Popcorn for the Plaintiff

It seems another reading week and finals period are already upon us and so you know what that means . . . lots of time for watching movies!  I mean studying.  I mean watching movies while studying . . . wait, that doesn’t work at all.  How about watching a movie after a long, full day of studying?  Seeing as school is still in session you might as well watch a legally themed movie, right?  To reinforce what you are learning in all your classes . . . or to analyze where the screenwriters got things wrong.

While this week’s blog post is intended to end the semester with a bit of fun, many in the law profession do believe that movies are an excellent learning tool.  Kelly Lynn Anders, a lawyer focusing on social media ethics and a former film critic, wrote the book Advocacy to Zealousness: Learning Lawyering Skills from Classic Films.  In her book she explores important lawyering skills and how certain films can teach these skills . . . but at this time of year no one needs another book to read!

So the question then becomes: how do you find the perfect movie to watch after a full day of outlining?  Many of us have Netflix these days (or a friend with a Netflix account) and can watch movies instantly.  But as you may have already discovered, searching for movies on Netflix can be a really good way to decide not to watch a movie.  You spend a lot of time and effort trying to find something good to watch, scrolling through descriptions, and by the time you finally find one that looks good you’re ready to fall asleep.  To top it off, you don’t know if what you choose will be very good because their star system is skewed by 13-year-olds in Oklahoma.

Another problem with Netfix is that it mixes TV shows with movies and no one can afford to get addicted to Law & Order: SVU at this time of year.  Sorry Netflix — as a method to search for law-related movies you get a thumb down. 

 

What you really need is a list of the best law movies that you can check out before you go to Netflix.  To save you the time you’d have to spend searching for a good legal movie, I’ve done some of the legwork for you.  After searching through some legal movie lists and databases, I found that there aren’t very many, and those that do exist are not always very user friendly.  For instance, while I found a lot of great movies on a list written by a law professor at Louisiana State University Law School, the choice to use black writing on a gray background in 10 point font is not the best way of getting people to frequent your website.  Take a look below.

For eye strain formatting reasons this website gets a thumb down.

 

Another website, created by a criminal law consultant, provides a pretty good list of criminal law movies and gives you the option of purchasing the movie from Amazon, a very convenient . . . and possibly very costly . . . feature.  Still, you may be frustrated by the lack of movie descriptions on the list.  It’s hard to pick a movie by only the title, especially when you’re not a fan of horror movies and have been tricked by nondescript titles before.

For lack of any movie descriptions, this website gets a thumb down. 

 

The ABA Journal has a list of the top 25 legal movies ever made (according to their membership).  But you may find this list tiresome because you have to scroll through all twenty-five movies to view each one.  The ABA Journal gets points for style, but not for efficiency.  Still, I am going to give this list one thumb up because it mentions some great movies and includes nice thumbnail descriptions of all of them — like The Paper Chase below — a law school movie classic.  

 

After a lot of searching, one legal movie list stood out above the rest.  Not so much because it is very fancy or stylish, but because it is organized in a very user-friendly manner.  Ted Tjaden, a lawyer and librarian in Toronto, Canada, created this list.  The website gives you helpful search options.  You can start simply by viewing an A to Z list of some of the best law related movies out there.

Another search option is by Substantive Law Subject, which offers fifteen legal topics to browse.

Anyone need to find a movie to watch for Professor Ford’s family law class?  Perhaps Kramer v. Kramer?  Open the family law section to find this movie along with a few other excellent family law related movies.  Notice below that you get a short description of the movie and can even follow a link to a review if you want more information.

Another thing you’ll love about this website is that you can jump straight to comedies or to inspirational movies or to dramas, all of which in some way relate to the law.  You can pick a movie based on what mood you’re in and don’t have to be surprised by a tearjerker when what you really need is an evening of legal laughs.

This site gets two thumbs up!

 

After finding this site, I couldn’t resist asking our own resident legal writing expert, Professor Howell, for a movie suggestion.  Some of you may have figured out that our 1L memo and brief problems are usually filled with characters from current legal movies.  In 2012, the characters were pulled out of the movie The Lincoln Lawyer and in 2014, the names came from American Hustle.  Points for anyone who knows what the problem was based on last year, because neither Professor Howell nor any current 2Ls I approached can remember!  Professor Howell’s pick?  He suggests we all take the time to watch The Verdict with the great actor Paul Newman portraying an alcoholic attorney facing a “David v. Goliath” legal battle.

Legal movies can be a great way for all of us to unwind from a day of studying for finals.  And who knows, it’s possible that we might even learn a thing or two at the same time.  You might need to use these legal movie resources in conjunction with Netflix or Crazy Mike’s, but hopefully one of them might help you procrastinate.  Er, I mean study!

Authored by Rachel Wanderscheid, 3L, University of Montana School of Law

Popcorn photo: allisonmseward via photopin.com cc

Oyez! Oyez! Oyez!

Draw near!  Give your attention to all that you must know to practice effectively in federal court.  Whether a student or a seasoned lawyer, one can’t help but pause at all there is to know.  The United States inherited many practices and traditions from England.  Some survived the Revolution while others did not.  The U.S. Constitution created the federal judiciary as a co-equal branch of government.  Congress and the federal courts forged new laws and traditions which continue to evolve every day.

The novice is challenged at the outset by all the formal rules, established doctrines, and nuances of federal practice.  Nonetheless, all practitioners are challenged to stay abreast of new federal statutes, new cases, evolving precedent, and rule refinements through time.  Fortunately, two major treatises are available to power you along the learning curve:  Federal Practice and Procedure (Wright and Miller) and Moore’s Federal Practice.

Which to choose?  Both are available in print form at almost any law library.  However, WestlawNext subscribers have exclusive access to Wright and Miller, while Lexis Advance subscribers have exclusive access to Moore’s.  Either way, both treatises offer a comprehensive guide to federal court practice and procedural rules, along with commentary on cited authorities and historical analyses.  The main differences are the overall organizational structure and how footnotes are formatted.  These are insignificant for the most part.  Users will hone their skills at using one or the other through practice.

Library shelves dedicated to the print edition of each treatise literally illustrate the volume of material confronting the federal court practitioner.  Mercifully, the spines are well labeled and easy to follow.  But researching complex topics having significant cross references would be cumbersome in print form.  Both WestlawNext and Lexis Advance online databases allow rapid cross referencing and pursuit of research threads far more conveniently.  The online researcher can move from either treatise to other authorities and content with each hyperlinked click.  The ease of electronic research masks the organizational structure and the sheer volume of content.  If relying on print editions, be sure to consult WestlawNext or Lexis Advance online to be sure you are relying on the most current law.

Who were these giants and how do we use the treatises that bear their name?

Federal Practice and Procedure (Wright and Miller)

Charles A. Wright (1927-2000) and Arthur R. Miller (1934- ) first authored and published this comprehensive treatise in 1969.  Subsequent editions were published in 1987 and 2002.  In updating earlier editions of Barron and Holtzoff’s Federal Treatise, Wright and Miller sought to continue serving lawyer’s practical needs.  This treatise covers all manner of topics that could come up in a federal court:  Criminal, Civil, Jurisdiction and Related Matters, Appellate Courts, the U.S. Supreme Court, Evidence, and Judicial Review of Administrative Action.

Federal Practice and Procedure consists of thirty-three hardbound volumes and requires 15 linear feet of library shelf space.  Intervening pocket parts provide annual updates to particular sections of individually numbered volumes.  The Quick Reference Guides will rapidly become those dog-eared, well-loved handbooks you reach for at the corner of your desk, time and time again.

The entire collection is organized into sections, numbered sequentially from 1 to 8500.  Each section is broken down further into subsections.  Tables of Content in each hardcover volume provide the road map and corresponding page numbers for that topic area.  Footnotes provide case citations and other useful parenthetical commentary.  The volumes are organized as follows:

• Volumes 1-3:  Federal Rules of Criminal Procedure, Appendix, and Quick Reference Guide
• Volumes 4-12:  Federal Rules of Civil Procedure, Admiralty and Maritime, and Quick Reference Guide
• Volumes 13-19:  Jurisdiction and Related Matters, Rules of Appellate Procedure and Supreme Court Practice
• Volume 20:  Federal Practice Deskbook
• Volumes 21-31:  Federal Rules of Evidence and Quick Reference Guide
  • Volumes 32-33:  Judicial review of administrative action, with accompanying Appendices and Index

 

WestlawNext subscribers can easily locate Wright and Miller by searching “Wright and Miller” or “Federal Practice” from the main search bar.  Watch for WestlawNext’s auto populate suggestions (see image below).

The first search suggestion, Federal Practice & Procedure, offers three choices.  Drill down through each heading to find section numbers and hyperlinked content.

• Federal Practice and Procedure corresponds to Volumes 1-33 and the five major topic areas.  The volume numbers, however, do not appear; but each numbered chaptercontains multiple sections corresponding with the print version content (see image to left; click to enlarge).
• Federal Practice Deskbook is the electronic analog to a well-tabbed quick reference guide for jurisdiction, venue, justiciability, removal, appellate courts, and the U.S. Supreme Court.
• Supplemental Service highlights the most recent updates.  But this content is also incorporated in the main databases.

 

The second search suggestion, Federal Practice & Procedure Index, offers a Table of Contents.  This alphabetized topical list is best searched using a “control find” (hold down the control button and type “F”).  If you wish, look for the search bar in the upper right corner of your screen to enter your key term or phrase.  Here, we see results for “Advisory Opinions” (see image to right; click to enlarge).    Note the hyperlinked section numbers.  Drill down to the next content level.  Hover over the superscripts to read a footnote or click and navigate directly to it or the cited authority.  Navigating from one section to the next is easy using the green triangles in the upper right corner.  Feeling lost?  Click on the Table of Contents in the upper right corner for a road map of where you are in the treatise.  Need more?  Consult the Citing References tab in the upper left corner to locate other materials which cite to Wright and Miller.

Moore’s Federal Practice

J. William Moore (1905-1994) was raised on a ranch near Bozeman, Montana.  His intellectual capacity became apparent early in life and he entered Montana State College at the age of 14.  The Montana College of Agriculture and Mechanic Arts was commonly referred to as Montana State College by the 1920s.  After graduating, he worked as the chief Deputy clerk of the Montana District Court.  Moore left Montana and earned his law degree from the University of Chicago, graduating first in his class.  Moore briefly returned to practice in Montana, but left to pursue a graduate degree at Yale Law School.

While a doctoral student in 1935, he co-authored an article summarizing the history of federal practice and argued that rule reform should embrace a merge of law and equity.  Late, U.S. Supreme Court Chief Justice Hughes announced that new federal rules would “unify the procedure for cases in equity and actions in law so as to secure one form of civil action and procedure for both.”  Moore became the Chief Research Assistant to the Advisory Committee drafting the first version of the Federal Rules of Civil Procedure after passage of the Rules Enabling Act.  He concurrently drafted Moore’s Federal Practice.  Moore believed the rules should ensure that disputes were resolved on merit and not gamesmanship.

The treatise was first published in 1938, not long after the revised federal rules took effect.  Four volumes grew to 31 by the 2013 third edition.  Moore himself guided practitioners through the rules and various federal doctrines, and remained involved during subsequent updates until 1990.  Now, a Board of Editors and invited contributors continue the long and strong tradition of historical analysis and commentary.

In print, Moore’s is commonly found as a loose leaf three-ring binder.  It, too, requires significant library shelf real estate — 12 linear feet.  Thirty-one volumes are divided into chapters, numbered 1-919.  Each chapter typically has two parts:  Rules and related commentary and a Historical Appendix.  The Rules section includes text, details and commentary about the rules, including footnotes organized by Federal Circuit Practice and key U.S. Supreme Court decisions.  The Historical Appendix includes the legislative history of each rule or doctrine, all committee notes since inception, and a historical analysis.  The historical treatment is more comprehensive than Wright and Miller, owing to the fact that Moore himself was the chief researcher when the rules were first drafted and his ongoing involvement until four years before his death.  The volumes are organized as follows:

• Volumes 1-14:  Federal Rules of Civil Procedure
• Volumes 15-18:  Federal Courts, jurisdiction, venue, various doctrines, judgments, and preclusion
• Volumes 19-20A:  Federal Rules of Appellate Procedure
• Volume 21:  U.S. Courts of Appeals and Index
• Volumes 22-23:  U.S. Supreme Court
• Volumes 24-28:  Federal Rules of Criminal Procedure
• Volume 29:  Admiralty and Index
• Volume 30:  Federal Law of Attorney Conduct
• Volume 31:  Law and Practice of Arbitration

A comprehensive Subject Matter Index covers both the civil and criminal volumes providing an opportunity to find a subject and its cross referenced material throughout the treatise.  An Annual Update binder contains monthly updates to content throughout the treatise.

Lexis Advance users can easily find Moore’s Federal Practice by typing “Moore’s Federal Practice” in the main search bar.  Be sure to include the apostrophe and watch for auto populate suggestions (see image below).

Lexis Advance will suggest three choices:  Moore’s Federal Practice — Civil, Criminal, and Update.  Click on “View Table of Contents” first.  If your finger instinctively hits the return key, Lexis Advance will produce an unwieldy number of results.  Simply back up and re-type the original search term.

Click View Table of Contents under Moore’s Federal Practice — Civil.  This displays the exact same volume number and chapters as the print edition (see image below; click to enlarge).  Drill down to find progressively detailed content by clicking on the triangle icons to expand your choices.  Once you see a listing of topics by section number, click the link to see the actual content information.  Focus your research using the search bar at the top using key words.  Results are cross-referenced by volume number and hyperlinked.

 

 

Navigate directly from the Table of Contents by clicking on any section number.  Feeling lost?  Consult the textual road map at the top of the page.  Navigate within this Chapter using the Previous or Next buttons at the top of the page.  Topic Summaries are sometimes available for a specific practice area.  Footnotes are designed as pop-up windows with Rules or Case Citations and information parentheticals.  These are linked for access to the source’s complete document.  (See image top left; click to enlarge.)

Sooner or later, most practitioners will need to sharpen their knowledge about some aspect of federal practice.  Both treatises are quite good and manageable.  The choice will likely boil down to availability.  Once you understand how each treatise organizes the material, you too can access the genius of these giants.

Authored by Carolyn Sime, 3L, University of Montana School of Law

Photos: Helena Federal Courthouse: via U.S. District Court of Montana; Bookshelf via antiqbook.com; Moore’s loose leaf binder via www.ebay.com

Exploring the Criminal Law Deskbook

Freshly out of law school, I have a first client meeting with a man who has legal troubles.  He was recently arrested for driving under the influence and assault.  He’s the one in trouble, but I am pretty nervous too.  After all this is my first case.  Fortunately, I remember a reference book from law school, which might prove helpful . . .

Published by Lexis Nexis, the Criminal Law Deskbook (“Deskbook”) is conveniently available at your local law library, in loose-leaf format, or online at Lexis Advance.  I choose to access it online because, being at everyone’s fingertips, it seems most practical.  The Deskbook was written with the criminal lawyer in mind but that said, the Deskbook offers a road map to guide any attorney through every stage of the criminal justice process.  It covers all aspects of the criminal justice system from arrest through disposition of the case, explaining every procedure, the related aims, and how to achieve them.  In fact, despite being only two volumes, the Deskbook is so comprehensive that aspiring prosecutors and defense attorneys may wonder why they even went to law school with this resource at their fingertips.

Accessing the Deskbook on Lexis Advance is simple.  Slowly type “Criminal Law Deskbook” into the red search box and wait for the auto-populate feature to bring up the Deskbook.  Click on “View Table of Contents,” not on the title, to retrieve an expandable list of chapters (see image below).

If you want to search the Deskbook, click on the title instead and enter your search terms in the red box.  For my research, however, I use the expandable table of contents because it lays out all the chapters so I can easily view what information is available (see image below).

The first chapter (The Adversary System and the Criminal Justice Process) discusses the theory behind the adversarial system and the functions of each side, prosecution and defense, in the criminal justice system.  It explains the difference between legal and factual guilt, discusses the burden of proof, then goes on to explore the professional responsibilities of defense attorneys, prosecutors, and judges.  Chapter 1 also covers limitations on advocacy, such as the prohibition against making a false statement of law or fact and jurisdictional rules.

After reviewing the initial materials, I feel ready to jump into the meat of the Deskbook and take on my first case.  Remember, because the Deskbook examines each step of the criminal process it isn’t necessary to utilize every section in the guide.  I simply look up, in the interactive table of contents, the step I need to take in the process and go forward from there.  For example, chapter 3A, which relates to terrorism prosecution, will be unnecessary to defend my client.

The table of contents is in the same chronological order as the proceedings themselves and I can easily expand each chapter topic by clicking on the arrows (see image below).

For my client’s case, in preparation for the arraignment and bail hearing, I first review chapter 2 (Arraignment and Bail Hearings).  Besides providing the background and purpose of an arraignment, chapter 2 details some of the steps that I, as defense counsel, should consider prior to arraignment, including:

• interviewing the defendant;
• interviewing witnesses;
• securing the attendance of family members;
• assisting the defendant to secure bail;
• examining the accusatory instrument; and
• planning the future trial strategy

Of course, all of these steps may not be complete before the arraignment and bail hearing, but they give me a sensible place to start advocating for my client.

Also before meeting with my client I look up his particular crimes in chapter 3 (Substantive Crimes and Their Elements).  I expand chapter 3 and select “Offenses against Public Order.”  Next I open “Driving under the Influence,” which provides the definition (or elements) of my client’s charge.  Additionally, I learn how the crime may be proven and some information as to the penalty (e.g. that multiple offenses may constitute a felony).  For my client’s second charge, I return to chapter 3, but this time I examine “Offenses against the Person,” which leads me to “Assault” (see image below).  Here I find the elements of this offense, learn when an assault is a felony, and encounter a brief discussion of “gang assault,” a charge available to combat gang violence in some jurisdictions and fortunately not applicable in my client’s case.

Next, I turn to chapter 4 because it deals with the preliminary examination.  I’d like to learn more about the process that determines whether there was a probable cause to believe that a crime was committed and that the defendant committed it.  In addition, the chapter covers the timing of the preliminary examination noting, for instance, that such a hearing can be waived.  In some cases a defendant may be charged by information without necessitating a preliminary examination because the information addresses the issue of probable cause.

In chapter 5, I return to a task central to my duties as defense counsel:  discovery.  Besides learning the purpose of discovery, I find a discussion of what the prosecutor is required to divulge and what she is not, under the Federal Rules of Criminal Procedure.  Further, I discover that as defense attorney, I must make reciprocal discovery when requested.  In addition, I learn there is a requirement to inform the prosecution of certain defenses — alibis and insanity defenses, primarily.  Particularly helpful, since this is my first case, is the sample request for discovery form located at the end of the chapter (see image below).  This model form contains questions of about every type, which is especially useful because I want my discovery request to be complete and exhaustive.

After reviewing the discovery response I may be ready to file a motion to suppress evidence, a pretrial motion.  However, I find no grounds yet to file any pretrial motion and thus move on to chapter 7 (Search and Seizure).  Unfortunately for my client, there do not appear to be any 4th Amendment issues I can raise.  The dashboard camera from the police cruiser clearly shows my client driving erratically, then assaulting his passenger after being pulled over.  This does not seem like the ideal case to take to trial as the prosecution appears to have a solid case in hand.  Thus, I skip the next few chapters dealing with “Suppression of Statements,” “Suppression of Identification Evidence,” and “Motions Limiting Cross-Examination.”

My client is not innocent, but he has no prior criminal record and the assault was minimal.  This is important because, as I learned earlier, prior offenses for DUI may result in a stiffer sentence or a felony.  Similarly, had there been bodily harm or had a weapon been used in the assault, the law allows for a felony conviction and more jail time.  Because, in my estimation, my client is a good candidate for outpatient treatment and probation, but not for trial or prison, I turn to chapter 11 (Plea Bargaining and the Guilty Plea).

Like the others, chapter 11 begins with a bit of background.  After a brief synopsis, the chapter delves into everything I need to know about plea bargaining so I can advocate for my client.  I review the types of plea agreements, the factors the prosecution and defense should weigh when deciding whether to enter into a plea agreement, the lawyer’s role in advising the defendant, and preparation for plea bargaining.  There are two particularly helpful sections in this chapter:  “Negotiating Techniques and Tactics” and “Defense Arguments in Plea Bargaining.”  Besides the reminder that the defendant is ultimately responsible for the decision to plead guilty or not, there are suggestions about what to use to gain bargaining leverage, the important things I should stress when talking to the prosecutor about my client, types of pleas (Alford, for example), and the plea taking process.  There is even an example of a plea taking process so I feel comfortable in this negotiation, even though it’s my first one (see image below).

Luckily for my client, and thanks to the Deskbook I have confidence that the plea bargain will go well, and I don’t anticipate that he will serve any jail time if he behaves for the next 3 years.  Equally fortunate for him is the fact that he probably won’t have to go to trial, where I feel a jury would like convict.  But should such a possibility occur, my job will be made immeasurably easier by the Deskbook.  I will simply move on to chapter 12 — “Preparation for Trial.”  That along with the remaining chapters will guide me how to proceed through trial, right to sentencing.

 Authored by Jeremie Marrow, 3L, University of Montana School of Law

Photo credits:  Law Office & Research viaGoogle Images; Gavel by Sal Falko via photopin.com cc

Tax Questions Scary? Not with BNA Premier!

“The hardest thing in the world to understand is the income tax.”  — Albert Einstein

 

It is generally accepted that the subject of taxation can be difficult to grasp.  Luckily, practical resources are available to help individuals better understand the rules and their interpretation.  One of the many research databases the Law Library provides as a resource for visitors, students, and faculty is the Tax Practice Series, part of the BNA Premier subscription.  The site provides an array of useful materials to aid in researching questions related to tax.

Access the Tax Practice Series database from the Law Library website.  Click on Law Library Databases and then select BNA Premier.  From the BNA Premier homepage, scroll to the Tax category and select Tax Practice Series.  As you can see below, the Tax Practice Series main page is divided into several informational sections related to common tax research needs — Tax Forms, Expert Analysis, Practice Tools, and Source Documents.  You also have the option to search Indexes.  (Click image to enlarge.)

The Tax Form section is useful if you need to find a specific IRS form.  Although the IRS also offers these forms to the public, the Tax Practice Series offers an interactive function that allows you to input information directly into the form and computer calculations based on the provided information.

Another convenient tool on the main page is the “Go To Document By Citation.”  Here you can choose to select a source to search (e.g., Internal Revenue Code) using the drop down menu.  It’s important to type in the exact citation for the document you wish to locate.  For instance, if I want to find the treasury regulations for § 262 (relating to personal, living, and family expenses), I need to know the starting cite is 1.262-1.  Of course for those advanced enough to know that the Regs are filled with dashes and dots, this isn’t a problem.  But many of us are used to search engines that recognize what we are looking for — even when we don’t state it exactly.  However, one solution, if you aren’t clear about the correct citation format, is to click on “Citation Formats” just below the search box (see below).  From here you can obtain citation examples for the individual tax collections.

Now the reason I was looking into § 262 in the first place is because I have a question about business related deductions.  During a recent conversation with a friend, who happens to be a yoga instructor and also works at a store that sells fancy yoga gear, I learned that she plans to deduct the expense of the clothes she buys from the store.  She believes she can deduct  this expense because she uses these clothes in her business as a yoga teacher.  In the back of my mind I recalled my tax professor telling our tax class that this is a type of deduction that is not allowed because these clothes are suitable for everyday wear — unlike say, police uniforms, which are not, and thus may be deducted.  If my friend was my client — or if this situation happened to come up in my practice as a lawyer — I would need to be sure about my answer.  I decide to use the Tax Practice Series database as a resource to research how I would answer this question.

I begin by looking under “Expert Analysis, which lists common tax topics.  Based on my question, I opt to click on “Deductions.”  The page that opens contains a long list of topics related to deductions.

To view the material, I like to use the “split-screen” option (instead of the default full -screen option).  The split-screen allows me to easily navigate the sections while also viewing the content.  I scroll down the list of sections on deductions to ¶ 2810, which discusses personal, living, and family expenses, and expand the section (see below; click image to enlarge).

By the way, don’t be confused by the ¶ symbols you see.  Most loose leaf style services such as this one, which began as print resources, utilize paragraph symbols to identify sections and parts of documents and have retained it in their online formats.

I expand ¶ 2810 and find concise, plain-language explanations relating to personal expense deductions.  The materials include citations to the relevant code sections and regulations, along with important case law interpretations.  Although I can’t cite to this specific loose leaf as an authority to the court, and although the section and paragraph numbers don’t correspond with the Internal Revenue Code, the information does lead me to the correct code sections, regulations, tax court decisions, and revenue rulings — all of which I can cite as authority. 

After reading through the information, I conclude that my friend is not allowed to deduct her yoga clothing as a business expense.  Luxury yoga wear is so commonplace and fashionable that it cannot be considered an ordinary and necessary business expense.  Because it can be worn in a non-business context for her own personal wear, she shouldn’t be deducting this cost.

Another handy tool, especially for new attorneys, is the “client letter,” which you can find under Practice Aids at ¶ 2810.100.  It provides you with a template that you can use to draft a letter to send to your client and includes all of the relevant information related to personal expense deductions (see below; click image to enlarge).  Thus, if my yoga teacher friend was also my client, I could use the client letter as a template for the one I would write and send.

It’s pretty clear that BNA Premier’s Tax Practice Series is great if you have an idea of what you are looking for and are familiar with tax law language.   However, if you feel you need assistance conducting a search, consider using either Advanced Search or Guided Search.  Both provide template-style searching that helps you locate information easily — great when you are new to tax law research. 

For example, to use Guided Search open the template and select a collection to search — say, Tax Practice Series, specifically deductions.  Then scroll to the bottom of the screen and enter search terms related to your question.  Using my client scenario, entering “work clothing” is one possibility (see below; click image to enlarge).   Search results bring up the Tax Practice Series: Deductions.   When you expand the section you’ll see that you end up in the same place as I located above.

 

 

 

The advanced search option also leads you to the answers you need, but be prepared to sift through information and navigation tabs before you find what you want.  Also, don’t forget the Help button located at the top of the screen for more exhaustive assistance.  (Click image to enlarge.) 

The site has an old-school feel, but contains valuable information for students, practitioners, and faculty.  I wish I had known about this database when I was first taking tax courses because it can be used as a supplemental study aid.  Now that I do have a basic understanding of how the database works, I can use it for class, work, and personal use.

Authored by Alana Brown, 3L, University of Montana School of Law

Photo credit: 401(k)(2012) via Flickr creative commons

How To Be Part of Montana’s Administrative Rule Making Process

So you consider yourself a well-informed person, generally aware of current events and politics in Montana.  You read the newspaper, check out online articles, follow some blogs, and even check in on the Montana Legislature from time to time.  But you have this nagging feeling like you might have the opportunity to do more, to get involved, to become part of the process which hands down the rules and regulations that control some of your everyday experiences.  After doing a bit of research, you discover that while the Legislature writes the broad laws, the real grunt work of the daily administration of those laws is performed by various executive agencies usually operating under Departments, such as the Department of Revenue and the Department of Justice.  These agencies, acting in both legislative and judicial functions, help implement the laws through rule making and adjudication.  As part of that process, the agencies regularly ask for input from interested parties and the public in general.  But how do you know what’s being proposed, how and where to comment, and what decisions have been made?  The good news is you don’t have to look far for a centralized location to investigate and become involved.  Welcome to the Administrative Rules of Montana tab on the Montana Secretary of State Website.

Okay, 5 white tabs and 10 tan tabs — that’s a lot of tabs.  Luckily, the first tan tab contains answers to FAQs and is filled with helpful information to assist orienting you to the site.  For example, you can learn about relationship between the Administrative Rules of Montana (ARM) and the Montana Administrative Register (MAR), the timetable for adoption of new rules by the various state agencies, and a get an explanation of ARM citations.  Be sure you don’t miss the visual guide to the rule adoption process under Resources on the FAQ page (click on image to enlarge).

Feeling confident that you have the general idea of what you’re looking at, you decide it’s time to explore the site and learn what’s happening with these agencies.  You start with the white tabs — specifically the ARM and MAR tabs on the left.

Having read the FAQ, you know it makes sense to start with the ARM and MAR tabs because of the relationship between them.  You know that the ARM contains all the existing rules and that the MAR is a twice-monthly publication for proposed rules, amendments and other pending agency action that will or won’t become part of the ARM depending on the outcome of their particular processes.  Aside from the usual straightforward search functions, which allow you to search by text or by rule, chapter, title, or MCA (Montana Code Annotated) number, one section is worth highlighting.  Under the ARM section, click on the circled Go button to the left of “By Department, Chapter, and Rules Table of Contents.”

After opening this link, a useful table of contents appears that contains all the current agency rules organized by Department — helpful if you know the Department name and the type of rule you are looking for, or if you just want to browse a particular Agency.  For instance, click on Title 36 (Department of Natural Resources & Conservation) and then on Chapter 36.2 (Procedural Rules).  Notice in the screenshot below that you can click on the rule links to view in full text or you can use your browser’s ctrl-F function to search the language of the title of rules.  You can even click on the “View as eBook” feature to open a user friendly layout with the same information.

Browse back to the main search page for now.  Look under the MAR section.  In the screenshot below, note the hyperlinks within the red highlighted section — this is the easiest way to find the newest issue of the MAR.  Also, if you want to locate past issues, say to look for proposed rules that may not have been adopted, click the second link, “Archived Issues.”

Go ahead and click on the most recent issue link — 2014#7.  As you see below, the MAR is neatly organized into a Notice Section, a Rule Section, an Interpretation Section, and a Special Notice and Table Section.  As you scan through and read the summaries observe that some are notices for public hearings while others are notices that an agency has made a proposal to amend or repeal and existing agency rule.

If you click on the hyperlink under the Notice No. column, you can view the actual language of the notice.  For example, below is the Notice of Public Hearing regarding amendment of the Montana regulation relating to the maximum pricing and printing standards.

As you can see in the example above, public hearing notices typically contain, in numbered format:

• date and location of the hearing
• information for accommodations of persons with disabilities
• the rule language
• information for submitting written or oral comments
• the agency staff conducting the hearing
• other administrative information and hyperlinks to relevant existing rules or the Montana Code Annotated

Proposed rule change notices follow a similar format.  However, a public hearing is not always required.  It may happen only under certain conditions as specified in the notice itself, such as request from a certain number of person directly affected by the pending agency action.  For an example, click on Notice No. 32-14-245 and look over paragraph 6.

Rule Notices are much more concise and contain the relevant rule numbers, whether or not a public hearing happened, whether comments were received (they aren’t always), and the resulting agency response and action taken regarding the rule.

The Interpretation Section gives you a glimpse into one of the ways agencies act in a judicial function, when they interpret the rules of the Enabling Acts (the initial rules for the agency as written by the Montana Legislature), or the rules they’ve promulgated post agency formation.  For instance, in one particular ruling, 38-Declaratory Ruling D2014.1.9, the affected party wanted the term “controlling interest” interpreted a certain way.  However, the agency declined to do so and issued its own interpretation.  The affected party may apply for judicial review outside the agency, but significant deference is usually given to agency decisions.

That’s the MAR in a nutshell.  Browsing back to the main page, the remaining three white tabs are worth mentioning briefly.

• Emergency Rule Notices — contain rules adopted by various agencies without notice to meet some imminent concern, such as closures of rivers or bridges.
• Secretary of State Rule Notices — rules regarding the Secretary of State agency itself.
• Tools for State Agencies — provide executive agencies with links for filing, templates, glossaries, and other information to ensure the rule making process conforms to approved standards.

Although the information above really forms the substance of the Administrative section of the Secretary of State website, some of the tan tabs under Additional Resources, aside from the FAQ tab already discussed, merit brief mention.

• Agency Title Numbers is really just a different way to get to the same place as the search by Department mentioned above — with one less click.
• The Deadlines tab provides the dates by which agencies or interested parties must file in order to get into the next publication of MAR.  The deadline is usually 10 days before publication date.
• The Review Committee tab outlines which committees are responsible for viewing various agency actions, making recommendations, interacting with the Montana Legislature, and other monitoring and evaluation functions.  For example, the Law and Justice Committee provides these services for the Department of Corrections and the Department of Justice.
• The Board Appointments and Board Vacancies tabs take you to the same place.  Click on links by month and year to help keep track of changes in positions with the Boards of the agencies.  You can also access a searchable database of appointments and vacancies at the Boards & Councils site — it’s the same information, but presented in a more organized drop down menu format.

This overview should give you enough information to get involved with and become part of the Administrative Rule Making Process in Montana.  With just a few clicks you can stay informed of pending public hearings, proposed rule changes, adopted rules, agency judicial decisions, and more.  And if you really want to take that next step, you can finding existing or future vacancies in an agency and perhaps begin the process of officially becoming part of the Administrative machine.

Authored by Peter Simon, 2L, University of Montana School of Law.

Wading through the Murky Waters of Montana Water Right Adjudication

Beaverhead River, Montana

The Montana Water Use Act, passed in 1973, established a framework and an administrative process by which the state could better account for the amount, ownership, and priority of existing water rights.  Montana operates under the Prior Appropriations Doctrine which essentially means the earlier a landowner claims a right, the higher priority the right has over “younger” upstream and downstream rights.

Prior to 1973, there was no formal process in Montana for recording a water right.  All a user needed to do was put the water to beneficial use (i.e. irrigating crops or livestock) and they were considered to have claimed the right.  Because there were no comprehensive collection of water right records, it was impossible to know how much water was being used in each water basin and whether there was any water left to be appropriated to new users.  In response, the Montana Legislature created the Montana Water Court in 1979, assigning it the daunting task of adjudicating over 219,000 pre-1973 water rights.  Impressively, the court has only about 57,000 claims left to adjudicate.

The Water Court website provides a lot of background information on water law in Montana, the history of the court, and what it does.  You can easily find these resources under the General Information box on the homepage.  The Outline of Basic Montana Water Law and the Step-by-Step Guidebook are good places to start.

Water right owners often opt to represent themselves in the adjudication process.  So you might notice that a lot of the information provided on the site is geared toward assisting individuals in doing so effectively.  The most helpful links to this end are also found in General Information under Representing Yourself.  Although the water court follows the same rules and laws of the district courts, it also follows its own set of unique rules which can be found under the Local Rules tab.

As you familiarize yourself with the site, you may notice that some of the links on the home page will send you to the Department of Natural Resources (DNRC) Water Resource Division website.  This is because the court is paired with the DNRC in certain apsects of its work.  The Water Court has exclusive jurisdiction over determining pre-July 1973 water rights and the DNRC has exclusive jurisdiction over post-July 1973 water rights.  Although the courts’ jurisdictions do not overlap, DNRC provides technical assistance to the Water Court.  For example, DNRC’s Water Adjudication Bureau assists the Water Court by providing it with a summary report of each of the 85 water basins in the state.  It also compiles a handy map which shows the status of adjudication across the state.  If you wanted to see what the status of the water right adjudication was in your home basin, you would click on the Basin Status Sheet link on the Water Court home page under Adjudication Information.

This will take you to the DNRC’s Water Adjudication Bureau’s page which displays the water basin map.  The information is also displayed in a table just below the map.

What does the status of your basin mean and why might it be important?  Think of water adjudication as a kind of accounting.  The purpose of the adjudication process is to determine how much water is being used and whose rights are superior to others.  Downstream users are increasing their usage and demand of water.  But until each basin knows exactly how much water it uses as compared to how much it has, existing right holders cannot effectively defend against demands or calls on water from downstream users.  In basins that have final decrees, the total amount of water use is concretely known which makes enforcing rights, settling disputes, and planning for future development possible.

Let’s say you are a cattle rancher in Dillon, MT and you are curious about the status of water rights adjudication in your basin.  If you locate Dillon on the Basin Location and Adjudication Map above, you will see that you are located in Basin 41B.  Find Basin 41B in the table below the map and click on the basin name, Beaverhead River.

This will take you to the summary page for the Beaverhead River Basin.  The summary page will include everything you could ever want to know about the court’s findings in the Beaverhead Basin.  The Notice link is a good place to start.  The Notice of Entry of Preliminary Decree and Notice of Availability is what the court releases after a preliminary decree is issued.  It provides a summary of all the water rights in the basin and provides instructions for reviewing the decree and making objections.

For a detailed breakdown of each water right in the basin, go to the Index Instructions and choose how you want the information organized.  Organizing by Owner or Water Right Number (if you happen to know yours) is probably the easiest way to search.  This dense document will show all the claimed water rights in the basin and information about each right including the priority date (when the right was claimed by beneficial use), the flow rate (how much water is included in the right), the location and source from which the water is diverted, and the owner of the right.  For example, the J Bar L Ranch owns an 1856 water right which entitles them to use 201.96 gallons per minute (GPM) from the Beaverhead River, presumably to irrigate their crops or water their livestock.

Now let’s say that you were less interested in the status of water right adjudication, but you had a research paper due for water law on the topic of water right transfer in the State of Montana.  The court has a useful case search function that you will find under General Information by clicking on Significant Case Search.  

This will take you to a helpful instruction page.  When you are ready to commence a search, click the Search button at the bottom of the page.

Although the search page is extensive, don’t feel pressured to fill in all the boxes.  You may find that if you narrow your search too much, you will come up empty handed.  Remember that this is not a massive database like the ones you may be used to, so start broad and refine as needed.  All that the search page requires is that you fill in at least one box.

If you are doing a broad topic search, it is a good idea to start by looking through the KeyWords drop down menu.  The topic of your research paper just so happens to be an option, so let’s choose Transfer of Water Rights and see what we get.

This is why you want to keep it broad; and remember, the site does not provide all cases ever decided by the Water Court, it only provides the significant cases.  If you click on the case you would like to read, you then have the option of looking at the case Summary or the actual Decision.  (Note: some cases will only have a summary or the decision, not both).

The Summary provides a brief synopsis of the case and a list of all applicable statutes, case law, and other authority used to decide the case.  The summaries are a great resource and a really nice way to start researching particular topics in an area of water law.

This overview touches on just a few of the many useful features and resources available at the Montana Water Court website.  Don’t fear the seemingly murky waters of Montana water law, jump on int!  The Montana Water Court is here to help.

Authored by Katelyn Hepburn, 2L, University of Montana School of Law.  Katelyn is interested in environmental and natural resource law.  She used this blog post as an opportunity to learn more about the Montana Water Court as she will be interning there this summer.

 

Photo Beaverhead River: Stephen J. Conn via photopin.com cc.  Remaining photos: courtesy of the Montana Water Court and The DNRC’s Water Resources Division

 

 

 

 

ProQuest Congressional: Legislative History … And More!

If the present Congress errs in too much talking, how can it be otherwise in a body to which the people send one hundred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by the hour?

– Thomas Jefferson –

Historically, ProQuest Congressional (PQC) was, and still is, a great resource for Congressional information that you won’t find just by reading the text of the law.  But PQC is more than just a collection of Congressional publications.  It also provides information on members of Congress, Congressional committees, regulations, and political news.  In this post we’ll first review how to use PQC to obtain legislative history documents.  After that we’ll delve into PQC’s “Members and Committees” feature to illustrate how PQC has incorporated additional features you’ll find both useful and fun.

Searching for Legislative History Using Congressional Publications Search

One way to find out the legislative intent behind a law, or what policies drive the existence of a law, is to research the law’s legislative history.  Fortunately, there is a paper trail that links a bill with its history, which provides us with a record of a bill’s trip through Congress right on up to the day the President signs it into law (or, on occasion, vetoes it).  PQC coverage for two of the most important legislative history documents (hearings and committee reports) goes back to 1789.   For a comprehensive chart listing coverage for everything in PQC, click on Content Coverage Chart on the home page.

PQC provides three search options for Congressional Publications — basic, advanced, and by number.  Use the basic search (see below) to perform keyword searches that retrieve documents (often in full-text) where your keyword represents a main theme.  If you can’t think of an appropriate keyword to use, click on Index Terms just below the search box.  From the window that opens, you have the option to browse for potential keywords by subject, issuing source, or popular name.  To enter more than one keyword/phrase, click on the plus sign in the box, to add an additional row for your search.  Adding a row also gives you the option to use the Boolean connectors AND, OR, and NOT.

For more complex keyword searches and to refine your search using fields (such as by subject or Congressional source), use advanced search (see below).  As with your basic search, you can add additional lines and utilize Boolean connectors if you wish.  Notice too that you can narrow your search to document type under the “Limit to” box.  Don’t know what some of these categories are?  No problem.  Click on the yellow “i” to view detailed information about each category.  By the way, if you get stuck or lost — or even just curious — click on PQC’s Help at the top right of the screen.  Expand the table of contents, consult the index, or search across Help to locate the information you need.

Lastly, you can search by number.  Use this search form to retrieve Congressional publications when you know the citation of a document or a related bill or law.  Legislative citations include: the bill number, public law number, Statutes at Large citation, chapter, public resolution, or U.S. Code Section!  If you don’t have any of these citations, sometimes a Google search can help you out.  For instance, if you’d like to see more about the “Obamacare” law, a search for “Obamacare bill number” will probably retrieve what you need.  (Hint: it’s H.R. 3590 and was passed in the 111th Congress).  Enter the bill number like the example below.

This is great!  Look at the information that comes up on your search results page (see below).  And the first item is a legislative history of the Obamacare law — more formally known as the Patient Protection and Affordable Care Act.  On the right you have options to narrow the results list, but for now let’s open the legislative history.

As you can see in the screenshot below, the legislative history is divided into a number of document segments (see left column).  PQC links the segments to help you move quickly through the legislative history and avoid a lot of scrolling.  Keep in mind that in a basic subscription, PQC provides only selected transcripts of hearings and you may have to go elsewhere (such as the House or Senate websites) to obtain them.  In addition, some transcripts are never published.  You should, however, be able to obtain all committee reports.

With “Obamacare” we got lucky and found a legislative history already compiled for us.  If your search doesn’t bring up a compiled legislative history, you can still search for Congressional documents related to a bill and create your own.  That’s legislative history on PQC in a nutshell!

Additional Cool Features on PQC — Members & Committees

PQC isn’t just legislative history.  There is much more.  PQC has additional features of interest, such as Members and Committees, which holds a wealth of information on members of Congress.  You can find everything from the names and contact information for key staff members to campaign financial information.  PQC has a detailed profile for every member of Congress.  Think of it as the Facebook page for those in Congress — but one they don’t get to manage!

Not only that, but you can easily round up a list of members who share an attribute and can set the parameters of that group.  Further, you can locate specific information on the various Congressional committees.  PQC’s Members and Committees has three categories: Member Records, Demographics, and Committees.  Let’s begin with Member Records.

Want the Down Low?  Search Member Records

What if you have a member of Congress in mind and want some really detailed information about that Congressman?  I’m sure most of you reading this post are familiar with Montana’s longtime Senator, Max Baucus.  I bet PQC has some stats and information on him that you might not know about.  Here’s how you can locate that information.

Go to PQC’s home page and select Members and Committees and then Member Records.  Enter his first name and last name in the search boxes (see below).  If you aren’t sure of the spelling of a Congressman’s name, click on “Look Up a Member” and browse the list.  As we’ve seen before with PQC, there are additional search refinements that we can make.  For now, we’ll just search by name.

Our search returns over 11,700 hits!  Fortunately, there are several ways to narrow your results, including the “search within results” at the top of the screen and the filters and narrow by options on the right side of the screen.  What to do?  If you want to view his composite profile, you can click on the first document.  Keep in mind that this document references one particular session of Congress — the 107th.  If you want a different time period, use the date or Congress filters on the right.  In the screenshot below you can get an idea of the information that come with a composite profile.  Notice the document segments on the left, similar to what we found with our legislative history document above.  And like that document, you can use these segments to move easily from one part of the profile to another.

Maybe you’d like to quote the Senator from a speech he made.  On the right, select “Legislative Career-Floor Statements.”  From the list that appears, you might be interested in a floor speech he gave in support of a 2002 bill designed to clean up “brownfield sites” — areas that need restoration before they can be used again, most often because they contain high levels of commercially made pollutants.  Or perhaps you’re interested in his financial disclosures.  Again, look to the right, but this time select “Campaign & Finance Information–Financial Disclosures.”  Next, select “Financial Disclosure Statements 2002.”  You can browse the information to trace, for example, stocks he purchased and sold in 2002.

If You’ve Ever Wondered — Demographics Search

Have you ever wondered how many members of Congress have a law degree?  Or how many who have a law degree graduated from Harvard?  This is where a demographics search comes in handy.  As you can see below, you can search a variety of demographic categories.  Let’s see how many members of Congress do in fact have a law degree from Harvard, a school second only to Yale (notwithstanding the University of Montana School of Law, of course!).

It looks like 29 Congressmen have a law degree from Harvard.  Notice in the screen shot below that you can narrow your results further using the filters on the right.  A quick glance already tells you that 22 of the 29 Harvard law grads are Democrats and 7 are Republicans.  Hmm.

Saving the Best for Last — Comic Relief via Committee Search

Let’s wrap us with a Committee Search that provides a bit of comic relief.  Did you know that in September 2010 the satirist Stephen Colbert (silent “t”), host of Comedy Central’s “Colbert Report” testified in front of the House Judiciary committee’s subcommittee on Immigration — in character?  Wouldn’t it be fun to get a transcript of that?  You can use PQC’s Committee Search to track it down.

To use Committee Search to locate Colbert’s testimony, you need the committee name.  We happen to know it’s the Judiciary Committee.  Also enter Colbert’s name in the keyword box.   (See below).

The search returns exactly one document and it’s the one we want.  To locate hearing transcript information, click on the document link and look for Full-Text.  Unfortunately, the transcript to this hearing is not available!  As mentioned earlier, PQC only offers transcripts of selected hearings and sadly Colbert’s in not one of them.  Not to worry, however.  Here’s a link to a YouTube video of his 5-1/2 minutes of Congressional testimony.  It’s better than reading it.  Enjoy!

Authored by Drew Dickerson, 2L at the University of Montana School of Law.  Drew has a background career working in political campaigns.  He is currently interning at Skjelset and Geer in Missoula and plans to practice generally in civil litigation after graduation.

 

Photo credits: U.S. Capitol & Stephen Colbert: wallyg via photopin.com cc