Wrapping Up (and a workshop, too)

Looking back at my objectives and activities for this independent study, I think many objectives were accomplished despite not completing some of the activities I originally planned. Actually conducting legal research and preparing a memo for even a relatively uncomplicated research question was much more time-consuming and involved than I imagined - and I had already imagined it to be both. I have gained an even greater level of respect for anyone NOT an attorney trying to research the law in the interests of representing themselves, and a greater level of respect for the work that lawyers do, especially those practicing solo.

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.

Accomplished Objectives

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.

Exercises

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.

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.

Workshop

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.

Research Strategies and Organization

Throughout this study, the goal has been to learn about available legal resources and especially how to use them effectively in researching the law. The exercises and research project have given me hands on experience with the legal research process. The basic process presented by Rowe is the same as the one I followed for my research into lemon law, and are as follows:

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.

Secondary Sources and Practice Aids

Researching secondary sources is often a good place to start for areas of law new to a researcher; print resources in general are preferable to online sources for areas of law new to a researcher; therefore, print secondary sources are often where a researcher may want to start to gain a broad introduction and overview for such an area of law before delving into primary and/or online resources. Secondary sources include legal encyclopedias like Corpus Juris Secundum (C.J.S.) or American Jurisprudence (Am. Jur. 2d), treatises, practice guides, hornbooks, and Nutshells (condensed overviews of law published by West).

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.

Administrative Law

Administrative law is something I was first introduced to in my government documents class, and later in my work as a law library assistant. In my class it was presented as the "invisible fourth branch," an apt term for an area of law I thought, as I had really never heard anything about it before. By the time of reading the Rowe text, I had already gained an understanding of the basics of administrative law, at least on a federal level, knowing for instance that administrative agencies are usually established by a legislature in codified statutes (some might be established by the Constitution). This allows them to create rules and orders that carry out the programs outlined in an enabling statutes in the necessarily detailed and practical fashion not possible in the statutes alone.

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.

Legislative History in Oregon

Compiling a legislative history requires a basic understanding of how the legislature producing the legislation functions. In Oregon, there are 30 members in the Senate and 60 members in the House, and legislative sessions are held every other year, though having annual sessions is regularly discussed and probably not far off. The minutes and audio tapes of legislative committee hearings, where proposed bills are discussed, form the largest part of a piece of legislation's history. These hearings explain the need for and the goals of the proposed legislation. A bill can be passed, passed with amendments, or not passed. A bill passed with amendments is referred to as "A-engrossed" while a bill amended a second time is referred to as "B-engrossed." A bill cannot be amended a third time; at that point, it dies. An "enrolled" bill has been passed by both chambers; the final version is signed into law by the Governor. The House and Senate Journals track these processes, and include votes of both the House and the Senate, as well as veto statements made by the governor.

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.

Oregon and Other Statutes

The Oregon Revised Statutes, or ORS, is almost always one of the staple resources used by our patrons in their research; after all, they are the enacted laws of the Oregon State Legislature. They are particularly often a starting point for questions of law that don't already have large bodies of secondary and practice materials built up around them, but instead may be more obscure or random. And of course, secondary and practice Oregon materials necessarily point back to and serve as guides and commentaries to the statutes. There are 62 titles in the ORS, codified by subject matter. Researching a given topic in the ORS follows the usual pattern: generating search terms; using the index to locate terms, subentries, and potential cross-references; locating the resulting statute title, chapter, and number; carefully reading the statute(s); reading the annotations and following relevant case or other citations. I have sometimes found, too, that if the index does not seem to have the terms one is looking for, sometimes it is useful to pick a title and then chapter that deals with the general area of law in which your question falls, and then scan the table of contents at the beginning of that chapter.

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!

Case Law: Researching Judicial Opinions

While case law seems to be one of the messier, or at least, more time consuming, areas of legal research, it also appears to me to be one of the more interesting. This may be in part, as Rowe notes, because finding cases that have exactly the facts matching your research problem is not likely; yet, there are so many avenues to discover potentially relevant cases or specific parts of cases, or specific parts of several different cases together, turning the research into more of an art of search strategies and evaluation than a science. This could be said of legal research in general, but it is particularly evident when diving into case law.

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.

Research Journal Part III: Case Law

The Oregon Revised Statutes Annotated

To research case law related to lemon law in Oregon, I began by looking up the relevant statutes I found in the ORS in West's Annotated set (ORSA). The first thing I discovered was that the 646A.400 statutes were mostly found in a different section, 646.315 et seq., because the date of the ORSA print volumes were not current to this year. I went ahead and searched through the annotations of these outdated statutes in case there was anything relevant. Since the annotations include also references to legal encyclopedias, journal articles, and treatises, I took note of those that coincided with materials I had found in my preliminary analysis. On the other hand, I also found potentially useful references to treatises not owned by our law library. So the annotations help both validate completed research as well as suggest other possibilities for other steps in the research process. This shows that the research steps are interrelated and that the process is not always strictly sequential.

As for relevant case law, I found the following possibilities in the "Notes on Decisions" section: Pavel v. Winnebago Industries, Inc., 1994, 127 Or App 16, repeated throughout this statutory section, and Sweeney v. SMC Corp., 2002, 178 Or App 576, also cited three times.

To update this information, I checked the supplementary pamphlet (current through June 2010) where current 646A.400 et seq statutes were available. Reading through the decision notes, one more case that seemed potentially relevant was Liles v. Damon Corp.. 2008, 345 Or 420. All the others dealt with repair situations that did NOT pertain to new vehicles

West's Oregon Digest 2d

Next, I used West's Oregon Digest 2d to see if there were any more relevant cases. I started with the Descriptive Word Index, using the term "Lemon Laws." This cross referenced to "Automobiles, lemon law" and "Consumer Protection, generally." These index terms led to several possible topic keys, such as Consumer Protection 9, 36, and 1 through 50 in general. However, these turned out to be dead ends, and searching in the pocket parts for the Descriptive Word Index revealed why: "Automobiles, Lemon Laws" now pointed to the topic keys Antitrust 206 and Autos 368; and the index term "Consumer Protection, generally" was now "Unfair Trade Practices, generally" which led to the topic keys Antitrust 192 and Antitrust 195. In other words, the topic volumes were more up to date than some of the Descriptive Word Index, showing how valuable the pocket parts are for keeping up with changes in the topic key system.

Looking up these topic keys and then, of course, updating them in the pocket parts, did not lead to any new relevant cases, but did verify one: the Liles v. Damon case. All the others dealt with repair situations that did NOT pertain to new vehicles or award specifics relevant to motor homes only, which is not our case. The topic key Antitrust 206 is the specific one for lemon law, and two of the three cases I chose have this key as a headnote; two cases came under this key that I did NOT select, one having to do with the definition of "passenger" and the other with whether a particular vehicle was a "consumer product" when only occasionally used for personal reasons; neither of these are at issue in this case.

In the interests of currency, verification, and curiosity, I did a search on the Antitrust 206 key number online in Westlaw. Two of my three cases (Liles v. Damon, Sweeney v. SMC Corp.) appeared plus a third one that I had not selected for reasons listed in the previous paragraph. The Pavel v. Winnebago case did not appear, most likely because the case addresses the outdated statutes, some of which were indexed by West under other Antitrust subtopics. I am unclear why they were not subsequently also indexed under Antitrust 206, since the other two given headnotes expressly mention lemon law statutes. I am unclear as to whether this makes it mandatory authority in the current case, but I decided to include the case in my research anyway.

Selected Cases

I then printed these three cases out and read through them. The Liles v. Damon seemed potentially relevant even though dealing with a new motor home, since at issue was whether written notice of defect was required to be sent to the manufacturer before the manufacturer had opportunity to correct defect, and whether lemon law required that written notification contain information beyond request for settlement. Both points could be relevant to our consumer's course of action in remedying her situation. Pavel v. Winnebago also addressed the need to provide the manufacturer with written notice of defect prior to pursuing remedy under lemon law. The third case, Sweeney v. SMC Corp, had to do with the awarding of triple damages and whether pursuing multiple remedies simultaneously precluded the awarding of damages under the lemon law statutory remedy.

Persuasive Authority

To find possible persuasive authority, I used Westlaw to do topic key search under Antitrust 206 in Washington and California. A list of 8 cases was produced for Washington; 31 for California. One from Washington in particular stood out for my research problem, Chrysler Motors Corp., 116 Wn.2d 208, 803 P.2d 314, 1991. This case would be directly relevant on a point that is not specifically addressed in the Oregon statutes or cases: is a demonstrator vehicle still a "new" motor vehicle? This is an instance where that original generation of terms and listing of facts shows itself to be useful throughout research; the term "demonstrator" caught my eye as a result.

The list of 31 California cases did not really seem illuminating beyond what is already provided for in the Oregon statutes, and appeared to follow a set of lemon laws (the Song-Beverly Consumer Warranty Act) quite distinctive from Oregon's. As a result, I did not pursue any of these cases further.

Shepardizing

To verify that my four cases (I included the Washington one) were still good law, I shepardized them online. All of them were current and had been treated positively with no subsequent appellate history. All had been subsequently cited in other cases.

In total, case law research took about five hours to compile, including the time to read and determine relevance, and about an hour to document the process here.

Research Journal Part II: Statutory Research

The Oregon Revised Statutes Index

Looking under the term "Lemon Law" gives a cross reference to "Motor Vehicles, Warranties, New Vehicles (Lemon Law). Several subtopics are listed under this, but before all the detailed subtopics, "(generally)" is given first and points to statutes 646A.400 et. seq. (which lasts through 646A.418 before turning to "Vehicle Protection Products," which do not apply in this case). While it is possible to research other related terms - "warranties" or "motor vehicles, repairs," for instance, searching on these terms for laws relevant specifically to new motor vehicles consistently leads back to this specific set of laws. In addition, a quick reading of one of these statutes reinforces their sufficiency, as will be discussed below.

The Statutes

It is clear from reading through ORS 646A.400-418 - entitled, "Warranty Regulation and Enforcement (Enforcement of Express Warranties on New Motor Vehicles)" that they are mostly directly applicable to this case, providing for the availability of consumer remedies for vehicles that fail to conform with their express warranties, time limitations, what those remedies entail, settlement procedures, and so forth. This is with the exception of 646A.405, which explains the notices required by sellers for buyers if a vehicle has been purchased back because of a defect; this statute is probably not relevant to the current situation.

One statute - the last one, 646A.418 - makes clear that while other potentially relevant statutes may be used to pursue remedies, but that if these are the statutes to be used for remedy, no others may be, and vice versa. This shows that reading through the statutes as they are located can help provide guidance as to whether pursuing research under other laws is necessary or helpful.

The search for the relevant statutes, then, was relatively straightforward, and maybe took about an hour to research, an hour to read through and determine which sections were relevant, and half an hour to document the process here. Next: researching case law.

Research Journal Part I: Preliminary Analysis (Knowledge Assessment, Background Readings, Secondary Sources)

The last segment of the preliminary analysis was lengthy enough that I decided to give it a separate post. The time spent researching secondary sources and pinpointing their relevant sections took approximately three hours, and another hour to compile and draft. If I were to read all the possible background reading in depth, I estimate several days would be spent doing so. I searched by browsing familiar Oregon practice materials at the Washington County Law Library, consulting corresponding general treatise materials, various legal encyclopedias, and online databases for relevant Oregon journal and law review articles.


Taken from browsing law library's Oregon material shelves:

Oregon State Bar Book "Contracts"

This resource had none of my key terms in the index, and browsing through the table of contents gave me the impression that the information pertained to all kinds of contracts BUT sales contracts. This made even more sense as I found most of the sales contract law in the following practice book.

Oregon State Bar Book "Consumer Law"

Using the index and the term "lemon law," I was led to the index term "new motor vehicle." Other terms were "motor vehicle, material defects and nonconformities" and "warranty, breach of."

Section results to read: Entire chapters of 16 and 17, 4.20

Oregon State Bar Book "Damages"

This bar book's index had many entries under the "sales of goods, contracts for" that seemed relevant to remedying a breach of those contracts. All of these entries pointed to sections in chapter 25, titled "Contracts for the Sale of Goods." There were no entries under "lemon law" or warranties." Entries under "breach of contract" were general entries about all kinds of contracts, with a cross-reference for "sale of goods, etc."

Results to read: chapter 25.

Oregon Uniform Commercial Code (Henry J. Bailey III)

The term "lemon law" was not in the index. I also figured out that each of the three volumes had its own separate index for that volume, and that what I needed was solely in Volume 1, "General Principles, Sales of Goods, and Leases of Goods" and especially in chapter 2. Following is a list of the relevant index topics and subtopics I found and their corresponding sections for reading:

Acceptance of goods, effect on claim for breach: 2.63, 2.68

Breach of warranty, generally: 2.69, 2.153

Consumer sales, Consumer Warranty Act: 2.117, 2.119

Consumer sales, Unlawful Trade Practices Act: 2.120

Consumer sales, Federal Magnuson-Moss Act: 2.118, 2.119

Limitations of actions: 2.124

Limitations, modifications, and substitutions of remedies: 2.107, 2.113, 2.114

Notice of breach of warranty against infringement: 2.92

Products liability, basis of claim: 2.122, 2.123

Repairs, obligation established by course of dealing: 2.106

Remedies, generally: 2.126 - 2.130

Remedies, buyer's remedies, scope after rejection of goals: 2.144

Remedies, buyer's remedies, scope after revocation of acceptance: 2.71

Remedies, buyer's remedies as consumer, cover: 2.151

Remedies, buyer's remedies for breach of contract by seller, generally: 2.144 - 2.160

Resources found from browsing relevant subject call number area in law library's general treatises and self-help:

Products Liability, 6th ed, Nutshell series

This entire book would be useful background reading. From table of contents, all of chapter 4 is dedicated to warranties., and from index, p. 485-486 pertain specifically to motor vehicles.

Everyday Contracts (Random House)

From table of contents, it would appear that chapter 4, "Repairing Your Car," is potentially useful.

Corbin on Contracts, Willitson on Contracts, The Practice of Consumer Law

I did similar searches as above in the indices of all of these books; they all seemed either redundant or much less specific than the Oregon UCC book. My guess is that this is because the relevant law is mostly detailed at the state jurisdiction level, and probably variable.

Resources from online legal research databases, looking for relevant law jounal articles:

Hein Online

In this database I searched the Law Journal Library, but limited my results to Oregon published journals, though it is possible journal articles from other states might be useful. Using various combinations of my key terms - most of which are too broad alone - I found very little in Oregon. I began with a text search for "lemon law" and "lemon laws" and returned no relevant results. I then tried "motor vehicle warranty"- also no relevant results. Another tactic I tried was limiting my searches to the three subject areas "Commercial Law," "Contracts," and "Torts." This narrowed any results lists down to not just irrelevant results, but nearly NO results. After a few more unsuccessful permutations, I entered the search string "motor vehicle" OR "automobile" AND "breach of warranty." This led to two possible relevant results, both of which are not very recent:

Products liability in a nutshell, Oregon Law Review, vol. 37(2), Feb. 1958, p. 119-159.

Private remedy under Oregon's Unlawful Trade Practices Act, Oregon Law Review, v. 56(3), 1977, p. 490-517.

Westlaw (Oregon Journals and Law Reviews database)

These searches were also frustratingly unproductive. "Lemon law" as a term found nothing. "Motor vehicle" alone was too broad, so I then tried "motor vehicles" AND "breach of warranty." This was also unproductive, as the results were completely irrelevant. I finally hit on "motor vehicles" AND "products liability." This produced one result that seemed at least relevant, though I am unsure how useful in my case:

Oregon's products liability law and the problem of economic loss: Willamette Law Review, vol. 28 (565).

Resources from legal encyclopedias using print indexes:

AmJur 2d

Looking up the term "lemon laws" pointed to its location under the index terms "Automobiles and Highway Traffic, Lemon Laws, generally." This pointed to the entry "Consumer Protection (ConsumePro) sections 49-57." A search under "Warranties, breach of warranty" led to "Sales sections 1128-1137." Entries under "Vehicles, actions and remedies, repairs" - the subtopic that would seem relevant - did not relate to lemon law, except where the term "lemon law" is again subordinated, which leads back to the "Consumer Protection" entry above.

Corpus Juris Secundum


In the CJS index, the term "lemon law" led to the subject and section "Credit Agency section 59." The term "vehicles" did not lead to any relevant entries; "automobiles" gave a cross-reference to "motor vehicles." Subordinated under "motor vehicles" was "defects" which referred to "products liability" also subordinated under "motor vehicles." This led to the subject "Motor Vehicles sections 409-430." There was no subordinated entry for "warranty," though there were a large number of subordinated entries under the index term "warranty." Relevant ones included "breach of warranty, products liability," leading to "Product section 208" and "sales, general provisions, damages ("Sales section 310 et seq.") and "sales, general provisions, remedies ("Sales section 278 et seq.") and "sales, general provisions, right of action, defenses, and counterclaims ("Sales section 284 et seq.")

American Law Reviews

In the ALR index, a search under the term "lemon law" gave a subentry for "jury trial," which yielded a section from the following article:

Constitutional right to jury trial in cause of action under state unfair or deceptive trade practices law (54 ALR 5th 631, 4(b))

Also under "lemon law" was the entry "motor vehicles," and an entry for the article:

Validity, construction, and effect of state motor vehicle warranty legislation (88 ALR 5th 301).

Searching under the term "motor vehicles" gave a cross-reference to "Automobiles and highway traffic" which in turn had a subentry for "lemon law!" This in turn had two subentries, "products liability, generally" and "warranties." These led to the following two ALR articles:

New motor vehicle warranty as limiting liability to repair or replacement of defective parts (2 ALR 4th 576)

Construction and effect of standard new motor vehicle warranty (99 ALR 2d 1419)

Research Journal Part I: Preliminary Analysis (Facts, Issues, Key Terms, Jurisdiction)

As part of my study, I am working on a research problem and using this blog as a journal for the steps I take and results I find from my research strategy, which begins with preliminary analysis. The research problem is as follows:

Becky Smith purchased a 2009 Ford Explorer in January 2010 from a Portland area car dealer. The Explorer had been used as a demonstrator and had just over 3,000 miles on the odometer.

When Smith purchased the vehicle it was still under the manufacturer’s warranty. Shortly after she purchased the Explorer she started having difficulties with the power steering. In May 2010, Smith took the car back to the dealership and they “fixed” the problem. Two weeks later, the power steering acted up again. She took the car back in and the problem was again “fixed.” In August 2010, the Explorer’s steering started pulling to the left. She took the car to the dealer. The dealer kept the Explorer for a week and promised to install a brand new steering mechanism. Three days after getting the car back, the power steering failed while Smith was driving to Seattle. At this point, the dealership began to ignore Smith’s complaints. Becky wants us to identify what remedies she might have under Oregon law.

Following is my preliminary analysis, broken down by section.

Preliminary Analysis: Facts

1. Becky Smith purchased a 2009 Ford Explorer in January 2010.


2. Car was purchased at Portland, OR area dealer.


3. Vehicle had been a "demonstrator."


4. Vehicle was under manufacturer's warranty at time of purchase.


5. Shortly after purchase, Smith had problems with the power steering.


6. Smith took vehicle to dealership in May 2010 for repair. Dealership said problem was fixed.


7. Two weeks later, the power steering problems reappeared.


8. Smith took vehicle to dealership again. Dealership said problem was fixed.


9. In August 2010, the vehicle's steering began to pull to the left.


10. Smith again took vehicle to dealership for repair.


11. Dealership kept vehicle for a week.


12. Dealership promised to install a brand new steering mechanism.


13. Three days after getting vehicle back, Smith drove vehicle to Seattle. Power steering failed.


14. Dealership failed at this point to respond to Smith's complaints.

Preliminary Analysis: Issues

1. Power steering failure


2. Warranty coverage and adherence


3. Lemon law


4. Consumer law

Preliminary Analysis: Key terms

• Who: buyer, customer, seller, car dealer, dealership, mechanic, manufacturer


• What: 2009 Ford Explorer, vehicle, car, power steering, warranty, demonstrator, low mileage, malfunction, repair


• Where: Portland, OR, dealership, Seattle


• When: Purchase, January 2010; first trip to dealership, May 2010; second trip, two weeks later; third trip, August 2010; three days after return, final failure


• Why: lemon, malfunction, faulty repair, faulty manufacture


• How: repair, service, manufacture, repeated failure, warranty failure

Terms I added as I went along in my index research: automobile, damage, motor vehicle, product liability, breach of warranty, remedies, recourse

Preliminary Analysis: Jurisdiction

Portland, Oregon; Oregon State law

In the next post: Preliminary Analysis: Knowledge Assessment/Background readings/Secondary sources

A Few Thoughts on the Oregon Constitution

The second chapter of the Rowe text discusses the Oregon Constitution, which is published in the Oregon Revised Statutes. I was not surprised to read that much of it parallels the U.S. Constitution. I was surprised to learn that some of what is covered in the Constitution is very similar to statutory law, and that some later articles cover what seem to me to be rather odd and arbitrary topics - like "Seismic Rehabilitation of Public Education Buildings." I am wondering if this is a result of Oregon's unique initative process whereby Oregon voters can amend the Constitution directly, or if this is common in many states by historical quirks.

I found the section on how the Oregon Supreme Court goes about interpreting the original provisions of the Constitution using "the Priest framework" to be interesting. It hadn't occurred to me before that anything outside the text wording itself could be considered in interpretation, but this does allow for a more nuanced understanding by the courts, especially where the wording might be otherwise vague or confusing. Having done an internship at the Oregon Historical Society, I was also interested to learn about the the three part article written by Professior Claudia Burton about a set of complete documents for each Constitutional article she found there. It just goes to show how present research - or even serendipitous browsing - can dramatically recast our understanding of historical events and documents. It also shows how law and history are intrinsically connected and demonstrates another reason why interpretations of existing law necessarily change over time. In that vein, Rowe also mentions how Oregon courts may look even to the Magna Carta and English law commentary, and how the Oregon Constitution is modeled on Indiana Constitution's Bill of Rights, which may then also be looked to for interpretation. Obviously law is not created in a historical vacuum, and so it makes sense that interpreting it with care may involve that important historical context, even further back than one might at first expect.

Interpreting amendments after 1859 is a bit of a different matter, but still involves careful reading of text, and then historical context, which includes ballot titles, arguments for and against from the voter's pamphlet, and even news articles and editorials of the time of the initiative. It is the intent of the voter that the courts will try to discover. Rowe includes a beginning discussion of the initiative and referenda process in Oregon here, which allows voters to amend the Constitution on their own, bypassing the legislature. She notes that some feel this process allows too much ease in amending the Constitution. More information about the initiative and referendum process can be found the the Oregon Secretary of State's State Initiative and Referendum Manual, as well as the Oregon Blue Book.

While I knew the Oregon Constitution could be found in the Oregon Revised Statutes (as well as WORSA), I did not know that the United States Constitution could be found there as well, and indeed, in every state's published codes. It is, of course, in the United States Code Annotated and in the United States Code Service, but I can imagine research situations covering both state and federal material where having the federal constitution in the state code is quite useful.

Introduction to Oregon Legal Research and Preliminary Analysis Exercise

I have completed the first chapter of Suzanne Rowe's Oregon Legal Research 2d. The chapter covers the basics of types of legal resources, detailing the differences between primary and secondary sources, and mandatory versus persuasive authority. A primary source is a source originating directly from a source of law itself, such as legislation, administrative rules, judicial opinions, and so forth. A secondary source is one that provides commentary on or guides to primary law, including materials such as digests, annotations, treatises, and law journals. Sources that originate directly from the jurisdiction in which a legal issue exists are deemed to have mandatory authority; sources that originate from either neighboring jurisdictions or very similar topics and circumstances are considered to have persuasive authority.

It gives a brief overview of the two major online legal research database providers, LexisNexis and Westlaw, including an introduction to their organization and various search modes, such as searching with terms and connectors, natural language searching, and topic searching. Topic searching and natural language searching have the strength of returning results that can generate a greater number of terms under which your research question might be pursued, and therefore may be useful as a starting point. Terms and connectors, on the other hand, may be more useful once the researcher has generated an exhaustive term list, and has the advantage of being more likely to return a comprehensive and more consistently relevant list of hits. Boolean connectors are also given in a chart. The organization of both databases is touched upon briefly, including how to find and select databases and using search tabs. Finally, this chapter gives an outline for the organization of the rest of the text and appendices.

I also completed my first exercise in preliminary analysis last week. The hypothetical case presented concerned a Portland, Oregon homeowner whose dog bites an intruder into the back yard. Generating all the different possible search terms using the who, what, where, when, and why questions was an exercise that revealed the subjective nature of the research. I used a thesaurus to trigger any terms that weren't forthcoming off the top of my head; and there were definitely a handful of potentially appropriate terms that I would not have generated on my own. Yet I noted that many listed synonyms for a given term were equally inappropriate in their connotation or common usage, and so I made many judgment calls about which terms to select while still being as exhaustive as possible. I noticed that later in the exercise when performing searches on these terms, ultimately only a handful seemed to generate many relevant results. However, some of those in the handful would not have come up if I had not gone through the step of synonym generation; I can see why it is an important step to take.

Looking up the legal term trespass was also eye-opening. Not only were there many specific - and some very obscure - definitions of the word trespass alone, many versions of the term incorporated other terms (some in English, some in Latin!) as well, including the mouthful term that most closely resembled the exercise's research problem: trespass quare clausum fregit. This seems like quite a sophisticated and lengthy term for a relatively commonly understood conception of the word trepass in non-legal terms. When using legal terms, it is obviously very important to make sure the word you are using indicates precisely what you mean from a legal terminology point of view, not just common held (and often imprecisely used) terms.

Objectives and the Activities that Support Them

I have gotten my feet a bit wet with an exercise in preliminary analysis of a legal research problem and reading the introduction to Suzanne Rowe's Oregon Legal Research 2d. Before I discuss the reading and exercise, which I will do in a separate and subsequent post, I want to outline a little more fully the objectives of my independent study, what the coursework will entail, and how the coursework, including this blog, will contribute to those objectives.

In my independent study proposal, five objectives are listed as follows:

a. Identify, categorize, and respond to legal research questions

b. Gain familiarity with and ability to use various legal resources, especially in a reference interview context

c. Gain understanding of and ability to utilize legal research methods

d. Demonstrate ability to teach acquired legal research skills

e. Explore issues surrounding the evaluation of legal reference services; develop potential evaluative methods

I intend to accomplish these objectives through various activities, the first of which is the reading resources relevant to the coursework. The primary text I will use is, as noted above, Suzanne Rowe's Oregon Legal Research 2d. In addition, I will read other resources as relevant and necessary, such as various primary and secondary legal resources or articles covering legal research methods.

Another course activity will be completing research exercises provided by my professor. These exercises are designed both to explore ideas surrounding and practice using legal resources and research methods.

Along with this coursework, I will create and implement a legal research workshop for public librarians, submitting for evaluation a workshop outline, materials, and description. This will strengthen my own understanding of legal research skills while giving me a chance to practice instructional skills that are necessary to law librarianship.

Finally, I have created and will use this blog to document and reflect on my activities and progress. I will make a minimum of one entry per week, and towards the end of my study, I will use these posts to write a summarizing reflection paper that demonstrates knowledge and skills gained and integrates various concepts from course activities.

One activity discussed in the proposal was the writing of a paper that would fulfill objective e.: a paper about evaluating the effectiveness of legal reference. While my instructor and I have agreed that that was too big a project for the scope of this class, I am hoping to still at least find time to conduct a literature review on the subject, should such literature exist. Since I currently work in a law library where I have ample opportunity to practice legal reference skills, exploring potential ways, if any, to evaluate the effectiveness of that reference is a topic of great interest to both me and my work supervisor. I will continue to report here on any progress made in this vein.

Gathering Educational Technology Together

As a student in the University of Washington's Master's of Library Science program, I am embarking on an independent study into legal research from a librarianship perspective.

As one of the evaluative segments of the course design required by the independent study proposal guidelines, creating and updating this blog will serve as a record of my reflections about the various course activities in which I engage in addition to the concepts, knowledge, and methods or processes I encounter and/or use. I will write more about the course activities, and objectives outlined by the independent study course proposal in my next post.

No reflections yet, however; just getting started by testing out the blogging apparatus to see that all is working and well.

So far, so good.