Florida State University College of Law Research Center

Looking for Casesin all the Right Places

Mary M. McCormickAss’t. Director for Public Services

Florida State University College of Law Research CenterFall 2008

Florida State University College of Law Research Center

Recently I received a question from a former student who is practicing family law in Jacksonville. Her endless (and fruitless) searches in Westlaw were in the Florida cases database because she assumed that a judicial opinion would answer the question. Her keyword queries were appropriate but she didn’t find an answer because there isn’t a case directly on point. This is normal. If it were an easy question, with a simple answer, you wouldn’t be asked to look for the answer. The person who asks you to do the research usually knows the important cases. 

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Ms. McCormick,

I hope this message finds you well and that the new year is off to an amazing start. I have a question regarding research on a particular issue that I can't find an answer to. Could you please help me with the direction I could take? The issue is as follows:

Prior to being served with a paternity suit, a client was sent a notice of subpoena for a non-party. After the client was served with the suit he received the actual copy of the subpoena sent to his employer. He threw away the initial notice because he hadn't been served with anything and didn't know what it was. Under Fl. R. Civ. P. 1.351 there is no requirement stating that the subpoena be issued before formal service of the petition initiating the suit. I believe that there is an issue relating to a violation of the client's due process rights. My thinking is based on my belief that discovery must begin after the party is served . . . but I can't find anything after endless (and fruitless) search on Westlaw. I saw a rule that indicates that discovery can begin at anytime, but surely this indicates that it can begin at anytime after service! I understand that under rule 1.050 an action starts when a complaint or petition is filed, but where can I find something that tells me when discovery begins?

I know there is a simple answer, but I can't think of where to look. I hope you can inform me of another resource besides Westlaw that would be helpful.

Florida State University College of Law Research Center

So I wrote her back:

I'll be able to help you this afternoon, starting at about 1:30. In the meantime, have you looked in Abrams, Florida Family Law? It's on reserve, and it should also be in Lexis under Matthew Bender publications or Florida treatises. Or, you could look in the Florida civil practice books (also on reserve and West or Lexis).

Mary

Florida State University College of Law Research Center

To which she replied:

You rule!  I found a good start in the treatise, I appreciate your help and owe you!

Florida State University College of Law Research Center

When you are given a research assignment, you want an answer to the question asked, not “a case,” even if you think your answer will be in case law.

Even if your boss says “find me a case,” even if you are sure the answer will be in a judicial opinion, you still want to find an answer to the question asked, not “a case.”

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Besides, a law student usually has to research questions that don’t have a straight-forward, easily findable answer in a Florida Supreme Court or Court of Appeals decision. You just can’t find the answer to such questions by looking directly for “a case.”  

Florida State University College of Law Research Center

When you start to look for the answer to a question in an area that is usually found in case law, you don’t know some very important things:

Has the state legislature objected to a judicial decision and enacted a statute overturning the effect of a case you have found.

Have the state courts enacted procedural rules that have the effect of modifying an earlier decision?

Have the federal courts stated common law for the state because a state court has never addressed the issue?

Has the Congress enacted legislation that preempts or has some effect on case law in Florida?

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And even if you find a case directly on point using keyword searching in a cases database, you won’t know if it is still good law, or the only law, or an exception to a general rule, even if you KeyCite or Shepardize it.

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A subsequent note from the student after we spoke on the telephone:

Secondary Sources Save Time.  This is my new mantra.  Why?  It's simple, often as students or new attorneys we tend to start our research by looking at primary sources.  We hungrily search through statutes or seek out case law on the search engine of our choice only to find nothing that will support or even address our argument.  The truth is that sometimes the statute or case we need just doesn't exist.  Where do we go?  The same place we should have started . . . a secondary source.  Take your pick: a treatise, legal encyclopedia or even a law review article can save you time and frustration. I recently had to do research on a topic and after hours of fruitless research I turned to a treatise.  What I found was a wealth of information.  Treatises are excellent for gaining a basic understanding of a certain area of law and can lead you to various other relevant statutes, cases and other helpful sources.  What more could you ask for?  It's like having a personal assistant that's already done the initial footwork for you.  Plus, it's less expensive than an expensive online search engine. Remember, that just because it's called a secondary source doesn't mean you can't start your research there.

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As the former student suggests, there are better ways to quickly locate an answer to a question that asks for the law on a particular point than to read a bunch of cases found with a keyword search. Treatises, legal encyclopedias, journal articles, and other practitioner materials can help you distill and make sense of any judicial decisions that might apply to a problem. Such materials ensure that you don’t miss other relevant sources of law such as the state’s constitution or a statute or a court rule or help you establish that there is NO statute, constitutional provision, case, or court rule that governs the issue in your state.

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For the former student, a treatise was a good starting point for her problem. She had access to several Florida civil procedure books, including one by Justice Padavano of the First District Court of Appeals.

In addition to treatises, other useful starting points, depending on the question, are legal encyclopedias, Restatements, law review articles, and American Law Report annotations. After reading up on the particular topic, you’ll be in a better position to choose the cases that together answer the question or create an answer for the question. After that, case digests, case citators, and judicial decisions themselves all help to find other cases and to develop the best answer to a question.

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A Constellation of Cases: The Common Law Visualized

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Look carefully at the starfield. There are concentrated groups of stars, some very large and bright stars, some that seem faded, and some areas where there is blackness or a scattering of stars in what is otherwise a void.

A plotted map of a state’s common law and equity decisions would look like this.

The questions you are asked to answer are frequently in the inky darkness – no stars, no cases, no statutes, no state law…just a black hole.

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Finding Solutions:Imposing Order on Chaos

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Abraham Maslow wrote, in The Psychology of Science at 15-16 (1966), "I suppose it is tempting, if all you have is a hammer, to treat every problem as if it were a nail.“

As a lawyer, you have many more tools than a hammer. Too often, students begin and end their research in a cases database, assuming that this hammer is their only tool.

To research any legal question, you need a bundle of tools and, more importantly, you need to know when to use particular tools and techniques to research a problem.

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Case Digests

Legal Encyclopedias

Treatises

Citators

Journals

SSRN

ALR

Florida State University College of Law Research Center

The likeliest places to find the answer to a question that you think will be addressed by the courts are:

State and national treatisesLaw review articles

Legal encyclopediasJournal articles

Current awareness materials (CLE, ALI-ABA, PLI)Restatements

American Law Reports

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While you are a law student, you will be access most of the material published by West and Lexis online:

Westlaw: All Databases > U.S. State Materials > Florida > Forms, Treatises, CLEs and Other Practice Material > Practice Material

Lexis: Legal > States Legal - U.S. > Florida > Search Analysis & CLE Materials

Some materials published by Aspen are available through the CCH Online services to which the library subscribes.

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Florida State University College of Law Research Center

Florida State University College of Law Research Center

Florida State University College of Law Research Center

Unfortunately, most of the materials on Westlaw and Lexis will not be available to you under any flat-rate pricing plan after you graduate.

After you graduate, you will almost always need to use print materials.

Students and alumni that I help for their jobs almost never have access to treatises online.

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Treatises

Florida State University College of Law Research Center

Treatises restate and synthesize the law of judicial decisions, constitutions, statutes and regulations.  Cohen and Berring, in How to Find the Law, note that treatises also “summarize historical developments, analyze and explain apparent discrepancies and inconsistencies, predict future changes, and provide practical guides to the conduct of legal business.”  A treatise puts your question into context. It gives you a much better understanding of the way in which your question, which may not be addressed directly by a judicial decision in your jurisdiction, should be answered.

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Organizing by Subject and Jurisdiction

Westlaw: FLPRAC-CPRAC

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It would be difficult to catalog each type of civil action that requires the higher "clear and convincing evidence" standard, but there are a few general characteristics that may be helpful in identifying these types of actions. An action to invoke a civil penalty is more likely to require proof by clear and convincing evidence than an action for compensation.[FN9] Likewise, the clear and convincing evidence standard has been applied to civil actions that are based on conduct amounting to a violation of the criminal law.[FN10] For example, a plaintiff who has filed a complaint for civil theft must prove by clear and convincing evidence that the defendant committed the theft. Finally, the clear and convincing evidence standard is likely to apply to those actions in which the effect of a civil ruling might be to deprive a party of a protected interest.[FN11] For example, the state must prove an involuntary commitment proceeding under the Baker Act by clear and convincing evidence. Because the respondent's liberty is a stake, the law requires a higher degree of proof than is necessary to meet the "greater weight of the evidence" standard.

Treatises help you reason by analogy. Look at the excerpted text above. If you get a question that asks what the standard of proof is in a particular case, this text will help you draw the appropriate analogy and cite pertinent, if not factually on point, cases.

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 1.19.7 Forfeiture of credit The Florida Supreme Court held in 1989 that a defendant who violates probation following incarceration is entitled to credit against his or her new sentence not only for the time actually served but also for earned gain time.[FN75] This meant, for example, that a defendant who was originally given a split sentence of three years incarceration followed by two years probation who successfully completed the incarcerative portion of the sentence in less than three years due to the accumulation of gain time, and who violated the probationary portion of his or her split sentence would be entitled to a full three years credit toward any incarcerative sentence imposed upon revocation. In 1989 the Florida Legislature overruled the Supreme Court's decision with the enactment of chapter 89–531, effective October 1, 1989, creating what is now section 948.06(7), which forfeited gain time in cases of probation and community control violations, and chapter 89–526, effective September 1, 1990, which added control release to the application of the statute.[FN76]

Treatises note when different sources of law (such as case law and statutory law) are intertwined. By reading the appropriate part of a treatise, you will understand the relationship between statutes and case law on particular issues. This cannot be done by just reading cases.

William H. Burgess, III, 16 Fla. Prac., Sentencing § 1.19, Credit for Time Served (2008 ed.)

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Organizing by Broad Subject

Organizing byNarrow Subject

Different types of treatises are useful in different ways:

Prosser & Keeton will give an overview of an area nationally.

This handbook will help answer a specialized, narrow question.

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Florida Elder Law will help answer a specialized, narrow question in a particular jurisdiction.

Florida State University College of Law Research Center

Most questions can be looked at from more than one angle. In this instance, the main subject is Pension Law, while the sub-topic is QDROs.

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Here, the book is about marital property, while the subtopic is the QDRO.

Florida State University College of Law Research Center

Florida State University College of Law Research Center

So if the question is how a pension gets distributed in a dissolution of marriage proceeding, one can look at it from the pension point of view or the divorce point of view. Both perspectives can be useful, but sometimes one can find material on an issue under one topic, but not under the other. Almost every question can be looked at in more than one way. The alum’s question, for example, was a civil procedure question in the area of family law or a family law question dealing with procedure.

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Descriptive Writing

Analytical Writing

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Treatises and other secondary materials can be categorized as analytical or descriptive. Descriptive writing is useful for telling you what the law is. Generally, authors work from the pile of law available – constitutional provisions, statutes, regulations and cases – and write up what they have. If something doesn’t exist (a case on a particular point, a statutory definition…) that won’t ever be noted. Analytical materials provide an overview of the research topic, offer a context for the legal issues involved, and lead you to the right mix of statutes, cases, and regulations. Analytical materials discuss problems, gaps, and contradictions, and recommend fixes.  Learning to distinguish the two types of writings is the key to getting the answers to the really tricky questions. Descriptive writing won’t tell you that there isn’t an answer. Treatises and journal articles come in both flavors. Encyclopedias are always descriptive.

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An example of analytical writing that notes the differences between two Circuits and the effect of the interpretations on claimants’ cases:

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An example of analytical writing that notes the lack of definition of important terms by the legislature:

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The Value of a GoodLegal Encyclopedia

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Legal encyclopedias are arranged alphabetically by topic, just like a regular encyclopedia.

Topics are subdivided into sections, each of which has a fairly short descriptive and non-analytical narrative that seeks to give a general, rather than in-depth, view of the law.

Legal encyclopedias are a good place to start research in an unfamiliar area of the law and to get a quick, general answer to a frequently-encountered and well-settled legal question.

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Am Jur and CJS are both published by West. CJS focuses on the common law. AmJur incorporates federal and state statutes, particularly Uniform and Model Laws that have been adopted in multiple jurisdictions. AmJur is better starting point, because it will help you sort out whether there is a statutory component to your problem. If there isn’t, switching to CJS may help you find a more in-depth treatment of an issue and more case citations.

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Am Jur CJS

Both AmJur and CJS on Westlaw have Table of Contents that can be used to browse a topic.

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An “atleast” search looks for documents in which a term appears at least X number of times. Lexis allows such a search in all of its databases and Westlaw in most of its secondary materials databases.

This type of search can be used in secondary materials to locate highly relevant documents.

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One way to tell whether you actually understand a problem you are researching is to use an index. If you can conceptualize the problem and slot it into the right categories, using the right vocabulary, you have a much better chance of reaching the right answer than if you do key-word searches based on the language your supervisor used.

Cumulative supplements are to Am Jur, CJS and Fla Jur are published annually.

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Fla Jur

State legal encyclopedias have much less coverage than Am Jur and CJS. The national encyclopedias are made up of law from all 50 states. Fla Jur probably has a little more than 1/50th of the coverage in Am Jur or CJS because it has a large population and large bar, but there will still be many issues that don’t appear at all in Fla Jur because the Constitution, legislature, courts, and agencies have never had to deal with the issue.

Even where Fla Jur has the same topic as Am Jur or CJS, it will not have as many subheadings or coverage of as many issues.

Filling in Gaps in State Law

Florida State University College of Law Research Center

Florida State University College of Law Research Center

American Law

Reports

Annotations in the American Law Reports help expand your research to include highly relevant cases on a narrow topic. Because the annotations are descriptive, rather than analytical, they are usually not a good starting point, but they are a great second-step source.

Annotations are generally on topics on which courts have differed in reaching a decision. They are, for that reason, great for piecing together a public policy argument when your jurisdiction hasn’t ruled on a particular issue.

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Restatements

Restatements of the Law “restate” what the “black letter” rules of common law are, and usually not what the law should be. If your jurisdiction is weak on a topic, Restatements are a terrific place to understand the scope of an issue and how you might convince your own jurisdiction to rule on a given issue.

Finding Research Guides

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Florida State University College of Law Research Center

Florida State University College of Law Research Center

Florida State University College of Law Research Center

Florida State University College of Law Research Center