Wednesday, April 27, 2016

Summer Legal Research Tips

Congratulations to those of you who have summer employment, an internship or law clerk’s position in a law firm, a court, a governmental agency, or another job where you can continue to gain legal experience and use some of the knowledge and skills you worked so hard to master in law school! Even if you do not plan on working at such a place this summer, make opportunities to sharpen your legal research skills.

The following are some tips for summer research:

Know your issue and take some time to understand an area of law unfamiliar to you
  • Ask your supervising attorney about the context, what sources to use, and about cost and time restraints. As you learn more about the issue and do get farther into the project, you may need to clarify some things. It is better to have that conversation than to spend too much time heading down the wrong path.
  • Understand the relevant court system, administrative agencies, or legislative bodies
  • Review treatises, practice guides, or legal encyclopedias that relate to your issue. See Renee’s recent blog post in which she gave you some great pointers on using these.
Write down your research question and develop a search strategy
  • See my tips on developing search strategy. Don’t start by just typing in some keywords into a search box. Taking a few minutes to develop your research question, identify synonyms to the main concepts, and determine the best resources to start with will save you lots of time and frustration.
  • Keep track of your resources and search queries so you know where you’ve been and revise your search strategy.
  • Utilize the advance search features and other filters that will narrow your search to a jurisdiction, time, and resource type.
  • Organize information as you find it. Remember you can save and organize your research online, sometimes with just a click or two using Westlaw and Lexis Advance folders, and some free ones like Zotero, Evernote, to name a few. (Ask a law librarian if you want some help with this and remember to comply with use paid database restrictions on retention of research.)
Utilize the resources available to you
  • Remember, as a law student here, you still have access to many recourses at the law library, even if you are not in the area. Lexis Advance and BNA are giving you the same access during the summer as you have when working on assignments for your law school classes. You can also contact Westlaw to arrange access. (Contact the law library if you have any questions about your access.) 
  • Check out eBooks from our LexisNexis Digital Library
  • Ask a law librarian! Does your office have a law librarian? While you may be away for the summer, your law school librarians are still on campus waiting to hear from you
  • If you are in Massachusetts or Connecticut, you can contact your state law librarian. You can also go to the libraries at several locations throughout the states to get help in person, find a treasure-trove of print materials, and access Lexis and Westlaw; (some have access to one of them or both). Here are links to information about library locations in Massachusetts and Connecticut
  • Familiarize yourself with the legal materials your law firm or office have and what subscription databases can you access from work?
Use free resources whenever possible – but make sure they are credible
Use subscription databases efficiently
  • Consult your supervisor about the office's subscription to databases and if there is a preferred database you should use.
  • Use the databases’ help features, online chat service or call and speak with a real person who is ready to give you suggestions.
Give yourself time to think
  • If you have not found anything relevant within 15 minutes, you need to stop and regroup. Work on something else and give yourself a chance to gather your thoughts or confer with someone who might give you another perspective. Hey, it’s summer – get outside and spend a few minutes enjoying the fact that you aren’t in classes
  • Remind yourself of your research question and reevaluate your research strategy.
Update your sources
  • Shepardize or KeyCite cases and statutes upon which you are relying.
  • Check citing references.
… and most importantly, find some time to get outside, enjoy the summer, and read a book or two for fun!

https://www.flickr.com/photos/simon_cocks/4867695239
Sources:
George Mason University School of Law, Free Legal Research Sites, http://www.law.gmu.edu/library/freelegalresearch (May 11, 2015).

University of Virginia School of Law, Legal Research for Law Students: Tips for Summer Research, http://libguides.law.virginia.edu/introlegalresearch/summer-research (Dec. 8, 2015).

Rebecca A. Mattson & Theresa K. Tarves, Teaching Cost-Effective Research Skills, 20 AALL Spectrum 31 (2016).

University of Illinois Law Library, Summer Legal Research Tips, http://law-illinois.libguides.com/c.php?g=384503.

Thursday, April 21, 2016

Fastcase: an alternative legal database

Are you a law student? Is there a possibility that you will be practicing in Massachusetts after law school? If you answered yes to these questions you should start learning how to use Fastcase.

How you ask? The Massachusetts Bar Association (MBA) allows law school students to join for free and it is very reasonably priced for newer Massachusetts attorneys. In addition to a lot of other great member benefits, MBA membership includes full access to Fastcase.

Fastcase has many great features including:

Fastcase's Advanced Search Functions
  • Full text cases, statutes, and regulations from all U.S. jurisdictions with advanced searching features such as Boolean and proximity searching.

  • Constitutions, Court Rules, Attorney General Opinions, and Administrative Opinions from many U.S. Jurisdictions.

Bad Law Bot
  • Bad Law Bot—this is a citator which uses an algorithm to search through the body of case law to find words like overruled, superseded, or abrogated in relation to case law.*  When used correctly these words signify when a case is no longer good law as outlined in the Bluebook.** Since this algorithm focuses on finding particular words to find bad law, a case flagged by the Bad Law Bot is very likely no longer good law on some particular point. However, a case which doesn’t use these standard signals may evade Bad Law Bot’s detection, therefore it is probably a good practice to use another citator to check cases such as KeyCite or Shepard’s before relying on a case.
  • Another great feature of Fastcase is in it's partnership with HeinOnline.  This partnership enables the user to apply Fastcase’s powerful search tools to HeinOnline's collection of over two thousand legal periodicals. Additionally, HeinOnline’s coverage of these legal periodicals is exhaustive; in many cases coverage goes back to the inception of each journal whereas coverage on the major commercial legal databases usually begins in the mid-eighties.

Since all this is included with MBA membership and MBA allows law students to join for free and is very reasonably priced for newer attorneys, Fastcase can be a valuable tool for those planning to practice in Massachusetts.  

____________


 * By contrast KeyCite and Shepard’s use human editors.
** The Bluebook: a Uniform System of Citation 110 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).

Thursday, April 14, 2016

Should We Take This Case?



Tis the season for law students to leave for their summer jobs. In honor of this annual rite, I am addressing a common task given to summer interns and new lawyers – evaluating whether a potential client has a valid cause of action. Fortunately, I come with good news. There are several types of resources that will help you to jump start this task.

In order to find these resources, I went to my law school’s catalogue and entered a simple key word search for – causes of action. I didn’t even put that phrase into quotations but I would probably try it both ways the first time. My results included some golden results. I had planned initially to explore Massachusetts resources exclusively but my search results broadened my horizons and led me to make a larger point – it is likely that any jurisdiction you are researching in will have similar resources. Yeah!

Here’s what this first search brought to light – electronic resources entitled Encyclopedia of New York Causes of Action: Elements and Defenses; Encyclopedia of Connecticut Causes of Action; and Pennsylvania Causes of Action, all available on LexisNexis.  All three of these resources provide access points to the various causes of action, either by grouping them as common-law or statutory causes of action, or grouping them by issue – tort, property, insurance, as examples. Typically an entry in this type of resource will list the elements, relevant cases, statutes of limitations and in some instances, the burden of proof.

For Massachusetts, my search results included a resource published by Massachusetts Continuing Legal Education (MCLE) entitled Massachusetts Civil Causes of Action which is available in print and online on both WestlawNext and Lexis Advance. This resource has 30 causes of action so not as comprehensive as the Encyclopedias, but you may find the entries to be a little more substantial. For example, the entry for False Arrest starts off as follows: “False arrest is a common law action, an intentional tort. It is seldom brought as the sole claim in a lawsuit. Ordinarily it is joined with claims for false imprisonment, malicious prosecution, and/or battery. False arrest has been described as a ‘species’ of false imprisonment.”
   
That is a lot of useful information concisely given. I omitted all of the footnotes in the above quote, but rest assured that each sentence is supported by case law in the endnotes to each chapter. This entry has additional sections defining the elements, the defenses, and the remedies.

Another resource for the purpose of evaluating cases that I consider underutilized are your jurisdiction’s jury instructions. Of course jury instructions come into play at the end of a case but since this is what the jury is going to be told you had to prove to establish your case, isn’t it a good idea to have them in mind from the outset?  In Massachusetts MCLE publishes Massachusetts Superior Court Civil Practice Jury Instructions, Massachusetts Superior Court Criminal Practice Jury Instructions as well as Criminal Model Jury Instructions for Use in the District Court. In Superior Court Civil Practice Jury Instructions at least 21 subject areas are covered, as well as several chapters covering miscellaneous and special issues. Let’s look at what is covered by the employment discrimination jury instructions (chapter 5): the Plaintiff’s burden of proof (an essential piece of knowledge); direct and circumstantial evidence of motive, intent, or state of mind; and the elements of handicap and age discrimination. All of these instructions are supported by citations to cases and statutes. I don’t think there is a way to put your hands on relevant material faster – but if you know of one do not hesitate to make a comment!

Before moving on to a national resource that does something similar to the resources described above, I have to mention the four volumes of the Massachusetts Practice Series Prima Facie Case Proof and Defense by Massachusetts lawyer Richard W. Bishop, in existence for more than fifty years. This resource directs the researcher to applicable case and statute law, but one advantage to using Mass. Practice is that you will also be directed to related material in other parts of the Series. For example, looking at the False Imprisonment section in Prima Facie Case Proof and Defense points the researcher to supplemental materials found in Massachusetts Practice Procedural Forms Annotated which not only has more explicatory material on False Imprisonment but also, sample complaints.

The final resource I want to bring to your attention is called Causes of Action. This is a non-jurisdictional resource in its 2d edition, published by Thomson Reuters, and while it covers the same types of information discussed above, it goes further into the litigation of an action.  Causes of Action covers the standard common law causes of action, as well as causes pursuant to federal statutes like the Fair Debt Collection Practices Act, the Fair Housing Act and the Fair Labor Standards Act. For the print version, access to Causes of Action is through a print index that seems thorough. The online version can be found on WestlawNext.

Each volume in the series covers approximately six or seven causes of actions. The volume I pulled off the shelf at random had the following causes of action: Cause of Action against Motor Vehicle Passenger to Recover for Injury Sustained in Accident; Cause of Action for Damages under 11 U.S.C.A. § 362(k) for Willful Violation of Automatic Stay in Bankruptcy; Cause of Action for Discharge from Employment in Retaliation for Exercise of Rights Protected by Title VII, 42 U.S.C.A. §§ 2000e to 2000e-17; Cause of Action for Violation of Federal Computer Fraud and Abuse (CFAA); Cause of Action against Neighboring Landowners for Trespass; Cause of Action for Medical Battery against Medical Practitioner; and Causes of Action for Invasion of Privacy Resulting from Corporate Use of Customer Online or Internet Data. I wanted to list all of these out to give you an idea of the breadth of the entries. 

Each entry is composed by a lawyer. In addition to covering the prima facie case and defenses the entry goes over jurisdiction and venue issues, the plaintiff’s and defendant’s proof, damages, checklists, and model documents. So a little more in depth than the resources I first pointed out which are excellent for doing that first round of research. Causes of Action may be most useful for the next step of actually putting the case together.

I hope this review of go-to sources for evaluating cases was helpful for you – and good luck in your summer research endeavors!

Wednesday, April 6, 2016

The Bluebook Alternative? - The Indigo Book


There is a new online, open source legal citation manual that went live in February of this year. It was originally referred to as "Baby Blue Manual of Legal Citation." The nonprofit Public.Resource.Org, which released the manual, now referred to as The Indigo Book, had been at loggerheads with the Harvard Law Review Association for years over copyright interests.


NYU School of Law professor Christopher J. Sprigman oversaw the open source citation project with his students' assistance, and joined up with Carl Maalamud, president of Public Resource. They restated The Bluebook rules and created numerous citation examples to demonstrate the rules in action.


The Bluebook is published by the Harvard Law Review Association (HLRA), along with the Columbia Law Review Association, Yale Law Journal Co., and the University of Pennsylvania Law Review, and is currently in its 20th edition. Malamud learned that The Bluebook's 10th edition had not renewed its copyright and was in the public domain, and publicized that information.


I just noticed today that the name of the open source citation manual changed to The Indigo Book. Apparently, HLRA's attorneys had notified Malamud that "any title consisting of or comprising the word 'Blue,'" would violate HLRA's federal and state rights. Whether the new title will prevent possible litigation remains to be seen.


It is interesting that the law students at Harvard, NYU, Stanford, and Yale have supported the open source citation project, noting that they feel obliged to make the citation system accessible to users. A letter that almost 30% of Yale law students signed states: "We believe democratizing the rules of citation increases access to justice for all." 


The Bluebook is often described as complicated and poorly organized.  Take a look at The Indigo Book and see what you think of the ease of use, organization, examples, and the "Indigo Inklings" sprinkled throughout the resource.


R15. Short Form Citation for Cases:


If you are interested in free access to the law, free and open access to the system of citation of the law is critical!





Tuesday, March 29, 2016

Below the Surface Web.

During the ABA Techshow I had occasion to attend an educational session entitled “The Deep Dark Web”. You may have heard of the dark web in the news when in October of 2013 the FBI shut down the notorious online illicit market: The Silk Road. The Silk Road was part of the dark web, a term which some have used synonymous with the term deep web. This usage however is incorrect, since the dark web and the deep web are distinguishable.

To understand the distinction between the deep and dark webs I will first explain the surface web. The surface web is the topmost level of the web. It consists of the websites with which you are most familiar: Google, Yahoo, Bing, etc. The surface web is estimated to contain about 4% of the information available on the internet. The main distinction between the surface web and the deep web is that the surface web is indexed by the major search engines such as Google while the rest of the internet is not.

Neither the deep web nor the dark web are indexed. The distinction between the deep web and the dark web is anonymity. While other darknets exist, the most commonly identified darknet is accessed using the Tor browser. Tor, which stands for The Onion Router, is a web browser based on the same source code as Firefox.Unlike Firefox the Tor browser sends communications through a distributed anonymous network and thus can be used to hide the identity of both the person viewing and the operator of a website. It is important to note that while the anonymity of the Tor network (coupled with unregulated currencies such as Bitcoin) made the illegal online marketplaces possible, there are also legitimate uses for such anonymous networks such as secure communications for non-governmental organizations, to circumvent censorship, or to allow journalists to communicate with whistle-blowers or dissidents.

So how do you find information in the deep and dark webs?

Since the deep web includes the information connected to the internet but not indexed by the popular search engines it may prove difficult to find unless you know what you are looking for. Some helpful websites include the WWW Virtual Library which has been continually cataloging the web through the collaboration of volunteer experts since 1991. Deep Web Technologies has a page of several search tools which index various U.S. Government databases. Additionally, many government websites provide access to enormous amounts of data such as data.gov and gao.gov. Learning how to navigate the deep web can be a valuable tool for both legal academics and attorneys preparing appeals. For instance a search of Westlaw’s briefs database reveals that “GAO Report” came up in 323 U.S. Supreme Court case briefs. A similar search of law reviews and journals reveals that “data.gov” came up 67 times.

The dark web is more difficult to access but may be helpful to attorneys seeking certain information. For instance, prosecutors might work with police to set traps for would be criminals. Family law attorneys might also use the dark web to find residual evidence after the Ashley Madison website was hacked in 2015 and public websites were forced to take the leaked information down. Accessing the dark web starts with downloading the Tor Browser, but if you choose to do so: use caution. Simply accessing the dark web could draw the attention of the FBI or other less desirable attention should one of the natural denizens of the dark web decide you don't belong.