Reuters_Legal_Research-如何进行法律研究备忘录写.ppt

1、LEGAL RESEARCH,THOMSON REUTERS LEGAL WEST WANG CHANG, ESQ. OCTOBER 23, 2008,Agenda,Thomson Reuters - Legal American Courts What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotations,Thomson Reuters Legal 汤姆森路透法

2、律信息集团,The North American Legal market is the worlds largest and comprises primarily professional law firms, corporations, government and judicial agencies, and academic institutions. This market relies heavily on online technology for information sourcing. 汤姆森路透法律信息集团- 世界上最大的法律市场和法律信息服务市场, 包括专业律师事务所

3、, 公司法务, 政府部门, 司法部门, 以及学术机构。法律及法律信息市场在很大程度上依赖高科技的在线信息资源和产品。,Thomson Reuters Legal - North American汤姆森路透法律信息集团北美总部,Current Eagan campus size is approximately 271 acres 北美集团伊根总部占地271英母 Data centers comprise 75,000 square feet 全球领先的数据中心，7万5千平方英尺 Holds more than three petabyte of installed disk space and

4、 over 3.5 petabytes of data backed up on tape. 三万多兆字节数据存储在硬盘空间上； 三万五千余兆数据备份在磁带上 One petabyte of data would fill a stack of CDs 1.75 miles high. 一万兆字节的数据装满的CD盘，叠起来将长达1。74英里 7000 employees (More than 1000 attorneys). 共有 7000 名员工(其中1000多位律师),Inside West,Thomson Reuters Legal 汤姆森路透的主要法律业务部门,West 集团： 法律图

5、书，软件，多媒体产品， 法律培训 Westlaw: 世界最大最权威的在线法律法规数据库集成 Foundation Press: 法律研究和高校法律教材专业出版社 Findlaw: 专业法律人士门户网站 Bar/Bri: 律师资格考试服务集团 Sweet Federal Rules of Criminal Procedure; Federal Rules of Evidence; Court Rules,Comparative Perspective - Continued,Lawyer, an officer of the court. - To our clients, we are adv

6、ocates and advisors. - To the courts, we are officers whose duty it is to speak for the justice system. - To the public, we represent the rule of law, and we have an obligation to represent it honorably. Standard of review: is the amount of deference given by one court (or some other appellate tribu

7、nal) in reviewing a decision of a lower court or tribunal. - Where a lower court has made a discretionary ruling (such as whether to allow a party claiming a hardship to file a brief after the deadline), that decision will be reviewed for abuse of discretion. - Where a lower court makes a finding of

8、 fact, it will be reviewed for clear error. - A finding of law is reviewed de novo - as if the reviewing court were considering the question for the first time.,Judge: Federal and State,The US Supreme Court justices, court of appeals judges, and district court judges are nominated by the President a

9、nd confirmed by the United States Senate, as stated in the Constitution. Federal judges in the United States (except those who have recess appointments) serve life terms for their period of good behavior. Once appointed, state judges in the United States usually serve terms for a fixed period of yea

10、rs, although in some states (e.g., Massachusetts) the appointment is for life, often subject to mandatory retirement at some fixed age. In those states where the appointment is not for life, judges must, after their initial term, be re-elected, face a retention election, or face reappointment by an

11、appropriate authority. The law governing judicial elections in the United States is in flux with the general tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy.,Dual System,Federal Cases in which the United States is a party Cases in

12、volving foreign officials Cases involving parties from different states Cases involving the United States Constitution Cases involving patents, copyrights and bankruptcies,State All except Federal 1, 2, and 5,Dual System Continued,The United States Supreme Court 13 judicial circuits, each with a cou

13、rt of appeals (6 -28 judges each circuit) 89 districts in the 50 states. + Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. In total there are 94 U.S. district courts.,Minnesota Supreme Court Minnesota Court of Appeals Minnesota District Courts Minne

14、sota Tax Court Minnesota Workers Compensation Court of Appeals,American Courts Trial Courts,by geography or by subject Issues of fact and law Fact finder: judge or jury Fact findings are binding on the parties and cannot be appealed Issues of law are decided by the judge and can be appealed,American

15、 Courts Appellate Courts,Panel of judges Only questions of law Must have raised objection in court Precedent for lower courts in same jurisdiction Only hear small percentage of cases from trial courts,US Federal Circuits,The Courts of Last Resort,Sit en banc (odd number) usually how many for state c

16、ourt? ( 5 9) How many in the US Supreme Court? (9) Decide what cases to hear Extremely small percentage of lower court cases heard Precedent for all lower courts,Supreme Court of The United States,The highest court in the land Has the final word on federal issues raised in state courts, and it hears

17、 cases arising between states. The Court makes law through its decisions in individual cases Annual term: first Monday of October Late June or early July of next year Issues opinions in less than 100 cases/ year,Agenda,Thomson Reuters - Legal American Courts What is legal research? Forms of legal in

18、formation Wests National Reporter System Wests Key Number System American Digest System ALR and annotations,IRAC,Issue Rule Analysis/Application Conclusion IRAC is a methodology for legal analysis; IRAC is used to organize a legal argument.,How To Find the Law,Legal research is the process of identi

19、fying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.

20、“,Legal Research as a Fundamental Lawyering Skills,Fundamental Skill # 3: “In order to conduct legal research effectively, a lawyer should have a working knowledge of the nature of legal rules and legal institutions, the fundamental tools of legal research, and the process of devising and implementi

21、ng a coherent and effective research design . ” MacCrate Report: Legal Education and Professional Development, An Educational Continuum Report of The Task Force on Law Schools and the Profession: Narrowing the Gap, JULY 1992. American Bar Association, Section of Legal Education and Admissions to the

22、 Bar,The “Ideal” Process,Frame the issue Brainstorm search terms Determine jurisdiction Locate, read, and update secondary sources Locate read and update primary authority Lookup rules of procedure, ethics, non-legal and other materials if needed,Key questions,Be clear about the scope of your projec

23、t. Are you researching an issue for an appellate brief, a memo to a partner, a scholarly article, an oral presentation? How much time (and money) can you devote to the project? Be sure you have the basic facts. Ask the who, what, when, where, why and how questions. Articulate the legal issue. What j

24、urisdiction is involved? Federal or state? Is this a civil or criminal matter? Who are the parties and what relief is sought? Is this a substantive or procedural issue? Consider which of three branches may have established the law on this issue.,Legal Research Process,Know Where to Stop,The Loop Rul

25、e When you start to see the same documents and citations over and over, you should probably realize you are done, especially if you have used the research products of more than one publisher The Economic Analysis or Diminishing Return Rule When you are investing more in your research than you are ge

26、tting in return The Zen Rule When you have been working in an area of the law for a long time, you will be so familiar with the primary and secondary law you will have become an expert and will know when to stop.,Agenda,Thomson Reuters - Legal Fundamentals of American law What is legal research? For

27、ms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotations,Legal Information in a Nutshell,Primary Authority IS the law Cases, Statutes, Constitutions, Regulations, Rules Secondary Authority Analysis and commentary Usually the best place

28、 to begin research Treatises, Practice materials, Periodicals, American Law Reports Bill of Rights; state constitutions Treaties are formal agreements among nations under international law Statutes and laws Rules, regulations, and orders Executive orders Case laws Primary authorities as a body const

29、itutes the law, the set of enforceable legal rules and principles and may be mandatory or persuasive.,Sources of Law Secondary Sources,Legal encyclopedias Text and treatises (hornbooks) Restatements Law reviews Annotations ALR Secondary sources comment upon, analyze, discuss, interpret, and/or criti

30、cize primary authorities, but cant rise above persuasive authority.,Search Books finding and updating tools,Digests: e.g., American Digest System Indices: Table of Cases Citators: e.g. KeyCite West publishes primary sources, secondary sources, and search books.,The Development of Legal Publishing -

31、Blackstone,200 years ago, almost all the information a lawyer needed was contained in the American edition of Blackstones Commentaries on the Law of England the great multivolume, comprehensive law text of the 18th century. “With Blackstone, a desk, and an inkwell, you were a lawyer. “,The Developme

32、nt of Legal Publishing - West,West Publishing was founded by John B. West and his brother Horatio in 1872 in St. Paul, Minnesota. In 1882, with Charles W. Ames and Peyton Boyle, the West brothers incorporated the company. West Publishings first product was The Syllabi, a weekly record of excerpts fr

33、om Minnesota courts. Between 1876 and 1887, this publication was expanded into the National Reporter System. John B. West was the first salesperson for the company and the first full-time law book salesperson in Minnesota, traveling throughout the upper Midwest by train, horse-drawn carriage and sle

34、igh. A century later in 1975, West Publishing launched its first computer-assisted legal research service, Westlaw. West Publishing moved its headquarters to Eagan, Minnesota, in 1992.,Agenda,Thomson Reuters - Legal Fundamentals of American law What is legal research? Forms of legal information West

35、s National Reporter System Wests Key Number System American Digest System ALR and annotations,West National Reporter System,Northwestern (N.W.; N.W.2d): IA, MI, MN, NE, ND, SD, WI Pacific (P.; P.2d.; P.3d.): AK, AZ, CA, CO, HI, ID, KS, MT, NV, NM, OK, OR, UT, WA, WY Atlantic (A.; A.2d): CT, DE, DC,

36、ME, MD, NH, NJ, PA, RI, VT Northeastern (N.E.; N.E.2d): IL, IN, MA, NY, OH Southwestern (S.W.; S.W.2d): AR, KY, MO, TN, TX Southeastern (S.E.; S.E.2d): GA, NC, SC, VA, WV Southern (So.; So.2d): AL, FL, LA, MS,West National Reporter System,Agenda,Thomson Reuters - Legal Fundamentals of American law W

37、hat is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotations,West Publishing Digests,Topic and Key number system invented in 1908 and is published in digests A “master index to all of the case law of the country.”

38、 There are seven major areas of the law, 440 legal topics and more than 95,000 points of law in those topics System indexed case law from 1658 Today, there are more than 20 million headnotes,The Key Number System,The West Key Number System The Index to American Law In existence for over 100 years. T

39、he Key Number System is the only research taxonomy for legal information. It is the most widely used index system in the world. The System is an outline of the entire body of American law, broken down into over 400 topics and 100,000 subtopics. Uniform across all federal and state jurisdictions thro

40、ughout all of Wests Digest and on Westlaw; Searchable on Westlaw or through use of print Digests. Ever changing and expanding.,Matters Relating to the Following Categories:,Persons Property Contracts Torts Crimes Remedies Government,Why is the Key Number System important?,It makes legal research eas

41、ier, more accurate & more relevant. It is an index used to find opinions relevant to a legal problem and it is a list of issues important in the law. Not only will it help you find cases, but it will also help you identify the issues you need to consider.,Topic and Key Number - Illustration,The appr

42、oximately 400 topics are arranged alphabetically and numbered between 1 and 450. Each topic addresses a broad legal issue. Some topics have been added after the original 414 topics were assigned numbers See 48A Automobiles and 48B Aviation Other topics have been eliminated, renamed, or reorganized.

43、(There is no longer a topic 3.),Topic and Key Number - Illustration,Each topic is broken down into subheadings. There can be up to eight levels in the topic and key number hierarchy. This process continues until further breakdown of a point of law is unproductive and a specific key number is assigne

44、d. See, 92k90.1(1.2) above. There are approximately 100,000 specific key numbers.,Agenda,Thomson Reuters - Legal Fundamentals of American law What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotations,West Digests,Since 1872, the Digest System has been one of the most important tools in American legal research. It is the most comprehensive index t