LEGAL RESEARCH PART TWO. Legal Research Part 2 zResearching Standards of Review zResearching Using...

LEGAL RESEARCH

PART TWO

Legal Research Part 2

Researching Standards of ReviewResearching Using American Law

ReportsResearching Procedural IssuesResearching Legislative HistoryResearching Administrative Law

Standards of Review

Must Know Where You Are Procedurally

Don’t Research the Substantive Issues Before You Know the Standard of Review

Argue the Standard of Review Most Advantageous to Your Position

Standards of Review

At its clearest level, a standard of review prescribes the degree of deference given by the reviewing court to the action or decisions under review.

Alternatively, from an angle of empowerment, a review standard describes the positive authority the appellate court wields in its review function.

… the fundamental notion behind a standard of review is that of defining the relationship and power shared among judicial bodies.

Childress, pages 1-2 -- 1-3

Standards of Review

“Because a thoughtful consideration of the appropriate standard of review will often determine the outcome of the appeal, it is a very bad brief that does not consider the standard of review issue with the same care that is ordinarily lavished on the facts and substantive law.” --Sullivan, Standards of Review in Appellate Advocacy at 59

Standards of Review

“A formalistic statement of the relevant standard of review is no more useful than complete abdication. Far too many lawyers recognize that they ought to say something about the standard of review, but think they need not develop the concept as part of their argument. They tend to think of the standard of review as a formal appendage, rather than as part of the very fabric of the appeal.” Sullivan, Standards of Review in Appellate Advocacy at 61

Standards of Review

Standards of review are critically important in effective advocacy. In large part, they determine the power of the lens through which the appellate court may examine a particular issue in a case. The error that may be ground for reversal under one standard of review may be insignificant under another. It doesn’t matter what you ask the court to do on appeal if the court cannot jump the hurdle posed by the standard of review. You must craft your brief on appeal to reflect the proper standard and to show why, under that standard, your client deserves to win. If your appeal raises more than one issue, then you should state the standard of review for each point.

Aldisert, page 57.

Standards of Review

The appellate process generally reduces to limited types of review: fact finding by judges under the clearly erroneous rule or by the administrative agency under the substantial evidence rule; review of the trial court’s exercise of discretion; and plenary review of the choice, interpretation and application of the controlling legal precedents. The competent advocate will have a clear understanding of the scope of review pertaining to each point in his or her brief. I elevate the necessity of correctly stating the review standard to a question of minimum professional conduct.

Aldisert, page 58.

Good Standard of Review

This court applies the clearly erroneous standard, Rule 52(a), F.R.Civ.P., to a review of facts found by a judge. “It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supporting evidentiary data. Unless the reviewing court establishes the existence of either of these factors, it may not alter facts found by the trial court.” Krasnov v. Dinan, 465 F.2d 1302 (3d Cir. 1971).

Not So Good Standard

The standard of review for issues number 1 through 4 and 6 is whether the district court erred as a matter of law. This court has plenary review over issue number 5.

Standards of Review - Readings

Aldisert, Winning on Appeal Standards of Review

pages 57-78Reserve KF9050.A935 1997

Schwab, Appellate Practice Manual Standards of Appellate Review,

pages 16-25Reserve KF9050.A75A68


Childress, Federal Standards of Review, 3d ed. Volume 1 - Civil Cases and General

Review Principles Volume 2 - Criminal Cases and

Administrative Appeals Reserve KF4575.C48 1999


Sullivan, Standards of Review in Appellate Advocacy (KF 9050.A943) (on reserve under AA-I)

Hesse, Arguing the Correct Standard of Review, 7 Calif Lawyer 92 (Dec. 1987)

Hall, Standards of Review in Civil Appeals, 21 St. Mary’s L.J. 865 (1990).

Standards of Review - Digests

State Law Use the Appropriate State Digest Digest Topic “Appeal and Error”

Review, Scope, Standards, and ExtentAppeal & Error key numbers 836-1099

Standards of Review - Digests

Federal Law Use West’s Modern Federal Practice

Digest Digest Topic “Federal Courts”

Case on Appeal to the U.S. Supreme Court• Federal Courts key numbers 451-520

Case on Appeal to U.S. Court of Appeal• Federal Courts key numbers 751-780

Key Number Searches on Westlaw

Appeal & Error 944 Appeal & Error

ReviewDiscretion of Lower Court

• Power to Review

Topic Number 30

Key Number Searches



• Power to Review

Topic Number 30k

Key Number Searches



• Power to Review

Topic Number 30k944

Key Number Searches



• Power to Review

Topic Number 30k94!

Key Number Searches



• Power to Review

Topic Number 30k94! 30k95!

Key Number Searches



• Power to Review

Topic Number 30k94! 30k95! /p abuse* /s

discretion

Research UsingAmerican Law Reports

An Annotated Reporter System The Reports SeriesResearch MethodsUpdating and Shepardizing

Annotated Reporter System

Selective Publication of Cases that may resolve a long-standing

argument that set out a new question that explore issues in an interesting way

Annotation

thoroughly researched survey of a particular legal issue

its developmentits judicial treatment in ALL

jurisdictions

American Law Reports

• 1st Series: 1919-1948, 175 volumes• 2nd Series: 1948-1965, 100 volumes• 3d Series: 1965-1980, 100 volumes• 4th Series: 1980-1992, 90 volumes• 5th Series, 1992 to date• American Law Reports, Federal, 1969 to date• U.S. Reports, Lawyers Edition

A.L.R. Federal

A.L.R. Fed. reports and annotates federal court cases which apply or construe federal law.

Prior to 1969, such cases were included in A.L.R., A.L.R. 2d and A.L.R. 3d.

Federal court cases construing or applying state law are not covered by this series.

U.S. Reports, L.Ed. & L.Ed. 2d

Reports all case from the U.S. Supreme Court

Selectively annotates the casesProvides short summaries of the

briefs of counsel

A.L.R. Annotations

Annotations Cover a Narrow Legal Issue Features of Each Annotation

Annotation Table of Contents Index Jurisdiction Table Scope of the Annotation Related Annotation Summary and Comment

A.L.R. Index 6 volume topical index Covers A.L.R. 2d - 5th and Fed.

A.L.R. Index Tables In volume 6 of the index U.S.C.S. cite C.F.R. cite

A.L.R. Research Methods


A.L.R. Index Tables Federal Rules cite State Statutes and Constitutions Uniform Laws Restatements Codes of Ethics


A.L.R. Quick Indexes One Volume A.L.R. Quick Index covers A.L.R. 3d-5th A.L.R. Fed. Quick Index covers A.L.R.

Fed. and L.Ed.2d


A.L.R. Digests Seldom used

American Jurisprudence, 2d Footnotes include references to A.L.R. Am.Jur. 2d is on Westlaw

LEXIS AND WESTLAW A.L.R. 2d, 3d, 4th, 5th, Fed.

Updating A.L.R.

3rd, 4th, 5th and Federal annual pocket parts

2nd Later Case Service Updated by Annual Pocket Parts

Updating A.L.R.

A.L.R. 1st Blue Book of Supplemental Decisions

Annotation History Tables Supplemented or Superseded

Annotations In Last Volume of the Index

Shepards Citators and A.L.R.

Citations TO A.L.R. in State, Regional and Federal Shepards

Citations OF A.L.R. Annotations Shepard’s Citations For Annotations KF105.2 .S415 Volume 2 lists citations to Annotations

in court decisions

Researching Procedural Law

Federal Court RulesState Court RulesShepardizing Rules

Court Rules

Rules of Civil ProcedureRules of Criminal ProcedureRules of Appellate ProcedureLocal RulesRules of Evidence

Federal Court Rules - Sources

U.S. Code Annotated Following Title 28

U.S. Code Service Separate Rules Volumes at end of the

Set


Annual West Volumes Federal civil judicial procedure and rules

Reserve KF8816 .A193

Federal Criminal Code and RulesReserve KF9607.523.A19F4


Moore’s Federal Practice Rules Pamphlets Annual Mini-Treatise

Reserve KF 8820.A313M63

Federal Court Rules - Reporters

Federal Rules Decisions West Key Number Reporter Rules of Civil and Criminal Procedure District Court Decisions Articles on Federal Procedure

Core KF120 .F45

Federal Court Rules - Reporters

Federal Rules Service Rules of Civil Procedure Only All Levels of Federal Courts

KF8830 .F45

Federal Rules Digest Organized by Rule Number

Major Treatises - Federal Law

Moore's Federal Practice organized by rule

KF8820.A313 M63

Wright, Federal Practice and Procedure. organized by rule

KF9619 .W7

Major Treatises - Federal Law

Federal Procedure, Lawyer’s Edition organized by subject

KF8835.F43

Federal Local Court Rules

Federal Local Court Rules Covers Local Rules for the Federal

District Courts and the Courts of AppealReserve KF8820 .A193

Rules of Evidence

Treatise Weinstein's Evidence : commentary on

rules of evidence for the United States courts and magistrates

Reserve KF8935 .W39Sources (Annotated)

U.S. Code Annotated U.S. Code Service

Rules of Evidence

Reporter and Digest Federal rules of evidence service KF8935 .F4 Federal rules of evidence digest

State Rules of Evidence

Federal Rules Shepard's

Shepard’s United States Citations, Statutes covers ALL Federal rules

Federal Rules Shepard's

Shepard’s Federal Rules Citations Rules of Civil Procedure Rules of Criminal Procedure Rules of Evidence Rules of Appellate Procedure Similar State Rules

State Court Rules

Publication Varies Part of State Annotated Code Separate Annotated Set

Shepard’s Citators State Citator, Statutes volume Other Features

A.G.’s Opinions, Ethics RulesUniform Jury InstructionsMunicipal Ordinances

Special Shepard’s Citators

Shepard’s Law Review CitationsFederal Law Citations in Selected

Law ReviewsProfessional and Judicial Conduct

CitationsRestatement Citations


Subjects Shepard’s Bankruptcy Federal Labor Law Federal Tax Law Immigrations and Naturalization

Citations


Banking Law Corporation Law Criminal Justice Citations Uniform Commercial Code Citations

LEGAL RESEARCH PART TWO. Legal Research Part 2 zResearching Standards of Review zResearching Using...

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