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!

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