Tuesday, December 14, 2010

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.

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