1987.

Note that West publishes the equivalent of FPD for state court decisions as well. For each of the West regional reporters described above, there is a corresponding Digest (e.g., Pacific Digest) containing summaries of decisions rendered in that region. Note especially that West's key numbering system is consistent, so a single topic/number combination corresponds to the same legal issue in FPD and all the regional (and state) digests.

VI. Shepard's Citations.

When you read a case, you'll generally see citations to numerous older cases. But how do you do legal research to find out if the case you're looking at has itself been cited in later decisions, or possibly reversed on appeal?

Shepard's citations is a multivolume, multiseries set of red legal research books whose sole purpose is to list every case that has ever cited any given case. The later sources listed in Shepard's include federal and state court decisions, law review articles, and ALR. For court decisions, Shepard's frequently indicates whether the later court agreed or disagreed with the reasoning or conclusion of the first case.

To do legal research using Shepard's ("Shepardize a case"), locate the volumes of Shepard's which cover the reporter in which your original case appears. For example, if you want to see which courts have cited 97 F. Supp. 186, go to the volumes of Shepard's which cover the range of F. Supp. that includes volume 797.

Once you have the volumes, open one to the page which specifically covers 797 F. Supp. Now scan down the listings until you locate the subheading "-- 186 --", which indicates the start of listings for the case beginning on that page (i.e., 797 F. Supp. 186). You'll see a listing that may look something like this:

-- 186 --
a981F2d227
2
800FS 512
q793FS22
...

The treatment codes indicate how the later court regarded the first court's reasoning. Common codes are a (affirmed by appeals court), q (questioned), o (overruled), and s (later decision in same case); a full list of the codes appears near the front of each hardback Shepard's volume. Thus, the first Shepard's entry above says that a Circuit Court of Appeals affirmed the lower court decision, and that affirmance appears at 981 F.2d 227. Likewise, the third entry indicates that another district court opinion questioned some portion of the first court's reasoning; its skepticism can be found at 793 F. Supp. 22.

The headnote field, often omitted, indicates which specific passage of the first case is being referred to. Shepard's uses the West headnote system for this purpose: the number shown corresponds to headnote N in the original case, which itself points to a particular passage in that case.

Thus, the second entry above tells us that on page 512 of 800 F. Supp., another district court cited case 1 for a proposition that is stated (or implied) in the text corresponding to note "[2]" in 797 F. Supp. 186.

VII. Controlling Law.

Different sources of legal research have varying degrees of persuasiveness, and certain kinds of beside-the-point remarks may have little weight, even in Supreme Court opinions. A spectrum of significant authority, from weightiest to least important, is as follows: court opinions; statutes and codified rules; regulations; model codes; scholarly treatises; survey works (e.g., CJS & Am. Jur.); and dictionaries.

Appellate court opinions carry more weight than lower court decisions; on questions of federal law, federal court cases carry more authority than state cases, and vice versa on questions of state law. Similarly, when a federal law and a state law conflict, the federal law controls (under the Constitution's Supremacy Clause).

An opinion is nothing more than a court's decision resolving a particular dispute between 2 (or more) parties on the basis of the specific facts presented. Accordingly, the most significant part (or parts) of an opinion are those where the court answers directly the questions placed before it. In Supreme Court opinions, the Court frequently identifies these questions early on with a phrase like "The question placed before us is whether or not . . . ."

Opinions often contain what are called "dicta," remarks or conclusions not necessary to deciding the case before the court. Dicta is anything said by the court in the opinion other what its actual decision is concerning the facts at hand. Opinions are dicta, analogies are dicta and the like. Dicta is not law and should be treated as such.

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