Good legal writing begins with exploring and finding the right legal sources to support your argument. Knowing where to find legal sources and which ones to use is essential in crafting strong legal arguments.
Good legal writing begins with exploring and finding the right legal sources to support your argument. Knowing where to find legal sources and which ones to use is essential in crafting strong legal arguments.
Jurisdiction plays a key role in determining the appropriate law on point. Federal Jurisdiction is reserved for questions of federal law or in special circumstances such as diversity of citizenship. State Courts hold jurisdiction to hear cases arising under that state’s laws, and, generally, anything that does not fall under federal jurisdiction. Sometimes, jurisdiction can be held by either federal or state court based on the cause of action alleged or be exclusively handled by the federal or state specialty.
There are four primary sources of law: Constitutional Law, Statutory Law, Case Law and Rules/Regulations. We will review each of these in the upcoming units. Support and explanation of the primary sources of law can be found in legal secondary sources including but not limited to legal encyclopedias, law reviews, restatements and textbooks. We will begin to explore these in more detail in Unit 5.
In our research and discussion this week, let us look for some examples of primary and secondary sources based on the topic of civil asset forfeiture. Civil asset forfeiture has become a huge issue as more states engage in “policing for profit” initiatives. A March 2010 report by the Institute of Justice states that “[i]n most states and under federal law, law enforcement can keep some or all of the proceeds from civil forfeitures. This incentive has led to concern that civil forfeiture encourages policing for profit, as agencies pursue forfeitures to boost their budgets at the expense of other policing priorities.” Marian R. Williams, Jefferson E. Holcomb, Tomislav V. Kovandzic, & Scott Bullock, Policing for Profit: The Abuse of Civil Asset Forfeiture, Inst. for Just. at *6 (March 2010) Retrieved from http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf
Perform research to discover what civil asset forfeiture is. Then determine your state law and policy are as to civil asset forfeiture. Can civil asset forfeiture be sought under federal law as well? Which primary sources of law would be appropriate to answer these questions? Where can you find these sources? How would that source be cited using The Bluebook?
Please remember to share your research process including where you began your search, what search terms were used as well as results and subsequent revisions and results.
LS204 Legal Research and Writing
Unit 2 Discussion
Exploring Case Law
This week we are going to jump right into Westlaw and locate case from any state’s highest court. Please go to the Library link which is located in the Academic Tools. Once selected you will be taken to the Library. Please select Westlaw Campus Research to be connected to our school’s Westlaw access page. Because Westlaw is a paid service, we do not have individual access but student research access through the school library. You will be taken to the main search page for Westlaw.
Select the Cases folder and see the many jurisdictions of cases listed. Notice the U.S. Supreme Court is the first court listed. Listed below are the additional jurisdictions including all the states. Select a state from the list and search for a case from that state’s highest court. Take your time reading through the case to see if you can determine what happened to bring the case before the courts. Take time to read it a second and third time. Court opinions contain much information and take some practice reading, so it can be expected that you will want to read a case more than one time.
After you have explored Westlaw and found a case to share, answer the following questions based on your selected case.
What steps did you take in locating your case? (Where did you go in Westlaw? What were your search terms? Did you include any restrictions on your returns? How did you narrow to your choice?)
Who are the parties in your case? What court decided your case?
Give a brief summary (1 paragraph) about what happened to bring this case before the courts. Look for the key facts that describe what happened leading up to the court case.
What legal question was being asked of the court in this case?
What was the conclusion of the court as to this legal question?
What were the key reasons the court gave for reaching this decision?
What is the Bluebook citation for this case? How did you know?
LS204 Legal Research and Writing
Unit 3 Discussion
The Second Amendment to the United States Constitution recognizes that “[a] well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Recently, there has been quite a bit of disagreement about the meaning of this provision and the rights that it recognizes. The United States Supreme Court explored the meaning of the Second Amendment in a few recent cases: District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010).
One of These Things is Not Like the Others
Many states have provisions that recognize a right to keep and bear arms, yet the text of these provisions often vary greatly from other states and the United States Constitution. Research whether your state has a constitutional provision that recognizes a right to keep and bear arms. Share your process in getting to your state’s constitution. Be sure to cite directly to your state’s constitution using the Bluebook format. Compare and contrast your state’s provision with the text of the Second Amendment to the United States Constitution and the text of another state’s provision. In addition to the U.S. Const. amend. II, where else might we find laws impacting your right to bear of arms? Locate additional law from your own state involving the right to bear arms. Share the type of law, what it showcases and how you located it. Remember to bring in the Bluebook style citation for the law referenced.
LS204 Legal Research and Writing
Unit 4 Discussion
Getting Familiar with Secondary Sources
A secondary source is often used to research a legal issue the researcher is not currently familiar with. Using Westlaw, research any legal topic of your choice. Search for a secondary sources discussing your topic. Identify the type of secondary source selected. .
Provide a summary of the source, quote a relevant portion of the source, and cite to it. Read some of your classmates’ posts and respond with questions and comments. Explain and discuss the advantages and disadvantages of using a secondary source to perform research. When might a secondary source be the right starting point? When might you use a secondary source in a legal argument?
LS204 Legal Research and Writing
Unit 5 Discussion
Judges are notorious for scolding lawyers who irritate them or submit inferior quality work to the court. Being scolded by a judge is likely to happen at some point during a lawyer’s career (whether justified or not), and it is usually an embarrassing situation for the lawyer.
Watch the following video of a lawyer being scolded by a judge on national television during the criminal trial of O.J. Simpson for failing to Shepardize: Failure to Shepardize
Source: Legal Writing Prof Blog. If you forget to Shepardize, don’t do it in front of a national audience. Retrieved from http://lawprofessors.typepad.com/legalwriting/2008/09/if-you-forget-t.html.
Locate the following article, written by a law librarian, on how to locate cases that involve a judge scolding a lawyer.
Mary Whisner, When Judges Scold Lawyers, 96 Law Libr. J. 557 (2004).
You can retrieve the article by entering “96 Law Libr. 557” in the main search box in Westlaw. Notice how many of the cases involve failing to Shepardize!
Shepardizing in Action
So what is one to do to avoid such embarrassment and provide the most current legal references? Shepardize! Choose one of the sources below and shepardize the source. Determine if this source would be considered good or usable in a legal argument. Explain how you know. Please remember to share your process in making your determination.
Plessy v. Ferguson, 163 U.S. 537 (1896).
U.S. Const. Amend. XVIII.
Tenn. Code Ann. § 49-1922.
Fla. Stat. § 776.013
Johnson v. State, 755 S.W.2d 92 (Tex. Crim. App. 1988).
LS204 Legal Research and Writing
Unit 6 Discussion
Online research has revolutionized a researcher’s ability to efficiently locate information relating to a legal matter. It also allows a researcher to ensure that information is accurate and current. However, there are also some drawbacks to online legal research. One of the major concerns of small law firms with a limited budget is the cost for a subscription service like Westlaw or Lexis.
Distinguish the Difference
Perform some research using Westlaw to determine the elements required for murder in your jurisdiction. Explore the law to determine how your jurisdiction breaks it down. Share the statute, citation and the steps taken to find it in Westlaw. Then conduct an internet search to find the same statute defining murder in your jurisdiction. Explain the steps for finding the statute using the internet. Which resource did you prefer working with when finding your statute? What are the benefits of using the Westlaw system over using the internet? What are the challenges of the using either system for your research? Compare your findings to classmates to see if any trends can be identified?
LS204 Legal Research and Writing
Unit 7 Discussion
Writing is a very large part of the work performed in the legal field. In order to succeed as a legal professional, one must be able to transform research into well-written documents. Legal writing is different than other writing styles, so it is necessary to explore what elements are expected in legal writing.
Compare and Contrast
Organization is key in all legal writing. As we have seen, some legal documents will have structured exterior organization while other legal documents will use an interior structure to create the flow and clarity. Using Westlaw or your state legal resources available online, locate a form or rule defining format in your own jurisdiction. Would you expect these formats to vary across jurisdictions? Which legal documents will be governed by Rules of Court and which kinds will be up to the writer?
LS204 Legal Research and Writing
Unit 8 Discussion
The legal researcher uses predictive and persuasive writing for different purposes, so it is important to know when each is used and the differences between the two. It is also important for the legal researcher to be able to produce a variety of documents that contain either predictive or persuasive writing. In this discussion board, we will examine examples of each and discuss some of the differences.
Predictive and Persuasive
As we construct a predictive memorandum this week, how can that be contrasted with a persuasive writing such as in an appellate brief? What differences in writing technique will you implore to explain the law rather than argue it? Can the organization or research plan for a predictive writing be the same used for a persuasive writing? How are you implementing an outline and your research in your assignment this week?
LS204 Legal Research and Writing
Unit 9 Discussion
Demand letters are a tool that lawyers frequently use to enforce his or her client’s rights. Demand letters are often very effective at resolving issues before a client spends money on preparing for trial. Sometimes, however, demand letters are abused by attorneys to try to squeeze money out of an opposing party who may have done no wrong but cannot afford to defend a full-blown lawsuit.
Unreasonable Demands
Read the article, Getty Images Sued Over Settlement Demand Letter: ‘Unfair, Deceptive Scheme,’ Copyright Lawyers Claim, which is about a lawsuit against a company that sent an apparently abusive demand letter claiming copyright infringement. The article states that “[y]ou can’t just send out a letter, accuse somebody of infringing and demand money from them. You have to know that they did something that would entitle you to that money.”
What are your thoughts on whether demand letters can be abusive and the basis of a lawsuit? What other ethical considerations come into play when writing from an adversarial position, whether to opposing counsel or the court? Explore the Web to find examples of legal writing from correspondence to appellate briefs arguing the law. Revisit examples of legal writing in our e-text. Identify and explain what you see are the key skills necessary to be successful in legal writing. How does the purpose and construct of the writing direct the content and tone of the writing? Finally, how would we cite the article listed for this discussion board in Bluebook format?
LS204 Legal Research and Writing
Unit 10 Discussion
Now that you have completed this course, reflect on the outcomes as well as your personal goals for the course. This is not intended to be a mere recap of the course; focus on what you have personally learned and how it will affect your future academic and professional goals. Discussing what you have learned during the term will not only help you better process the information, but will help you enhance each other’s learning experience. Please reflect on the previous units and post a response that addresses the following questions:
What would you say was the most important new idea you encountered in this course and how did they change your understanding of legal writing?
What resources did you find the most useful? Which secondary source will be your Go-To in future research projects?
In what specific ways can you use the knowledge you have gained in this course in your chosen profession?
Which specific online resources did you save to your bookmarks or reusable resources list?
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