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Legal Writing I & II: Legal Research and Writing & Introduction to Litigation Practice

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Ben Fernandez

Copyright Year: 2020

ISBN 13: 9798746520340

Publisher: Ben Fernandez

Language: English

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Table of Contents

  • Introduction
  • Part I: Objective Writing
  • 1. Sources of Law
  • 2. Legal Research 
  • 3. Briefing Cases
  • 4. Applying Cases and Analogical Reasoning
  • 5. Analyzing Statues and Marshaling Facts
  • 6. Citation
  • 8. Objective Legal Memoranda
  • 9. Other Examples of Legal Writing
  • 10. Improving Your Writing
  • Part II: Persuasive Essay
  • 11. Credibility
  • 13. Ethical Rules for Advocacy
  • 14. Civil and Appellate Procedure
  • 15. Requirements for Civil Motions and Standards for Appeals
  • 16. Persuasive Writing
  • 17. Memoranda in Support of MOtions
  • 18. Motion Session
  • 19. Appellate Briefs
  • 20. Oral Argument
  • Case Briefing Exercise
  • Clampitt v. Spencer
  • Eppler v. Tarmac
  • Sample Case Briefs
  • Clampitt v. Spencer Brief
  • Eppler v. Tarmac Brief
  • Case Analogy Exercise
  • Malczewski v. Florida
  • Sample Case Analogy
  • IRAC Exercise
  • Young v. Kirsch
  • State Farm V. Mosharaf
  • Southland v. Thousand Oaks
  • Sample IRAC
  • Legal Memorandum Exercise 
  • Sample Legal Memorandum
  • About the Author

Ancillary Material

About the book.

Legal Writing I & II; Legal Research and Writing & Introduction to Litigation Practice contains a brief discussion of all of the topics covered in a law school courses on legal writing, including a typical first semester course on legal research, analysis and writing an objective memorandum, as well as a second semester course on persuasion and writing an appellate brief, motion to dismiss or motion for summary judgment. The discussion focuses on the basics of analogical reasoning and persuasion and leaves out the minutiae. Each topic is taken one step at a time, with each step building on the step before it. The sources of law are presented first, then legal research, and reading and analyzing cases and statutes. The book covers analogizing a case to a fact pattern and marshaling the relevant facts to the elements of a statutory rule next. And then first section of the book concludes with legal citation, CRAC and CREAC, and writing a legal research memorandum. The text also includes a lot of samples and examples of how the author would write a case brief, a legal memoranda and an appellate brief, as well as an appendix with charts, outlines and exercises students can use to practice these skills. Legal Writing I & II; Legal Research and Writing & Introduction to Litigation Practice covers all the skills students need to know to work at a law firm, and everything students have to learn to begin practicing in litigation department of a firm.

About the Contributors

Ben Fernandez,  University of Florida Levin College of Law

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Legal Research Strategy

Preliminary analysis, organization, secondary sources, primary sources, updating research, identifying an end point, getting help, about this guide.

This guide will walk a beginning researcher though the legal research process step-by-step. These materials are created with the 1L Legal Research & Writing course in mind. However, these resources will also assist upper-level students engaged in any legal research project.

How to Strategize

Legal research must be comprehensive and precise.  One contrary source that you miss may invalidate other sources you plan to rely on.  Sticking to a strategy will save you time, ensure completeness, and improve your work product. 

Follow These Steps

Running Time: 3 minutes, 13 seconds.

Make sure that you don't miss any steps by using our:

  • Legal Research Strategy Checklist

If you get stuck at any time during the process, check this out:

  • Ten Tips for Moving Beyond the Brick Wall in the Legal Research Process, by Marsha L. Baum

Understanding the Legal Questions

A legal question often originates as a problem or story about a series of events. In law school, these stories are called fact patterns. In practice, facts may arise from a manager or an interview with a potential client. Start by doing the following:

Read > Analyze > Assess > Note > Generate

  • Read anything you have been given
  • Analyze the facts and frame the legal issues
  • Assess what you know and need to learn
  • Note the jurisdiction and any primary law you have been given
  • Generate potential search terms

Jurisdiction

Legal rules will vary depending on where geographically your legal question will be answered. You must determine the jurisdiction in which your claim will be heard. These resources can help you learn more about jurisdiction and how it is determined:

  • Legal Treatises on Jurisdiction
  • LII Wex Entry on Jurisdiction

This map indicates which states are in each federal appellate circuit:

A Map of the United States with Each Appellate Court Jurisdiction

Getting Started

Once you have begun your research, you will need to keep track of your work. Logging your research will help you to avoid missing sources and explain your research strategy. You will likely be asked to explain your research process when in practice. Researchers can keep paper logs, folders on Westlaw or Lexis, or online citation management platforms.

Organizational Methods

Tracking with paper or excel.

Many researchers create their own tracking charts.  Be sure to include:

  • Search Date
  • Topics/Keywords/Search Strategy
  • Citation to Relevant Source Found
  • Save Locations
  • Follow Up Needed

Consider using the following research log as a starting place: 

  • Sample Research Log

Tracking with Folders

Westlaw and Lexis offer options to create folders, then save and organize your materials there.

  • Lexis Advance Folders
  • Westlaw Edge Folders

Tracking with Citation Management Software

For long term projects, platforms such as Zotero, EndNote, Mendeley, or Refworks might be useful. These are good tools to keep your research well organized. Note, however, that none of these platforms substitute for doing your own proper Bluebook citations. Learn more about citation management software on our other research guides:

  • Guide to Zotero for Harvard Law Students by Harvard Law School Library Research Services Last Updated Sep 12, 2023 96 views this year

Types of Sources

There are three different types of sources: Primary, Secondary, and Tertiary.  When doing legal research you will be using mostly primary and secondary sources.  We will explore these different types of sources in the sections below.

Graph Showing Types of Legal Research Resources.  Tertiary Sources: Hollis, Law Library Website.  Secondary Sources:  Headnotes & Annotations, American Law Reports, Treatises, Law Reviews & Journals, Dictionaries and Encyclopedias, Restatements.  Primary Sources: Constitutions, Treatises, Statutes, Regulations, Case Decisions, Ordinances, Jury Instructions.

Secondary sources often explain legal principles more thoroughly than a single case or statute. Starting with them can help you save time.

Secondary sources are particularly useful for:

  • Learning the basics of a particular area of law
  • Understanding key terms of art in an area
  • Identifying essential cases and statutes

Consider the following when deciding which type of secondary source is right for you:

  • Scope/Breadth
  • Depth of Treatment
  • Currentness/Reliability

Chart Illustrating Depth and Breadth of Secondary Sources by Type.  Legal Dictionaries (Shallow and Broad), Legal Encyclopedias (Shallow and Broad), Restatements (Moderately Deep and Broad), Treatises (Moderately Deep and Moderately Narrow), American Law Reports (Extremely Deep and Extremely Narrow), Law Journal Articles (Extremely Deep and Extremely Narrow)

For a deep dive into secondary sources visit:

  • Secondary Sources: ALRs, Encyclopedias, Law Reviews, Restatements, & Treatises by Catherine Biondo Last Updated Sep 12, 2023 1510 views this year

Legal Dictionaries & Encyclopedias

Legal dictionaries.

Legal dictionaries are similar to other dictionaries that you have likely used before.

  • Black's Law Dictionary
  • Ballentine's Law Dictionary

Legal Encyclopedias

Legal encyclopedias contain brief, broad summaries of legal topics, providing introductions and explaining terms of art. They also provide citations to primary law and relevant major law review articles.  

Graph illustrating that Legal Encyclopedias have broad coverage of subject matter and content with shallow treatment of the topics.

Here are the two major national encyclopedias:

  • American Jurisprudence (AmJur) This resource is also available in Westlaw & Lexis .
  • Corpus Juris Secundum (CJS)

Treatises are books on legal topics.  These books are a good place to begin your research.  They provide explanation, analysis, and citations to the most relevant primary sources. Treatises range from single subject overviews to deep treatments of broad subject areas.

Graph illustrating that Treatises are moderate in scope and relatively deep.

It is important to check the date when the treatise was published. Many are either not updated, or are updated through the release of newer editions.

To find a relevant treatise explore:

  • Legal Treatises by Subject by Catherine Biondo Last Updated Sep 12, 2023 1328 views this year

American Law Reports (ALR)

American Law Reports (ALR) contains in-depth articles on narrow topics of the law. ALR articles, are often called annotations. They provide background, analysis, and citations to relevant cases, statutes, articles, and other annotations. ALR annotations are invaluable tools to quickly find primary law on narrow legal questions.

Graph illustrating that American Law Reports are narrow in scope but treat concepts deeply.

This resource is available in both Westlaw and Lexis:

  • American Law Reports on Westlaw (includes index)
  • American Law Reports on Lexis

Law Reviews & Journals

Law reviews are scholarly publications, usually edited by law students in conjunction with faculty members. They contain both lengthy articles and shorter essays by professors and lawyers. They also contain comments, notes, or developments in the law written by law students. Articles often focus on new or emerging areas of law and may offer critical commentary. Some law reviews are dedicated to a particular topic while others are general. Occasionally, law reviews will include issues devoted to proceedings of panels and symposia.

Graph illustrating that Law Review and Journal articles are extremely narrow in scope but exceptionally deep.

Law review and journal articles are extremely narrow and deep with extensive references. 

To find law review articles visit:

  • Law Journal Library on HeinOnline
  • Law Reviews & Journals on LexisNexis
  • Law Reviews & Journals on Westlaw

Restatements

Restatements are highly regarded distillations of common law, prepared by the American Law Institute (ALI). ALI is a prestigious organization comprised of judges, professors, and lawyers. They distill the "black letter law" from cases to indicate trends in common law. Resulting in a “restatement” of existing common law into a series of principles or rules. Occasionally, they make recommendations on what a rule of law should be.

Restatements are not primary law. However, they are considered persuasive authority by many courts.

Graph illustrating that Restatements are broad in scope and treat topics with moderate depth.

Restatements are organized into chapters, titles, and sections.  Sections contain the following:

  • a concisely stated rule of law,
  • comments to clarify the rule,
  • hypothetical examples,
  • explanation of purpose, and
  • exceptions to the rule  

To access restatements visit:

  • American Law Institute Library on HeinOnline
  • Restatements & Principles of the Law on LexisNexis
  • Restatements & Principles of Law on Westlaw

Primary Authority

Primary authority is "authority that issues directly from a law-making body."   Authority , Black's Law Dictionary (11th ed. 2019).   Sources of primary authority include:

  • Constitutions
  • Statutes 

Regulations

Access to primary legal sources is available through:

  • Bloomberg Law
  • Free & Low Cost Alternatives

Statutes (also called legislation) are "laws enacted by legislative bodies", such as Congress and state legislatures.  Statute , Black's Law Dictionary (11th ed. 2019).

We typically start primary law research here. If there is a controlling statute, cases you look for later will interpret that law. There are two types of statutes, annotated and unannotated.

Annotated codes are a great place to start your research. They combine statutory language with citations to cases, regulations, secondary sources, and other relevant statutes. This can quickly connect you to the most relevant cases related to a particular law. Unannotated Codes provide only the text of the statute without editorial additions. Unannotated codes, however, are more often considered official and used for citation purposes.

For a deep dive on federal and state statutes, visit:

  • Statutes: US and State Codes by Mindy Kent Last Updated Sep 12, 2023 942 views this year
  • 50 State Surveys

Want to learn more about the history or legislative intent of a law?  Learn how to get started here:

  • Legislative History Get an introduction to legislative histories in less than 5 minutes.
  • Federal Legislative History Research Guide

Regulations are rules made by executive departments and agencies. Not every legal question will require you to search regulations. However, many areas of law are affected by regulations. So make sure not to skip this step if they are relevant to your question.

To learn more about working with regulations, visit:

  • Administrative Law Research by AJ Blechner Last Updated Sep 12, 2023 202 views this year

Case Basics

In many areas, finding relevant caselaw will comprise a significant part of your research. This Is particularly true in legal areas that rely heavily on common law principles.

Running Time: 3 minutes, 10 seconds.

Unpublished Cases

Up to  86% of federal case opinions are unpublished. You must determine whether your jurisdiction will consider these unpublished cases as persuasive authority. The Federal Rules of Appellate Procedure have an overarching rule, Rule 32.1  Each circuit also has local rules regarding citations to unpublished opinions. You must understand both the Federal Rule and the rule in your jurisdiction.

  • Federal and Local Rules of Appellate Procedure 32.1 (Dec. 2021).
  • Type of Opinion or Order Filed in Cases Terminated on the Merits, by Circuit (Sept. 2021).

Each state also has its own local rules which can often be accessed through:

  • State Bar Associations
  • State Courts Websites

First Circuit

  • First Circuit Court Rule 32.1.0

Second Circuit

  • Second Circuit Court Rule 32.1.1

Third Circuit

  • Third Circuit Court Rule 5.7

Fourth Circuit

  • Fourth Circuit Court Rule 32.1

Fifth Circuit

  • Fifth Circuit Court Rule 47.5

Sixth Circuit

  • Sixth Circuit Court Rule 32.1

Seventh Circuit

  • Seventh Circuit Court Rule 32.1

Eighth Circuit

  • Eighth Circuit Court Rule 32.1A

Ninth Circuit

  • Ninth Circuit Court Rule 36-3

Tenth Circuit

  • Tenth Circuit Court Rule 32.1

Eleventh Circuit

  • Eleventh Circuit Court Rule 32.1

D.C. Circuit

  • D.C. Circuit Court Rule 32.1

Federal Circuit

  • Federal Circuit Court Rule 32.1

Finding Cases

Image of a Headnote in a Print Reporter

Headnotes show the key legal points in a case. Legal databases use these headnotes to guide researchers to other cases on the same topic. They also use them to organize concepts explored in cases by subject. Publishers, like Westlaw and Lexis, create headnotes, so they are not consistent across databases.

Headnotes are organized by subject into an outline that allows you to search by subject. This outline is known as a "digest of cases." By browsing or searching the digest you can retrieve all headnotes covering a particular topic. This can help you identify particularly important cases on the relevant subject.

Running Time: 4 minutes, 43 seconds.

Each major legal database has its own digest:

  • Topic Navigator (Lexis)
  • Key Digest System (Westlaw)

Start by identifying a relevant topic in a digest.  Then you can limit those results to your jurisdiction for more relevant results.  Sometimes, you can keyword search within only the results on your topic in your jurisdiction.  This is a particularly powerful research method.

One Good Case Method

After following the steps above, you will have identified some relevant cases on your topic. You can use good cases you find to locate other cases addressing the same topic. These other cases often apply similar rules to a range of diverse fact patterns.

  • in Lexis click "More Like This Headnote"
  • in Westlaw click "Cases that Cite This Headnote"

to focus on the terms of art or key words in a particular headnote. You can use this feature to find more cases with similar language and concepts.  ​

Ways to Use Citators

A citator is "a catalogued list of cases, statutes, and other legal sources showing the subsequent history and current precedential value of those sources.  Citators allow researchers to verify the authority of a precedent and to find additional sources relating to a given subject." Citator , Black's Law Dictionary (11th ed. 2019).

Each major legal database has its own citator.  The two most popular are Keycite on Westlaw and Shepard's on Lexis.

  • Keycite Information Page
  • Shepard's Information Page

Making Sure Your Case is Still Good Law

This video answers common questions about citators:

For step-by-step instructions on how to use Keycite and Shepard's see the following:

  • Shepard's Video Tutorial
  • Shepard's Handout
  • Shepard's Editorial Phrase Dictionary
  • KeyCite Video Tutorial
  • KeyCite Handout
  • KeyCite Editorial Phrase Dictionary

Using Citators For

Citators serve three purposes: (1) case validation, (2) better understanding, and (3) additional research.

Case Validation

Is my case or statute good law?

  • Parallel citations
  • Prior and subsequent history
  • Negative treatment suggesting you should no longer cite to holding.

Better Understanding

Has the law in this area changed?

  • Later cases on the same point of law
  • Positive treatment, explaining or expanding the law.
  • Negative Treatment, narrowing or distinguishing the law.

Track Research

Who is citing and writing about my case or statute?

  • Secondary sources that discuss your case or statute.
  • Cases in other jurisdictions that discuss your case or statute.

Knowing When to Start Writing

For more guidance on when to stop your research see:

  • Terminating Research, by Christina L. Kunz

Automated Services

Automated services can check your work and ensure that you are not missing important resources. You can learn more about several automated brief check services.  However, these services are not a replacement for conducting your own diligent research .

  • Automated Brief Check Instructional Video

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This guide is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License .

You may reproduce any part of it for noncommercial purposes as long as credit is included and it is shared in the same manner. 

  • Last Updated: Sep 21, 2023 2:56 PM
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Legal Research and Writing

Bernard Koteen Office of Public Interest Advising 4039 Wasserstein Hall (WCC) 1585 Massachusetts Avenue Cambridge, MA 02138

Legal writing refers generally to the analysis of fact patterns and presentation of arguments in legal memos and briefs. The vast majority of legal internships and permanent positions will require the deployment of legal writing skills. Those working in settings where client-based or impact litigation are the principal focus will draft and file legal briefs that coherently present their side’s written arguments to the court. Certain positions might entail the drafting of predictive memos, which anticipate the arguments of opposing counsel. Even non-litigation positions may require you to research a legal question, analyze the relevant legal precedents, and present an answer in a memo. Work in academia may involve not only writing for scholarly publications but also teaching law students the basics of legal writing and citation. Some larger government agencies and non-profit organizations may also hire someone to provide legal writing training to new hires or to oversee their legal publications.

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