Why I Teach Legal Research

Last night I had dinner with some new friends and we were talking about the difference between being a lawyer on tv and being a lawyer in real life. One of my friends said, “Have you ever seen Boston Legal? It’s not really like that is it?” I have seen Boston Legal but I have never worked in a large law firm so although I suspect that no, it’s not really like that, I can’t say that from experience. I do know one thing though– lawyers on tv rarely spend their time researching, and if they do, they spend hours pouring over dusty, print case reporters (coffee and junk food are usually involved) then sometime around 3:00am pull a random book off the shelf and discover the answer they’ve been looking for. A colleague calls that the zen method of legal research. The researching until 3:00am part may happen in real life, but the randomly finding the answer part doesn’t. I was pleased to note on Boston Legal that the firm did have a library though from what I could tell, it was used mostly for extra-marital trysts during working hours. Still, there was the hint that somebody, some time went in there to research.

So that’s the hurdle I have to overcome with my students. Lawyers on tv don’t research and research doesn’t seem all that interesting. Most of them take my class because they have to; Legal Research is a required first semester course, and since I teach a section at 9:00am on Monday, it is literally the first class many of them take in law school. But they would rather be in torts, or better yet, criminal law or constitutional law– classes that they will use in their future law practice. Starting law school with legal research seems (to them) like starting with the proverbial whimper; there’s no bang there. Except that there is. I start the class telling them why I teach legal research (i.e., why they are taking legal research). Here is what I tell them.

1. Legal research is a foundation of legal practice. The full name of my course is Lawyering Fundamentals: Legal Research. The other fundamentals in the series are Legal Analysis, Legal Writing and Theory & Practice. Law school is long and it’s hard and there is a lot of reading, but when you graduate, you won’t know everything there is to know about the law. There is a lot more. And law is dynamic; it develops as society changes and law has to deal with new technologies and situations nobody ever thought of before (more about that later). Even if you do learn everything there is to know in law school, 5 or 10 years down the road, you won’t know everything anymore and you’re going to have to figure it out. Plus, it’s not enough to know the law– you also have to know how to be a lawyer. In real life, lawyers research and students need to learn the sources and methods that are specific to law.

2. Legal resources are unique. What is a Corups Juris Secundum anyway and what do you do with it? Even if you have other masters degrees or even PhDs and have spent years researching, you have probably not used legal resources unless you have worked in a law firm. Just as I don’t know the research methods my sister uses as a biologist, she doesn’t know what I do when I use when I need to figure out whether a new statute is constitutional or how a trafficking victim can apply for a U.S. visa. If you google a legal issue you will find something, but is it what you are looking for? Is it primary authority or secondary? Is it mandatory authority or persuasive? Is the case still good law? Why does any of that matter as long as it tells me what the law is?

3. Being able to find the law empowers you solve problems. Imagine two neighbors are fighting over a purple polka-dot fence; one thinks it’s a work of art, the other thinks it’s a nuisance. They’re so mad they are just about ready to shoot at each other. Imagine somebody working on their taxes asks you if all the food he bought for puppies he fostered for the animal shelter counts as a charitable donation. Imagine a local business wants to patent a new invention. Imagine a victim of human trafficking really does walk in to your office. Right now, you probably do not know the laws that apply to these problems. In fact, the day you encounter these problems you may not know the laws that apply to them. You will, however, know how to do the research to find those laws and figure out what you, as a lawyer, need to do next.

4. Legal research is intellectually challenging and interesting. Legal research is more than looking up a few facts, or even the wording of a statute or the court’s holding in a landmark case. Legal research is finding that holding, then questioning it in light of other holding you find, or figuring out how it applies to a problem you are trying to solve or the issue you have in front of you. Finding the facts and statutes and cases is important, but that is information gathering. Research is applying intellectual energy to the information you find and following the nuances. It’s easy enough to find the First Amendment and read that “Congress shall make no laws . . . abridging the freedom of speech” but digging deeper and figuring out how that applies to a state law banning picketing at funerals is more challenging. A good researcher finds a piece of information, asks “what if…,” goes looking for more information, then figures out how it all fits together– or doesn’t.

5. Researchers change law. This is where we come back to law being dynamic. Society changes; values change; people discover and learn new things and do new things. Law has to apply to all of this and sometimes, it has to change to keep up. At one time, segregation was legal in the United States. It was lawyers who had spent many, many hours researching, asking questions, following the details, and thinking about legal precedents in new ways– and judges who did the same– who are responsible for changing that law. The best 3:00am aha moments are not finding “the” case, they are realizing that if you think about all the cases you found, they lead you to a new argument for changing the law. Research is creative in the most fundamental sense of creativity– you are making something new out of what was there before.

Having said all that, there are days we are going to spend class time learning how to use a descriptive word index and where you put the comma (which isn’t italicized) in the citation to a case. I can’t claim those particular tasks are interesting, but as soon as you apply them, that’s when you start researching and that’s when it gets really interesting.

Year of the Drone

Aeryon Scout in flight.  Civilian drones such as this have been used to assist search and rescue activities.  Photo: Dkroetsch, released to public domain

I admit that several years ago I wanted one of those radio controlled helicopters the guy was constantly demonstrating at the Mall.   It was like I was eight years old again and …  it was just so cool!   However, I resisted.   I have become aware that lots of other people were attracted to them, and with more practical applications than just as a cool toy.

Drones can be any size.   The larger military drones can fire missiles.   The military is also working on mosquito sized drones that could be released by the thousands.   The helicopter mentioned above is a personal drone.   Another type of personal drone that has become more popular is the quadracopter, a small platform with four sets of blades.   They can be loaded with miniature electronics and carry small objects.   At a music festival in South Africa this August, the beer drones will be in charge of delivering beverages.   Dial up your order on your phone and a drone will use your GPS to deliver a frosty beer to you.   An excellent application of technology, if you ask me.   Here is the beer drone in action.   Also, a lot of urban police departments have expressed interest in heavy surveillance drone use in their cities.

So it’s obvious that drones have an enormous range of applications.   Like any emerging technology, that can be both good and bad.   Get ready for 2015, which will be the year the FAA changes the regulations on drones.   Currently, no commercial use of drones is allowed; the control of drones has to be line of sight, and drones are not permitted above 400 feet.   Congress has given the FAA until 2015 to begin the “safe integration of civil unmanned aircraft systems into the national airspace system.”   Commercial drones will be allowed.   I don’t want to think about what they will be doing.   The regulations will be softened on range of control and also altitude (with drones over 400 feet under direction of air traffic controllers).   There are backyard scientists all over the world devising new uses for personal drones every day.    Check out this array of networked quadracopters.

Here’s where the legal fun begins.   The FAA is in charge of anything over 400 feet.   What happens below 400 feet?   Earlier this month, a woman noticed a small “device” hovering outside her third story bedroom window.   Her husband went outside and told the man operating the drone to stop.   He refused and said what he was doing was legal.   Thing is, he might be right.   If someone is standing in your yard looking in the window, they are definitely on your property.   In the case above, the operator was not on the property and technically neither was his device.   Is the air around your house part of your property?   If so, how high up?   Where does your air end and your neighbor’s begin?   Is all air “public space?”   I love the thorny questions, and I see years of all kinds of litigation ahead on this one.   Just remember, 2015 –  Year of the Drone.   They will suddenly be everywhere.

10 Tips For Getting the Most Out of Your Summer Legal Job

You did it!   You landed that summer legal job!   Hooray and congratulations!   You might be interning at the public defender’s office or perhaps clerking for a judge.   Or maybe you’re working at a local law firm as a summer associate or with a legal-aid agency.   Whatever summer legal job you may have, you’ll want to make the most out of it.    Below are 10 tips for maximizing your upcoming work experience.

1.  Dress code.

Check out the dress code…ahem…before the first day.   When in doubt, dress professionally.

2.  Attitude — the little big difference.

Show enthusiasm for the job and let folks know you are appreciative of the fact you got the position.   Smiles and friendly greetings are always in style.

3.  Office support staff.

Treat these folks with respect and courtesy.   You’ll also discover a wealth of information at the fingertips of paralegals, secretaries, librarians, and other support staff .   Need a research tip or shortcut?  Want to know how to present your work?   Wondering how to do those court filings?    They can be your best friend!

4.  Work product.

Produce an excellent work product every time.   Refresh your legal research knowledge and writing skills before you start.   Be sure you understand what you’ve been asked to do.   Carry a notepad for writing down instructions.   Do not miss deadlines!  And remember, some research questions have no definite answer.

5.  Know your limits.

If you try to do too much, you can find yourself overloaded.   Don’t be afraid to turn down assignments.

6.  Be proactive.

Shake off your shrinking violet.   Get face-to-face time with the lawyers, judges, and staff where you work.    Seek out opportunities to go to court, attend brown-bag lunches, and sit in on meetings.

7.  Communicate.

Ask questions!   It’s okay to admit you don’t know what you’re doing.   That’s why you’re there — to learn.   Remember, people aren’t mind readers.

8.  Embrace the learning curve.

You aren’t expected to know everything.   It’s your inexperience that’s expected.   Work conditions may not be ideal or what you’re used to.   Your employer will watch to see how well you meet the unfamiliar.   Flexibility is key.

9.  Common sense — use it.

Demonstrate a level of maturity.   Be professional in your demeanor — including at any social functions or events you might attend.

10.  It’s not just another summer job.

This is your first (or second) opportunity to “practice” law.   It’s also a chance to leave a meaningful impression.   You might think of your summer legal job as one very long interview — with the potential for job offers and recommendations when it’s over.

That’s the long of it.   The short of it comes from a wise woman I used to know who often said:  “work hard and be nice — and you’ll do just fine.”    And, so you will.

Great Summer Reads 2013

One of the great pleasures of summer is reading a good book on a lazy, sunny afternoon. Here are some recommendations, compiled from the law school faculty. They aren’t necessarily law related, though some are. All are great reads!

Prof. Stacey Gordon

• Cutting for Stone by Abraham Verghese
• The Bartender’s Tale by Ivan Doig
• The Dovekeepers by Alice Hoffman

Prof. Andrew King-Ries

• Arthur and George by Julian Barnes
• The Round House by Louise Erdrich
• The Absolutely True Diary of a Part-Time Indian by Sherman Alexie

Prof. Hillary Wandler

• Point Made: How to Write Like the Nation’s Top Advocates by Ross Guberman

If you want your summer reading to be more law-focused, here are three good reading lists to start with:

• University of Connecticut School of Law Summer Reading
• 30 Lawyers Pick 30 Books Every Lawyer Should Read
• University of Detroit Mercy Law Summer Reading Recommendations

It’s Always the Things that Are Right in Front of Us that Are the Hardest to Find

The hardest things to see are the things that are right in front of us. This maxim applies to things from lost car keys to dating your best friend. And it has a corollary in legal research: the most basic concepts in law are the hardest to locate authority for.   You know that for every wrong there is a remedy, but where does it say that ?

A maxim is “a traditional legal principle that has been frozen into a concise expression.” Black’s Law Dictionary (Bryan A. Garner, ed., 9th ed., West 2009). Black’s points to a familiar example, caveat emptor, “let the buyer beware.” Legal maxims come from legal traditions– Jewish, Anglo-Saxon, Roman, French, Islamic.

The maxims of the law are a strange collection of general propositions drawn from all kinds of sources. They are taken from formal logic, medieval philosophy, the Bible and even from common experience. They cover virtually every aspect of the law; law in general, the judicial office, the relation of law to equity, the interpretation of documents, and the rights of kings and subjects. Every department of the law has a cluster of maxims associated with it. It has been commonly assumed that they represent basic legal principles (legal axioms) but this is by no means the case, as will become apparent later. Some of them are indeed general principles,some look more like particular rules, many of them can be viewed as both rule and principle and some fit into neither category.

J. Stanley McQuade, Ancient Legal Maxims and Modern Human Rights, 18 Campbell L. Rev. 75, 82-83 (1996). They may no longer be the guiding principles of law they once were, see id., but very often they are those basic principles we know but can’t find.

Here are a few others:

• For every wrong there is a remedy.
• The law respects form less than substance.
• The law disregards trifles.
• When the reason for a rule ceases, so should the rule itself.

We know them, we learned them in law school, but when we want to put them in a brief, we have to be able to cite them to somewhere. Fortunately, they have made their way into cases and codes, and secondary sources, sometimes in more modern forms. The Montana Code Annotated has a collection of legal maxims in title 1, chapter 3. The Notes of Decisions accompanying each maxim illustrate how traditional maxims are used in modern case law.

The U.S. Department of Justice compiled a 291 page collection of legal maxims gleaned from U.S. Supreme Court cases from 1993 through 1998. Many of these are not the traditional maxims, but they are the types of basic, familiar legal statements and definitions that researchers are often looking for. The statements are arranged by topic and cover areas of law from constitutional interpretation to tax.

Legal encyclopedias are another source for basic statements of law. They don’t have the status of primary law, but they have long been cited for basic principles and they are well footnoted to case law.

So where do you find the statement, “For every right there is a remedy”? Montana Code Annotated sec. 1-3-214.

The Truth Will Get You Sued

As you already know, in the strange universe of legality, there is no end to the conundrums, moral questions, paradoxes, social issues, brain twisters, and even downright silliness that can come up.  That’s what keeps it interesting.  So here’s the conundrum of the day, at least for me because it’s something I hadn’t thought of before:  Is a lie legally protected?

I’ve always been a user of IMDb (Internet Movie Database), but especially since I subscribed to Netflix.  The Netflix summaries aren’t complete enough to give a lot of information about a movie.  IMDb gives an exhaustive wealth of information on just about every movie ever made, and the reviews on IMDb are much more complete and thoughtful than the reviews on Netflix.  Therefore, I use IMDb to check movies on the Netflix lists to see if they’re actually good enough to watch, or in some cases to see if they’re bad enough to watch.  I like great cinema, but I’m also a fan of cheesy B-movies.  The schlockiness has to be within certain parameters, however.

Anyway, IMDb cross-references all their information, so there are not only movie pages but also actor pages that give complete bios, filmography, and pictures of anyone who has ever been in a movie.  Like I said, it’s an exhaustive treasure trove of film information and very complete … and that’s where this particular conundrum starts.

An actress named Junie Hoang (IMDb page here ) provided IMDb with bio information that made her seven years younger than she really is.  Later, she asked IMDb to remove the date of birth from her page, which they did.  But that left an information void, and databases hate an information void; so they got her date of birth from public records and posted it.  Suddenly, Ms. Hoang was (gasp!!) FORTY ONE YEARS OLD!!

Well, Ms. Hoang sued Amazon (the parent company of IMDb) for one million dollars, claiming damage to her career as work offers dropped dramatically, and for invasion of privacy (maybe that’s a separate conundrum: Can your privacy be invaded if the information is in public records?).  The Screen Actors Guild and The American Federation of Television, and Radio Artists also jumped into the fight to support Ms. Hoang.  They criticized IMDb for “facilitating age discrimination” for publishing actors’ dates of birth without explicit consent.  In a joint statement, the unions said: “An actor’s actual age is irrelevant to casting.  What matters is the age range that an actor can portray.”  IMDb argued that it has a First Amendment right to publish accurate information.  It also said Hoang couldn’t prove she lost any money or roles because of it, and even if she could, she couldn’t prove it was IMDb’s fault.

The outcome is that a federal court in Seattle rejected her claim, so the TRUE info gets to stay on IMDb.  I guess it shows that there is no protection from the crime of being over forty in Hollywood.  As for Junie Hoang, I hope she can continue her career and keep landing those big roles like her recent portrayal of Sandy in “Gingerdead Man 3,” a sequel to a 2005 Gary Busey movie in which “an evil yet adorable gingerbread man comes to life with the soul of a convicted killer,” according to the description on IMDb.

Have a good weekend and be sure to enjoy some bad movies : )

bob

HeinOnline — Your Law Review and Journal Go-To Resource

I know.  You’ve heard tell of HeinOnline and you’ve wondered what all the fuss is about.  Well, grab a cup of coffee (or tea) and let’s chat a bit about Hein’s ever-growing collection of legal materials — in particular, it’s extensive collection of law reviews and journals.

Coverage:   Hein has a collection of  more than 1,700 law and law-related journals beginning with the first issue published through the most-currently published issues (although some have a contractual embargo, generally for a year, for the most current issues).

Where to Find Hein:   To access Hein’s collection of law reviews and journals,  go to the Jameson Law Library website and click on the “Law Library Databases” link.   Select HeinOnline from the list and then click on “Law Journal Library” at Hein’s home page (see below).

Locating Publications:  You’ll find it’s easy to locate publications by title, state, country, or most-cited.   For example, if you want to locate the Montana Law Review,  select the letter “M” under “By Publication,” and scroll down to Montana Law Review.   At this point, you can search the title or expand by volume number,  as the screenshot below indicates.   Also notice that the Montana Law Review offers e-Table of Contents (TOC) alert and RSS Feed options, features not provided by  all law reviews or journals.

Searching on Hein:    A variety of search options are available on Hein.   If you have a citation, you can use the Citation Navigator in the left column.  You can also conduct a field search or advanced search.  Hein uses Terms and Connectors searching, which means, for example, quotation marks are required to retrieve phrases and Boolean operators must be in ALL CAPITAL LETTERS.   Let’s say you are interested in law reviews about constitutional law in Montana.   You might conduct your search per the example below:

Search Tip:   When you are looking for law reviews on a particular topic consider selecting “Article Title” from the drop-down box (instead of “Text”).   Generally, if the topic (such as “constitutional law”) is in the title of the article, you are assured of retrieving law review articles with substantial information on that topic.   When you search by “Text,” although you will retrieve more results, it’s also likely that these results will be less relevant or not on point because your topic term or phrase may only appear in a footnote or be mentioned merely in passing.   The results list of our sample search looks like this:

Refining Search Results:  There are seven results for our search.   Notice that the phrase “constitutional law” and the term “Montana” appear in the titles of the results list.   If you like, you can further refine the results by using the limiters in the left column — by type of article, subject, law review title, state where published, and date.

Article Format:   Articles are in PDF format and Hein offers a nice feature that allows you to search your PDF article.   Look for the magnifying glass at the top of the article page.   After clicking on the magnifying glass you have the option to search for a term or phrase in the section, on the page, or in the title.   Also, a page number drop-down box enables you to move quickly to a desired page.   On the left column is a list of retrieved articles (or you may see a table of contents), as well as links to clear, revise, or return to results.

There is much more to talk about when it comes to Hein, but it’s time to get back to work.  We’ll pick up the conversation about this unique and useful research resource again on another day.  Stay tuned.

Getting Assistance:    In the meantime, for help and support using Hein, you can visit HeinOnline Help & Support, complete with PDF guides, video tutorials, search examples, and more.   And, of course, you can always ask the friendly Jameson Law Library staff for assistance — don’t be shy!   That’s what we’re here for.