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(Answer to #1) The steps a paralegal should take to map out a research strategy are as follows:
Step One: Identify the IssueAnalyze the facts and identify the issue(s) involved.
Step Two: Identify Secondary SourcesIf unfamiliar with the topic that he is going to research, the paralegal should begin by doing some background research. He can choose from a variety of secondary sources, such as legal encyclopedias and treatises. Because organization is a key component of research, he should make a complete checklist so that he does not have to return to the same source later. He should be sure to check for updates in the pocket part of any secondary source consulted.
Step Three: Identify Primary SourcesNext, the paralegal should consult the various primary sources of law applicable to the issue at hand, such as federal and state statutes and constitutions and relevant case law. He should be sure to check the pocket parts as well, when applicable.
Step Four: Update and Verify Research ResultsAfter finding and reading relevant cases, he will have to verify in Shepard's that they are still good law. Shepard's will also provide an additional source of case law because it includes every subsequent case that cited the case being Shepardized. As a final measure, the paralegal should use an online citator to verify that his research results are as up to date as possible.
Having completed his research, the paralegal will prepare a memorandum of law to inform his supervisor of his findings.
(Answer to #2) A standard format for briefing cases is called the IRAC method, referring to issue, rule, application, and conclusion. This method involves the following steps:
First, decide what legal issues are involved in the case.
Next, determine the rule of law that applies to the issues.
After identifying the applicable law, determine the application of the law to the facts of the case (also called the holding).
Finally, draw a conclusion, which is the determination of the court after it has applied the law to the case.
Different lawyers and law offices have different preferences for the format to be used in briefing cases. What is most important is accuracy in explaining the key facts, the issues under consideration, the rule of law or legal reasoning used by the court, the application of the law, and the conclusion resulting from that application.
(Answer to #3) When analyzing cases, one should determine which statements of the court are legally binding and which are not. Only the holding (the legal principle to be drawn from the court's decision) is binding. Other views expressed in the opinion are referred to as dicta and are not binding. Dicta is the plural of dictum. As used here, dictum is an abbreviated form of the Latin term obiter dictum, which means a remark by the way. Dicta are any statements made in a decision that go beyond the facts of the case or that do not directly relate to the facts or to the resolution of the issue being addressed. Dicta include comments used by the court to illustrate an example and statements concerning a rule of law not essential to the case. One can probably assume that statements are dicta if they begin with If the facts were different or If the plaintiff had . . . or some other if/then phrase.
(Answer to #4) Often, the judge writing the opinion provides some guideposts, perhaps by indicating sections and subsections within the opinion by numbers, letters, or subtitles. Scanning through the opinion for these types of indicators can help orient the paralegal to the opinion's format. In cases that involve dissenting or concurring opinions, the paralegal should make sure to identify these opinions so that they are not mistaken for the majority opinion. Generally, the paralegal should scan through the case once or twice to identify its components and then read the case (or sections of the case) until he understands the facts and procedural history of the case, the issues involved, the applicable law, the legal reasoning of the court, and how the reasoning leads to the court's conclusion on the issues.
(Answer to #5) Several guides have been published on how to cite legal sources. Traditionally, the most widely used guide has been The Bluebook: A Uniform System of Citation, published by the Harvard Law Review Association. This book explains the proper format for citing cases, statutes, constitutions, regulations, and other legal sources. It is a good idea to memorize the basic format for citations to cases and statutory law because these legal sources are frequently cited in legal writing. An alternative guide is a booklet entitled ALWD Citation Manual: A Professional System of Citation, which is published by the Association of Legal Writing Directors. Legal practitioners should check the rules of their jurisdiction for guidelines on the proper format for citations in documents submitted to a court.
(Answer to #6) The Restatements of the Law are a helpful resource, and one on which judges often rely as a persuasive authority when making decisions. The Restatements are compilations of the common law that have been drafted and published by the American Law Institute. They are available online via Lexis and Westlaw.
There are Restatements in the areas of contracts, torts, agency, trusts, property, restitution, security, judgments, and conflict of laws. Many of the Restatements are now in their second or third editions. Each section in the Restatements contains a statement of the principles of law that are generally accepted by the courts or embodied in statutes, followed by a discussion of those principles. The discussions present cases as examples and also discuss variations.
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