In Part One I provided a basic framework of how statutes are interpreted. Now I’ll show how legal research is critical to understanding how that applies in the real world.
As I explained, you can’t simply read a statute and be able to understand what it means. You must find out how courts have interpreted it — which requires researching case law.
Legal research is taught in the first semester of the first year of law school, because without that ability you can’t get any further. A basic element of that research is knowing the nomenclature of ‘case citations”.
Here is an example that I’ve previously included in this forum:
Havens v Board of County Commissioners of Archuleta County 924 P.2d 517 (1996)
“Havens” is F.T. Havens, an Archuleta County resident who sued the Archuleta Board of County Commissioners over how taxes were being allocated. Havens lost his suit in the District Court in Archuleta County, so he appealed to the Colorado Supreme Court. The Supreme Court affirmed (agreed with) the District Court, ruling against Havens.
Appeals court decisions are compiled, published, and permanently archived in law libraries as hardback volumes called ‘reports’. The numbers following the names of the parties in the case refer to where the published decision is archived. The Havens Supreme Court decision is found in Volume 924 page 517 of the Second (2d) Series of the ‘Pacific (P) Reports’ (each series has 999 volumes). 924 P2d 517 is the ‘case citation’ (‘cite’) for where to find the published Havens case in a law library.
The Pacific Reports include appellate cases from various western states — including Colorado. There are other ‘reporters’ for other groups of states. For instance, Florida cases are collected in the Southern Reporter. (The United States Supreme Court has a reporter for just its cases called the ‘US Reporter’) All the reporters use the same numbering system of Volume – Series – Page. (The date that follows is the year the case was decided.)
So to find out if there is an appeals court decision about an issue (such as what a statute means) you first go to an index to find the statute, or more often the “issue”, you need to research. If there is any case law, the index will refer you any reported cases — using that standardized numbering system.
But before you can even start to search, you must first know what to search for. That’s where the ability to “recognize legal issues” is critical, and what is at the very core of a law school education.
I’ve often said that law school teaches only two useful skills: To think like a lawyer — meaning to identify legal issues — and to know where to find answers in the law library.
Law school, and state Bar, exams mostly test the ability to recognize legal issues within a given factual scenario. Once you can identify issues, researching the law is just a matter of spending time in the library finding the answer.
The ability to correctly identify issues to research is also what separates good lawyers from average (and incompetent) ones. Those who do the most thorough, in-depth, research usually prevail in litigation.
While it is fundamentally correct to say (as Bill Hudson wrote in his August 28 editorial about Commissioner Medina) that different lawyers may have different opinions of what the law is, and that the judge then decides whose opinion to accept — that simplified conclusion fails to recognize how judges decide.
Almost invariably, judicial decisions are based on which lawyer did the better research, and was thus able to provide the judge with the better “authority” on which to base a decision.
‘Authority’ means a source of existing law — either positive or case. That’s the basis for how our entire legal system is supposed to operate. In my experience, the way to persuade a judge is to provide the best authority on which they can base a decision.
In the days before computer assisted legal research, finding authority — like when I wrote about Havens — would have taken many hours in a law library perusing indexes. Using a computerized legal research tool, it can now be done in mere minutes, if you know what to search for. Not knowing what to look for is where non-lawyers doing their own legal research most often miss the boat. (Comprehensive legal research tools are not free — or cheap.)
Many law schools still require first year students to learn legal research the “old way” before allowing them to use computers… like requiring elementary school kids to learn arithmetic before they can use calculators. (I agree with both requirements, for the same reasons.)
You don’t have to attend law school to learn legal research skills. It’s the bulk of what paralegals are taught, and good ones can command high salaries in law firms, especially if they can also identify the issues on their own, rather than simply being directed by lawyers what issues to research.
But finding a case is not always the end of the research. If you find a case, you must sometimes find out why the court decided the way it did. That can involve what is known as a ‘sub-cite check’.
I’ll explain that with two examples.
The Sixth Amendment to the United States Constitution provides, in part, that “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.” (The ‘right to counsel’.)
In the course of the 225+ years since that Amendment was ratified, the U.S. Supreme Court has interpreted what that clause means.
Probably the most well known (at least to the public) interpretation of the 6thh Amendment was Miranda v Arizona 384 US 436 (1966). Note, the citation reflects it was decided in 1966.
In a nutshell, Miranda held that anyone subject to “custodial interrogation” by a government official had to be advised of “their rights” under both the 5th and 6th Amendments.
The obvious first “issue” to be resolved is what “custodial interrogation” means, so there are a cases interpreting that phrase — which is far to complex to get into here, and is unnecessary to this narrative. One of those cases was Michigan v Jackson, decided by the US Supreme Court in 1986.
Again, for purposes of this narrative, the specifics of what Jackson decided are irrelevant. What is relevant is that in 1992, the Florida Supreme Court — in a first degree murder case – had to interpret Article 1, Section 16, of the Florida Constitution (the Florida ‘right to counsel’).
In interpreting the Florida ‘right to counsel’, the Florida Supreme Court “cited to” Jackson as authority for its interpretation of the meaning of that right.
So if you research the meaning of Article 1, Section 16 of the Florida Constitution, you will find Traylor v State, 596 So2d 957 (1992), in which the Florida Supreme Court says, “Once the right to counsel has attached and a lawyer has been requested or retained, the State may not initiate any crucial confrontation with the defendant on that charge in the absence of counsel throughout the period of prosecution”, and as authority for that interpretation the Florida Court cites to the 1986 Jackson decision in a footnote at the end of the Traylor case (an example of a ‘sub-cite’).
A lazy legal researcher would read what the Florida Court wrote, without looking at the footnote – or even if they did look at it, would not take the time to find out that in 2009 the United States Supreme Court overruled itself, and Jackson. So, if the 1992 Florida Supreme Court interpretation in Traylor is based on the 1986 U.S. Supreme Court interpretation of the 6th Amendment in Jackson, and Jackson was overruled in 2009, is that 1992 Florida Supreme Court interpretation still correct in 2024?
Who knows? I have my own opinion, but it’s clearly an “issue” that can be argued before a judge — and will ultimately have to be decided by the Florida Supreme Court. But you sure as hell can’t tell by simply reading either the 6th Amendment, or Article 1, Section 16.
My point is that ‘legal research’ doesn’t stop at simply reading a statute, or even just reading the cases that interpret that statute. You must also research cases that are cited as authority within the case law — and the cases cited (sub-cites) in those cases. Think of Russian Matryoshka dolls!
You’d be surprised how many practicing lawyers are too lazy to read beyond a statute – or who fail to read the cases cited in cases interpreting a statute. Simply reading a statute, and presuming to understand what it means, is a common mistake made by non-lawyers.
Next, another example of ‘lazy legal research’.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.