http://lawlib.samford.edu/cio
No. 473 February 2002

In This Issue

Legal Research: The Importance of Doing It Right
Selected List of Recent Acquisitions
Publication Profile: BNA Labor Relations Reporter
Nuremberg Documents Now Online
Dictionaries Invade the Supreme Court
Forms of Address Including Use of "Esquire"
Library Patron Pledge, 17th Century


Legal Research: The Importance of Doing It Right

By Ed Craig,
Reference Librarian
elcraig@samford.edu

A law school education is much more than a process of learning, analyzing and applying legal concepts; it is also a means of learning how to discover the law through legal research. While in law school, students are provided the resources of the Law Library, offering them numerous choices to accomplish research; online databases, such as LEXIS and WESTLAW, as well as treatises, periodicals, looseleaf services and the basic print legal reference materials are available as a part of the cost of tuition. During law school, students sometimes develop research habits that are less than desirable. Examples of such habits are easy to find in any law school setting-inability to use basic print reference materials and failure to understand how to search online databases effectively are two of the more common problems. While this may be a concern for the librarians and the legal research instructors, why is it a problem for law students if they get the desired course grades? One reason is that bad research habits can become a handicap to the development of the young attorney once out in practice. This is particularly true after law school when the available legal reference resources suddenly become quite limited due to size of the practice or the locale-the student who has spent three years of law school on the computer terminal may join a practice where few databases (but many, many reporter volumes!) are available. The databases which were, in a sense, "free" in law school are suddenly a very precious, expensive commodity at the law firm. The second reason is that inadequate research by an attorney can lead to sanctions (to the attorney as well as the law firm) or damages for failing to adequately research the law. This particular danger is the topic of this article.

Under Rule 11 of the Federal Rules of Civil Procedure (and Rule 38 of the Federal Rules of Appellate Procedure) counsel must have a reasonable basis in fact and law for any pleading or other paper. The attorney must have at least likely evidentiary support after having had further opportunity for investigation or discovery for matters of fact. View Engineering v. Robotic Vision Systems, 208 F.3d 981, 985-987 (Fed. Cir. 2000). More to the point of this article, Rule 11(b)(2) requires that "claims, defenses, and other legal contentions" be valid under the established law or, alternatively, show a "nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of a new law." Rule 11 does not stop an attorney from making novel arguments; however, the lawyer must find and state the existing law and then show why the court should not follow it in the case at hand. Marguerite L. Butler, Rule 11 Sanctions and a Lawyer's Failure to Conduct Competent Legal Research, 12 No. 1 Prof. Law. 2, 13 (2000), WL 12 NO. 1 Prof. Law. 2. Also, this rule is not designed to punish attorneys for advancing legal arguments which reasonable members of the bar could disagree; instead, it is tailored to rid the court system of arguments which have no sound legal basis, or which simply misstate the law. Moore's Federal Rules Pamphlet 2002, Part 1, at p. 118. KF8820/.A313/M63/Rules/Pamphlet/2002/pt.1/Reference.

Though overruled on other grounds, the case most often cited nationally on this subject is Smith v. Lewis, 13 Cal. 3d 349, 118 Cal. Rptr. 621, 530 P.2d 589 (1975) for the reason that it better defines an attorney's research obligations (or, simply, what an attorney is expected to know). In Smith, the attorney defendant, who the plaintiff had sued for legal malpractice, had failed to consider that the spouse's retirement benefits were community property even though such information could be found in California case law and a commonly used state legal encyclopedia. The court recognized that community property status of part of the retirement benefits which were for Federal employment was ambiguous; however, the opinion states:

... the record documents defendant's failure to conduct any reasonable research into their proper characterization under community property law. Instead, he dogmatically asserted his theory, which he was unable to support with authority and later recanted ....

The court then opines:

... an attorney does not ordinarily guarantee the soundness of his opinions and, accordingly, is not liable for every mistake he may make in his practice. He is expected, however, to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques .... If the law on a particular subject is doubtful or debatable, an attorney will not be held responsible for failing to anticipate the manner in which the uncertainty will be resolved .... But even with respect to an unsettled area of the law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem ....

In the state of Alabama, any malpractice suits by a client for research failures would come under the Alabama Legal Services Liability Act. The standard of care required of an attorney is stated by that act in Ala. Code 6-5-580 (1) (1993) as "such reasonable care and skill and diligence as other similarly situated legal service providers in the same general line of practice in the same general area ordinarily have and exercise in a like case." However, section 6-5-80 (2) indicates that if attorneys hold themselves out as specializing in an area of the law, that standard will be higher; their work will be compared to those of other specialists in that same area of the law. A similar standard, with more specific weight given the research issue, was stated long ago by the Alabama Supreme Court in Goodman & Mitchell v. Walker, 30 Ala. 482, 496 (1857).

... If the law governing the bringing of this suit was well and clearly defined, both in the text-books, and in our own decisions; and if the rule had existed, and been published, long enough to justify the belief that it was known to the profession, then a disregard of such rule by an attorney-at-law renders him accountable for the losses caused by such negligence or want of skill ....

The court's opinion also states:

Law is certainly the most comprehensive of all the sciences; its mastery and practice the most intricate of all the professions. Change and progress, if not improvement, are observable at every epoch of its history. If, under these circumstances, members of the legal profession were held accountable for the consequences of each act which may be pronounced an error by the courts of the country, no one, I apprehend, would be found rash enough to incur such fearful risks. On the other hand, it surely can not be successfully maintained, that lawyers are a privileged class, not responsible for any, even the grossest want of skill. I hold, that they, like all other professional men and artisans, impliedly stipulate that they will bring to the service of their clients ordinary and reasonable skill and diligence; and, if they violate this implied stipulation, they are accountable to their clients for all injury traceable to such want of skill and diligence....

Aside from malpractice suits, Alabama attorneys performing poor research may also need to contend with possible imposition of lawyer discipline by the Alabama Bar. Rule 1.1 of the Alabama Rules of Professional Conduct reads: "A lawyer shall provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The official comment to that rule states, "Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transaction ordinarily require more elaborate treatment than matters of less consequence."

What current resources does the prudent attorney use to perform reasonable research? There really is no one answer to this question. The plethora of choices for legal research can be seen in either positive or negative terms; while more resources (and more information) are now readily available to the typical law practitioner, a possible consequence of this may be a higher standard for "reasonable research." Certainly, online legal research through WESTLAW and LEXIS (as well as a growing number of internet databases, particularly those of the courts and agencies) will provide a degree of currentness in case law as well as statutory and regulatory law that print materials cannot match. Both WESTLAW and LEXIS provide unpublished opinions which normally cannot be found in print format (the exception being FEDERAL APPENDIX). Also, the online services provide many other special subject services which may not be available in print in the attorney's immediate area. However, the process of researching online is quite different from print materials. While computer research tends to produce very specific case law results (which may or may not be on point) from keyword searching, print resources start with a more general overview of the law in secondary materials (i.e., law reviews, treatises or legal encyclopedias) revealing the prominent case law, treatises and statutes to be researched for thorough coverage of the subject matter. As a result, the researcher of solely online resources often fails to understand the full context of the legal question that he is pursuing. Kenneth J. Withers, Ethical Issues and the New Technologies, in ETHICAL LAWYERING IN MASSACHUSETTS, 24.3.2 (2000), WL ETHLII MA-CLE 24-i. As a result, "reasonable research" is most likely to be careful study of a mixture of print and online resources.


Selected List of Recent Acquisitions

(Each title listed is shelved in the Reference Area.)

Supplement to: Gamble, Charles W. MCELROY'S ALABAMA EVIDENCE. 5th ed. KFA540/.M32/1996/Suppl./2001.

LEGAL RESEARCHER'S DESK REFERENCE. Z675/.L2/L3832/2002-2003.

MOORE'S FEDERAL RULES PAMPHLET. 2002 ed. KF8820/.A313/M63/Rules/Pamphlet/2002.

STATE YELLOW BOOK. JK2403/.S77/2002/WINTER.

U.S. MASTER TAX GUIDE. KF6370/.C6/2002.

WHO'S WHO IN AMERICAN LAW. KF372/.W48/2002-2003.


Publication Profile: BNA Labor Relations Reporter

by Brenda Jones,
Reference Librarian

Looseleaf services cover a particular area of law in depth, bringing together diverse materials like statutes, regulations, court cases, administrative decisions, news, and analysis. One such valuable service is the Labor Relations Reporter, published by the Bureau of National Affairs (BNA). Find this set and other looseleaf services on the Lower Level, rows 050 to 054. The sets are shelved alphabetically by publisher, then by title.

Reading the publisher's tips on using the service is time well spent. Look in the front of the Master Index for the "How to Use" section. The BNA service consists of nineteen looseleaf binders, and six bound reporter sets.

The multivolume reporter sets are:

1. Labor Relations;

2. Labor Arbitration;

3. Wages and Hours;

4. Fair Employment Practices;

5. Individual Employment Rights;

6. Americans with Disabilities.

The reporters cover decisions of state and federal courts, and administrative tribunals like the National Labor Relations Board. Each reporter has its own digest or outline of classifications. Find cumulative digests with the bound volumes. Go to the looseleaf binders, however, for the latest cases and digest updates.

Looseleaf binders track the subject areas covered by the bound reporters. The binders include practice guides, analysis and news, full text of statutes and regulations, reference manuals, and reporter advance sheets. BNA also provides an overview of the labor laws of each state, including Alabama.

To conduct research, perhaps the best starting place is the two-volume Master Index. This index ties together all the components of the entire service. References in the topical index are to chapters and page numbers in the relevant binders. The letters stand for the title of each binder. For instance, FEPM 456:2551 refers to the Fair Employment Practices Manual, chapter 456, at page 2551. Find a quick key to abbreviations at the bottom of each page. Numbers preceded by a small triangle refer to a particular section of the classification outline, similar to a West digest key number. The Master Index also includes tables of cases and statutes.

Researchers who find the thousand-page print index daunting can access a free version on the internet at http://www.bna.com/lrr/lrrindx.htm. Use the Web for keyword searching of the full index, main index topics, or table of cases.

Labor and employment law is a broad discipline often requiring specialized research techniques. Because it covers all primary aspects of the subject, BNA's Labor Relations Reporter is a valuable resource for attorneys or Cumberland law clerks working in this field.


Nuremberg Documents Now Online

The fragile, typewritten documents from the 1940s lay out the Nazi plan in grim detail:

Take over the churches from within, using party sympathizers. Discredit, jail or kill Christian leaders. And re-indoctrinate the congregants. Give them a new faith, in Germany's Third Reich.

Over a half-century ago, confidential U.S. government reports on the Nazi plans were prepared for the International Military Tribunal at Nuremberg and they are now available online. These rare documents, in their original form, some with handwritten scrawls across them, are part of an online legal journal published by students of the Rutgers University School of Law at Camden.

When people think about the Holocaust, they think about the crimes against Jews but there's a different perspective," said Julie Seltzer Mandel, editor of the Nuremberg Project for the journal and a third-year law student.

A lot of people will say 'I didn't realize that they were trying to convert Christians to a Nazi philosophy.' They wanted to eliminate the Jews altogether, but they were also looking to eliminate Christianity.

Mandel said the Rutgers Journal of Law and Religion will post new Nuremberg documents at www.lawandreligion.com about every six months, along with commentary from scholars across the world.

The material is part of the archives of U.S. Gen. William J. Donovan, who served as special assistant to the U.S. Chief of Counsel during the International Military Tribunal after World War II.

Edward Colimore, What and When We Knew About Nazis Becoming Available on Internet, The Philadelphia Inquirer, Jan. 11, 2002, LEXIS, News Library, Pinqur file).


Dictionaries Invade the Supreme Court

An article written in 1999 reported that, in the 1960s, the Supreme Court relied on dictionaries in just 16 opinions to define 23 terms. Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become A Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L. Rev. 227 (1999). Since that time, however, dictionary use has exploded and it was found that, from the year 1990 through the 1997-98 Term, the Court had relied on dictionaries in nearly 180 opinions to define more than 220 terms.

The 1999 article reported that Justices Scalia and Thomas were the current members of the Court who most frequently relied on dictionaries to define words and phrases and in the three terms since the article, both Justices remain the leaders.

The use of specific dictionaries have remained the same since the 1999 article. Various versions of Webster's continues to be the most frequently cited general usage dictionary, while various versions of Black's continue to be the most frequently cited law dictionary. Earlier this year, several of the Justices discussed the issue of dictionary selection and it was observed that the Court did not come close to selecting an "official Court dictionary."

Source: Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 Green Bag, 2d 51 (2001)


Forms of Address Including Use of "Esquire"

by Brenda Jones,
Reference Librarian

In drafting legal correspondence, choosing appropriate titles for senators, judges, or even fellow attorneys can be an exacting task. Generally, we glean guidance not from one set of inflexible rules, but from several sources.

For instance, the U.S. Government Correspondence Manual (JK468/.C75/.U17/1992/Treatises) sets out conventional forms of address based on social and official custom. The title "The Honorable" is recommended for current and former high officials such as presidential appointees, state and federal elected officials, and mayors. The manual provides useful examples of address for personnel in the White House, the federal judiciary, congress, agencies, and state and local governments among others.

In similar fashion, the Legal Secretary's Complete Handbook (KF319/.M54./1992/Treatises) compiles general rules, forms of address, and listings of judicial designations. Typically, state statutes specify whether members of particular courts are designated as judges or justices. In most states, members of the highest appellate courts are justices; members of the trial courts are judges.

According to the handbook, the correct form of a written address to the chief jurist of the U.S. is "The Chief Justice of the United States." For associate Supreme Court justices, use the title "Justice" or "Madame Justice" followed by the surname.

Although the practice is not universal, the title "Esquire" may be used after the surnames of professional persons such as attorneys, clerks of court, and justices of the peace. According to Webster's Standard American Style Manual (PN147/.W36/Reference), the title is used frequently in the U.S. after the surname of a lawyer. "Esquire" is not used, however, if a courtesy title such as Mr., Miss or Ms. precedes the name.

In A Dictionary of Modern English Usage (PE1628/.F65/Reference), H. W. Fowler explains that an esquire was originally a knight's attendant. Later, the term became a title of rank between knight and gentleman. In America, the term suggests occupation rather than social rank. Writing specialist Gertrude Block deems "Esquire" appropriate for attorneys of both genders. Yet she cautions that others should confer the honorific rather than applying the title to oneself. Gertrude Block, Is it Appropriate to Address Attorneys as Esquire?, 66 Wis. Law. 33 (April 1993).

A Dictionary of Modern Legal Usage, 2nd ed. (KF156/.G367/1995/Reference) says that "Esquire" is used nowadays for men and women alike, calling the practice "perfectly acceptable and extremely common." Nonetheless, the debate continues. Some lawyers approve of the title even when applied to themselves. Others oppose any use of the term. Gertrude Block, Debating the Use of 'Esquire', 23 Pa. Law. 52 (Sept.-Oct. 2001), WL 23-SEP Pa. Law. 52.

Finally, Miss Manners characterizes the use of "Esquire" in the American legal community as both silly and customary. Because custom outweighs silliness in matters of etiquette, Miss Manners approves use of the term for all lawyers, male and female. Judith Martin, Miss Manners' Guide for the Turn-of-the-Millennium, 337-338 (1989).


Library Patron Pledge, 17th Century

You promise, and solemnly engage before God, Best and Greatest, that whenever you shall enter the public library of the University, you will frame your mind to study in modesty and silence, and will use the books and furniture in such manner that they may last as long as possible. Also that you will neither in your own person steal, change, make erasures, deform, tear, cut, write notes in, interline, wilfully spoil, obliterate, defile, or in any other way retrench, ill-use, wear away, or deteriorate any book or books, nor authorise any other person to commit the like; but, so far as in you lies, will stop any other delinquent or delinquents, and will make known their ill-conduct to the Vice-Chancellor or his deputy within three days after you are made aware of it yourself: so help you God, as you touch the Holy Gospels of Christ.

Bodleian Statutes, 1610. As quoted in Nicholas A. Basbanes, Patience & Fortitude; A Roving Chronicle of Book People, Book Places, and Book Culture 425 (2001).


One more issue of Check It Out will be published this semester. If you have any ideas or suggestions as to ways we can improve, contact Becky Hutto via e-mail at: rmhutto@samford.edu. We welcome new ideas!