Legal Research And Writing for Paralegals

1. Legal Research & Writing: Core Paralegal Skills & Ethical Duty

Paralegals are expected to perform the task of legal research competently and cost effectively.

Core competencies. Legal research and writing are fundamental skills for paralegals, recognized by organizations like the American Association for Paralegal Education (AAfPE). Proficiency in these areas is essential for success in the profession. It's not just about knowing the law, but mastering the ability to find it efficiently.

Ethical obligation. Attorneys have an ethical duty of competence, which extends to ensuring their paralegals are competent in performing assigned tasks, including research and writing. Failure to conduct adequate research can lead to serious consequences, including legal malpractice claims.

• Attorneys are responsible for paralegal conduct.
• Inadequate research can result in liability.
• Accuracy and efficiency are paramount.

Foundation for success. An employer values a paralegal's ability to find accurate answers to legal questions, even on unfamiliar topics, more than specific coursework grades. Competent research is the bedrock upon which effective legal work is built.

2. Sources of Law: Primary vs. Secondary Authorities

All of the great mass of legal authorities can be classified as either primary authority or secondary authority.

Primary sources bind. Primary authorities are the official pronouncements of the law created by government entities. These include cases (judge-made law), constitutions, statutes (laws passed by legislatures), administrative regulations, executive orders, and treaties.

• Cases: Common law tradition, stare decisis (following precedent).
• Statutes: Laws enacted by legislative bodies.
• Constitutions: Fundamental law for a nation or state.
• Administrative Regulations: Rules from agencies like the FDA or FCC.

Secondary sources persuade. Secondary authorities are everything else – they discuss, explain, and analyze the primary sources. Examples include legal encyclopedias, law review articles, treatises, Restatements, dictionaries, and form books. They are not the law itself and are only persuasive, not binding, on a court.

Finding the law. Secondary sources are invaluable tools for understanding complex legal topics and, crucially, for locating the relevant primary authorities. While secondary sources offer commentary and explanation, only primary sources hold the power of mandatory authority in court.

3. Court Systems: Federal & State Structures Matter

To perform research tasks, you should understand these court structures so that when you are confronted with a research assignment or a case citation you will readily understand the hierarchy of cases within a given court structure...

Federalism's dual system. The U.S. operates under a federalist system, resulting in separate federal and state court structures. Understanding this division is key to knowing which laws and cases apply to a given issue. Federal courts handle cases involving federal law or disputes between states/citizens of different states (diversity jurisdiction).

Federal hierarchy. The federal system has a three-tiered structure:

• District Courts: Trial courts where evidence is presented.
• Courts of Appeal: Intermediate appellate courts reviewing trial court decisions for errors of law.
• Supreme Court: The highest court, primarily reviewing cases from lower federal and state courts (if a federal question is involved).

State variations exist. Each state has its own court system, typically mirroring the federal structure with trial courts, intermediate appellate courts (though some states lack this level), and a highest court (usually called the supreme court). Decisions from higher courts within a system are binding on lower courts in that same system (stare decisis).

4. Finding the Law: Navigating the Legal Landscape

Often, however, when presented with a legal issue, you may not know where to begin. In these instances, many experts recommend that you start your research projects by using a secondary source.

Starting points vary. The best way to begin legal research depends on the nature of the question. If a statute clearly governs the issue, starting with an annotated code is efficient. However, if the area of law is unfamiliar or complex, a secondary source provides essential background.

Secondary source benefits. Encyclopedias offer broad overviews, while treatises provide in-depth analysis of specific topics. Legal periodicals discuss current issues, and A.L.R. annotations combine selected cases with comprehensive essays. These sources explain the law and, critically, direct you to relevant primary authorities.

Locating primary law. Once you have background, you must find the primary law. Annotated codes link statutes to interpreting cases. Digests organize cases by subject matter, acting as indexes to reporters. Using descriptive words, topic outlines, or known case names helps navigate these tools to find binding precedents.

5. Statutes & Cases: Enactment, Publication, and Interpretation

It is this opinion that will be published (assuming it advances legal knowledge) and that will now serve as a precedent under the doctrine of stare decisis.

Statutory process. Federal statutes are enacted by Congress through a multi-step process involving introduction, committee review, debate, and presidential action. State legislatures follow a similar process. Initial publication is chronological (session laws), but they are later organized by subject (codes).

• Federal Codes: U.S.C. (official), U.S.C.A. (West, annotated), U.S.C.S. (Lexis, annotated).
• State Codes: Vary by state, often annotated.

Case opinions. Appellate courts issue written opinions explaining their decisions. These opinions, when published in reporters, become precedents. Not all cases are published; typically, only those that advance legal theory are selected.

• Reporters: Collect published cases (e.g., West's National Reporter System).
• Elements: Case name, synopsis, headnotes, opinion (majority, concurring, dissenting), decision.

Interpretation is key. Under stare decisis, courts interpret statutes and prior cases. It's the judicial interpretation, not just the raw text, that constitutes the binding law. Annotated codes and reporters include headnotes and annotations linking statutes to interpreting cases and summarizing key legal points.

6. Updating Research: Ensuring Authorities Are Valid

Before you may cite any primary authority in any document you prepare, you must ensure it is still “good law.”

Essential validation. Checking the current status of primary authorities (cases, statutes, regulations) is a non-negotiable step in legal research. An authority might have been reversed, overruled, amended, or repealed since its original publication.

Electronic dominance. While traditionally done manually using print volumes of Shepard's Citations, updating is now almost exclusively electronic. Lexis Advance offers Shepard's online, and Westlaw offers KeyCite. These services provide more current information and are significantly faster.

Status at a glance. Both electronic systems use visual indicators (like red flags or stop signs) to warn of negative treatment. They provide detailed history (how the authority moved through the courts) and treatment (how later authorities discussed it). They also link to other citing sources like law reviews and treatises.

• Shepard's (Lexis Advance): Uses colored signals (red stop, yellow triangle, green plus).
• KeyCite (Westlaw): Uses colored flags (red flag, yellow flag, blue striped flag).

Automated tools. Software like Lexis for Microsoft Office and Westlaw's Drafting Assistant can automatically extract citations from documents and check their validity, streamlining the process and reducing the risk of errors.

7. Legal Citation: The Standard Language of Law

Moreover, these citations must appear in a standard and consistent format so that any judge, attorney, paralegal, or other reader, upon viewing your citation, will be able to retrieve the legal authority you cited and verify that you have accurately represented the status of the law.

Standardized format. Legal citations provide a roadmap for readers to locate the sources supporting legal arguments. Consistency in format is crucial for clarity and credibility. Errors in citation can undermine the perceived quality of the entire document.

The Bluebook standard. The Bluebook: A Uniform System of Citation is the most widely accepted citation manual in the U.S., particularly for academic writing and increasingly for practitioner documents (guided by the Bluepages). While other manuals exist, Bluebook proficiency is generally expected.

Key citation elements. Citations include specific components presented in a precise order and format:

• Case names: Abbreviated according to rules, italicized or underscored.
• Reporters/Codes: Volume, abbreviation, page/section number.
• Parentheticals: Court, jurisdiction, year, publisher (for unofficial sources).
• Subsequent/Prior History: Indicates how the authority was treated by other courts.

Special considerations. Rules govern punctuation, the use of signals (like see or contra), short forms (like id. or supra), and citing electronic sources. Adhering to these rules ensures that legal documents are professional and easily verifiable.

8. Effective Legal Writing: Precision, Clarity, Brevity, Order

The five hallmarks of effective legal writing: precision, clarity, readability, brevity, and order.

Communication is key. Legal writing is fundamentally about effective communication, whether informing a client, persuading a judge, or documenting a transaction. Mastering writing mechanics (grammar, spelling, punctuation) is the essential first step.

Beyond mechanics. Effective legal writing requires strategic choices to ensure the message is understood and impactful. Key principles include:

• Precision: Using the exact right word, avoiding vague terms, ensuring accuracy in facts and citations.
• Clarity: Making the writing easy to understand, avoiding jargon, elegant variation, and confusing negatives.
• Brevity: Being concise, omitting needless words and redundant phrases.

Structuring for impact. Order and readability enhance the effectiveness of legal writing. Using outlines helps organize thoughts. Headings and lists break up text and guide the reader. Varying sentence length and preferring active voice make the writing more engaging and forceful.

9. Key Legal Documents: Letters, Memos, and Briefs

Briefs are formal written legal arguments submitted to a court, and they attempt to persuade a court to rule in favor of a party.

Correspondence informs. Legal letters serve various purposes, from general communication and confirming details to demanding action or providing legal opinions. The tone and content vary based on the audience (client, opposing counsel, etc.) and purpose. Standard elements include date, address, salutation, body, and closing.

Memos analyze objectively. Office memoranda are internal documents that objectively analyze a legal issue based on research. They typically include a heading, issues presented, brief answers, statement of facts, analysis (applying law to facts), and a conclusion. Objectivity is paramount, presenting both strengths and weaknesses.

Briefs persuade the court. Briefs are formal arguments submitted to judges (trial or appellate) or other tribunals. Their primary purpose is persuasion. They include elements like a caption, statement of facts (presented persuasively but accurately), a legal argument (applying authorities to advocate for a specific outcome), and a conclusion. Appellate briefs have more stringent format rules and require tables of contents and authorities.

10. Digital Tools: Enhancing Research with Technology

Being a competent researcher requires use and familiarity with all media, including traditional print courses, computer systems, and the Internet to find the best answer to a legal question in the most efficient manner and at the lowest cost to the client.

Computer-assisted research. Fee-based services like Lexis Advance and Westlaw provide vast databases of primary and secondary legal materials. They offer powerful search capabilities (Boolean and plain English), linking between documents, and essential updating services (Shepard's and KeyCite). They are crucial for comprehensive and current research.

Internet's free access. The Internet offers free, 24/7 access to a growing collection of legal resources, including cases, statutes, regulations, forms, and government documents. Websites from courts, government agencies (like FDsys/GovInfo), and legal information providers (like Justia, Cornell's LII) are valuable starting points.

• Free sources: Court websites, government portals (FDsys, GovInfo), academic sites (LII, WashLaw).
• Content: Cases, statutes, regulations, forms, legislative materials.

Combining methods. Effective legal research often involves blending traditional print resources, fee-based electronic services, and free Internet sources. Each method has strengths and limitations, and choosing the right tool depends on the specific research task, budget, and need for currency and verification.

11. The Research Process: Plan, Execute, and Conclude

Among the most difficult tasks in performing legal research are beginning and ending the project.

Strategic planning. Starting research effectively involves more than
[ERROR: Incomplete response]

Last updated: May 15, 2025