Sunday, December 19, 2010
As a result, I found it necessary to refocus my activities on the following: the two preliminary analysis exercises, reading the Suzanne Rowe text, reflecting on what I learned from the text here in the blog, conducting the research project and memorandum and documenting that in this blog, preparing a Powerpoint presention and other materials for a legal research and law library resources workshop (which I have scheduled to present for public reference librarians in January), and of course, this final self-evaluation post.
I hope to pursue the question of evaluating law library service at some later point in my professional life; I would at least like to take some time to look at what kind of literature in the field is or is not there. I also plan on taking some time to use the lemon law research project as a starting point for looking into the State of Washington's codes as an exercise in both how their laws address the subject differently (or similarly), as well as how Washington's code is published and organized in comparison or contrast to Oregon's.
Reading and reflection
I became much more informed through reading the Oregon Legal Research text about first, the various governmental branches and agencies in Oregon and their publications of primary legal material; second, the secondary sources surrounding those materials; and finally, the legal research process and strategies. I had encoutered many of the resources outlined there through my past year working as a law library assistant, but reading the text filled in several resources knowledge gaps, helped me make connections and see existing relationships among and within resources, and gain a far more in-depth understanding of how to best utilize them.
The two exercises I completed helped give me some introductory hands-on idea of what the legal research process entails. I also was able to put into practice actual searches and search techniques, both print and online with Westlaw and LexisNexis, that are described in the Rowe text but perhaps are not really fully understood until actually using the resources. Because the individual questions in the exercises were relatively narrow and brief in scope, I was able to get some initial experience with conducting searches in a wide variety of legal resources without yet contending with the need to organize and make sense of the large quantity of information and research process tracking that is required by a full-blown research project.
Researching Oregon's Lemon Law was really the cornerstone eye-opening event of this course of study. As I have documented elsewhere in this blog, I gained a great respect for the kind of daunting tasks pro se litigants in particular are up against when engaging in legal research to represent themselves, even in relatively straightforward cases. While I would not describe the research process itself as difficult to understand, this is partly a function of my pre-existing familiarty with using legal resources in a brief and superficial way - and that would not be the case for most public law library non-attorney patrons. What I would describe it as is time-consuming, laborious (at least, if there is an attempt to be thorough as one who is hoping to win a case or exhaust their legal options for action would want to be), and at times difficult to understand the results of one's research, written in a legalistic style, often either lengthy, or alternatively, barely mentioned, and potentially infinitely interconnected with other areas of law. This can make it hard to know what boundaries to place on your research - how wide to cast your net, and when to call it good. Using a research strategy and organization helps to give some shape and avoid repetition, but for those new to the process, I can conceivably see how someone might spend a large amount of time going down one road only to find out that that area is ultimately not of much use to their question. All of these realizations gained by going through the process myself should improve my own ability to assist and guide law library patrons as they move through their own research processes.
Finally, I designed a workshop giving an overview to both our law library and the basic legal research process I learned in this study. I was unable to implement the workshop prior to the end of this term, but I have one scheduled to give for the Hillsboro Public Library reference staff on January 27, 2011. I am excited to give this workshop as a way of cementing the knowledge I gained in this class, as well as helping me flesh out my portfolio as I near graduation. To prepare, I put together three main components: an outline of the workshop, various workshop handouts, and a corresponding Powerpoint presentation to be used in the workshop.
Deciding what to include and exclude in the workshop outline constituted a large portion of my design; how to cover introductions to both law library resources and the legal research process that was useful and thorough for public librarians without overwhelming with too much or too disparate information? Another goal of mine is to give workshop attendants a feel for what working in a public law library is like. I also wanted to emphasize those aspects of legal reference that they might most commonly encounter and then present the potential resources in a manner that they would find memorable in the future. I hope to accomplish this by providing workshop handouts and highlighting such resources (including the law library itself). Finally, I tried to imagine what might be most interesting and useful - but not for a public librarian to discover about law libraries and legal research and incorporate those aspects into the design. For instance, what are our most common questions? What is unauthorized practice of law and how do we not do it while providing excellent reference service? How do we approach different types of patrons and what are pro se litigants in particular up against in terms of legal research and navigating the court system? What sorts of current issues - relevancy, funding, etc. - are we facing as a law library? Putting together a workshop also helped me express what I have learned in this study, and both distill and organize that information into a useful format.
1) Generate a list of search terms
2) Check secondary sources and practice aids (in my project, this was done as part of the preliminary analysis)
3) Find the relevant (or controlling, as Rowe says) constitutional provisions, statutes, or administrative rules
4) Find related cases using case digests or online databases
5) Read the cases
6) Update with a citator like Shepard's
7) Stop researching when there are no gaps left in your research and you begin to retrieve repeated results
Rowe notes, of course, that this can be modified for different research projects or goals. Althought it appears quite simple and straightforward, my research project let me experience firsthand how quickly messy, unwieldy, overwhelming, and even frustrating the process can be. Determining what level of focus is necessary for your situation and evaluating which parts of your research results are relevant are not simple or straightforward tasks and additionally can be time-consuming, especially if an honest effort is made to be thorough.
Rowe also points out - and I agree with her - that neither is the process as linear as a listing of steps might otherwise suggest. Often as you move through the research, results that seemed potentially useful reveal themselves as irrelevant, while new discoveries require going back to earlier steps. For instance, your research may lead you to generate new search terms than in turn require you to return to and repeat an earlier stage in the process for those terms.
This all points to the incredible importance of taking ongoing notes of your research steps and keeping those results organized. Rowe suggests beginning by writing out a strategic list of all the resources you intend to consult and then maintaining a process trail list of each step taken. This both ensures that you cover all potential research grounds while avoiding duplication - a very likely possibility without documenting the history of what you have done. She also recommends writing a one-page summary for each secondary source consulted, and keeping an ongoing list of any primary authority citations you encounter throughout your research. She notes that while you should cross out any citiations that end up not being useful, you should not delete them - again, so that you do not duplicate efforts.
Rowe has many other ideas for organizing your research results and how to take notes on statutes and cases and presents a common legal analysis chart format that can be used to record your results known as IRAC (issue, rule, application, conclusion). These are all useful tools; the bottom line is that, no matter how you track and record your research process and then organize your results, it is crucial that you do so. It is otherwise impossible to make sense of all the potential avenues and results, and there is simply too many of each to try to work from memory, even in part. In addition, note-taking and organizing results hugely facilitate whatever final presentation of results is needed; for an attorney, this could be advice to a client, a memorandum, a brief, etc. Well-documented and organized research turns easily into well-expressed and organized communication of the results.
Saturday, December 18, 2010
Legal encyclopedias provide useful summaries on a wide variety of legal topics, and are best searched using their subject indexes. Footnotes found in the summaries can be helpful by keying the researcher in to relevant primary authority. Oregon does not have its own encyclopedia, but I learned from Rowe's text that some states do, such as Florida and California. Treatises are often written for a wide legal audience as opposed to any given jurisdiction. However, there are some written that are Oregon specific, such as Kirkpatrick's Oregon Evidence. Treatises tend to be more comprehensive than hornbooks or Nutshells, but both give an overview of an area of law. Practice guides are less theoretical and more about how to put a particular area of law into practice. In Oregon, one of the most helpful secondary sources are the practice or deskbooks published by the Oregon State Bar. Another useful practice guide in Oregon is the Oregon Law and Practice series by West. Also useful are the Continuing Legal Education materials published by the Oregon State Bar that attorneys use to stay current; many of these contain practical and up-to-the-minute information. Rowe notes that how authoritative a treatise or practice guide is relates directly to how well-known and well-respected the author is.Secondary sources also include law reviews and journals and bar journals. Review and journal articles, usually written by law professors, students, judges, and other legal practitioners, examine specific areas of law thoroughly and in detail, as opposed to being locked into the particular facts of any given case or client situation. While these articles are not updated in the way other types of legal resources are, it is possible to use a citator to see whether an article has been cited favorably, unfavorably, or at all. Periodical indexes are the easiest way to locate articles, particularly the Current Law Index (found in the LegalTrac database). Older print articles are best found in the Index to Legal Periodical and Books for older articles, which indexes articles back to the early 1900s. Finally, HeinOnline offers full-text searching of articles (and is what I used for locating articles for my research project).
Other kinds of secondary sources are numerous. American Law Reports is a unique secondary source that incorporates aspects of law reviews, commentary, and selected full-text cases in one resource. Its commentaries are known as annotations and are particularly useful. In the print versions, there are three ways to search for articles: the Quick Indexes, the regular index, and the A.L.R. Digest. Each index has a slightly different scope, so it can be useful to check all three for thorough research. Rowe discusses "minilibraries," which were new to me, that collocate both primary and secondary sources into one resource. Restatements of the law are collaborative works that provide organized and detailed summaries of specific areas of law. Model codes and uniform laws such as the Uniform Commercial Code or the Model Penal Code are often adopted by governmental bodies, and afterwards become a secondary source for those primary authorities, and are also published by West in an annotated version. Because of the wide range of secondary sources available and their attendant variability in authoritativeness, Rowe notes that careful judgment should be exercised in citing to them for official purposes, if at all.
Friday, December 17, 2010
Rules are comparable to statutes, and orders are comparable to case decisions. In other words, an agency acts like both a legislature and a judicial system within its own boundaries, but exists as part of the executive branch. Rowe points out that rules are subordinate to statutes, and orders may be appealed to the Oregon Court of Appeals (outside the agency's internal and quasi-judicial agency review procedure.
Oregon's compilation of administrative rules, the Oregon Administrative Rules Compilation or OAR, is neither as extensive nor indexed as federal rules are in the Code of Federal Regulations. Rowe notes, and I agree from my law library experience, that without a print index and instead only a table of contents, OARs are more easily searched online at the Oregon Secretary of State's website http://arcweb.sos.state.or.us/banners/rules.htm. While I was familiar with theFederal Register as a publication for proposed and new rules as well as agency hearings, I was unaware of Oregon's equivalent, the Oregon Bulletin. Orders are generally found with the agency's publications themselves, and some are easier to obtain than others.
Researching rules is fairly similar to researching statutes, except that the researcher usually starts with the enabling statute and any relevant case law. Next is the reading of the rule's text itself, and then using the Bulletin to discover if there are any updates or proposed changes to the rule. Finally the researcher would search for any related agency or judicial decisions applying the rule in similar circumstances.
A big revelation in this chapter for me was the explanation of the position of the state Attorney General as the state's lawyer; I had not really had a clear idea of what exactly an attorney general was before. Thinking of the position as the legal counsel for the state finally gave me a better idea of what exactly the Opinions of the Attorney General of the State of Oregon is - a collection of formal and informal responses to questions posed by the Governor, agency officials, or legislators that constitute legal advice.
For an attorney, legislative history can be important in determining what laws affected a client's situation at a given time as well as understanding the legislative intent behind a given statute. Bill tracking is distinctive from legislative history as research that follows a bill's path through the legislative process, where legislative history starts with a current statute and moves backwards to discover all related materials. Bill tracking can help an attorney keep track of new laws and amendments that affect a client's rights.
Following are the main types of documents created by the legislative process that could be compiled into a history. These materials are mostly available through the Oregon State Archives and more recently their website, and some materials can be found in various state, county, and academic law libraries. First are legislative committee minutes. These are not verbatim transcripts, but rather summaries of the proceedings; they are available on the Archive's website from 1991 forward. Committee and audio tapes provide verbatim recordings of the committee hearings, but can be difficult to follow who is speaking; this is where having the minutes available comes in handy. These recordings are available online from 1999 forward. Next, proposed amendments, written testimony, reports, and other submissions considered in the committee hearings are termed "exhibits," and cannot be found online, but are available in binders at the Archives and on microfilm in some law libraries. Original bill files are manila files at the Archives containing the original bill text, committee reports, financial impact statements, and vote tallies. Also included may be a staff analysis of the bill, providing a summary describing what issue the bill addresses, the purpose of the bill, and any amendments. Chamber debates are audio tapes of the House and Senate debates on a given bill. Finally, the House and Senate Journals record the actions of the chambers, with bill votes, explanations of votes, calendars, messages from the governor, etc.
A big help in sorting through all this documentary possibility is the entity known as a "tracing." These exist for laws that have already been researched by Archives staff by request, and are compilations of notes detailing relevant committees and whether and where any minutes, exhibits, audio tapes, etc, exist and can be found. Tracing or not, to begin compiling a legislative history starts out somewhat simply. Look up the statute in question in the ORS; at the end of the statute, the session law chapter/chapters will be noted. (Session laws are enacted laws, published in chronological order of enactment prior to being codified.) Next look up the session law, where the original bill number for the law can be found. This allows you to look up the legislative calendar in the House and Senate Journal (the bill number will begin with SB or HB, letting the researcher know which chamber's journal to peruse). From here, any existing tracings can be found, and committee hearing minutes and exhibits found on microfilm. For more recent years, both Westlaw and LexisNexis provide legislative history materials in addition to the State Archives and other resources.
Another thing to keep in mind in Oregon is legislation stemming from the initiative and referendum process, where voters can directly refer measures to the ballot to vote on and bypass the Oregon Legislature. The State Initiative and Referendum Manual is useful for understanding this process more in-depth; the Oregon Blue Book lists initiatives passed in given years.
Wednesday, December 15, 2010
In additon to various commonly used titles and chapters with which I have become familiar, Rowe mentions another one I hope to keep in mind; chapter 17 houses BOTH the Oregon and U.S. Constitution. I can think of at least two patrons I have had wanting to compare state and federal constitutions, and while I found them both, it never occurred to me that both were published together in the ORS. Rowe also discusses a feature I hope to start consulting more frequently; the ORS volume with Quick Search, where legislative acts are listed by name and terms are defined. She also helps clarify a little bit of a mystery; if West's Oregon Revised Statutes Annotations is so much more extensive than the ORS' own Annotations volume, why bother with the ORS version? She notes that the latter's listed annotations may be more focused and onpoint, and therefore more relevant and/or helpful in a research situation where there is plenty of legal material.
As for research the ORS online, which I am not a huge fan of since returns from the contextless "search box" are generally overbroad and overwhelming, it is interesting to find that it is not actually considered an official source. I find that if I am going to use the online ORS, browsing the tables of chapter contents is far more productive than using the search box.
Understanding how to read statutes at three levels of analysis outlined by a 1993 court case known as PGE should also prove useful in helping patrons research questions. First, of course, is the plain reading of the text itself. Included in this first level of analysis is reading the context of the statute: nearby sections, subsections, related statutes, and previous statutory interpretations by court cases. The second level of analysis involves legislative history: tracking the history of a particular statute and by doing so learning about the intent of the legislators (covered in the next post). The third level involves following established or general "maxims of statutory construction;" the resource I want to remember here is Statutes and Statutory Construction.
A few other gleanings from Rowe about statutes aside from the ORS: other states' codes are available online for free at Findlaw(http://www.findlaw.com/casecode/) and Cornell University's website (http://www.law.cornell.edu/), as well as on Westlaw and LexisNexis. Paraphrase rather than quote longer statutory sections when writing analyses about statutes. Federal statutes are codified in both the United States Code Annotated (this is the one our library subscribes to) and the United States Code Service, organized into 50 titles. These do not correspond to state code titles! The USCA may provide more annotations than the USCS, but the USCS may provide more useful tables.
It is important to remember that court rules at all levels of jurisdicition are found in statute codifications; in Oregon this includes the Oregon Rules of Civil Procedure, the Evidence Code, the Oregon Rules of Appellate Procedure, the Uniform Trial Court Rules, and so on. Rules should be read like statutes, and have annotations to cases about them just like statutes. Commentary from the drafting committee about the rules are considered persuasive authority. West provides deskbooks on Oregon Rules but often the online rules are more current; I helped a patron just last week whose search for a rule form illustrated just this point. Rule changes are printed in the Oregon Reporter's Advance Sheets, but not in the bound volumes. Federal rule resources with annotations include the USCA, USCS, the Federal Practice Digest, the Federal Rules Service, and the Federal Rules of Evidence Service.
Next up: Legislative History!
Tuesday, December 14, 2010
Before going into the how to of researching judicial opinions, I wanted to note the few new things I learned in Rowe's text about the cases and opinions themselves. First, the term "disposition" wasn't really familiar to me, though I did already know that an appellate court can "affirm, reverse, remand, or vacate" the lower court's decision, partly from previous coursework requiring the reading of cases concerning privacy, copyright, and other topics of interest to burgeoning librarians, and partly, of course, from my year as an assistant in a law library. The other piece of it that I did not realize is that a court can affirm part of a case but reverse another part. This makes sense, of course, considering that decisions are not always, or even usually, single-faceted. Another aspect of judicial opinions new to me is the capacity for dissenting opinions to be considered persuasive authority (majority, of course, being mandatory and binding). In general, I find that this illustrates once again how law can be both decisive and yet still flexible and responsive to new situations. Similarly, the holding of a case is binding, while "dicta," or other observations made in the opinion, can be persuasive but not binding.
Using the Oregon Digest, its Descriptive Word Index, and the West system of topic key numbers as a way of discovering and accessing cases is relatively familiar to me at this point, as Ioften help law library patron with the basics of case research. I had not really, however, considered before just how important it might be to search other digests for multiple and different jurisdictions (Pacific Digest, Federal Practice Digest, etc.), especially in situations where persuasive authority is needed, and/or Oregon cases on a particular topic might not be in abundance or exist at all. Another useful tip I learned is utilizing the "Subjects Included" and "Subjects Excluded and Covered by Other Topics." This really helps the researcher more quickly verify whether what has been found is on point, and also can help pinpoint other related avenues to explore.
Updating both the researcher's terms in the Descriptive Word Index and the topic volumes is very important, of course, but it had not occurred to me to update using the digest found in the reporter and its advance sheets itself. I had also not previously understood the value of the "Words and Phrases" volumes as pointing to cases giving judicial definition of terms. These, too, are important to check pocket parts for updates.
While the section on topical searching online with Westlaw (and LexisNexis) is fairly straightfoward, either searching or browsing the key numbers, I find that for myself and the majority of patrons I have helped alike, the print digests are easier in terms of understanding the how and why of results "returned" and seeing how the topic key number system is laid out. As is often the case, online searches frequently return more results, but less consistently relevant ones, and do not always present context or organization as transparently as print searches. Finally, Rowe makes the important point that Westlaw headnotes and LexisNexis headnotes are completely unrelated.