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Determining Relevant Facts and Legal Issues
- Gather information: Parties
- Gather information: Harm or injury
- Gather information: Events in chronological order
- Gather information: Facts supporting each position
- Relevant facts
- Identify issues: Areas of law
- Identify issues: Keywords
Overview of Legal Sources
- Types of legal sources
- Primary sources: Statutes, rules, codes, etc.
- Primary sources: Appellate cases
- Secondary sources
- Start to search
- Searching for statutes
- Edit keywords
- Searching for cases on Courtroom5
Reviewing and Analyzing Cases
- Review each case
- Analyze each case: Ask yourself…
- Edit keywords
- Analyze the collection
- When to end the search
- Who wins?
Transcript
Hi. I\’m Matt, and welcome to our fourth course, legal resources and authorities. This is lesson one, conducting research.
This lesson includes determining relevant facts, an overview of legal resources, and reviewing and analyzing cases.
We\’ll use a sample set of facts as a learning tool in this lesson. Here are the facts. Gloria was adopted by Preston when she was seven years old. Three days after her thirtieth birthday, she sued Preston for having raped her during her childhood.
Yet, she said she had no memory of the rapes until her memories were recovered by psychologist Meryl. Eventually, Preston won the case and was cleared. Preston then sued the psychologist, alleging that had Meryl exercised reasonable care, he would have foreseen the harm to Preston from the diagnosis and Preston would not have suffered mental and emotional distress.
To find the area of law that needs to be researched, gather all the facts. First, identify the parties involved. Here, there is Preston and Meryl. This case, in particular, requires information about Meryl\’s occupation. It matters that he was Gloria\’s psychologist and not her brother or bartender.
What is the harm or injury? This is important because the harm or injury must be one that the law allows a remedy for. For Preston to have a chance of prevailing, there must be a statute on the books that gives him a cause of action for his harm. In this case, the harm is emotional distress.
Listing the events in chronological order helps determine damages, remedies, and degrees of harm.
If someone hits you with a car, it helps to know whether they yelled at you before or after they hit you. The first could be a warning and could mitigate damages. The second could be revenge or hatred and might increase an award of damages.
Understand your position and that of your opponent.
In our sample, Preston might say, Merrill was a professional and should have known his actions would inflict distress on me. Merrill might say, Preston was not my patient, so his distress was not my concern.
At this point, you should have a set of facts that can be used to prove or disprove a claim, counterclaim, or defense.
These are called relevant facts.
You should be reluctant to include facts beyond these.
Now that you know the facts, develop a question that needs to be answered by each side. Preston\’s question, what duty does Merrill owe to protect me from harmful emotional distress?
Merrill\’s question, what duty do I owe to someone who is not my patient?
Match the facts, issues, and questions to areas of law that might apply. Start with general areas and narrow to specific areas or keywords.
Guess if you need to. If the questions or issues are off the mark, you can refine later.
Create a list of keywords for your search. Sources for keywords include the complaint, Google searches, Wikipedia, online encyclopedias, and dictionaries.
If you have a statute, begin with that and update the list as the search progresses.
Now that you know questions, keywords, and issues, it\’s time to find legal sources for your arguments.
There are two main types of legal sources, primary and secondary. Cases, statutes, rules, and codes are primary sources.
Dictionaries, encyclopedias, reports, law reviews, and guides are examples of secondary sources.
Statutes, rules, and codes provide authority for your arguments and support for a claim or defense.
They tell the judge what the law is. In motions and pleadings, you must use primary sources.
Like statutes, appellate cases provide authority for arguments, but they do so in the context of real life situations.
Judges have a chance to interpret and apply the law to those real life situations and suggest solutions to any conflicts in a law.
If you know nothing about the issues in your case, encyclopedias, dictionaries, and guides can help you understand them enough to develop keywords.
You can also use them to find background information on topics or as supplemental information in an exhibit or footnote.
Secondary sources are also good for understanding how to do something like cite cases or define a legal term.
Secondary sources are neither authoritative nor binding. That means the judge doesn\’t have to follow them. Secondary sources are also not mandatory.
When searching legal sources, first determine where to search, then use your keywords to find statutes and cases relevant to the questions.
Update the keywords when you have new information.
Preston and Merrill begin their searches on courtroom five with the new law feature. From here, they will use the search statutes tab to find statutes or the search rules tab to find rules of civil procedure.
When you find a statute that is relevant to your case and set of facts included in your keywords, this will help when you search for cases with that statute in it.
When searching for cases on courtroom five, go to the new law feature and click the search cases tab, then select your jurisdiction and type your keywords.
What should Preston and Merrill look for in a case?
The ideal case is one that has the same legal issues, involves a party in a similar situation, and was decided in an appellate court in their jurisdiction.
Both Preston and Merrill will seek cases concerning negligence of therapist and recovered memories. Preston will look for cases where a person falsely accused of rape based on recovered memories prevailed.
Merrill will see cases where a therapist prevailed in a case of recovered memories. Both will look at appellate cases in Wisconsin where they reside.
When you start to see the same cases over and over, analyze.
That is, stop and read through each case in more depth. Of each case, ask yourself, one, does this case answer my question?
Two, does this case support my position?
Three, does this case defeat my opponent\’s position?
Four, are the statutes I found interpreted in this case? Does this case have similar facts as mine?
Discard cases that do not answer at least one of these questions.
Skim your collection of cases. Keep cases with facts similar to yours and that are helpful to your position. At this point, also keep cases that are helpful to your opponent so you can find others to oppose them.
Discard cases with facts very different from yours. Also, discard cases decided on a different statute or different issues than yours.
If you haven\’t already, update the keywords to reflect what you know so far. Discard terms and phrases that do not result in useful cases.
Analyze the collection of cases. Of the entire body of collected cases, ask similar questions as you asked of the single cases.
Do these cases answer my question? And so on. The purpose is to make sure there are no gaps in your supporting documents.
If you answer yes to all the previous questions, it\’s time to stop and weave statutes and cases into your legal writing. It\’s okay at this point to discard cases that are weak, like ones that don\’t support your case as strongly as others.
If you answer no to any of the questions, review and edit your keywords and continue searching to fill in the gap you\’re missing.
Who wins, Preston or Merrill?
If both have done thorough research, the decision may come down to the facts pertaining to issues like third party duty and foreseeable harm.
To summarize, in this lesson, we discussed ways to determine relevant facts and identify legal issues. An overview of legal sources looked at the types of legal sources available, how to begin searching, and sites to find primary and secondary sources.
Finally, we discussed ways to review and analyze single cases and an entire collection of cases.
Next up, lesson two, statutes, codes, and rules.