Understanding Legal Research and All It Covers

Understanding Legal Research and All It Covers

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Understanding Legal Research and All It Covers
Legal research is one of the basic activities in the practice of the law, and the one probably most undervalued by the lay public.  While lawyers on television are shown grandstanding in court rooms or meeting clients in offices, the reality of the the law is that it is predicated not on performance and oration, but on research and study.  Legal research is the core of any legal action, as nearly all laws and legals actions are based on the construction of legal arguments, and legal arguments are constructed by the support gained through research.  All legal research is drawn from three kinds of resources: primary, secondary, and evidential.  Primary resources generally refers to the rule of law, or letter of the law, or in simplest terms, laws as they are written.  Secondary resources are anything for which supports legal research other than the specific words of the law, and as a result it can be a very broad category.  Evidential refers to the physical, material, or testimonial elements that become part of a case and subsequently part of a legal argument; in simple terms, evidence.  

 

Introduction:

 

Legal research, especially for a litigating attorney (meaning one who presents and develops legal actions to be presented in court, whether they be criminal, civil, tort, and so on), their paralegals, or firm presents the majority of the activities that need to be undertaken to get a case to the level where it can be considered “actionable.”  Combined with this need of research, as well as the sheer volume of legal discourse and documentation that has been produced just in American legal history alone, the process of legal research is daunting in the extent to which it can be time consuming.  To contend with this, most legal research these days is performed by paralegals, or legal assistants. The rise of paralegals has led to an increase in the overall quality of legal research, which has led to more valid legal arguments being presented and argued in most courts, which many feel has been an boon to the legal system...

 

Terminology of Legal Research:

 

The assorted terminology of legal research consists of an extended glossary of legal terms, the entirety of which is too great to be categorized here.   But there are still a number of key legal terms that can be emphasized, that an aspiring paralegal should absolutely know and understand if one is to become in anyway engaged with the legal process and specifically with legal research.  Of primary importance to these legal terms is the understanding of the various forms of law that exist in society.  The term “Law” itself  can be a term open up to very broad interpretation,  referring not only to the entire expanse of the legal system, but also to its most basic element: the individual rules upon which the entire system is constructed...

 

Finding Law Libraries:

 

Law libraries are the fundamental locations where legal research takes place.   It is in these law libraries that attorneys and paralegals are able to find access to the material by which they can support their arguments and legal actions, and where law students go to devise their assignments, and where legal scholars go to find the research and theory to compose their law articles and treatises.   Because the law is such a common practice throughout all of American society, law libraries are located all throughout the United States.  As a rule, most law libraries serve the primary function of providing access to the law to anyone who needs it, but there are private law libraries just as there are private libraries. Therefore,  many law libraries have varying degrees of accessibility, depending upon where they exist in the private or public sectors... 

 

Categories of Legal Research:

 

Legal research categories can be determined on two different categories: the nature of the research, and the nature of the law.  The nature of research often describes the form of research that an attorney or paralegal is tasked with completing, in terms of it being primary, secondary, or evidential, or specifically the material that needs to be researched (such as legal articles).  Nature of law specifically refers to the categories of law that one is trying to research, and are as varied as the categories of law itself.   Some particular areas of legal research can involve particular categories of material.  Often a paralegal or researcher will be tasked, on the basis of the work of their firm, with research laws related to that category of law, but since many legal actions cross these legal categorical boundaries, it is not uncommon for a researcher to perform research outside of their realm of experience...

 

Formats of Legal Research:

 

Legal research, when tended as interoffice reports within a firm or organization, in presentation to the courts, or in publication of legal articles, are generally required to adhere to certain standards of legal writing.  Legal writing is accomplished according to particular formatting requirements and rules of citation, and commonly expected to rely heavily use of legal terms (or jargon) as well as clear, or concise arguments.  The basic idea though, is that anyone working in the profession would be able to gain the information they want by going to the specific area of the document based on its formatting.  Legal writing  is not writing performed in “lay terms,” since it is commonly directed to a very specified audience.   In relation to a court of legal proceeding, attempting to file a document without the proper legal format will often cause the document to be rejected flat out, regardless of the content of the document...

 

Glossary of Legal Research Materials:

 

Legal research materials can be drawn from a number of different sources.  Almost all legal materials are published and presented in many different formats, what matters is finding where specifically to look for this information.  Most legal research materials are centered on either two categories of legal research - primary resources and secondary resources.  Primary resources refer to resources that refer directly to the letter of the law, or the law as written; which includes law as regulated by agencies or legislated by varying legislatures.  Secondary resources refer to articles, opinions, treatises, and other reference materials that describe laws as it relates to specific contexts, interpretations, and arguments.  Commonly, research materials can be found in number of areas, a brief listing of which can be found within...

 

Authority in Research & Writing:

 

Authority in legal research and writing is a description of the need for legal arguments to reference key sources that will support their writing.  In other words, it is a measure of research’s validity in terms of supporting its overall argument.   A legal motion is said to have to submit itself to authority, meaning either texts, laws, precedents, regulations, and similar legal resources by which the writing bases its argument.   Most authority is determined on primary and secondary sources, with primary, being the letter of the written law, holding the most authority.  Authority in secondary sources, which encompasses the rest of legal discourse, such as articles, treatises, case records, and judicial decisions, requires more comprehensive understanding and description, because not all secondary sources have the same authority as others...

 

Cite Checking:

 

Citations are a necessity for any piece of legal writing, and not in abstract terms.  Any legal document such as a motion or brief that does not feature citation will not even be examined by any legal organization or court.  Citation is the key purpose of legal research, as the presence of citation indicates not only research but also authority, which can emphasize the strength of the material used to support the argument. Ensuring that a legal document has the proper citation is one of the most important elements in drafting a legal argument, just like a criminal case has to check all evidence, a legal argument must be verifiable by the members of the legal institution that read the document as part of a legal proceeding.  An unchecked typo could cause an unseen error that could lead to a document to be rejected by the court...

 

9 Major Search Resources:

 

There are many resources available to paralegals, attorneys, or law students who are looking to perform comprehensive legal research for the preparation of a case, motion or article.  Legal research supports an industry all its own, and because of this, it has produced a substantial amount of services to satisfy customer demand.   Listed within and described in depth  are nine search resources that will form the bulk of the tools a paralegal or legal researcher will use when researching their cases.  These include catalogs, which provide access to assorted legal services, digests, which index case material by subject, and annotations, which catalog secondary material based on the laws that is devised in reference to.  With the onset of the Internet, many of these tools are more accessible than they have even been, so knowing how they can work will be a requirement of being part of the modern legal profession...

 

Finding Case Law:

 

Case law is predicated entirely on the laws that are interpreted and implemented, and even invalidated,  through the process of stare decisis, or judicial review; its rule of law is thus based on judicial opinions and precedents that are derived from these cases that are contested before a higher court judiciary.  Searching case laws is a vital part of nearly all legal actions, especially those that are based on questions of legal interpretation, where the point of the case contested is the interpretation of the law at hand.   Therefore. all of these articles are required to heavily site existing cases as a means of giving their cases authority.  Fortunately for paralegals, attorneys, and legal researchers, finding case law is far easier than it used to be...

 

Reading & Finding Statutes:

 

“Statute” is the term most used in the legal profession to refer to a law that was created through legislation.  Thus, statutory law specifically examines statutes as they are written and legislated into being, unencumbered by secondary legal analysis from articles and treatises, and even of the opinions and precedents associated with judicial review.  Finding, reading,  and analyzing  statues are a key part of any legal action, as nearly every legal suit, motion, or argument  requires the authority associated with referencing the primary source of law upon which it is based, which are often the original statues.  While everyone knows laws exist, finding them, as written, can be somewhat tricky for a paralegal or legal researcher, especially if he or she is unaware of  where to look...

 

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