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Thursday & Monday Evening Legal Research Notes 3/27-3/31/03

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Thursday Night, March 27, 2003

These Legal Research Notes are unedited.

You are looking for a fact pattern that fits your case.

9 items that may be in an opinion analysis

headnotes are input by West Publishing

Nine elements of an opinion

 

 

1.  Procedural History

 

 

2.        Factual Background

Facts illustrate a relationship between facts and the law

 

3.        Pleaded or evidentiary events on which ruling is based

Ruling may be based on either the pleading or evidentiary history; this section combines the first two elements of an opinion. 

Provides a background about the case.  Facts may tell you what law applies; what precedence applies; 3 oldest people were not offered a job; is this age determination and a judge will consider this in making his ruling.  Judge will consider the CAUSE OF ACTION to determine whether age discrimination did occur.  Judge will consider underlying facts of the case as they apply and make the determination.

Do these facts constitute a legitimate legal claim.  Based upon the facts, is there a legitimate cause of action.  Also questions of jurisdiction are important. 

4.        Statement of Issues

 

 

5.        Summary of parties arguments

 

 

6.        Holding on each issue

 

 

7.        Rule of law being enforced

textual

 

8.        Reasoning behind the holding

 

 

9.        Dicta

Discussion that is not necessary to support the holding.  It lacks the binding precedential authority of law

It could be instructive, e.g., if you see this

10.     Statement of Action; decision; etc.

Granting the motion for summary judgment

 

 You must understand what goes into a brief, understand the thought process that goes into brief preparation.

You will have to do a substantive check on cases cited.  end of notes for this class

 

Crismar37@AOL.COM

Melanie.Contreras@c2.com  legal studies coordinator

 

Sources of Law

Cases/decisions

Judge-made law- Judges have no authority to make a law i.e., Interpretation of law may change the meaning of a law

Statutes

legislators draft these laws

Rules and regulations

Agencies draft these laws

Ordinances

City council

Constitution

U.S. and NYS constitution

Court Rules

NYCPLR and FRCP, CPL  - rules explains how the court functions and how papers are filed.  Note: examine CPLR and city court rules.

 

The language we interpret the legislatures intent is what a judges opinion would consist of.

Treatises/form books provide an explanation of the law: cannot quote these books.  Start with these summaries for an explanation of the law. 

Other Sources of commentary:

New York Jurisprudence

Am. Jur. Secudum and Corpus Juris Secondum -  these are legal encyclopedias

 

Administrative Decisions decisions rendered by the agencies.

Executive orders filing case deadlines since 9/11 order drafted and enforces by the executive office

United States Reports (U.S.) contains decisions from United States Supreme Court, federal cases, official report

 

United States Reports, Lawyers Edition contains cases from the United States Supreme Court; unofficial reporter (L.Ed.)  ex. 15 L.Ed. 237

Title 28 Judiciary and Judicial Procedure 171 to 1250 citation to a statute.

Title number is noted and the name of the statute.  All statutes must have a name..

Monday Evening March 31, 2003 Notes: Legal Research

 

mcremen@hnrlaw.com

 

 

Facts of the case intertwine; determinative facts that might impact on a judges ruling and a judges previous decision on the law.

 

Rule of law combination of enacted law, case law and statutory law.

 

Holding and The Rule notice the differences.

 

Holding instructions to the jury were inaccurate but the rule would be the principal that can actually be used as a precedent.. holding is the fact more oriented whereas the rule is legal principle oriented. 

 

Holding- this is what applies  based on the facts of this case and the laws applied.

 

Look for holdings that are similar to the fact pattern in your case.

 

Rule is a statement of the law as it is being applied to the case..

 

 

Both of  these items must be in your opinion..

 

Go back into case law and re-interpret the fact patterns, some cases are a lot more clear than others, where the issues are cloudy and the determination of the issues are cloudy.

 

Appellant level will hear the appeal

 

Appeals must contain:                     a Notice of Appeal

-                     an appellate brief

-                     Documents that support the arguments

 

Effective lawyering is the ability to find room in an opinions for interpretative maneuvering and to exploit that for your clients advantage.  When an attorney reads an opinion, they want to examine how an opinion is looking for what if favorable to his client and then to find ways to present that to the court that are both credible and persuasive.  Part of that involves reading the opinion and examining whether the fact pattern are similar. 

 How to analyze an opinion is the essence of understanding case law.  Study the definitive cases in different areas of law. 

 How to write a legal analysis in the form of a brief.  If you can brief an opinion you illustrate your analysis of a case.

  How to brief a case:  Complete the below guideline when preparing a brief. 

 

Caption

Title

Citation

179 F. Supp.2d 81  W.D.N.Y. (Court) Date

Parties

Description of the parties in dispute

Procedural History

 

Fact History

Provide adequate details so that the facts make sense

Issue(s)

May or may not be spelled out by the judge; define what the question(s) at issue is (are).   eg. Should summary judgment be granted examine procedural defects.  All of your written opinions come from the appellate court.  Find out why this case went on appeal and got there.. Headnotes will address the issues

Holding of the court

Introductory paragraph or at the very end

Final Judgment

 

Comments

 

Summarize the arguments on each side

optional but not necessary for this assignment.

 

 

 

 

 Notes for Legal Brief preparation assignment:

 Williams real estate v Viking penguin,. et al. can be chosen or

 Herbsdt v bruhn

 Wednesday's schedule:  The Composition of a Memo of law

  1. proofread the brief
  2. check Cite  - every time a decision is entered in a brief, you should make sure that the citation is absolutely correct. 
  3. quote check/substantive check
  4. Key Cite/Shepardize look for the subsequent history..use the citators..

 

 

 

 

 

 

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