Foundations of legal research and writing 4th by m bast hawkins

Foundations of
Legal Research and Writing
Fourth Edition


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Foundations of
Legal Research and Writing
Fourth Edition

CAROL M. BAST
MARGIE HAWKINS

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Foundations of Legal Research and Writing,
Fourth Edition
Carol M. Bast and Margie Hawkins
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Contents in Brief

Preface

◆

xvii

Introduction

◆

xxiii

CHAPTER 1

Law and Sources of Law

CHAPTER 2

Legal Reasoning and Analysis

CHAPTER 3

Secondary Sources and Finding Tools

CHAPTER 4

The Judicial Branch and Cases

CHAPTER 5

Primary Sources: Constitutions, Statutes, Court Rules,
and Administrative Law ◆ 131

CHAPTER 6

Citators

CHAPTER 7

Overview of the Research Process
and Ethical Considerations ◆ 219

CHAPTER 8

Computer-Assisted Legal Research

CHAPTER 9

Introduction to Legal Writing

◆

◆

1
17

◆

◆

◆

43

99

189

CHAPTER 10 Fundamentals of Writing

◆

◆

◆

239

259

281

CHAPTER 11 Transmittal Letter, Client Opinion Letter,
and E-Mail Correspondence ◆ 293
CHAPTER 12 Pleadings

◆

309

CHAPTER 13 Law Office Memo

◆

329

CHAPTER 14 Memorandum of Law
CHAPTER 15 Appellate Brief

◆

◆

353

373

APPENDICES
APPENDIX A Search and Seizure

◆

399

APPENDIX B Locating and Citing to Cases

◆

401

APPENDIX C Rules for Quotations and Short-Form Citations
APPENDIX D Mechanical Errors
APPENDIX E Problems

◆

◆

◆

411

421

435
v


vi

CONTENTS IN BRIEF

APPENDIX F Internet Technology

◆

441

APPENDIX G Legal Research Starting Points and Web Search Tools
APPENDIX H Federal Law Web Resources

◆

State and Municipal Government Law Web Resources

APPENDIX J

International Law Web Resources

◆

◆

455

457

APPENDIX L Wiretapping Statutes

◆

559

APPENDIX M Background Information on Search and Seizure
Glossary
Index

◆

◆

575

587

447

451

APPENDIX I

APPENDIX K Cases

◆

◆

569

◆

453


Contents

Table of Cases
Preface

◆

◆

xv

xvii

Acknowledgments
About the Authors

Introduction

◆

◆

◆

xxi

xxii

xxiii

CHAPTER 1

Law and Sources of Law

1

Introduction ◆ 1
The American System of Law ◆ 1
Our Common Law Heritage ◆ 1
Civil Law ◆ 2
Federalism ◆ 3
The Supremacy Clause ◆ 6
Our Tripartite System ◆ 6
Interplay Among the Three Branches of Government
in Lawmaking ◆ 8

Interplay Between the Legislative and Judicial
Branches ◆ 8
The Chief Executive ◆ 9
The Judicial Branch ◆ 10
Administrative Agencies ◆ 11
Sources of Law ◆ 12
Primary Sources and Secondary Sources ◆ 13
Citation to Legal Sources ◆ 14
Legal Publishing ◆ 14
Summary ◆ 15
Key Terms ◆ 16
Exercises ◆ 16
Cyberlaw Exercises ◆ 16
Discussion Points ◆ 16

CHAPTER 2

Legal Reasoning and Analysis
Introduction ◆ 17
Doctrine of Stare Decisis ◆ 18
Roe v. Wade and the Doctrine of Stare Decisis

17

◆

19

Application of Roe v. Wade to a Later Case ◆ 19
At Least Two Sides to Every Problem ◆ 20

Judicial Opinions ◆ 22
Majority Opinion ◆ 22
Plurality Opinion ◆ 22
Concurring Opinion ◆ 22
Dissenting Opinion ◆ 23
Per Curiam Opinion ◆ 23
Court Membership ◆ 23
Mandatory and Persuasive Authority ◆ 24
Obiter Dictum ◆ 25
Judicial Restraint and Judicial Activism ◆ 26
Legal Analysis of Statutory Law ◆ 27
Legislative Intent ◆ 27
The Plain Meaning Rule ◆ 27
Limitations on the Plain Meaning Rule ◆ 28
Aids to Statutory Interpretation ◆ 29
Strict Construction ◆ 29
Legislative History ◆ 30
A Caveat on Statutory Interpretation ◆ 31
Legal Analysis of Constitutional Law ◆ 31
Originalism ◆ 32
Modernism ◆ 33
Historical and Contemporary Literalism ◆ 34
Democratic Reinforcement ◆ 35
The Interpretation Process ◆ 35
Reasoning by Analogy and Deductive
Reasoning ◆ 35
Jennifer Weiss Illustrative Fact Pattern ◆ 36
Legal Analysis ◆ 36
Deductive Reasoning ◆ 37
Reasoning by Analogy ◆ 38

Summary ◆ 40
Key Terms ◆ 40
Exercises ◆ 41
Cyberlaw Exercises ◆ 41
Discussion Points ◆ 42
vii


viii

CONTENTS

CHAPTER 3

Secondary Sources and Finding Tools

43

Introduction ◆ 43
Encyclopedias ◆ 43
Caveat on Use of Legal Encyclopedias ◆ 45
Excerpts from a Legal Encyclopedia ◆ 46
Use of Legal Encyclopedias ◆ 46
Citation to Legal Encyclopedias ◆ 54
American Law Reports ◆ 54
The Structure of an ALR Annotation ◆ 56
Use of American Law Reports ◆ 61
Citation to American Law Reports ◆ 61
Attorney General Opinions ◆ 62
Citations to Attorneys General Opinions ◆ 64

Restatements of the Law ◆ 64
Citations to Restatements ◆ 65
Treatises ◆ 65
Citation to a Treatise ◆ 67
Legal Dictionaries ◆ 67
Legal Directories ◆ 71
Formbooks ◆ 72
Looseleaf Services ◆ 72
Legal Periodicals ◆ 73
Law School Law Reviews ◆ 73
Bar Association Periodicals ◆ 73
Non-Student-Edited Journals ◆ 76
Legal Newspapers and Newsletters ◆ 76
Legal Periodical Indexes ◆ 76
Digests ◆ 76
West Key Number System ◆ 79
Relationship Between Digests and Reporters ◆ 79
Development of Digest Abstracts ◆ 79
Digest Page Format ◆ 85
Types of Digests ◆ 85
Finding Relevant Material in Digests ◆ 86
Using Digests to Find Cases ◆ 87
Tables of Cases, Defendant-Plaintiff Tables, and Words
and Phrases Index ◆ 88
Summary ◆ 88
Key Terms ◆ 89
Cyberlaw Exercises ◆ 89
Legal Research Assignment—Legal Encyclopedias ◆ 89
Legal Research Assignment—American Law Reports ◆ 91
Legal Research Assignment—Digests ◆ 94

Discussion Points ◆ 98

CHAPTER 4

The Judicial Branch and Cases
Introduction ◆ 99
The Judicial Branch ◆ 99
Jurisdiction ◆ 100

99

Trial Court ◆ 100
Appellate Court ◆ 102
Federal Courts ◆ 103
State Courts ◆ 105
Reading Cases ◆ 107
For Whom Are Judicial Opinions Written? ◆ 107
Attorneys and Judges Read Judicial Opinions ◆ 107
The Effect of Setting Precedent ◆ 108
The Format for a Reported Decision ◆ 108
Format Preceding the Opinion ◆ 108
The Citation ◆ 108
The Caption ◆ 108
The Syllabus ◆ 118
Headnotes ◆ 118
Authorship of the Opinion[s] and Attorneys
for the Parties ◆ 118
Format of the Opinion ◆ 119
The Facts ◆ 119
Procedure ◆ 119

The Issue ◆ 120
The Discussion ◆ 120
The Holding ◆ 120
Finding the Law ◆ 120
Evaluating Cases ◆ 121
Briefing a Case ◆ 122
Case Brief Format ◆ 123
Case Brief for Brendlin ◆ 124
Summary ◆ 125
Key Terms ◆ 125
Cyberlaw Exercises ◆ 126
Legal Research Assignment—Briefing Cases ◆ 126
Legal Research Assignment—Case Law ◆ 127
Discussion Points ◆ 129

CHAPTER 5

Primary Sources: Constitutions, Statutes,
Court Rules, and Administrative Law
Introduction ◆ 131
Constitutions ◆ 131
Locating Constitutions ◆ 132
Citations for Constitutions ◆ 133
Initiation of Constitutional Amendments ◆ 133
State Constitutionalism and the New Federalism
Statutes ◆ 134
The Legislative Branch ◆ 134
Congress ◆ 135
State Legislatures ◆ 138
Publication of Statutes ◆ 140

Slip Law ◆ 140
Session Laws ◆ 141

◆

131

134


CONTENTS
Statutory Code ◆ 142
Statutes Passed as an “Act” ◆ 143
Annotated Code ◆ 143
Statutory Research ◆ 144
Legislative History ◆ 145
Sample Pages of Wiretapping and Eavesdropping
Statutes ◆ 145
Sample Pages of Wiretapping and Eavesdropping
Statutes ◆ 147
Citations for Statutes ◆ 159
Local Law ◆ 160
Court Rules ◆ 160
Sample Page of Court Rules ◆ 161
Researching Court Rules ◆ 163
Locating Court Rules ◆ 163
Local Court Rules ◆ 164
Citations for Court Rules ◆ 164
Administrative Law ◆ 165
Publication of Administrative Regulations ◆ 166

Sample Pages of Administrative Law ◆ 166
Sample Pages of LSA and Federal Register ◆ 170
Citations for Administrative Law ◆ 170
Summary ◆ 180
Key Terms ◆ 180
Cyberlaw Exercises ◆ 181
Legal Research Assignment—Constitutions ◆ 181
Legal Research Assignment—Statutes ◆ 182
Legal Research Assignment—Court Rules ◆ 184
Legal Research Assignment—Administrative Law ◆ 186
Discussion Points ◆ 187

CHAPTER 6

Citators

189

Introduction ◆ 189
Note on Computer-Assisted Citators ◆ 189
Citators ◆ 190
Shepardizing Procedure ◆ 192
Getting Organized ◆ 192
Step One: Locate the Correct Set of Shepard’s and Be
Ready to Record the Results ◆ 192
Step Two: Determine which Shepard’s Volume to Use ◆ 194
Step Three: Check Each Shepard’s Volume Identified ◆ 194
Abbreviations ◆ 194
Shepardizing ◆ 198
Case Names Citator ◆ 202

Statutes ◆ 203
Shepardizing Statutes ◆ 203
Step One: Locate the Correct Set of Shepard’s and be
Ready to Record the Results ◆ 203
Step Two: Determine which Shepard’s Volumes
to Use ◆ 204

Step Three: Check Each Shepard’s Volume Identified
Keycite ◆ 207
Using Keycite for Cases ◆ 207
Using Keycite for Statutes ◆ 215
Summary ◆ 215
Key Terms ◆ 216
Cyberlaw Exercises ◆ 216
Legal Research Assignment—Citators ◆ 216
Discussion Points ◆ 218

ix
◆

204

CHAPTER 7

Overview of the Research Process and Ethical
219
Considerations
Introduction ◆ 219
George Peak Illustrative Fact Pattern ◆ 219
The Eight Steps of Legal Research ◆ 220

Preliminary Considerations ◆ 221
Getting Organized ◆ 221
Jurisdiction ◆ 224
Currency ◆ 224
Three Basic Approaches to Legal Research ◆ 224
Overview Approach: Learning about the General
Topic ◆ 224
Topic Approach: Learning about the General Topic ◆ 224
Known Primary Source Approach: Starting from
a Primary Source You Have ◆ 225
Step One: Gathering Information ◆ 225
Step Two: Identifying Key Terms ◆ 226
Identification of Key Terms: Parties, Places, Acts
or Omissions, Defense, and Relief ◆ 226
Identification of Key Terms: Things, Acts, Persons,
and Places ◆ 227
Parties or Persons ◆ 227
Place ◆ 227
Objects or Things ◆ 227
Acts or Omissions Forming the Basis of the Action
or Issue ◆ 227
Defense ◆ 227
Relief ◆ 227
Key Terms ◆ 227
Identification of Key Terms by Using Indexes
and Tables of Contents: The Cartwheel ◆ 228
Step Three: Learn More About the Area of Law You are
Researching through Second Authority ◆ 229
Step Four: Locating Primary Authority ◆ 230
Step Five: Locating Other Primary Authority ◆ 231

Step Six: Reviewing Found Sources and Updating ◆ 233
Step Seven: Deciding Whether You are Finished
with Your Research ◆ 234
Step Eight: Evaluate What You Have Found
and Determine the Answer to Your Research
Question ◆ 234


x

CONTENTS
Inadequate Legal Research As an Ethics Violation
Summary ◆ 236
Key Terms ◆ 237
Exercises ◆ 237
Cyberlaw Exercises ◆ 237
Discussion Points ◆ 238

◆

235

CHAPTER 8

Computer-Assisted Legal Research

239

Introduction ◆ 239
Calr: Pros and Cons ◆ 239

Electronic Information Formats ◆ 240
Commercial Online Subscription Databases ◆ 240
Computer Disks ◆ 241
The Internet ◆ 241
Copyright in a Digital Environment ◆ 241
Legal Research Databases ◆ 242
Lexisnexis ◆ 242
Westlaw ◆ 244
Public Records Databases ◆ 246
Accurint ◆ 247
Autotrack XP ◆ 247
Evaluative Guidelines for Internet Resources ◆ 247
Legal and Government Internet Research ◆ 249
Federal Law ◆ 249
State Law ◆ 249
Administrative Law ◆ 249
Government Agencies ◆ 250
Intellectual Property Law ◆ 250
International Law ◆ 251
Law Reviews, Journals, and Legal Periodicals ◆ 251
Legislative Information ◆ 252
Courts and Case Law ◆ 252
State Courts ◆ 253
Court Dockets and Case History ◆ 253
Summary ◆ 255
Key Terms ◆ 256
Exercises ◆ 257
Cyberlaw Exercises ◆ 257
Discussion Points ◆ 257

CHAPTER 10

Fundamentals of Writing

CHAPTER 9

Introduction to Legal Writing
Introduction ◆ 259
Importance of Good Legal Writing
to the Law ◆ 260
Writing as Communication ◆ 261
A Warning Against Communicating
too Much ◆ 262
Elimination of Mechanical Errors ◆ 262

Ethical Obligations ◆ 263
Competence in Writing ◆ 263
Confidential Information ◆ 266
Meritorious Claim ◆ 267
Candor Toward the Tribunal ◆ 267
Fairness to Opposing Party and Counsel ◆ 268
Impartiality and Decorum of the Tribunal ◆ 269
Truthfulness in Statements to Others ◆ 271
Respect for Rights of Third Persons ◆ 272
The Attorney’s Responsibility Regarding Non-Attorney
Assistants ◆ 272
Statements Concerning Judges ◆ 274
Attorney Misconduct ◆ 275
Types of Legal Writing ◆ 276
Legal Writing Designed to Inform ◆ 276

Legal Documents Designed to Persuade ◆ 277
Legal Documents Designed to Record
Information ◆ 278
Summary ◆ 279
Key Terms ◆ 279
Cyberlaw Exercises ◆ 280
Exercises ◆ 280
Discussion Points ◆ 280

259

Introduction ◆ 281
Writing Process ◆ 281
Prewriting ◆ 281
Writing ◆ 283
Overall Organization and Organization within
Sections ◆ 283
Organization of an Office Memo ◆ 283
Organization at the Paragraph Level ◆ 284
Word Order within Sentences ◆ 284
Transitional Language and Signposts ◆ 285
Paragraphing and Tabulation ◆ 286
Graphics ◆ 286
Mechanical Errors ◆ 287
Quoting from a Headnote or Case Syllabus ◆ 287
Not Using Plain English ◆ 287
Omitting a Page Reference to Material
from a Primary or Secondary Source ◆ 288
Not Quoting Exactly ◆ 288
Plagiarizing ◆ 288

Using Contractions in More Formal
Legal Documents ◆ 289
Use of the Word “I” in More Formal Legal
Documents ◆ 289
Elegant Variation ◆ 289

281


CONTENTS
Editing and Proofing ◆ 289
Summary ◆ 290
Key Terms ◆ 291
Cyberlaw Exercises ◆ 291
Exercises ◆ 291
Discussion Points ◆ 292

CHAPTER 11

Transmittal Letter, Client Opinion Letter,
and E-Mail Correspondence

293

Introduction ◆ 293
Purpose of the Transmittal Letter ◆ 293
Style of Letters ◆ 293
Purpose of the Client Opinion Letter ◆ 295
Format of the Client Opinion Letter ◆ 295
Heading ◆ 295

Opening ◆ 296
Facts ◆ 296
Answer ◆ 296
Explanation ◆ 296
Closing ◆ 296
Sample Client Opinion Letters ◆ 296
Introduction ◆ 296
Correspondence ◆ 300
Summary ◆ 306
Cyber Examples ◆ 307
Exercises ◆ 307
Writing Exercise ◆ 307
Discussion Points ◆ 307

Conclusions of Law ◆ 315
Drafting Allegations ◆ 315
First Sample Set of Pleadings ◆ 316
First Sample Complaint ◆ 316
First Sample Answer ◆ 320
Second Sample Set of Pleadings ◆ 321
Second Sample Complaint ◆ 321
Second Sample Answer ◆ 324
Summary ◆ 325
Key Terms ◆ 326
Cyberlaw Exercises ◆ 326
Cyber Examples ◆ 326
Discussion Points ◆ 327

CHAPTER 13

Law Office Memo

CHAPTER 12

Pleadings

xi

309

Introduction ◆ 309
Purpose and Use ◆ 309
Format ◆ 310
Court Rules ◆ 310
Forms ◆ 310
Format of the Complaint ◆ 311
Complaint—Caption, Title, and Introductory Clause ◆ 311
Complaint—Body ◆ 311
Complaint—Prayer for Relief ◆ 312
Complaint—Signature Block ◆ 312
Complaint—Verification ◆ 312
Format of the Answer ◆ 313
Answer—Caption, Title, and Introductory Clause ◆ 313
Answer—Defenses ◆ 313
Affirmative Defenses and Counterclaims ◆ 314
Certificate of Service ◆ 314
Evidentiary Facts, Ultimate Facts, and Legal
Conclusions ◆ 314
Evidentiary Facts ◆ 315
Ultimate Facts ◆ 315

329

Introduction ◆ 329
Purpose and Use ◆ 329
Style ◆ 330
Format ◆ 331
To and From ◆ 331
Re ◆ 331
Date ◆ 331
Facts ◆ 331
Issue(s) and Answer(s) ◆ 331
Issue ◆ 332
Answer ◆ 332
Reasoning ◆ 332
Conclusion ◆ 336
First Sample Office Memo ◆ 336
Second Sample Office Memo ◆ 343
Summary ◆ 350
Key Terms ◆ 351
Exercises ◆ 351
Cyber Examples ◆ 351
Discussion Points ◆ 351

CHAPTER 14

Memorandum of Law
Introduction ◆ 353
Purpose and Use ◆ 353
Style ◆ 354

Organization ◆ 355
Format ◆ 355
Caption ◆ 356
Questions Presented ◆ 356
Facts ◆ 356
Argument ◆ 356
Conclusion ◆ 357
First Sample Memorandum of Law ◆ 358
Second Sample Memorandum of Law ◆ 365
Summary ◆ 371

353


xii

CONTENTS
Exercises ◆ 371
Cyberlaw Exercises and Examples
Discussion Points ◆ 372

◆

APPENDIX C

371

Rules for Quotations and
Short-Form Citations

CHAPTER 15

Appellate Brief
Introduction ◆ 373
Purpose and Use ◆ 374
Format ◆ 375
Table of Contents ◆ 376
Table of Authorities ◆ 376
A Jurisdictional Statement ◆ 376
Statement of the Issues Presented for Review
Statement of the Case ◆ 376
Statement of the Facts ◆ 377
Summary of the Argument ◆ 377
Argument ◆ 377
Legal Conclusion ◆ 377
First Sample Appellate Brief ◆ 378
Table of Contents ◆ 379
Table of Authorities ◆ 380
Second Sample Appellate Brief ◆ 386
Table of Contents ◆ 387
Table of Authorities ◆ 389
Summary ◆ 396
Key Terms ◆ 396
Exercises ◆ 396
Cyberlaw Exercises ◆ 396
Discussion Points ◆ 397

373

◆

376

APPENDIX D

Mechanical Errors

421

Introduction ◆ 421
Excess Words ◆ 421
Suggested Answers ◆ 422
Use of Apostrophes ◆ 423
Sentence Fragments ◆ 425
Run-On Sentences ◆ 426
Parallel Construction ◆ 427
Antecedents ◆ 429
Active versus Passive Voice ◆ 430
Change in Tenses ◆ 432

APPENDIX E

Problems

APPENDIX A

Search and Seizure

411

Introduction ◆ 411
Quotations ◆ 411
Quote Accurately ◆ 412
Avoid Plagiarism ◆ 412
Types of Quotations ◆ 414
Rules for Block Quotations ◆ 414
Exercises on Quotations ◆ 417
Short-Form Citations ◆ 417
Short-Form Citations for Statutes ◆ 419
Exercises on Short-Form Citations ◆ 419

399

Introduction ◆ 399
Relevant Primary Sources ◆ 400
Research and Writing Exercises ◆ 400

435

Was Swimming Pool an Attractive
Nuisance? ◆ 435
Defamation ◆ 436
The Nightmare Property ◆ 437
I Wonder What Is in the Package ◆ 439

APPENDIX F
APPENDIX B

Locating and Citing to Cases
Location of Cases ◆ 401

Published and Unpublished Cases ◆ 403
Case Citations ◆ 403
Citation Manuals ◆ 404
Basic Citation Form ◆ 404
Subsequent History ◆ 406
Page Numbers ◆ 407
United States Supreme Court Cases ◆ 408
United States Court of Appeals Cases ◆ 409
United States District Court Cases ◆ 409
State Courts ◆ 409
Key Terms ◆ 410

401

Internet Technology
Introduction ◆ 441
Internet Protocols ◆ 441
Internet Domain Names ◆ 442
The Internet ◆ 442
World Wide Web ◆ 443
Electronic Mail ◆ 443
Discussion Groups and Listservs
Blogs ◆ 444
RSS Feeds ◆ 444
Intranets and Extranets ◆ 444
Intranets ◆ 444
Extranets ◆ 445
Key Terms ◆ 445

441

◆

443


CONTENTS

APPENDIX G

APPENDIX L

Legal Research Starting Points
and Web Search Tools

Wiretapping Statutes

Introduction

◆

APPENDIX M

447

Background Information on Search
and Seizure

Federal Law Web Resources
◆

451

451

APPENDIX I

State and Municipal Government Law Web
453
Resources
Introduction

◆

453

APPENDIX J

International Law Web Resources
Introduction

◆

455

455

Introduction ◆ 569
The Fourth Amendment ◆ 569
Probable Cause Defined ◆ 570

Searches and Seizures ◆ 570
The Warrant Requirement ◆ 570
Exceptions to the Search Warrant Requirement
Consent Searches ◆ 570
Motor Vehicles ◆ 570
Stop and Frisk ◆ 571
The Exclusionary Rule ◆ 573
Fruit of the Poisonous Tree ◆ 573

Glossary
Index

APPENDIX K

Cases
Menu of Cases

559

447

APPENDIX H
Introduction

xiii

457
◆

457

◆

◆

575

587

569

◆

570


This page intentionally left blank


Table of Cases

Appendix K

Case

1

Balthazar v. Atlantic City Medical Center................................... 458

2

Bowles v. Russell............................................................................. 472

3

Bradshaw v. Unity Marine Corporation, Inc. .............................. 480

4

Duran v. St. Luke’s Hospital ......................................................... 483

5

Ernst Haas Studio, Inc. v. Palm Press, Inc................................... 486

6

In re Disciplinary Action against Hawkins................................. 489

7

Jungle Democracy v. USA Government ...................................... 491

8

Kentucky Bar Association v. Brown ............................................. 492

9

U.S. v. Le ......................................................................................... 494

10

In re McIntyre ................................................................................ 497

11

McBoyle v. United States .............................................................. 499

12

Miles v. City Council of Augusta, Georgia.................................. 501

13

State v. Nelson ................................................................................ 503

14

State v. Opperman ......................................................................... 505

15

Precision Specialty Metals, Inc. v. United States ........................ 507

16

In re S.C. ......................................................................................... 515

17

In re Shepperson ............................................................................ 532

18

Technology Solutions Company v. Northrop
Grumman Corporation ................................................................. 534

19

United Stars Industries, Inc. v. Plastech Engineered
Products, Inc................................................................................... 537

20

United States v. Vastola ................................................................. 541

21

Western Wisconsin Water, Inc. v. Quality
Beverages of Wisconsin, Inc.......................................................... 551

xv


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Preface

When I first started teaching legal research and legal writing, I found no single text in
either legal research or legal writing that had what I needed. I was looking for a text that
would contain:
a) a clear explanation of basic information; and
b) exercises to give the student the necessary practice in researching and writing.
The ideal text also would be “user-friendly” and readable while balancing the need
for detail. Visual tools such as charts, tables, and flowcharts could be used for information
that is hard to follow in narrative form. Sample pages from legal sources would be included
so the students could see the format of the particular legal source and the professor would
not have to supplement the text. Each chapter would cover only a manageable amount of
material for someone who has not been previously exposed to the law.
This book attempts to fill that need for the paralegal and legal studies student and professor. The objectives of the legal research portion of the book are to teach the student how:
1. to competently perform legal research in the law library and on the computer;
2. to use correct citation form; and
3. to understand the fundamentals of legal research.
The objectives of the legal writing portion of the book are:
1. to explain the fundamentals of legal analysis and writing;
2. to teach the student how to communicate clearly; and
3. to explain how to eliminate mechanical errors.

ORGANIZATION OF THE TEXT
The legal research portion of the book and Appendix B include sample pages of the legal
sources discussed in the text and contains basic citation rules and research exercises. To
facilitate the student’s participation, this portion emphasizes the process of finding and
using primary sources and gives the student “hands-on” experience through completing
legal research exercises. Chapters 1 and 2 give an important overview of the legal system
and legal reasoning. Chapters 3 through 6 introduce legal encyclopedias, digests, American
Law Reports, cases, constitutions, statutes, court rules, administrative law, and citators. The
chapters also contain lengthy research assignments, allowing the professor to assign certain of the exercises one term and a different set of exercises another term. Chapter 7 gives
an overview of the research process and explains how the various legal sources studied

relate to each other. Chapter 8 introduces computer-assisted legal research and explores
the Internet as a legal research tool.
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PREFACE

Primary and secondary sources are covered in separate chapters in the text. This
organization allows the professor the freedom to choose which type of source to cover first.
The chapter on secondary sources precedes the chapters on primary sources because many
legal research professors cover secondary sources before primary sources.
The sequence chosen for these chapters tracks the order in which a researcher who is
unfamiliar with a particular area of the law commences a research assignment. Unless the
legal researcher has somehow already found a primary source on point, the researcher will
most likely begin research by referring to a secondary source first.
The legal writing portion of the book explains how to write legal documents and
includes samples of various types of legal documents. Chapters 9 and 10 give an introduction to legal writing and legal writing fundamentals. Chapters 11 through 15 are each
devoted to a different type of legal document, starting with the transmittal letter and the
client opinion letter and continuing through pleadings and motions, the office memo, the
memorandum of law, and the appellate brief.
The various types of legal documents are explained in separate chapters, again to allow
the professor to choose which chapters are to be covered, time permitting. A professor who
does not usually cover a particular type of document may enjoy the challenge of teaching
something a little different. In addition, the book is a good reference for the student who is
asked later to write a type of legal document not studied in legal writing class.
The appendices contain additional material that could be profitably used in either
legal research or legal writing. They provide the student with an explanation of and
necessary practice in eliminating mechanical errors, quoting correctly, and writing shortand long-form citations correctly. The rules for quotations and short-form citations are

not covered in many other texts but are something the student should master. Appendix E
contains four fact patterns. These fact patterns can serve as the subject of a legal research
assignment, and then later, as the subject of a client opinion letter, office memo, memorandum of law, or appellate brief.
MAKING THE BOOK “USER FRIENDLY” BY INCLUDING A SEARCH
AND SEIZURE PROBLEM
A legal research and writing book could easily be the most boring textbook in the entire
bookstore. My challenge was to write a book that would spark student interest and involve
the student in the research and writing process. Students learn more if they are involved
in the course materials. I found that students are keenly interested in “search and seizure”
because the topic is easy to “picture” and understand. I decided to use the topic to make the
book student friendly.
The text entices the student to participate in the learning process by including interesting and relevant examples of primary sources and documents relating to the search
and seizure topic. The search and seizure materials are fairly easy to understand, contain
interesting and easy-to-grasp facts, and can be a basis for a number of class discussions.
References throughout the book to the search and seizure topic involve the students in
the course materials and provide continuity. The search and seizure topic also lends itself
to some great class discussions. By using this important topic, students will learn legal
research and writing and some substantive law at the same time. Where the search and
seizure topic is not used, other topics appear several times in the text and in the exercises.
Appendix A expands the student’s involvement with Jennifer, who was first introduced in Chapter 2. The United States Supreme Court case reproduced in Chapter 4, and
the eavesdropping statutes reproduced in Appendix L are suggested as primary authorities to use in answering the issues raised in Weiss. Information on search and seizure is
included in Appendix M. These materials can profitably be used when completing the
writing exercises found at the end of the appendix.


PREFACE

DECREASING PROFESSOR PREPARATION TIME
Legal research and legal writing are typically very time-consuming courses in a paralegal/
legal studies curriculum. Many professors shy away from teaching these courses because of

the time commitment. Just keeping up with grading assignments leaves very little time for
outside preparation of material.
The first few semesters I taught legal research and writing, I spent hours upon hours
preparing additional student-friendly materials to supplement commercial texts. I also
used several different texts and The Bluebook those first few semesters because I could not
find one text that contained all the information I wanted my students to know. From this
experience, I know that a “professor friendly” book would be self-contained and would
eliminate the need for a great deal of professor-prepared materials.
This book is designed to be the only one the student and the professor need for legal
research and legal writing. Basic citation rules are included, thus eliminating the need for
the Bluebook. However, some professors may require students to purchase a Bluebook for
reference. The citation rules are consistent with Bluebook form so that the advanced student
can later refer to the Bluebook when necessary. As explained, the legal research portion of
the book contains sample pages from the various authorities and research exercises. The
legal writing portion of the book contains sample documents, heavily footnoted to offer the
student guidance on the writing process.

KEY FEATURES OF FOUNDATIONS OF LEGAL RESEARCH AND WRITING
This book continues the features that have been well-received:
◆ the writing style is student-friendly;
◆ key terms are bolded on first use and defined in the margins;
◆ visual aids are included throughout the book;
◆ Chapters 1 through 7 contain a lengthy discussion of sources of law and law
library resources;
◆ Chapters 3 through 6 contain sample pages from law library resources;
◆ Chapter 2 provides a detailed explanation of legal analysis and legal reasoning;
◆ Chapter 6 contains a detailed explanation of the use of print Shepard’s;
◆ Chapter 8 provides a comprehensive, but not overly detailed, explanation of
computer-assisted research;
◆ Chapters 11 through 15 contain sample legal writing documents that are heavily

annotated by footnotes to provide writing assistance to students; and
◆ Each chapter includes cyberlaw exercises and references.

FEATURES NEW TO THIS EDITION
◆
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a new “Research Tip” feature highlighting procedure that students might
otherwise overlook;
new research exercises for legal encyclopedias, American Law Reports, digests,
case law, statutes, and citators;
a new “Legal Analysis Tip” feature highlighting information that students might
otherwise overlook;
a recent United States Supreme Court case in chapter 4;
the explanation of how to locate and cite to cases was moved from Chapter 4 to
Appendix B, thus making Chapter 4 a more palatable length for students and
allowing the instructor to cover case citation as a separate reading assignment;

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PREFACE
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examples from a variety of states other than the authors’ state, Florida;
discussion points to spark classroom discussion;
a new “You Be the Judge” feature that students can use to enhance their critical
thinking skills and the instructor can use to spark classroom discussion;
a new “Writing Tip” feature highlighting writing advice that might otherwise
overlook;
an expanded discussion of ethical obligations in writing legal documents with
examples from recent cases included in Chapter 9;
an expanded discussion of editing and proofing in Chapter 10;
a discussion of e-mail correspondence;
Appendix K contains the full text of cases referenced in You Be the Judge,
Research Tips, Legal Analysis Tips, and Writing Tips;
Appendix L contains the text of wiretapping statutes discussed in Chapter 5;
Appendix M contains background information on search and seizure; and
the chapter on writing contracts was moved from the book to the CD and the
Online Companion.

SUPPLEMENTAL TEACHING MATERIALS
Instructor’s Manual—An Instructor’s Manual and Test Bank by the
authors of the text accompanies this edition and has been greatly expanded to
incorporate all changes in the text and to provide comprehensive teaching support.

It includes the following:
1. Keys to research and writing exercises presented in the text
2. Teaching suggestions
3. Test bank and answer key
◆ Student CD-ROM—The new accompanying CD-ROM provides additional
material to help students master the important concepts in the course. This
CD-ROM includes the Chapter on Contracts.
◆ Spend Less Time Planning and More Time Teaching—With Delmar, Cengage
Learning’s Instructor Resources to Accompany Fundamentals of Legal Research and
Writing, preparing for class and evaluating students has never been easier!
This invaluable instructor CD-ROM allows you anywhere, anytime access to all of
your resources:
◆ The Instructor’s Manual contains various resources and answers for each chapter
of the book.
◆ The Computerized Testbank in ExamView makes generating tests and quizzes
a snap. With many questions and different styles to choose from, you can create
customized assessments for your students with the click of a button. Add your
own unique questions and print rationales for easy class preparation.
◆ Customizable PowerPoint® Presentations focus on key points for each chapter.
◆

®

PowerPoint is a registered trademark of the Microsoft Corporation.

All of these Instructor materials are also posted on our Web site, in the Online Resources
section.
◆ WebTutor™ on WebCT and BlackBoard—The WebTutor™ supplement
allows you, as the instructor, to take learning beyond the classroom. This

PREFACE

◆

◆

Online Courseware is designed to complement the text and benefit students
and instructors alike by helping to better manage your time, prepare for exams,
organize your notes, and more. WebTutor™ allows you to extend your reach
beyond the classroom.
Online Companion™—The Online Companion™ contains chapter summaries and cyberlaw exercises. The Online Companion™ can be found at www.
paralegal.delmar.cengage.com in the Online Companion™ section of the Web site.
Web page—Come visit our Web site at www.paralegal.delmar.cengage.com where
you will find valuable information such as hot links and and sample materials to
download, as well as other Delmar Cengage Learning products.

Please note that the Internet resources are of a time-sensitive nature. URL addresses may often
change or be deleted.

ACKNOWLEDGMENTS
I could not have written this book without the help of a number of people I would like
to acknowledge here. Some of them provided me with valuable ideas along the way, and
others gave me the emotional support I needed.
I would first like to recognize those people whose contribution was both informational and inspirational: my colleague, Dr. Ransford Pyle, now retired from the University
of Central Florida as Associate Professor Emeritus, and my former colleague, Dr. Daniel
Hall, Executive Director of the Hamilton Campus and Professor of Political Science
at Miami University. Dr. Pyle wrote portions of Chapters 2 and 4. Dr. Hall wrote portions
of Chapters 1, 2, 4, and 5.
Special thanks go to three important people in my life: my children, Christopher and

Kathryn Elizabeth, and my life partner, Ken Witte.
Carol M. Bast
I would like to thank my co-author, Carol Bast, for the opportunity to work together again
on this 4th revision of our collaboration.
Special thanks go to family and friends, the attorneys and paralegals in the Orlando
office of Holland & Knight LLP, and my fellow librarians at the law firm for their continued support and encouragement. Most importantly, I wish to thank my late father, Harry
Albright, for his never-ending love, support and frequent [constructive] criticism.
Margie A. Hawkins

REVIEWERS
Many thanks to the following reviewers for their suggestions:
Beverly Broman
Everest Institute
Pittsburgh, PA

David Movsesian
Maric College
Palm Springs, CA

Michele Bradford
Gadsden State Community College
Gadsden, AL

Linda Spagnola
Union County College
Cranford, NJ

Deb Keene
Lansing Community College
Lansing, MI

Derek Thomson
Bryant and Stratton College
Rochester, NY

Steven Kempisty
Bryant and Stratton College
Liverpool, NY

Stonewall Van Wie III
Del Mar College
Corpus Christi, TX

xxi


About the Authors

Carol M. Bast, J.D., is an Associate Professor in the Department of Criminal Justice and
Legal Studies at the University of Central Florida, Orlando, Florida. She earned a B.A. from
Kalamazoo College, an M.A. from the University of Wisconsin-Madison, and a J.D. from
New York Law School. Dr. Bast is a member of the Orange County Bar Association, The
Florida Bar, the American Society of Writers on Legal Subjects, the Legal Writing Institute,
the Academy of Legal Studies in Business, and the Southeastern Academy of Legal Studies
in Business. She has authored numerous articles on legal research and legal writing.
Margie A. Hawkins, M.L.I.S., is a Law Librarian in the Orlando office of Holland and
Knight LLP. She earned a B.A. in Legal Studies and a B.A. in History and Sociology
from the University of Central Florida, and a Masters Degree in Library and Information
Science from the University of South Florida. Ms. Hawkins is a member of the Florida and
Caribbean Chapter of the Special Libraries Association, the American Association of Law

Libraries (AALL), the Southeastern Chapter of AALL, and the Orange County (FL) Bar
Association. She is a former long-standing member of the Valencia Community College
Paralegal Program Advisory Committee.

xxii


Introduction

If you are just starting your study of law, you may be wondering what legal research and
legal writing have to do with law. After all, you do not see television and movie lawyers
performing legal research or writing legal documents. They are usually portrayed arguing
eloquently to the judge and jury. What television and movies do not show is all the legal
research and writing that took place before the lawyer entered the courtroom.
The job of the lawyer and those working with the lawyer is to competently deal with
the client’s problem. The client may need the lawyer to either help the client avoid a problem
or help the client solve a problem. A client may ask the lawyer to write a will or contract or
represent the client in a real estate closing. In these types of transactions, the lawyer helps
the client avoid problems by advising the client of the client’s rights and responsibilities, by
helping the client plan the best course of action, and by drafting any necessary legal documents. Where a problem exists, the client may ask the lawyer to file a lawsuit on the client’s
behalf or defend the client in a lawsuit. In dealing with a litigation matter, the lawyer advises
the client, drafts any necessary legal documents, and represents the client in court.
Legal research and writing are the basic skills necessary for avoiding and solving legal
problems. To deal with a problem, the lawyer first has to know the relevant law. Discovering
what the law is requires legal research. Inadequate knowledge of relevant law may cause the
client to lose money or lose a lawsuit. Once the lawyer knows the relevant law, the lawyer
avoids or solves problems by communicating—with the client, another lawyer, the court,
the jury, and others. Many times the communication is oral, but the lawyer often must
communicate using the lawyer’s legal writing skills.
Besides causing the client problems, inadequate legal research or mistakes in written

communication may cause the lawyer to be disciplined or disbarred because state lawyer
ethics rules also govern lawyer legal research and communication.
The provisions of a number of lawyer ethics rules are discussed in Chapters 7 and 9.
The attorney must perform legal tasks in a timely manner. The lawyer generally may not
reveal client confidential information. The lawyer has a duty to give the client honest
advice. The lawyer may not represent the client if the claim or defense is frivolous. The
lawyer must be truthful in dealing with the court and others and has a duty to explain the
law to the court. The lawyer must respect the legal rights of others and not cause undue
“embarrass[ment], delay or burden.” The lawyer must supervise nonlawyer assistants and
may be held responsible for the actions of the nonlawyer assistants. A lawyer may not
falsely attack the reputation of a judge, a juror, or a legal official. A lawyer may not engage
in conduct that violates an ethics rule or that is dishonest, fraudulent, or deceitful.
In today’s competitive legal job market, you need to know how to competently research
and write. Potential employers and colleagues are looking for someone who has these skills.
Once on the job, those you come in contact with will assume that you know how to perform
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INTRODUCTION

legal research and write legal documents. They may not have enough time to teach you
those skills if you do not already have them. You will have to work hard to build credibility.
You may easily lose this credibility if your colleagues sense you lack basic skills.
The legal researcher must find all law relevant to the legal question being researched,
must apply the law to the legal question, and must reach an answer. An answer to a legal
question is inadequate if it is not supported by legal principles, if it is not based on current
law, or if it is based on incomplete legal research. A lawyer’s competency is immediately in
question if the lawyer’s argument does not take into account recent changes in the law or

applicable legal principles.
The legal writer has the challenge of representing the best interests of the client while
often facing a hostile audience. A court document will be closely scrutinized by the judge
and opposing counsel. The details of a will are studied when the decedent’s estate is administered and may be challenged by relatives omitted from the will. The wording of a contract
will be analyzed as the contract is performed, especially if a problem arises. Drafting legal
documents is an important part of a lawyer’s role; the reader judges the competency of the
writer by the clarity and effectiveness of the legal document. Poor writing will deter and
prejudice the reader and may cause problems if the writing is misunderstood; poor writing may cause litigation; unclear writing obscures the message the writer is attempting to
communicate.
Legal research and legal writing are skills learned with practice. This book is written
to give you basic information on legal research and legal writing; it contains research and
writing exercises to help you learn how to perform legal research and write legal documents. The first half of the book describes basic legal research materials found in the law
library and online. You will be searching these materials to find relevant legal principles.
You will apply the legal principles you discover to answer legal research exercises. The second half of the book first helps you improve your basic writing skills by avoiding common
errors, writing in plain English, and organizing. The book then introduces the traditional
format of common legal documents—letters, office memos, pleadings, memoranda of law,
and appellate briefs.
Now that you know why legal research and legal writing are important to someone
dealing with the law, it is time for you to learn how to perform legal research and write legal
documents. If you would like to get a taste of legal research by reviewing legal ethics rules,
you may want to access <>.