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CHAPTER 10 Fundamentals of Writing INTRODUCTION This chapter introduces you to certain writing fundamentals that apply to all types of legal writing The writing process comprises three steps, from the prewriting stage, to writing, to editing and proofing After covering the prewriting stage, the chapter discusses matters to keep in mind while writing, editing, and proofing These include organization, topic sentences, transitional language, signposts, paragraphing, format, and avoiding errors peculiar to legal writing other than errors in quotations and short-form citations These errors include quoting from a headnote or case syllabus, not using plain English, not giving a page reference to material from a primary or secondary source, not quoting exactly, plagiarizing, using contractions in more formal legal documents, using the word “I” in more formal legal documents, and elegant variation (using more than one word to refer to the same thing) WRITING PROCESS The writing process should have three steps: prewriting writing editing and proofing The novice writer plunges into writing without going through the prewriting step and may not spend enough time on the third step Some of you will be slow to be convinced and some of you will never be convinced that all three steps are necessary If your professor does not force you to proceed through all three steps by requiring you to turn in an outline, a written document, and a revision of the written document, try completing the three steps on your own You will be pleased with the results PREWRITING Prewriting involves performing any necessary research, formulating a writing “plan,” and outlining Do not skimp on any of these activities Your “research strategy” should include good notetaking and case briefing as you go along You may spend a little more time doing research, but a little extra time on research should shorten the time you spend formulating your writing plan and outlining 281 282 CHAPTER 10 FUNDAMENTALS OF WRITING From time to time you may need to pause and collect your thoughts Mentally review what you have accomplished and think about the direction you are heading You need to pay attention to detail yet not lose sight of the big picture The research required to write letters, deeds, contracts, and wills may be limited to gathering facts and identifying the information to be included In writing an office memo, a memorandum of law, or an appellate brief, your research usually will be more extensive than for other types of documents Performing research may mean various things, from gathering facts by reviewing documents and interviewing people to doing legal research in the law library Research needs to have been completed as nearly as possible before you start writing or you may find yourself backtracking later As you your research, you should start to decide what your writing plan will be In other words, how will you organize your facts and the results of your research to make sense to your reader? As you look at the information in front of you, you will probably identify a number of ideas you want to communicate to your reader In formulating your plan, you must decide on a scheme for arranging these ideas and developing them for the reader Your plan is somewhat dictated by the type of document you are writing Research the standard format for the type of document you are writing For certain documents, such as deeds and wills, you will probably want to follow the organizational format customarily used in your area but not depend entirely on the recognized format Make any organizational changes necessary to make sure your reader understands what you have written The format for court documents may be dictated by court rule Even though you must follow the overall organizational framework set out in the rule, make sure you have good internal organization If you are writing an office memo, a memorandum of law, or an appellate brief, prewriting should involve developing a thesis Think about your facts in relation to the results of your research Then try to step back and look at the “whole picture.” If you think about it long enough you will find a central idea that runs through your facts and research material This is your thesis Think of your thesis as the border to a puzzle Once you have established your thesis, use it as a framework and fit your facts and research material within it Try to develop a “flowchart” or “road map” as part of your writing plan for your office memo, memorandum of law, or appellate brief A flowchart should help you to understand the legal analysis applicable to the legal problem you are researching If you can complete a flowchart, you are probably on the right track with your legal analysis Frequent reference to your flowchart will help you write your outline If you cannot construct a flowchart because you cannot make sense of your research, you either need to spend more time to “fit the pieces” together or you need to more research Once you have completed your flowchart, start writing an outline The outline can be as brief or as detailed as you like An outline that does not contain very much detail will not take as long to write but will be less helpful in the writing process An outline that is too skeletal is not very useful You need to include enough information in your outline to organize yourself before you start writing and determine whether your legal analysis flows A more detailed outline will take more time to write but should speed up the writing process and cut down on revision time If your writing plan is not clear, your writing will be unclear If your writing is unclear, your reader will end up doing the organization that should have been your job A reader saddled with this task will not enjoy reading what you have written and may become very frustrated in the attempt CHAPTER 10 FUNDAMENTALS OF WRITING WRITING After you have completed the prewriting step, you can progress to writing your document This section explains how you can help your reader understand your document by organizing it well OVERALL ORGANIZATION AND ORGANIZATION WITHIN SECTIONS Good organization is essential for readability Depending on the complexity of your document, you may have various levels of organization Your document must be well organized at each level Section headings provide overall organization Then you must organize your writing within each section, and you must organize what you say within each paragraph and within each sentence A discussion or reasoning portion of a legal document should contain an introduction, explain the relevant law, and apply the law to the facts The conclusion may be part of the body of the document or may be in a separate section In explaining the relevant law and applying it to the facts, the body of the discussion should develop the idea introduced in the introduction and lead up to the conclusion Develop the idea step by step so you not lose your reader along the way, explaining even the most obvious steps Just because you can see the connection between steps two and four does not necessarily mean that your reader will be able to unless the connection is spelled out The development can be logical or chronological depending on the nature of the discussion WRITING TIP Keep Your Intended Reader in Mind in Organizing Your Document It is important to keep your intended reader in mind when organizing your document Spend some time determining what is important for your intended reader to know and provide that information as early as possible in the document A well-organized document is more professional and may produce a better result than one in which the reader is tasked with combing the document to locate relevant information For example, when an appellate court reviews the trial court grant of a motion for summary judgment to the defendants on a number of counts de novo, the appellate court must determine whether there is a genuine issue of material fact for each count The plaintiff/appellant can help the appellate court by separately discussing the law and the evidence showing disputed material facts for each count toward the beginning of the appellate brief See Western Wisconsin Water, Inc v Quality Beverages of Wisconsin, Inc., Nos 03-2903, 03-3438, 2005 WL 240938, at *3 (Wis Ct App Feb 3, 2005) in Appendix K ORGANIZATION OF AN OFFICE MEMO To understand what was explained in the preceding section, look at the various levels of organization of an office memo The office memo is used to record the law found as a result of the research, to explain how the researcher analyzed the law and applied it to the facts, and to propose a solution to the problem The overall organizational framework is set by the typical office memo format: facts, issue(s), answer(s), reasoning, and conclusion This is the first level of organization The key to the second level of organization is your formulation of the issue(s) An issue must be well organized to contain as much information as possible while still being readable If you have more than one issue, you need to carefully consider the order in which you will present the issues The way you formulate your issue(s) dictates everything else in the office memo Look at your issue(s) and decide what facts are relevant or significant to the issue(s) These are the only ones that should be included in the facts section 283 284 CHAPTER 10 FUNDAMENTALS OF WRITING Your answer(s), as the terms imply, are simply answer(s) to your issue(s) and should mirror your issues The reasoning section flows from the issue(s) because it tells the reader how you got from your issue to your answer The conclusion is a more detailed statement of your answer(s) The reasoning section should contain a thesis paragraph, which serves as an introduction, an explanation of relevant law, and an application of the law to the facts If you have more than one issue, you may want to follow the thesis paragraph with an explanation of the law that is applicable to all the issues first and then discuss each issue separately For example, a section entitled “reasoning” may begin with a thesis paragraph that serves as an overall introduction and may continue with a statement of the law relevant to all issues The balance of the reasoning portion of the office memo is broken up into the same number of sections as there are issues You may visually break up the reasoning portion of the office memo for your reader by using headings for each issue such as “reasoning for issue one” and so on More levels of organization may be needed if you have sub-issues within issues ORGANIZATION AT THE PARAGRAPH LEVEL The final levels of organization are at the paragraph and sentence levels You will lose your reader if your overall organization and the organization within the various sections is good but your paragraphs and sentences are not well organized This section discusses organization at the paragraph level The following section discusses organization at the sentence level Remember your English teacher talking to you about topic sentences? Most paragraphs need topic sentences (A paragraph reciting a string of chronological events might get along without a topic sentence.) A topic sentence summarizes the topic being discussed in the paragraph The rest of the paragraph should develop and expand on the idea introduced in the topic sentence Because the reader will best remember the first and last sentences of the paragraph, the topic sentence is usually, but not always, in one of those two positions Look at the preceding paragraph The first sentence in the paragraph caught the reader’s attention The second sentence is the “topic sentence” and contains the main idea of the paragraph: paragraphs usually need topic sentences The rest of the paragraph expands on the idea contained in the topic sentence The rest of the paragraph gives an exception to the use of topic sentences, explains what a topic sentence does, explains how the rest of the paragraph relates to the topic sentence, and gives the typical location of the topic sentence If your discussion sounds disjointed, check your paragraph structure Do you deal with a single idea in each paragraph? If you have more than one idea in a paragraph, split up the paragraph so you give each idea its own paragraph Do you have a topic sentence? If not, write a sentence that contains the essence of the rest of your paragraph Did you develop the idea introduced in the topic sentence? If not, decide what else you can say about the idea and add it to the paragraph If you cannot develop a topic sentence, perhaps the idea needs to be part of another paragraph or you need to eliminate it WORD ORDER WITHIN SENTENCES Although readers may enjoy a challenge, not challenge your reader too often with unconventional word order Most sentences should follow the conventional structure for English sentences: subject, verb, and object (if any) Your reader should easily understand your sentences without having to hunt for the subject and the verb Help your reader by keeping the subject, verb, and object close together and near the beginning of the sentence Every now and then you may want to vary the conventional subject/verb/object structure to emphasize certain words Because your reader will remember the beginning and end CHAPTER 10 FUNDAMENTALS OF WRITING 285 of your sentence better than the middle of the sentence, put the information you want to emphasize either at the beginning or at the end of the sentence The following are “mixed-up” sentences from student writing Read them, determine which word order rules have been broken, and decide how the sentences can be corrected The United States Supreme Court in two cases had to determine whether an investigatory stop was based on reasonable suspicion Trooper Vogel testified that the appellants, based on a reasonable suspicion created by a drug courier profile, were hauling drugs In Smith, relying on a drug courier profile Trooper Vogel stopped a car Here are suggested corrections to these sentences They are only suggestions You may have come up with better answers In two cases the United States Supreme Court had to determine whether an investigatory stop was based on reasonable suspicion Trooper Vogel testified he had a reasonable suspicion that the appellants were hauling drugs and that his suspicion was based on the drug courier profile In Smith, Trooper Vogel stopped the car in reliance on the drug courier profile TRANSITIONAL LANGUAGE AND SIGNPOSTS Be kind to your reader by using transitional language and signposts as frequently as possible Think of the textbooks you have been assigned to read this semester You probably dread trying to read one or two of them and you may actually enjoy reading some of them Even the most impenetrable subject matter can be made less so through use of transitional language and signposts On the other hand, easier subject matter can seem just as impenetrable without transitional language and signposts After reading this section, it would be interesting for you to take a look at your textbooks and analyze the author’s writing style for use of transitional language and signposts Transitional language provides a “transition” or link between what you have just written and what you are going to write about For example, the first sentence in this chapter provides a subject matter transition from Chapter to Chapter 10 by explaining that Chapter 10 introduces the reader to the fundamentals of legal writing Although transitional language introducing a new topic can be used anyplace in the paragraph, it is usually used at the beginning of the paragraph (as it was in the example) or at the end of the paragraph Use of transitional language at the end of a paragraph allows the writer to introduce the topic of the next paragraph The writer can then emphasize the new topic by discussing it again immediately in the first sentence of the new paragraph You can also use transitional words like “although,” “even if,” “after,” “before,” and “because” to show the reader the relationship between sentences in a paragraph Signposts are words or phrases that point the reader in the right direction and provide a framework for understanding the document The signposts in the first paragraph of this chapter are the words “the first part of the chapter,” “the second part of the chapter,” and “the third part of the chapter.” They make it easier for the reader to understand the chapter by preparing the reader to expect the chapter to discuss three main topics: the writing process, writing structure, and certain kinds of mechanical errors Signposts can also highlight main points in a discussion For example, the words “the main issue before the court ” tells the reader that that will be the central focus of the discussion and provides a context for the rest of the discussion transitional language Provides a “transition” or link between what you have just written and what you are going to write about signposts Words or phrases in a document that point the reader in the right direction and provide a framework for understanding the document 286 tabulation A format that enhances readability where the writer wants to convey information concerning a number of items or activities, with the writer listing each item or activity on a separate line CHAPTER 10 FUNDAMENTALS OF WRITING PARAGRAPHING AND TABULATION To paragraph or not to paragraph: that is the question There is no one right paragraph length Some paragraphs may be one sentence long while other paragraphs may contain a number of sentences One gauge of correct paragraph length is the subject matter of the paragraph Each paragraph should discuss one main idea If a paragraph is long and sounds disjointed, it may be because you are trying to discuss more than one idea in a single paragraph Break up the paragraph into shorter paragraphs Another gauge of correct paragraph length is readability Each page of print should contain a minimum of two or three paragraphs A reader faced with a long, solid block of print will retain less of what you said than if the same material were broken up into a number of shorter paragraphs A page containing a series of one- and two-sentence paragraphs is just as bad If you find yourself with a series of one- and two-sentence paragraphs, see whether your text is easier to read if you combine several of the paragraphs Tabulation can be used very effectively in legal writing where you have a list of items or activities When you tabulate, you place each item or activity on a separate line Each line, except for the last and next to the last lines, ends with a semicolon The next to the last line ends with a semicolon and the word “and” or “or.” The last line ends with a period The first page of this chapter contains the following example of tabulation: The writing process should have three steps: prewriting; writing; and editing and proofing Compare the tabulated material with the following: The writing process should have three steps: prewriting, writing, and editing and proofing The only difference between the two sentences is tabulation Tabulation makes the sentence much easier to read and understand GRAPHICS Usually, the writer thinks of conveying ideas to the reader through words alone; however, a complicated sequence of events or a complex argument might be easier for the reader to understand through the use of graphics Graphics might include timelines, flowcharts, diagrams, and tables The reader may understand the convoluted procedural history of a case better through the inclusion of a timeline Explanation of the consequences of pursuing each of several alternatives may be better explained through the use of a flowchart The differences and similarities between two cases may be more easily grasped by including them in a table or spreadsheet YO U B E T H E J U D G E Does poor writing and failure to follow court rules violate attorney ethics rules and, if so, what discipline is appropriate? In reaching your decision, consider the following information: • The attorney was knowledgeable in the law • The attorney continuously filed documents containing spelling and grammar errors • The attorney’s disregard of court rules caused him to omit proof of service on a number of occasions and to file a motion to withdraw after the deadline To see how a state court answered the question, see In re Disciplinary Action against Hawkins, 502 N.W.2d 770 (Minn 1993) in Appendix K CHAPTER 10 FUNDAMENTALS OF WRITING MECHANICAL ERRORS Legal writing students typically have trouble with three categories of mechanical errors The first and second categories of mechanical errors are discussed in Appendixes C and D This section discusses a third category of mechanical errors—errors that are peculiar to legal writing other than errors in quotations and short-form citations This section will discuss the following errors: quoting from a headnote or case syllabus; not using plain English; not giving a page reference to material from a primary or secondary source; not quoting exactly; plagiarizing; using contractions in more formal legal documents; using the word “I” in more formal legal documents; and using elegant variation QUOTING FROM A HEADNOTE OR CASE SYLLABUS The error that will most quickly identify you as a novice legal writer is quoting from a headnote or case syllabus The reason that you should not use any material other than the opinion itself is that the material other than the opinion is not the law and may even be wrong because the publisher wrote it It is appropriate to refer to or quote from the opinion because it is the law The publisher or the official reporter for the court prepared the material in the reporter, other than the opinion itself The non-opinion material is usually, but not always, accurate It may on occasion contain outright errors Because the non-opinion material is a summary of material from the case, you may have a different impression of what the law is from reading the non-opinion material than from reading the opinion itself In addition, the summary may not refer to a part of the case important for your research The only way to find that material is to read the whole case NOT USING PLAIN ENGLISH Writing in plain English means writing so the document can easily be understood It requires good organization and format combined with elimination of excess words, Latin phrases, and unnecessary legal terms and jargon Organization and format were discussed in an earlier section of this chapter The appendix entitled “Mechanical Errors” discusses elimination of excess words and contains exercises allowing you to practice what you learn Some attorneys seem to think that the more Latin phrases and legal terms they include, the better their writing will be The contrary is usually true Although there are some Latin terms (like “res ipsa loquitur”) whose meanings are clear to attorneys but are hard to translate into English, use of most Latin terms is unnecessary and may alienate your reader Res ipsa loquitur is a Latin term meaning “the thing speaks for itself ”; it is a rebuttal presumption (a conclusion that can be changed if contrary evidence is introduced) that a person is negligent if the thing causing an accident was in his or her control only, and if that type of accident does not usually happen without negligence Eliminate all Latin terms if possible Where you have to use a Latin term like res ipsa loquitur, so with caution If there is any question whether your reader will understand the term, define it You can often slip in a definition in a parenthetical phrase within the sentence without insulting your reader’s intelligence 287 288 CHAPTER 10 FUNDAMENTALS OF WRITING The same thing holds true with legal terms Eliminate any legal terms or words you think your reader will have trouble understanding and replace them with words your reader will understand For example, attorneys often speak of “drafting” a document and the client “executing” it The client may be confused if the attorney’s cover letter refers to the document the attorney has “drafted” and asks the client to “execute” the document For the legally unsophisticated client, it would be preferable to refer to the document the attorney has “written” and ask the client to “sign” it pinpoint citation A citation including the page number(s) on which a quotation or referenced material appears OMITTING A PAGE REFERENCE TO MATERIAL FROM A PRIMARY OR SECONDARY SOURCE Most students know they need to give a page reference when they quote from a case so the reader can quickly find and read the passage in the case In legal writing, you must also give a page reference when you are referring to specific material from a case even if you are not quoting the material For example, you may give the facts from the case in your own words As a courtesy to your reader, you need to tell your reader the page or pages on which the facts are located so the reader can refer to that part of the case without reading the entire opinion A reference to a specific page is sometimes referred to as a pinpoint citation because the citation pinpoints or specifically locates the information for the reader You not have to give a page reference if you are referring to the case in general, rather than referring to specific material from the case, and you have previously given the full citation to the case A pinpoint citation may precede or follow the information to which it is referring The location of the pinpoint citation (before or after the applicable information) is unimportant You must provide the pinpoint citation and locate it so the reader is clear what information is being referenced In the next paragraph the first pinpoint citation precedes the information being referenced and the second pinpoint citation follows the information being referenced “Terry” appears by itself in the middle of the paragraph where the case is being referred to in general terms Terry v Ohio, 392 U.S 1, 27 (1968) was the landmark case which lowered the burden of proof necessary for a stop from probable cause to “reasonable suspicion.” In Terry the United States Supreme Court held that police officers could stop someone on the street to investigate possible drug activity so long as the stop is based on something more than “inarticulate hunches.” Id at 22 NOT QUOTING EXACTLY A writer’s stock in trade is his or her credibility You will lose your credibility quickly if you not quote accurately It is important that anything you quote, but especially primary sources, be accurate If your quotes are not accurate, your reader will think, at best, that you are sloppy and, at worst, that you are intentionally misleading the reader You must disclose to your reader any intentional alteration of quoted material Appendix C explains how to show alterations If you quote a passage that was printed with a typographical error or other mistake, not correct the passage Instead, quote the passage as originally printed and insert “[sic]” after the mistake “[Sic]” tells the reader that the mistake was that of the original author plagiarism Taking all or part of the writing or idea of another person and passing it off as your own PLAGIARIZING Plagiarism is adopting another writer’s work as your own without giving proper credit to the other writer Plagiarism exists when you quote from a primary or secondary source without putting the language in quotation marks It also exists when you have generally followed CHAPTER 10 FUNDAMENTALS OF WRITING 289 another writer’s style and word choice even though not every word is the other writer’s Instead of plagiarizing, you should either quote the other writer directly or put the material entirely in your own words To put the material in your own words, you need to know the substance of it well enough that you can “retell” it without referring back to the text USING CONTRACTIONS IN MORE FORMAL LEGAL DOCUMENTS Most legal documents, except for letters and memos to business associates who are also friends, have at least a slightly formal tone of voice Certain words, such as contractions, that are common in oral communication not fit in formal legal documents because the tone of these words is too informal When you are writing a legal document, think twice before you use a contraction or informal word Chances are it does not belong in your document USE OF THE WORD “I” IN MORE FORMAL LEGAL DOCUMENTS When giving an opinion in a document such as a client letter, an office memo, a memorandum of law, or an appellate brief, keep the word “I” out of your writing Although you have a personal opinion and the legal opinion you give very likely coincides with your own opinion, your analysis must be backed up with the law rather than your personal opinion Rephrase your sentences in third person (e.g., “The virtual identity of the facts in the two cases means that ”) instead of in first person singular (e.g., “I think that ”) You can include your personal opinion in more formal legal documents so long as you state it in impersonal language ELEGANT VARIATION One English teacher or another in the past has probably suggested to you that you make your writing interesting by using as many different words as possible to refer to the same thing This is called elegant variation Elegant variation is terrific for most writing other than legal writing In legal writing, pick a word to refer to something and use it whenever you refer to the same thing For example, this book uses “attorney” to refer to a person licensed to practice law It would be elegant variation to also refer to that person as a “lawyer,” “counselor,” and “practitioner.” A legal thesaurus may profitably be used when you are trying to choose the right term Once you chose your term, stick with it throughout your document Elegant variation is not appropriate in legal writing because attorneys focus so intently on word choice If in writing a contract, you first referred to the document as a “contract,” you have defined the document as a “contract.” If you later referred to it as an “agreement,” an attorney will wonder why you have changed the wording from “contract” to “agreement.” The attorney will wonder whether the writer might have made a mistake or whether the writer was referring to two different documents, one of which was a “contract” and the other was an “agreement.” Although it may seem uncomfortable at first to keep using the same word over and over again, you will soon get used to it EDITING AND PROOFING The final step, editing and proofing, is perhaps the most important step in the writing process, yet often the one overlooked by the novice writer Good writing is a product of careful planning and writing, followed by revising multiple times Editing and proofing are difficult because the writer has been so absorbed in the writing process that the writer has lost necessary objectivity, which leads to an inability to spot errors easily noted by others This difficulty is compounded by the fact that the typical legal document is quite complex elegant variation Use of a number of different words to refer to the same thing 290 CHAPTER 10 FUNDAMENTALS OF WRITING The writer must base the legal document on applicable law, the writer must communicate the substance of the document clearly communicated to the reader, the writer must avoid mechanical errors, and the writer must cite correctly WRITING TIP Start Writing the Document Early Enough that You Have Time for Revision If possible, complete the first draft of your document with plenty of time prior to your deadline Put your document away for a while and bring it out when you have sufficient time to edit and proofread Because of the lapse of time, you can take a fresh look at the document and you can approach it more objectively, finding errors that you might not otherwise have noticed If time constraints not allow you to let your document lay fallow for a while, try one of the other editing and proofreading techniques recommended below To revise effectively, the writer should tackle one thing at a time, revising first for substance and meaning, then to eliminate mechanical errors, and then to correct citation form Often you can find someone to help you check your document for meaning and readability by reading it It is a good sign if the person understands what you are trying to explain and you can provide a fuller explanation of whatever the person finds unclear Another technique is to read the document out loud, perhaps into a tape recorder This technique provides sufficient distance between the writer and the document that the writer notices missing words and other problems that the writer may miss when reading silently Your word processing program can help you catch obvious typographical and grammatical errors; however, not place all of your faith in spell and grammar check Your computer program will not catch the use of a correctly spelled word that is the wrong word in context WRITING TIP Spell Check Does Not Replace the Need for Careful Proofreading Relying on the computer to highlight typographical errors is no substitute for careful proofreading For examples of embarrassing errors this might cause, go to and view the video the “impotence of proofreading.” SUMMARY ◆ ◆ ◆ ◆ The three steps of the writing process are: • prewriting; • writing; and • editing and proofing Before you start writing you should perform any necessary research and formulate a writing plan It is a good idea to develop a flowchart and/or outline before you start writing Good organization is essential for readability INDEX legal conclusion, 377 statement of the case, 376 statement of the facts, 377 statement of the issues, 376 summary of the argument, 377 table of authorities, 376 table of contents, 376 introduction, 373 key terms, 396 purpose and use, 374–375 sample, first, 378–385 sample, second, 386–395 Appellate court, 23, 102–103 Appellate jurisdiction, 100 Appellee’s brief, 374 Article I judges, 103 Article I judgeships, 104 Article III judges, 10–11 Article III judgeships, 104 Attorney General opinions citations to, 64 exhibit 3-10 example, 62 introduction, 62 Office of Legal Counsel, citation to, 64 exhibit 3-10 Office of Legal Counsel, excerpt from, 63 Attractive nuisance, 435–436 Au, Ronald, 267–268 AutoTrackXP®, 247 B Ballentine’s Law Dictionary, 67 Bench trial, 102 Bicameral, 135 Bill of Rights, 132 Binding authority, 24 Black’s Law Dictionary, 67 citation to, 68 exhibit 3-15 page from, 68 exhibit 3-14 Blog, 444 Boolean search, 239 Bork, Robert, 10–11 Brendlin v California caption, 108–109, 117–118 case brief for, 124 case law analysis chart, 109–117 exhibit 4-5 citation, 108 digest page format, 85 headnotes, 84 obiter dictum, 26 search and seizure, 399, 400 Brennan, William, Jr., 33 “Brief ”, a, 122 Briefing a case Brendlin v California, 124 case brief format, 123–124 introduction, 122–123 Brown v Board of Education of Topeka, 21, 21 exhibit 2-1, 24, 34 Browser, 441 Bureau of National Affairs (BNA), 72 C California Digest, 85 Case brief, 278–279 587 Case citations basic citation form, 404–406 citation manuals, 404 key terms, 410 page numbers, 407 state courts, 409–410 subsequent history, 406–407 United States court of appeals cases, 409 United States district court cases, 409 United States Supreme Court cases, 408–409 Case law (common law), 1, 2, Case Management and Electronic Case Files (CM/ECF), 254–255 Cases Balthazar v Atlantic City Medical Center, 458–471 Bowles v Russell, 472–479 Bradshaw v Unity Marine Corporation, Inc., 480–482 Duran v St Luke’s Hospital, 483–485 Ernst Haas Studio, Inc v Palm Press, Inc., 486–488 Jungle Democracy v USA Government, 491 Kentucky Bar Association v Brown, 492–493 McBoyle v United States, 499–500 Miles v City Council of Augusta, Georgia, 501–502 Precision Specialty Metals, Inc v United States, 507–514 In re Disciplinary Action against Hawkins, 489–490 In re McIntyre, 497–498 In re S.C., 515–531 In re Shepperson, 532–533 State v Nelson, 503–504 State v Opperman, 505–506 Technology Solutions Company v Northrop Grumman Corporation, 534–536 United Stars Industries, Inc v Plastech Engineered Products, Inc., 537–540 United States v Vastola, 541–550 U.S v Le, 494–496 Western Wisconsin Water, Inc v Quality Beverages of Wisconsin, Inc., 551–558 Cases, locating cases, location of, 401–403 introduction, 403 key terms, 410 published cases, 403 unpublished cases, 403 Cases, reading attorneys for the parties, 118–119 briefing a case (see Briefing a case) caption, the, 108–109, 117–118 case law analysis chart, 109–117 exhibit 4-5, 123 exhibit 4-6 citation, the, 108 discussion, the, 120 evaluating cases, 121–122 facts, the, 119 headnotes, 118 holding, the, 120 introduction, 107 issue, the, 120 judicial opinions, purpose of, 107 judicial opinions, readership of, 107–108 judicial writing, 108 key terms, 125 law, finding the, 120–121 opinion, format of, 119 opinion, format preceding, 108 opinion(s), authorship of, 118–119 procedure, 119 588 INDEX reported decision, format for, 108 setting precedent, effect of, 108 Cause of action, 309 Chadha v Administrator, Charlotte Hungerford Hospital, 30 Charge, 102 Charter, Chicago Lawyer, 76 Chief executive, 9–10 Chief justice, 105 Citation sentences, 417 Citators case names citator, 202–203 computer-assisted citators, 189–190 definition of, 133, 189 introduction, 189 KeyCite for cases, 207, 209, 211–214 for statutes, 215 key terms, 216 primary uses, 191 scheme of, 191 Shepardizing, 198–202 Shepardizing procedure, 192–198 statutes, Shepardizing, 203–207 using, 190–192 Cite, 14 Civil action, 309 Civil damages, 146 Civil law, 1, 2–3 Client letter, 261, 276–277 Client opinion letter format of answer, 296 closing, 296 explanation, 296 facts, 296 heading, 295 opening, 296 purpose of, 277, 295 samples first client opinion letter, 297 exhibit 11-2 introduction, 296–300 second client opinion letter, 301–304 exhibit 11-3 style tips, 294–295 Code, 142, 249–250 Code Napoleon, 1, Code of Federal Regulations (CFR), 10, 166, 167–169 exhibit 5-9, 249 Commerce Clearing House (CCH), 72 Common law (case law), 1, 2, Compact Disc-Read Only Memory (CD-ROMs), 241 Competence, 235 Complaint definition of, 309 format of body (or “charging portion”), 311–312 caption, the, 311 introductory clause, 311 prayer for relief, 312 signature block, 312 title, 311 verification, 312–313 See also Pleadings Computer-assisted legal research (CALR) administrative law, 249–250 citators, 190 copyright in a digital environment, 241 court dockets and case history Case Management and Electronic Case Files (CM/ECF), 254 CourtExpress®, 253–254 CourtLink®, 253 introduction, 253 paralegal’s role in CM/ECF, 254–255 Public Access to Court Electronic Records (PACER), 254 courts and case law, 252 definition of, 133 electronic information formats commercial online subscription databases, 240–241 computer disks, 241 Internet, the, 241 evaluative guidelines, 247–248, 248 exhibit 8-1 federal administrative law, 250 federal courts, 252–253 federal law, 249 government agencies, 250 intellectual property law, 250–251 international law, 251 introduction, 239 journals, 251–252 key terms, 256 law reviews, 251–252 legal periodicals, 251–252 legal research databases introduction, 242 LexisNexis®, 240, 242–244 Loislaw, 242 National Law Library, 242 VersusLaw, 242 WESTLAW®, 240, 244–246 legislative information, 252 local codes and ordinances, 250 patents, 251 pros and cons, 239–240 public records databases Accurint®, 247 AutoTrackXP®, 247 introduction, 246–247 state administrative law, 250 State and Local Government Internet Directory, 249 state courts, 253 state law, 249 trademarks, 251 United States copyrights, 251 USA.gov, 249 Computer disks, 241 Conclusions of law, 314, 315 Concurring opinion, 22 Congress, 135–138 House of Representatives, 137 exhibit 5-2 United States Senate, 136 exhibit 5-1 Constitutional law, legal analysis of democratic reinforcement, 35 interpretation process, 35 introduction, 31–32 literalism, contemporary, 34–35 literalism, historical, 34–35 methods of interpreting the Constitution, 32 exhibit 2-2 INDEX modernism, 33–34 originalism, 32–33 Constitutions amendments, initiation of, 133–134 Bill of Rights, 132 citations for, 133 definition of, enumerated powers, 131 ex post facto law, 131 format, 132 key terms, 180 living constitution, 132 locating, 132–133 state constitutionalism and the new federalism, 134 supremacy clause, 131 United States Constitution, amendments to, 132 written constitution, 132 Contemporary literalism, 34, 35 Context, 28 Continuing legal education (CLE), 244 Contract, 278 Controlling case, 24 Copyright Law of the United States, 241 Corporate documents, 279 Corpus Juris Secundum, 44 Counsel of record, 118–119 Counterclaim, 310 CourtExpress™, 253 Court membership, 23–24 Court of last resort, 23, 99 Court order, 146 Court rules citations for, 164–165 introduction, 160–161 key terms, 180 local court rules, 164 locating, 163–164 researching, 163 rule 11 of the Federal Rules of Civil Procedure, 162 exhibit 5-8 sample page of, 161–163 Criminal Law and Procedure, 6, 14, 106, 569–574 Currency, 224 Current Law Index, 76 D Database, 242 Deductive reasoning, 35, 37–38 Deed, 278 Defamation, 436–437 Defendant, 117, 118 Definitional section, 143 Delegation, 166 Democratic or representation reinforcement, 35 Democratic reinforcement, 35 Depth of treatment stars, 214–215 Dictum (plural dicta) See Obiter dictum Digests abstracts, development of, 79, 84–85 American Digest System, 77, 85 Defendant-Plaintiff Tables, 88 finding cases using, 87–88 introduction, 76–79 list of, 78 exhibit 3-19 page format, 85 relevant material, finding, 86–87 reporters, relationship between, 79 sample page from Federal Practice Digest Fourth Series, 83–84 exhibit 3-21 summaries, 78–79 Table of Cases, 88 types of, 85 United States Supreme Court, 77 using, tips on, 87 exhibit 3-22 West Key Number System®, 79, 80–82 exhibit 3-20 Words and Phrases index, 88 Digital Video Disks (DVDs), 241 Diligence, 235 Direct history, 209 Discretionary jurisdiction, 102 Discussion group, 443–444 Disposition, 124 Dissenting opinion, 23, 103 Distinguishing, 20 Diversity jurisdiction, 104 Docket, 244 Doctrine of caveat emptor, 25 Doctrine of judicial review, 8–9 Doctrine of original intent, 32 Doctrine of stare decisis citators, 190 definition of, 2, 18 Griswold v Connecticut, 18 law office memo, 333 Roe v Wade, application to a later case, 19–20 Roe v Wade and, 19 two sides to every problem, 20–22 Domain name, 442 Domain name system (DNS), 442 Domain-Surfer, 442 E EFS (Electronic Filing System), 251 Elegant variation, 263, 287, 289, 330 E-mail correspondence advantages of, 304, 305 attachments, 306 confidentiality issues, 304–305 e-mail address, 443 e-mail alerts, 443 law office memo, 305 LexisNexis Alerts®, 443 E-mail correspondence (continued) misdirected, 304–305 organization of, 306 overview, 443 proofreading, 306 recipients, check for accuracy, 306 semi-permanence of, 304 speed of, as a disadvantage, 305 subject line, 306 substance and style, importance of, 305–306 vs telephone conversations, 305 WestClip®, 443 Embassy.org, 455 Emory Law School Federal Courts Finder, 451 Enabling legislation, 165, 166 589 590 INDEX En banc, 103 En banc opinion, 23 Engrossed, 138 Enrolled, 138 Enumerated powers, 131 Ethical considerations See Research process and ethical considerations Ethics violation, inadequate legal research as, 235–236 Evidentiary facts, 314, 315 Executive branch, Executive orders, 10 Exhaustive approach (case reporting), 54 Ex post facto law, 131, 135 EXtensible Markup Language (XML), 444 Extranet, 444, 445 F Facts, 123 Fair Labor Standards Act, Federal Agency Index, 451 Federal Appendix, 403 Federal courts federal appellate courts, 105 federal judiciary—jurisdiction, 104 exhibit 4-3 federal trial-level courts, 104–105 introduction, 103 state and federal court structures, 106 exhibit 4-4 structure of, 102 exhibit 4-2 United States Court of Appeals, 105 United States Supreme Court, 105 Federal Courts Publishing Project, 451 Federal government, branches of, 11 exhibit 1-7 Federal Government Legal Resources, 451 Federalism, 3–6 See also United States Constitution Federalist Papers, 32 Federal Judiciary (website), 252 Federal law Web resources Emory Law School Federal Courts Finder, 451 Federal Agency Index, 451 Federal Government Legal Resources, 451 FedWorld.com, 451–452 GPOAccess, 452 introduction, 451 THOMAS, 452 USA.gov, 452 Yahoo! Government Information Directory, 452 Federal Magistrates Act, 104 Federal Practice Digest, 86 Federal Practice Digest Fourth Series, 79, 83–84 exhibit 3-21, 84–85 Federal question jurisdiction, 104 Federal Register, 10, 166, 174–176 exhibit 5-11, 177–179 exhibit 5-12, 250 Federal Reporter, 403, 409 Federal Rules Decisions, 163 Federal Rules of Appellate Procedure, 375–377 Federal Securities Law Reporter, 72 Federal Securities Law Reports, 73 Federal trial-level courts, 104–105 Fee-based, 241 Find & Print® (West) Findings of fact, 374 Finding tools, 12 See also Secondary sources and finding tools FindLaw®, 447 FirstGov, 250 Fishman, Clifford S., 66 Fletcher Corporation Forms Annotated, 72 Florida v Jimeno, 415–416 Flowchart, 282 Formbooks, 72, 310 Fuero Real (Spanish), G General jurisdiction, 100 Generic top level domain (gTLD), 442 Geographical jurisdiction, 100 Global Legal Information Network (GLIN), 448, 455 Glossary, 575–585 GPOAccess, 252, 452 Griswold v Connecticut, 18–19 Guide to Foreign and International Legal Databases, 456 Guide to Online Law: U.S States and Territories, 453 H Hall, Daniel, 569–574 Heading (running head), 108 Headnotes, 79, 84–85, 118 Hearing, 166 HeinOnline, 252 Hierarchical jurisdiction, 100 Hieros Gamos comprehensive legal site, 448 Historical literalism, 34, 35 History, 123 Holding, 24, 123–124 Holmes, Oliver Wendell, 17 Hornbooks, 229 Hyperlink, 443 Hypertext, 441 See also Hyperlink I Idaho State Bar v Tway, 236 Ignorantia legis neminem excusat, 29 Illinois Compiled Statutes (ILCS), 142–143 Impeachment, 11 Index to Legal Periodicals, 76, 229 Information technology (IT), 443 Infra, 46 In personam jurisdiction, 100 In rem jurisdiction, 100 Instrumentalists See Modernists Intermediate appellate court, 99 International law web resources Electronic Information System for International Law (EISIL), 455 Embassy.org, 455 Global Legal Information Network (GLIN), 455 Guide to Foreign and International Legal Databases, 456 introduction, 455 Legal Information Institute: Global Resources, 456 United Nations, 456 Internet, the blogs, 444 discussion groups, 443–444 electronic mail (e-mail), 443 listservs, 443–444 INDEX plug-ins, 443 as research tool, 241 RSS feeds, 444 Web browsers, 443 World Wide Web, 239, 443 Internet Explorer® (Microsoft), 443 Internet Legal Research Group (IRLG), 448 Internet Network Information Center (InterNIC), 442 Internet technology extranets, 445 Internet (see Internet, the) Internet domain names, 442 Internet protocols, 441–442 intranets, 444–445 introduction, 441 Web address, dissecting, 442 exhibit F-1 Interoffice memorandum See Law office memo Interstate Commerce Act, 28 Interstate Commerce Commission (ICC), 28 Intranet, 444–445 Issue, 123 J Johnson v Davis, 25 Journals, 73 Judge’s charge, 100 Judicial activism, 26–27 Judicial branch, 6, 10–11, 99 appellate court, 102–103 composition of, 99 court of last resort, 99 federal courts federal appellate courts, 105 federal trial-level courts, 104–105 introduction, 103 United States Court of Appeals, 105 United States Supreme Court, 105 federal courts, structure of, 102 exhibit 4-2 federal judiciary—jurisdiction, 104 exhibit 4-3 intermediate appellate court, 99 jurisdiction, 100 key terms, 125 map of U.S Court of Appeals and U.S District Courts, 101 exhibit 4-1 state and federal court structures, 106 exhibit 4-4 state courts, 105–107 trial court, 99, 100, 102 Judicial opinions concurring opinion, 22 court membership, 23–24 dissenting opinion, 23 en banc opinion, 23 judicial restraint, 26–27 majority opinion, 22 mandatory and persuasive authority, 24–25 obiter dictum, 25–26 per curiam opinion, 23 plurality opinion, 22 Judicial restraint, 26–27 Jurisdiction, 100, 224 Jurisprudence constante, Justice, 105 591 K KeyCite®, 245 for cases, 207–215 definition of, 189 full history screen of Brendlin, 212 exhibit 6-11 key terms, 216 overview, 245 selected screens from citing references to Brendlin, 213–214 exhibit 6-12 for statutes, 215 WESTLAW screen of Brendlin v California, 211 exhibit 6-10 KeyCite Alerts®, 245 KeyCiting, 191 Key Number System®, 78, 79, 80–82 exhibit 3-20 Key terms (identification of ), 226 L Landmark case, 18 Landrith, Bret, 263–264, 267, 269 Law, sources of finding tools, 12, 13 key terms, 16 Lawyers Cooperative Publishing Company, 15 legal publishing, 14–15 legal sources, citation to, 14 legal sources and finding tools, 13 exhibit 1-9 LexisNexis, 14, 15 Loislaw, 15 primary sources, 12, 13, 14 exhibit 1-10 Reed Elsevier, 15 secondary sources, 12, 13 Thomson Corporation, 15 Thomson Reuters, 15 Thomson/West (West), 15 Versuslaw, 15 WESTLAW, 14 West Publishing Company, 15 LawCrawler, 447–448 Law Library of Congress, 453 Law Library Resource Exchange (LLRX), 253 Lawlink®, 447 Law office memo format to and from, 331 application of law to facts, 333–336 case analysis chart, 334 exhibit 13-2 conclusion, 336 date, 331 facts, 331 issue(s) and answer(s), 331–332, 332 exhibit 13-1 re, 331 reasoning, 332 statement of the rule of law, 332–333 statutory analysis chart, 335 exhibit 13-3 thesis paragraph, 332 introduction, 329 key terms, 351 organization of, 283 purpose and use, 329–330 purpose of, 277 sample (first), 336–343 sample (second), 343–350 style, 330 592 INDEX Law reviews, 73, 74–77 exhibit 3-17, 77 exhibit 3-18 Law school law reviews See Law reviews Lawyers Cooperative Publishing Company, 15, 87 Lawyers Edition, 79 Legal analysis, 36–37, 37 exhibit 2-3 Legal conclusion, 314 Legal dictionaries, 71–72 Ballentine’s Law Dictionary, 67 Black’s Law Dictionary, citation to, 68 exhibit 3-15 Black’s Law Dictionary, page from, 68 exhibit 3-14 Words and Phrases, 67–68 Words and Phrases, pages from Pocket Part Supplement to Volume 14, 69–71 exhibit 3-16 Legal Directories, 71–72 Legal encyclopedias caveat on use of, 45–46 citation to, 54 citation to American Jurisprudence, 54 exhibit 3-3 citation to Corpus Juris Secundum, 54 exhibit 3-4 excerpts from, 46, 47–53 exhibit 3-2 introduction, 43–44 use of, 46 using, tips on, 45 exhibit 3-1 Legal Information Institute (LII), 250, 447 Legal Information Institute: Global Resources, 456 Legal newspapers, 73 Legal periodicals bar association periodicals, 73 introduction, 73 law school reviews, 73, 74–76 exhibit 3-17, 77 exhibit 3-18 legal newspapers and newsletters, 76 legal periodical indexes, 76 non-student-edited journals, 76 Legal publishing, 14–15 Legal reasoning and analysis constitutional law, legal analysis of democratic reinforcement, 35 interpretation process, 35 introduction, 31–32 literalism, contemporary, 34–35 literalism, historical, 34–35 modernism, 33–34 originalism, 32–33 doctrine of stare decisis definition of, 18 Griswold v Connecticut, 18 Roe v Wade, application to a later case, 19–20 Roe v Wade and, 19 two sides to every problem, 20–22 introduction, 17–18 judicial opinions concurring opinion, 22 court membership, 23–24 dissenting opinion, 23 judicial restraint, 26–27 majority opinion, 22 mandatory and persuasive authority, 24–25 obiter dictum, 25–26 per curiam opinion, 23 plurality opinion, 22 Legal reasoning and analysis (continued) key terms, 40–41 reasoning by analogy, 38–39 deductive reasoning, 35, 37–38 Jennifer Weiss illustrative fact pattern, 36 legal analysis, 36–37 statutory law, legal analysis of introduction, 27 legislative history, 30–31 legislative intent, 27 plain meaning rule, 27 plain meaning rule, limitations on, 28 statutory interpretation, aids to, 29 statutory interpretation, caveat on, 31 strict construction, 29–30 Legal research databases introduction, 242 LexisNexis®, 240, 242–244 Loislaw, 242 National Law Library, 242 VersusLaw, 242 WESTLAW®, 240, 244–246 Legal research starting points FindLaw®, 447 Global Legal Information Network (GLIN), 448 Hieros Gamos comprehensive legal site, 448 LawCrawler, 447–448 LawLink®, 447 Legal Information Institute (LII), 447 lexisONE (LexisNexis), 448 Meta-Index for U.S Legal Research, 448–449 PublicLegal, 448 University Law Review Project, 449 USAGov.com (formerly FirstGov), 449 WashLawWEB™, 449 Legal writing citation sentences, 417 communicating too much, 262 ethical obligations attorney misconduct, 275–276 competence in writing, 263–265 confidential information, 266 judges, statements concerning, 274–275 meritorious claim, 267 non-attorney assistants, attorney’s responsibility regarding, 272–274 opposing party and counsel, fairness to, 268–269 rights of third persons, respect for, 271 tribunal, candor toward, 267–268 tribunal, impartiality and decorum of, 269–271 truthfulness in statements and to others, 271 importance of, 260–261 introduction, 259–260 key terms, 279 mechanical errors, eliminating, 262–263 purpose of, 276 textual sentences, 417 types of to inform, 276–277 to persuade, 277–278 to record information, 278–279 writing as communication, 261–262 Legislation, 135 Legislative branch, 6, 134–135 Legislative history, 30–31 Legislative intent, 27 Letter to the third party, 277–278 INDEX 593 LexisNexis commercial online subscription database, 240–241 CourtLink®, 253 custom source tabs, 243 digests, 79 Directory of Online Sources, 242 ECLIPSE feature, 243 headnotes, 118 introduction, 242 Lexis Get & Print ™, 243 LexisNexis®Alerts, 243 LexisNexis® Dossier, 244 LexisNexis Total Litigator®, 244 lexisONE, 448 libraries and files, 242–243 paralegal community, 243 publications, 15 research history, 243 Shepard’s Citations Service®, 243 Shepard’s Citators, 191 Smart Indexing Technology, 244 Source Locator, 242 Limited jurisdiction, 100 List of CFR Sections Affected (LSA), 166, 171–173 exhibit 5-10 Listservs, 443–444 Literalism, 34–35 Living constitution, 132 Local court rules, 161 Local law, 6, 160 Loislaw, 15, 242 Looseleaf publications, 401 Looseleaf services, 72–73 Louisiana Civil Code, 1, 2–3 LSA: List of CFR Section Affected, 166, 171–173 exhibit 5-10 facts, 356 format, 355–356 introduction, 353 organization, 355 purpose and use, 353–354 questions presented, 356 rule of law, 357 sample (first), 358–365 sample (second), 365–371 style, 353–355 thesis paragraph, 357 Memorandum of Points and Authorities See Memorandum of law Merit selection, 107 Metadata (warning), 262 Meta-Index for U.S Legal Research, 448–449 Minor premise, 37 Model Rules of Professional Conduct, 235, 264, 269 Modernism, 33–34 Modernists, 33 Mopsik, Norman, 273–274 Motion, 100, 102 Motion for a directed verdict, 102 Motion for a summary judgment, 102 Municipal and state government law web resources Administrative Codes and Registers (ACR), 453 Findlaw’s State Resources Index, 453 Guide to Online Law: U.S States and Territories, 453 introduction, 453 Municipal Code Corporation Online Library, 453–454 National Center for State Courts (NCSC), 454 National Conference of State Legislatures (NCSL), 454 State and Local Government Comprehensive Legal Site, 454 Municipal Code Corporation (MCC), 453–454 Municipal Code Corporation Online Library, 250, 453–454 M N McKenna, Anne T., 66 Madison, James, 33 Majority opinion, 22, 103 Major premise, 37 Mandatory authority, 24 Marbury v Madison, Marshall, John, Marshall, Thurgood, 25 Martindale-Hubbell Law Directory, 71–72 Meadowbrook, LLC v Flower, 189 Mechanical errors active versus passive voice, 430–431 antecedents, 429–430 apostrophes, 423–425 direct objects, locating, 430 excess words, 421–423 indirect objects, locating, 430 introduction, 421 parallel construction, 427–428 run-on sentences, 426–427 sentence fragments, 425–426 tenses, changes in, 432–433 Memorandum of law, 278 application of law to facts, 357 argument, 356–357 caption, 356 conclusion, 357–358 National Association of Legal Assistants (NALA), 444 National Association of Secretaries of State (NASS), 250, 453 National Center for State Courts (NCSC), 253, 454 National Center for State Courts’ Technology Division, 255 National Conference of State Legislatures (NCSL), 252, 454 National Federation of Paralegal Associations (NFPA), 444 National Institute of Trial Advocacy (NITA), 244 National Law Journal, 76 National Law Library, 242 National Reporter System®, 245 Negative indirect history, 209 New Jersey Lawyer, 76 New York Law Journal, 76 Nightmare property, 437–439 Non-Article III courts, 103 Notice, 166 O Obiter dictum, 24, 25–26 Office memo See Law office memo Office of Legal Counsel, 63, 64 exhibit 3-10 Official Opinions of the Attorney General, 62, 64 exhibit 3-10 “Official reporter”, 108 On all fours, 20 Online, 239 On point, 19–20 Opinion letter See Client opinion letter 594 INDEX Oral argument, 103 Ordinances, 6, 160 Originalism, 32–33 Original jurisdiction, 100 Overrule, 21 P Packages, 28 Paige, Sheri, 266 Panel, 103 PastStat Locator™, 246 Peak, George, 219–220 Penumbra doctrine, 18 Penumbras, 18 Per curiam opinion, 23 Person acting under color of law, 147 Persuasive authority, 24 Petitioner, 117 Petition for writ of certiorari, 105 Pinpoint citation, 288 Plagiarism, 288–289 Plain English, 261 Plain meaning rule, 27 Plain meaning rule, limitations on, 28 Plaintiff, 117, 118 Planned Parenthood of Southeastern Pennsylvania v Casey, 19–20 Pleadings answer, format of affirmative defenses, 314 caption, the, 313 certificate of service, 314 counterclaims, 314 defenses, 313–314 introductory clause, 313 title, 313 complaint, format of body (or “charging portion”), 311–312 caption, the, 311 introductory clause, 311 prayer for relief, 312 signature block, 312 title, 311 verification, 312–313 conclusions of law, 314, 315 definition of, 278 drafting allegations, 315 evidentiary facts, 314, 315 format court rules, 310 forms, 310 introduction, 309 key terms, 326 legal conclusion, 314 purpose and use, 309–310 relationship among facts and conclusions, 314 exhibit 12-1 sample set, first answer, 320 complaint, 316–319 second sample set answer, 324–325 complaint, 321–323 tips for drafting a complaint, 316 exhibit 12-2 ultimate facts, 314, 315 Plessy v Ferguson, 21, 25 Plug-ins, 249, 443 Plurality opinion, 22 Pocket parts, 44–45, 133, 144 Pocket veto, 138 Podcast, 444 Point headings, 356 Popular name, 143, 582 Portable Document Format (PDF), 443 Preamble, 28, 143 Precedent, 19 Preempted, Preemption doctrine, Presidential proclamations, 10 Primary sources, 14 exhibit 1-10 administrative law (see Administrative law) constitutions, 131–134 court rules, 160–165 definition of, 12 key terms, 180 secondary sources, differences between, 13 statutes (see Statutes) Privacy, 18 Private bills, 137 Problems (in research and writing) attractive nuisance, 435–436 defamation, 436–437 I wonder what is in the package, 439–440 nightmare property, 437–439 Prospective, 135 Protocol, 441 Public Access to Court Electronic Records (PACER), 254–255, 256 Public bills, 137 Public domain, 246 PublicLegal, 448 Public records, 242 Public records databases Accurint®, 247 AutoTrackXP®, 247 introduction, 246–247 Published opinions, 23, 24 “Pull”, 14 Pyle, E Thomas, III, 275–276 Q Questions of fact, 102, 103 Questions of law, 100, 102 Quon v Arch Wireless Operating Co., Inc, 59–60, 62 Quotations, rules for basic quotation rules, 413 exhibit C-1 block quotations, 414–415 complete sentences, 415–416 introduction, 411 phrases, 415–416 plagiarism, avoid, 412 quote accurately, 412 to quote or not, 411–412 types of, 414 R Reagan, Ronald, 10–11 Reasoning, 124 Reasoning by analogy, 19 INDEX Reasoning by example, 19 Recusal, 23 Recuses, 23 Reed Elsevier PLC, 15, 242 See also LexisNexis “Register”, 249 Regulations.gov, 250 Rehnquist, William H., 373 Remands, 102, 103 Reporter (individual), 64 Reporters (books), 77, 107, 401 Research and writing, problems in attractive nuisance, 435–436 defamation, 436–437 I wonder what is in the package, 439–440 nightmare property, 437–439 Research process and ethical considerations abbreviated research flowchart, 220 exhibit 7-1 cartwheel method of identifying key terms, 228–229, 228 exhibit 7-7 currency, 224 ethics violation, inadequate legal research as, 235–236 George Peak illustrative fact pattern, 219–220 getting organized, 221–223 introduction, 219 jurisdiction, 224 key terms, 237 key terms, identifying, 226 known primary source approach, 225 legal research, eight steps of, 220–221 overview approach, 224 relationship among research tools, 232 exhibit 7-11 research checklist, 222–223 exhibit 7-3 research journal, 221 exhibit 7-2 step one: gathering information, 225–226, 225 exhibit 7-5 step one: gathering information (warning), 225 step two: identifying key terms, 226–229, 226 exhibit 7-6 step three: using secondary authority, 229–230, 230 exhibit 7-8 step four: locating primary authority, 230–231, 231 exhibit 7-9 step five: locating other primary authority, 231–233, 231 exhibit 7-10 step six: reviewing found sources and updating, 233–234, 234 exhibit 7-12 step seven: deciding whether you are finished with your research, 234, 234 exhibit 7-13 step eight: evaluate information and determining the answer to research question, 234–235, 235 exhibit 7-14 three approaches to the research process, 224 exhibit 7-4 topic approach, 224–225 Research Trails®, 244–245 Res ipsa loquitur, 287 Resolutions, Restatements American Law Institute, the, 64–65 citations to, 65 exhibit 3-11 Restatements of the Law, 64–65 Restatements of the Law, 64–65 Retrospective, 135 Reverse, 21 Richmond, William, 265 Roe v Wade, 9, 19–20 RSS, 243, 444 Rule of four, 105 Rules of appellate procedure, 161 Rules of civil procedure, 161 Rules of construction, 27 Rules of Criminal procedure, 161 Rules of evidence, 161 S Scope, 60 Scrubbing program, 262 Search and seizure, 399–400 Search and seizure, background information, 569–574 Secondary sources and finding tools American Law Report Series (ALR) ALR annotation, structure of, 56–61 American Law Reports citation, 61 exhibit 3-9 citation to, 61–62 first page of sample case, 60 exhibit 3-7 introduction, 54–56 pages of 25 ALR 6th 201, 57–59 exhibit 3-6 series of American Law Reports, 56 exhibit 3-5 using, tips on, 61 exhibit 3-8 Attorney General opinions citations to, 64 exhibit 3-10 example, 62 introduction, 62 Office of Legal Counsel, citation to, 64 exhibit 3-10 Office of Legal Counsel, excerpt from, 63 definition of, 12 digests abstracts, development of, 79, 84–85 Defendant-Plaintiff Tables, 88 finding cases using, 87–88 introduction, 76–79 list, 78 exhibit 3-19 page format, 85 relevant material, finding, 86–87 reporters, relationship between, 79 sample page from Federal Practice Digest Fourth Series, 83–84 exhibit 3-21 Table of Cases, 88 types of, 85 using, tips on, 87 exhibit 3-22 West Key Number System®, 79, 80–82 exhibit 3-20 Words and Phrases index, 88 formbooks, 72 introduction, 43 key terms, 89 legal dictionaries Ballentine’s Law Dictionary, 67 Black’s Law Dictionary, 67 Black’s Law Dictionary, citation to, 68 exhibit 3-15 Black’s Law Dictionary, page from, 68 exhibit 3-14 Words and Phrases, 67–68 Words and Phrases, pages from Pocket Part Supplement to Volume 14, 69–71 exhibit 3-16 legal directories, 71–72 legal encyclopedias caveat on use of, 45–46 citation to, 54 citation to American Jurisprudence, 54 exhibit 3-3 citation to Corpus Juris Secundum, 54 exhibit 3-4 excerpts from, 46, 47–53 exhibit 3-2 introduction, 43–44 use of, 46 using, tips on, 45 exhibit 3-1 legal periodicals 595 596 INDEX bar association periodicals, 73 introduction, 73 law school law reviews, 73, 74–77 exhibit 3-17, 77 exhibit 3-18 legal newspapers and newsletters, 76 legal periodical indexes, 76 non-student-edited journals, 76 looseleaf services, 72–73 Martindale-Hubbell Law Directory, 71–72 primary sources, differences between, 13 restatements American Law Institute, the, 64–65 citations to, 65 exhibit 3-11 Restatements of the Law, 64–65 treatises, 65–67 citation to, 67 exhibit 3-12 pages from a treatise, 66–67 exhibit 3-12 Securities Act of 1933, 73 Securities and Exchange Commission (SEC), 73 Securities Exchange Act of 1934, 73 Selective approach (case reporting), 54–55 Session laws, 141–142 Shepard, Frank, 191 Shepardizing procedure abbreviations, 194, 195–196 exhibit 6-2, 197–198 exhibit 6-3 case names citator, 202–203 cover from November 1, 2007 issue of Shepard’s United States Citations: Supreme Court Reporter, 193 exhibit 6-1 cover page from the November 15, 2007 issue of Shepard’s Federal Statute Citations, 205 exhibit 6-6 introduction, 192 key terms, 216 sample page from Shepard’s United States Citations: Supreme Court Reporter, 199 exhibit 6-4 sample page from the November 1, 2007 issue of Shepard’s Federal Statute Citations, 206–207 exhibit 6-7 sample page from the November 1, 2007 issue of Shepard’s United States Citations: Supreme Court Reporter, 200–201 exhibit 6-5 sample page from the November 15, 2007 issue of Shepard’s Federal Statute Citations, 210–211 exhibit 6-9 samples pages from Shepard’s Federal Statute Citations, 208–209 exhibit 6-8 Shepardizing, 198, 200–202 statutes introduction, 203 step one: locate correct set of Shepard’s; record results, 203–204 step two: determine which volume to use, 204 step three: check each Shepard’s volume identified, 204 step one: locate correct set of Shepard’s; record results, 192–193 step two: determine which volume to use, 194 step three: check each Shepard’s volume identified, 194 Shepard’s Citations, 189 Shepard’s Citators, 191 Shepard’s Federal Citations, 191, 192 Shepard’s United States Citations, 191, 192 state or regional, 191, 192 Short-form citations, 417–419 Short-form citations for statutes, 419 Short title, 143, 584 [Sic], 288 Signposts, 285 Slip law, 140–141 Source Locator (LexisNexis), 242 Sources of law See Law, sources of State and Local Government Internet Directory, 249 State and municipal government law web resources Administrative Codes and Registers (ACR), 453 Findlaw’s State Resources Index, 453 Guide to Online Law: U.S States and Territories, 453 introduction, 453 Municipal Code Corporation Online Library, 453–454 National Center for State Courts (NCSC), 454 National Conference of State Legislatures (NCSL), 454 State and Local Government Comprehensive Legal Site, 454 State courts, 105–107 state and federal court structures, 106 exhibit 4-4 State governments, 12 exhibit 1-8 State legislatures, 138–140 Statement of the rule of law, 332–333 State Resources Index (Findlaw), 453 Status flags, 209 Statutes an “act”, passed as, 143 annotated code, 143–144 citations for, 159–160 Congress, 135–138 House of Representatives, 137 exhibit 5-2 United States Senate, 136 exhibit 5-1 federal government legislative branch reference materials, 141 exhibit 5-3 key terms, 180 legislative branch, 134–135 legislative history, 145 local law, 160 publication of, 140 session laws, 141–142 short-form citations for, 419 slip law, 140–141 state government legislative branch reference materials, 141 exhibit 5-4 state legislatures, 138–140 statutory code, 142–143 statutory research, 144–145 wiretapping and eavesdropping statutes, sample pages of United States Code, 145–147, 148–151 exhibit 5-6, 151–157 exhibit 5-7, 158–159 United States Code Annotated, 147 United States Code Service, 147 exhibit 5-5 Statutory law, 2, 27–31, 45 Statutory law, legal analysis of introduction, 27 legislative history, 30–31 legislative intent, 27 plain meaning rule, 27 plain meaning rule, limitations on, 28 statutory interpretation, aids to, 29 statutory interpretation, caveat on, 31 strict construction, 29–30 Steinberg, Andrew, 271, 272 Strict construction, 29–30 Subject matter jurisdiction, 100 Summary and comment, 60 Supra, 46 Supremacy clause, 6, 131 Supreme Court of the United States See United States Supreme Court Supreme Court Reporter, 108, 118 Syllabus, 118 Synthesizing, 122 INDEX T Tabulation, 286 10 Minute rule, 241 Testimony, 100, 102 Texas & Pacific Railway v Abilene Cotton Oil Co., 28 Textualism, 34 Textual sentences, 417 The Bluebook: A Uniform System of Citation, 404, 408, 411 Thesis paragraph, 332 The Yale Law Journal, 73, 74–77 exhibit 3-17 Third-party information provider, 247 THOMAS, 252, 452 Thomas, Clarence, 11 Thomson Corporation, 15 Thomson Reuters, 15 Thomson/West (West), 15 Title, 142 Title 18 United States Code section 2510 Definitions, 559–562 section 2511 Interception and disclosure of wire, oral, or electronic communications prohibited, 562–567 section 2515 Prohibition of use as evidence of intercepted wire or oral communications, 567 section 2520 Recovery of civil damages authorized, 567–568 Transactional pricing, 241 Transitional language, 285 Transmittal letter purpose of, 277, 293 sample, 294 exhibit 11-1 style of, 293–294 style tips, 294–295 Treatises, 65–67 citation to, 67 exhibit 3-12 pages from a treatise, 66–67 exhibit 3-12 Trial brief See Memorandum of law Trial courts, 99, 100, 102 Trial level brief See Memorandum of law Tripartite system administrative agencies, division of governmental powers, exhibit 1-5 doctrine of judicial review, 8–9 government of the United States, exhibit 1-6 introduction, 6–8 See also American system of law 597 Article II, Section 1, Article III, Section 1, 103 Article III, Section 2, 100 Article V, 133 Article VI, 131 Eighth Amendment, 34 format of, 132 Fourteenth Amendment, 133 language of, 132 living constitution, 132 state and federal powers, comparing, exhibit 1-4 Tenth Amendment, exhibit 1-2, 6, 131 written constitution, 132 United States Copyright Office, 251 United States Court of Appeals, 105 United States district courts, 104 United States Government Printing Office (GPO), 181, 452 United States Law Week, 72–73, 408 United States Magistrate Judge, 104 United States Patent and Trademark Office (USPTO), 251 United States Reports, 108, 402 United States Statutes at Large, 142 United States Supreme Court, 10, 77, 105 United States Supreme Court Digest, 86 United States Supreme Court Digest, Lawyers’ Edition, 85, 86 United States Supreme Court Reports, 79 United States Supreme Court Reports, Lawyers’ Edition, 108 United States Supreme Court Reports, Lawyers’ Edition, Second Series, 108 United States v Chanthasouxat, 399, 400 United States v Gilley, 39 United States v McKinnon, 39, 414–415 United States v Walker, 406, 407 Universal Citation Guide, 404 University Law Review Project, 251–252, 449 Unpublished opinions, 23–24 USA.gov.com (formerly FirstGov), 449, 452 USPTO Electronic Filing System (EFS), 251 V VersusLaw, 15, 242 Vetoed legislation, 10 W U Ultimate facts, 314, 315 Unicameral, 135 Unified court structure, 105–106 Uniform Commercial Code, Uniform Resource Locator (URL), 443 United Nations, 456 United States at Large, 142 United States Code, 142, 146, 559–568 United States Code Annotated (U.S.C.A.), 143, 144, 145, 147 exhibit 5-5, 148 exhibit 5-6, 151–158 exhibit 5-7, 163 United States Code Congressional and Administrative News, 142, 144 United States Code Service See United States Code Annotated (U.S.C.A.) United States Constitution, 3–6, 132 amendments, 132 Article I, Section 8, 131 Article I, Sections and 10, 4–5 exhibit 1-3 WashLawWEB™, 449 Web browsers, 443 Web resources federal law Emory Law School Federal Courts Finder, 451 Federal Agency Index, 451 Federal Government Legal Resources, 451 FedWorld.com, 451–452 GPOAccess, 452 introduction, 451 THOMAS, 452 USA.gov, 452 Yahoo! Government Information Directory, 452 international law Electronic Information System for International Law (EISIL), 455 Embassy.org, 455 Global Legal Information Network (GLIN), 455 Guide to Foreign and International Legal Databases, 456 598 INDEX introduction, 455 Legal Information Institute: Global Resources, 456 United Nations, 456 state and municipal government Administrative Codes and Registers (ACR), 453 Findlaw’s State Resources Index, 453 Guide to Online Law: U.S States and Territories, 453 introduction, 453 Municipal Code Corporation Online Library, 453–454 National Center for State Courts (NCSC), 454 National Conference of State Legislatures (NCSL), 454 State and Local Government Comprehensive Legal Site, 454 Web search tools FindLaw®, 447 Global Legal Information Network (GLIN), 448 Hieros Gamos comprehensive legal site, 448 LawCrawler, 447–448 LawLink®, 447 Legal Information Institute (LII), 447 lexisONE (LexisNexis), 448 Meta-Index for U.S Legal Research, 448–449 PublicLegal, 448 University Law Review Project, 449 USAGov.com (formerly FirstGov), 449 WashLawWEB™, 449 Weiss, Jennifer, 36, 79 WestCheck®, 245 WestClip®, 245 West Find & Print®, 245 West Key Number System®, 246 WESTLAW 50 state surveys, 246 Alert Center, 245 briefs, dockets and court filings, 246 CourtExpress™, 253 custom tabs, 245 Find & Print®, 245 introduction, 244 KeyCite®, 245 KeyCite Alerts®, 245 KeyCite and, 191 legal publishing, 14 National Reporter System®, 245 online subscription database, 240–241 PastStat Locator™, 246 WestCheck®, 245 WestClip®, 245 West Key Number System®, 246 Westlaw Database Directory on the Web, 244 Westlaw Guide for Paralegals, 245–246 Westlaw Profiler™, 246 WESTLAW Research Trails®, 244–245 Westlaw Guide for Paralegals, 245–246 Westlaw Profiler™, 246 West Publishing Company, 15, 108, 402 West Key Number System®, 78, 79, 80–82 exhibit 3-20 West’s Legal Forms 3d, 72 Whois (InterNIC), 442 Will, 278 Wiretapping & Eavesdropping: Surveillance in the Internet Age (Third Edition) (Fishman, McKenna), 66 Wiretapping statutes, Title 18 United states Code section 2510 Definitions, 559–562 section 2511 Interception and disclosure of wire, oral, or electronic communications prohibited, 562–567 section 2515 Prohibition of use as evidence of intercepted wire or oral communications, 567 section 2520 Recovery of civil damages authorized, 567–568 Words and Phrases, 67–68 pages from Pocket Part Supplement to Volume 14, 69–71 exhibit 3-16 World Wide Web, 239, 443 See also Internet, the Writing, fundamentals of editing, 289–290 graphics, 286 introduction, 281 key terms, 291 mechanical errors case syllabus, quoting from, 287 contraction, use of, 289 elegant variation, 289 headnote, quoting from, 287 page reference to material, omitting, 288 plagiarizing, 288–289 plain English, not using, 287–288 quoting, inexact, 288 the word “I”, using in more formal documents, 289 office memo, organization of, 283–284 organization, 283 organization within sections, 283 outline, 282 paragraphing, 286 paragraph level, organization at, 284 prewriting, 281–282 proofing, 289–290 reader, keeping in mind, 283 sentences, word order within, 284–285 signposts, 285 tabulation, 286 thesis, 282 topic sentence, 284 transitional language, 285 Written constitution, 132 Wrona, Eugene, 274–275 Wyoming v Houghton, 408 X XML (eXtensible Markup Language), 444 Y Yahoo! 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