Reuters_Legal_Research-如何進(jìn)行法律研究備忘錄寫(xiě)

1、LEGAL RESEARCH THOMSON REUTERS LEGALWESTWANG CHANG, ESQ.OCTOBER 23, 2008Agenda Thomson Reuters - Legal American Courts What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotationsThomson Reuters Legal 湯姆森路透法律信息集團(tuán)

2、 The North American Legal market is the worlds largest and comprises primarily professional law firms, corporations, government and judicial agencies, and academic institutions. This market relies heavily on online technology for information sourcing. 湯姆森路透法律信息集團(tuán)湯姆森路透法律信息集團(tuán)- 世界上最大的法律市場(chǎng)和法律信息服務(wù)市場(chǎng)世界上最大

3、的法律市場(chǎng)和法律信息服務(wù)市場(chǎng), 包括專(zhuān)業(yè)律師事務(wù)包括專(zhuān)業(yè)律師事務(wù)所所, 公司法務(wù)公司法務(wù), 政府部門(mén)政府部門(mén), 司法部門(mén)司法部門(mén), 以及學(xué)術(shù)機(jī)構(gòu)。法律及法律信息市場(chǎng)在很大程度上依賴(lài)以及學(xué)術(shù)機(jī)構(gòu)。法律及法律信息市場(chǎng)在很大程度上依賴(lài)高科技的在線(xiàn)信息資源和產(chǎn)品高科技的在線(xiàn)信息資源和產(chǎn)品。 Thomson Reuters Legal - North American湯姆森路透法律信息集團(tuán)北美總部Current Eagan campus size is approximately 271 acres 北美集團(tuán)伊根總部占地271英母Data centers comprise 75,000 square f

4、eet 全球領(lǐng)先的數(shù)據(jù)中心，7萬(wàn)5千平方英尺Holds more than three petabyte of installed disk space and over 3.5 petabytes of data backed up on tape. 三萬(wàn)多兆字節(jié)數(shù)據(jù)存儲(chǔ)在硬盤(pán)空間上； 三萬(wàn)五千余兆數(shù)據(jù)備份在磁帶上 One petabyte of data would fill a stack of CDs 1.75 miles high.一萬(wàn)兆字節(jié)的數(shù)據(jù)裝滿(mǎn)的CD盤(pán)，疊起來(lái)將長(zhǎng)達(dá)1。74英里7000 employees (More than 1000 attorneys). 共有 7000

5、 名員工(其中1000多位律師)Inside WestThomson Reuters Legal 湯姆森路透的主要法律業(yè)務(wù)部門(mén) West 集團(tuán)： 法律圖書(shū)，軟件，多媒體產(chǎn)品， 法律培訓(xùn) Westlaw: 世界最大最權(quán)威的在線(xiàn)法律法規(guī)數(shù)據(jù)庫(kù)集成 Foundation Press: 法律研究和高校法律教材專(zhuān)業(yè)出版社 Findlaw: 專(zhuān)業(yè)法律人士門(mén)戶(hù)網(wǎng)站 Bar/Bri: 律師資格考試服務(wù)集團(tuán) Sweet & Maxwell: 歷史悠久、倍受尊敬的英國(guó)法律出版集團(tuán) Westlaw China （萬(wàn)律）（萬(wàn)律）：中國(guó)法律數(shù)據(jù)庫(kù)和咨訊平臺(tái)Agenda Thomson Reuters - Legal A

6、merican Courts What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotationsSeparation of PowersComparative Perspective Stare Decisis/ Precedent: Stare Decisis/ Precedent: fairness and stability. the basic assumpt

7、ion is that if there is a case from the past having facts and legal issues similar to those in the case currently before the court, the outcome of the past case should control the outcome of the present case. This concept is often referred to as precedent. (Common law) Separation of Powers: Check on

8、 government powers: “unconstitutional” Due Process - Juries - Adversary system: two parties present to the Court all the evidence and testimony they can find, in the most persuasive manner allowable, in order to achieve a decision favorable to their interests. - Procedural rules are made by the cour

9、ts: Federal Rules of Civil Procedure; Federal Rules of Criminal Procedure; Federal Rules of Evidence; Court RulesComparative Perspective - Continued Lawyer, an officer of the court. - To our clients, we are advocates and advisors. - To the courts, we are officers whose duty it is to speak for the ju

10、stice system. - To the public, we represent the rule of law, and we have an obligation to represent it honorably. Standard of review: is the amount of deference given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. - Where a lower court has made

11、a discretionary ruling (such as whether to allow a party claiming a hardship to file a brief after the deadline), that decision will be reviewed for abuse of discretion. - Where a lower court makes a finding of fact, it will be reviewed for clear error. - A finding of law is reviewed de novo - as if

12、 the reviewing court were considering the question for the first time. Judge: Federal and State The US Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. Federal judges in

13、 the United States (except those who have recess appointments) serve life terms for their period of good behavior. Once appointed, state judges in the United States usually serve terms for a fixed period of years, although in some states (e.g., Massachusetts) the appointment is for life, often subje

14、ct to mandatory retirement at some fixed age. In those states where the appointment is not for life, judges must, after their initial term, be re-elected, face a retention election, or face reappointment by an appropriate authority. The law governing judicial elections in the United States is in flu

15、x with the general tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy. Dual SystemFederal1.Cases in which the United States is a party2.Cases involving foreign officials3.Cases involving parties from different states 4.Cases involvin

16、g the United States Constitution5.Cases involving patents, copyrights and bankruptciesStateAll except Federal 1, 2, and 5 Dual System Continued The United States Supreme Court 13 judicial circuits, each with a court of appeals (6 -28 judges each circuit) 89 districts in the 50 states. + Puerto Rico,

17、 the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. In total there are 94 U.S. district courts. Minnesota Supreme CourtMinnesota Court of Appeals Minnesota District CourtsMinnesota Tax CourtMinnesota Workers Compensation Court of AppealsAmerican Courts Trial Courts

18、- by geography or by subject- Issues of fact and law- Fact finder: judge or jury- Fact findings are binding on the parties and cannot be appealed- Issues of law are decided by the judge and can be appealedAmerican Courts Appellate Courts Panel of judges Only questions of law Must have raised objecti

19、on in court Precedent for lower courts in same jurisdiction Only hear small percentage of cases from trial courtsUS Federal CircuitsThe Courts of Last Resort Sit en banc (odd number)usually how many for state court? ( 5 9) How many in the US Supreme Court? (9) Decide what cases to hear Extremely sma

20、ll percentage of lower court cases heard Precedent for all lower courtsSupreme Court of The United StatesThe highest court in the landHas the final word on federal issues raised in state courts, and it hears cases arising between states. The Court makes law through its decisions in individual casesA

21、nnual term: first Monday of October Late June or early July of next yearIssues opinions in less than 100 cases/ year Agenda Thomson Reuters - Legal American Courts What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and

22、 annotationsIRAC Issue Rule Analysis/Application Conclusion IRAC is a methodology for legal analysis; IRAC is used to organize a legal argument. How To Find the Law Legal research is the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sen

23、se, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.“Legal Research as a Fundamental Lawyering Skills Fundamental Skill # 3: “In order to conduct le

24、gal research effectively, a lawyer should have a working knowledge of the nature of legal rules and legal institutions, the fundamental tools of legal research, and the process of devising and implementing a coherent and effective research design . ” MacCrate Report: Legal Education and Professional

25、 Development, An Educational Continuum Report of The Task Force on Law Schools and the Profession: Narrowing the Gap, JULY 1992. American Bar Association, Section of Legal Education and Admissions to the BarThe “Ideal” Process Frame the issue Brainstorm search terms Determine jurisdiction Locate, re

26、ad, and update secondary sources Locate read and update primary authority Lookup rules of procedure, ethics, non-legal and other materials if needed Key questions Be clear about the scope of your project. Are you researching an issue for an appellate brief, a memo to a partner, a scholarly article,

27、an oral presentation? How much time (and money) can you devote to the project? Be sure you have the basic facts. Ask the who, what, when, where, why and how questions. Articulate the legal issue. What jurisdiction is involved? Federal or state? Is this a civil or criminal matter? Who are the parties

28、 and what relief is sought?Is this a substantive or procedural issue? Consider which of three branches may have established the law on this issue.Legal Research ProcessKnow Where to Stop The Loop Rule When you start to see the same documents and citations over and over, you should probably realize y

29、ou are done, especially if you have used the research products of more than one publisher The Economic Analysis or Diminishing Return Rule When you are investing more in your research than you are getting in return The Zen Rule When you have been working in an area of the law for a long time, you wi

30、ll be so familiar with the primary and secondary law you will have become an expert and will know when to stop.Agenda Thomson Reuters - Legal Fundamentals of American law What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System

31、ALR and annotationsLegal Information in a Nutshell Primary Authority IS the law Cases, Statutes, Constitutions, Regulations, Rules Secondary Authority Analysis and commentary Usually the best place to begin research Treatises, Practice materials, Periodicals, American Law Reports & much more Finding

32、 Tools and Updating Tools Digests, Indices and other techniques Westlaw KeyciteSources of Law Primary Sources US Constitution; Bill of Rights; state constitutions Treaties are formal agreements among nations under international law Statutes and laws Rules, regulations, and orders Executive orders Ca

33、se laws Primary authorities as a body constitutes the law, the set of enforceable legal rules and principles and may be mandatory or persuasive.Sources of Law Secondary Sources Legal encyclopedias Text and treatises (hornbooks) Restatements Law reviews Annotations ALRSecondary sources comment upon,

34、analyze, discuss, interpret, and/or criticize primary authorities, but cant rise above persuasive authority. Search Books finding and updating tools Digests: e.g., American Digest System Indices: Table of Cases Citators: e.g. KeyCiteWest publishes primary sources, secondary sources, and search books

35、. The Development of Legal Publishing - Blackstone 200 years ago, almost all the information a lawyer needed was contained in the American edition of Blackstones Commentaries on the Law of England the great multivolume, comprehensive law text of the 18th century. “With Blackstone, a desk, and an ink

36、well, you were a lawyer. “The Development of Legal Publishing - West West Publishing was founded by John B. West and his brother Horatio in 1872 in St. Paul, Minnesota. In 1882, with Charles W. Ames and Peyton Boyle, the West brothers incorporated the company. West Publishings first product was The

37、Syllabi, a weekly record of excerpts from Minnesota courts. Between 1876 and 1887, this publication was expanded into the National Reporter System. John B. West was the first salesperson for the company and the first full-time law book salesperson in Minnesota, traveling throughout the upper Midwest

38、 by train, horse-drawn carriage and sleigh. A century later in 1975, West Publishing launched its first computer-assisted legal research service, Westlaw. West Publishing moved its headquarters to Eagan, Minnesota, in 1992. Agenda Thomson Reuters - Legal Fundamentals of American law What is legal re

39、search? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotationsWest National Reporter System Northwestern (N.W.; N.W.2d): IA, MI, MN, NE, ND, SD, WI Pacific (P.; P.2d.; P.3d.): AK, AZ, CA, CO, HI, ID, KS, MT, NV, NM, OK, OR, UT, WA

40、, WY Atlantic (A.; A.2d): CT, DE, DC, ME, MD, NH, NJ, PA, RI, VT Northeastern (N.E.; N.E.2d): IL, IN, MA, NY, OH Southwestern (S.W.; S.W.2d): AR, KY, MO, TN, TX Southeastern (S.E.; S.E.2d): GA, NC, SC, VA, WV Southern (So.; So.2d): AL, FL, LA, MSWest National Reporter SystemAgenda Thomson Reuters -

41、Legal Fundamentals of American law What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotationsWest Publishing Digests Topic and Key number system invented in 1908 and is published in digests A “master index to a

42、ll of the case law of the country.” There are seven major areas of the law, 440 legal topics and more than 95,000 points of law in those topics System indexed case law from 1658 Today, there are more than 20 million headnotesThe Key Number System The West Key Number System The Index to American Law

43、In existence for over 100 years. The Key Number System is the only research taxonomy for legal information. It is the most widely used index system in the world. The System is an outline of the entire body of American law, broken down into over 400 topics and 100,000 subtopics. Uniform across all fe

44、deral and state jurisdictions throughout all of Wests Digest and on Westlaw; Searchable on Westlaw or through use of print Digests. Ever changing and expanding.Matters Relating to the Following Categories:1.Persons2.Property3.Contracts4.Torts5.Crimes6.Remedies7.GovernmentWhy is the Key Number System

45、 important? It makes legal research easier, more accurate & more relevant. It is an index used to find opinions relevant to a legal problem and it is a list of issues important in the law. Not only will it help you find cases, but it will also help you identify the issues you need to consider. Topic

46、 and Key Number - Illustration The approximately 400 topics are arranged alphabetically and numbered between 1 and 450. Each topic addresses a broad legal issue. Some topics have been added after the original 414 topics were assigned numbers See 48A Automobiles and 48B Aviation Other topics have bee

47、n eliminated, renamed, or reorganized. (There is no longer a topic 3.)Topic and Key Number - Illustration Each topic is broken down into subheadings. There can be up to eight levels in the topic and key number hierarchy. This process continues until further breakdown of a point of law is unproductiv

48、e and a specific key number is assigned. See, 92k90.1(1.2) above. There are approximately 100,000 specific key numbers.Agenda Thomson Reuters - Legal Fundamentals of American law What is legal research? Forms of legal information Wests National Reporter System Wests Key Number System American Digest System ALR and annotationsWest Digests Since 187