Teaching Legal Research

Barbara Bintliff, Duncan Alford

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781317986720
• Edition: 1
• Topic: Education
• Subtopic: Education General

Legal research is a fundamental skill for all law students and attorneys. Regardless of practice area or work venue, knowledge of the sources and processes of legal research underpins the legal professional's work. Academic law librarians, as research experts, are uniquely qualified to teach legal research. Whether participating in the mandatory, first-year law school curriculum or offering advanced or specialized legal research instruction, law librarians have the up-to-date knowledge, the broad view of the field, and the expertise to provide the best legal research instruction possible.

This collection offers both theoretical and practical guidance on legal research education from the perspectives of the law librarian. Containing well-reasoned, analytical articles on the topic, the volume explains and supports the law librarian's role in legal research instruction. The contributors to this book, all experts in teaching legal research, challenge academic law librarians to seize their instructional role in the legal academy.

This book was based on a special issue of Legal Reference Services Quarterly.

Best Practices: What First-Year Law Students Should Learn in a Legal Research Class

NANCY P. JOHNSON

Georgia State University College of Law Library, Atlanta, Georgia, USA

Legal research instructors seldom have adequate class time to teach students the print and online sources needed to complete a research task successfully. However, there are core principles that first-year students should learn in a legal research class. The author discusses best practices in teaching the legal research process, along with the important research sources, including judicial opinions and reporters, digests and finding cases, statutes, administrative publications, citators for updating research, and secondary sources.

Introduction

During the past twenty-five years, I have taught legal research to first-year law (1L) students in a law school whose curriculum includes legal research and legal writing as two distinct courses. In reviewing the classes taught between 1982 and 2007, I noted that the topics I teach have remained the same; however, the format of the materials available to students has changed drastically.¹ Currently, students implement research strategies using a combination of print and electronic resources.² In light of this, and from my assessment of topics, I realize that there are definitely core principles that first-year students should learn in a legal research class regardless of the research format they use. This article discusses these essential core principles and includes the main points that I emphasize in my classes.

Librarians and attorneys lament the poor research skills of new attorneys.³ The need for improved legal research skills prompted the American Association of Law Libraries (AALL) to explore what it can do to foster and support legal research as a subject specialty in law schools and in practice.⁴ In 2008, Thomson West conducted a survey of law firm librarians and attorneys on the skill levels of new associates in completing legal research tasks.⁵ The findings are no surprise to legal research professors. However, it was refreshing to read about collaborative efforts by academic and law firm librarians on teaching summer associates effective research skills. It is also imperative that teaching librarians keep both their teaching skills and their legal research skills current by routinely reading several excellent journals designed for legal research.⁶

The First-Year Legal Research Class at Georgia State University College of Law

At Georgia State University (GSU) College of Law, 1L students are required to take a two-semester first-year legal research course and a research, writing, and advocacy course (RWA). The legal research course is one-credit hour, pass/fail offered in the fall semester and includes twelve class sessions. Students must complete all assignments from a standard assignment book⁷ and pass an exam. The librarians use The West Educational Network (TWEN) for class materials, and there is not a textbook. We refer students to several excellent legal research textbooks;⁸ unfortunately, students do not usually read the texts. In addition to readings and assignments, we assign appropriate legal research Computer Assisted Legal-Instruction (CALI) lessons.⁹ Students find CALI lessons helpful on a weekly basis and as a review for the exam. At GSU, students generally enjoy the class. Since they receive weekly feedback on their assignments, they can chart their progress. Although it is pass/fail, not all students pass the class; hence, students tend to take the class seriously.

During the semester, we cover the core principles discussed in this article. We instruct the students on what they need to know to excel in their writing class, plus other materials, such as Georgia legal research and administrative legal research, which they may use in their summer jobs. We do not teach citation format in class; however, we request that students use proper citation format to complete their assignments. We also do not touch on international law and other very important topics.

The five librarians who teach the class start at different places in the materials to avoid a large number of students hovering over the same books. Therefore, we begin the semester studying either cases, statutes, or secondary materials. Since the material is new to the students, they have not expressed a preference as to the learning order of the material. During the semester, we discuss the most efficient way to begin a research project, but the order of teaching the material has never been a factor on how students learn the materials.

We realize that we cannot expect students to just stumble on indexes to multi-volume treatises or know how to locate cases that have interpreted statutes without an instructor mentioning these tools in class. We discuss the process of legal research and research strategies and discuss how the materials connect to each other. However, all legal research professors face the challenge of students who have neither the experience nor the vocabulary to understand the process of legal research. Furthermore, we have one hour each week for twelve weeks to teach students not only the process of legal research but also the materials needed to conduct legal research. In other words, our students learn basic legal research, and these basic skills will improve with practice during law school and in their professional positions.

Legal Research Process—Best Practices

Nationwide, legal research professors teach the legal research process in their own unique ways.¹⁰ The most effective way we have found is an integration of electronic and print sources.¹¹ Students may feel that this method is more time consuming, but using both types of sources allows for more effective, efficient research. It also prepares students for all types of legal careers where the availability of legal sources will vary depending on the type and size of the practice or workplace.

Obviously, students first have to analyze their facts. Next, students have to determine whether their issue is state law, federal law, or both. Students should also think about other classifications applicable to the facts, such as civil or criminal, or procedural or substantive. These issues become easier to grasp as students move through the first year.

Many professors strongly recommend that students use secondary sources first to understand the subject area, identify issues and terms, and obtain citations for primary sources. Students are already familiar with texts from their undergraduate days and feel more comfortable in secondary sources than they do diving into statutes or digests. Secondary sources will also help students identify whether statutory or case law is the basis for their issues. Since it is important for students to learn the vocabulary of their research projects, they should begin with secondary sources. From these sources, they will generate a list of research terms. From the research terms, they can then move to either statutes or cases. At this point, students will be tempted to jump on the Internet and Google the search terms. Hopefully, students will soon learn that legal research involves types of materials found more easily through law-specific databases. It is difficult to convey to new students the necessity of evaluating what they find online. However, professors should help students distinguish material found on Wikipedia or other Internet sources from material found on reliable legal databases.¹²

Next, students have to read the entire text of primary law. Attorneys complain that students rely on headnotes or summaries and miss important parts of the entire case. Of course, students must make sure cases are still good law and that statutes are current. In practice, lawyers stop their research when they run out of time and when the cost exceeds the benefit. In law school, students stop their research when their assignment is due. Students should feel comfortable to stop researching when they use both secondary and primary resources and locate the same authorities in both.

For students to relate to legal research, they must know how and when to use the materials. It is very important that students know why they would want to update a code section, use an American Law Reports (ALR) annotation, or find an administrative regulation. One way to teach the material is to use a few real-life plausible research issues throughout the semester. By relating the material to their writing problem or some current cases, students can see the utility of learning new research skills.

The topic of print versus online materials is a battle no longer worth fighting.¹³ There are effective materials in both print and online. When discussing the various research tools, professors must point out the differences between print and online and then urge students to decide the best medium. If professors have adequate time, they could ask students to analyze both methods and come to their own conclusions on which method works best for their research projects.

Case Law Research

All 1L students grasp the concept of case law within a few weeks of law school; however, reading and understanding the meaning of cases is very difficult for new students. Students soon learn that case law research refers to opinions written by judges, usually on the appellate level, which resolve litigated disputes. Judges base their reasoning on statutes or previously decided cases. In their 1L research class, students should gain an understanding of a generic court system, the doctrine of precedent, the parts of an opinion, how to read a case citation, and the names of the reporters.

It is easiest to explain court hierarchy using a generic model. Students should refer to Table T.1 of The Bluebook¹⁴ for specific court hierarchy. Professors can use this opportunity to explain that The Bluebook is a useful tool for not only learning about citation format but also for learning about the federal and state court systems. Court systems have one or two tiers of appellate courts. The judges of the intermediate court, typically called the court of appeals, review trial courts’ handling of cases for reversible errors. The justices of the highest court, typically called the supreme court, conduct a secondary review for errors by focusing primarily on the development of the legal doctrine. Typically, appeal to the intermediate court is a right, while the Supreme Court affords discretionary review.

Most case reporters only publish appellate court cases—courts of appeal and supreme court cases. Simply stated, the trial court provides a forum for presentation of the facts to a jury or judge, determination of the facts in dispute, and application of the law to the facts to yield an initial resolution of the dispute. A party that loses in the trial court may appeal. Students become frustrated when they discover that they cannot locate most materials from trial courts. In fact, most trial-level cases are not reported, and a written opinion is often unavailable.

The federal court hierarchy is easy to understand on a very basic level. Typically, civil procedure courses will explain court structure in detail. The federal trial courts are the United States District Courts. Each state has one to four district courts, each covering part or all of the state. The intermediate appellate courts are the United States Courts of Appeal. There are eleven numbered circuits, each covering several states, and the District of Columbia Circuit and the Federal Circuit. The United States Supreme Court hears cases on discretionary review from the lower federal courts (the federal courts of appeal and the federal district courts) or judgments of state courts of last resort that deal with questions of federal law. Specialized trial and appeal courts exist in such areas as bankruptcy.

Precedent and Authority

Past decisions in appellate cases are predictors of what the courts are likely to do in future cases given a similar set of facts. Students should understand two basic principles when they read cases. One is precedent, and the other is authority. Precedent is an earlier case that is relevant to a case to be decided. If there is nothing to distinguish the circumstances of the current case from the already decided one, the earlier holding is considered binding on the court. Authority can be either mandatory or persuasive. Mandatory authority is law that is binding on the court deciding the case. A case is only a precedent as to a particular set of facts and the precise legal issue decided in light of those facts. If the case is not a precedent, but contains an excellent analysis of the legal issues and provides guidance for a court, it is a persuasive authority. Such issues as precedent and authority are explored in writing courses that cover case analysis. Legal research classes never have adequate time to cover how cases apply to individual issues, whereas legal writing and analysis classes describe these concepts.¹⁵

Sources for Case Law Research

Students read cases online on LexisNexis, Westlaw, or free online sources. Students no longer mob the stacks for volumes of case reporters. However, students must know how to locate cases in the print sources called case reporters so they are prepared for any kind of research environment. The cases are generally published chronologically as they are decided. Repo...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Abstracts
• Notes on Contributors
• Introduction
• Setting the Stage
• Legal Research Theory
• Best Practices in Teaching Legal Research
• Assessment and Technique
• Certification and Bar Exam Teaching
• Index