Reading How Similar Issues Were Previously Decided

People expect lawyers to know what the law is.  And there are a lot of lawyers who know, off the top of their head, what the law requires in certain situations.  But when people ask me what the law requires them to do, or whether their actions had complied with the law, my answer is often “I don’t know, but I can find out.”

Part of why it is so difficult for me to know the correct legal answer to every question is that there is not just one place where all of the laws are written down.  And, even if there were, it’s impossible for any one set of written laws to accurately describe every possible set of facts.

So when people come to me with a legal question, one thing that lawyers do is to review written court decisions to see what judges have said about other lawsuits that raised similar issues.

Image credit: https://en.wikipedia.org/wiki/Library#/media/File:Bibliothèque_de_l'Assemblée_Nationale_(Lunon).jpg

Image credit: https://en.wikipedia.org/wiki/Library#/media/File:Bibliothèque_de_l’Assemblée_Nationale_(Lunon).jpg

Why should you continue to read this post about case law research?

  • You want to understand what you paid your lawyer so many hours doing.

  • You want to know why lawyers’ offices have so many books with similar fancy binding.

  • Every other website on the internet got shut down except for this one and you need to read something until the other websites come back online.

Stare Decisis Requires Courts to Follow Precedent

When judges make decisions, they often (but not always) write a formal explanation for why they decided the way that they did.  Often these explanations are put on court websites.  Here is an example of one from a New York State appellate court.  Here’s one from a New York federal trial court.  Here’s one from the United States Supreme Court.  

In American courts (besides state courts in Louisiana), judges follow a principle called stare decisis.  That principle means that a judge should decide legal issues in the same way that the same court or the appeals courts above her court has decided them.  So if the highest court in New York decided that a plaintiff needs to prove they complied with a contract before they can sue on that contract, then lower courts need to require plaintiffs to do so as well.  Similarly, if an appeals court decides that a law is unconstitutional, the same appeals court will generally follow that precedent unless a higher court reverses it. This is useful in research because, if you find a court decision from an appeals court on an issue similar to your issue (lawyers call those decisions “on point”), you can be somewhat confident that the same court or lower courts will decide your issue in the same way.

Often it is difficult to find a decision (often referred to as a “case”) that is exactly “on point” from the right appellate courts.  So lawyers may look to see what other courts have to say on the same issue.  If a court in another jurisdiction, or if a lower court in the same jurisdiction, had to decide the same issue, that decision may provide some guidance about how judges generally see an issue, even if it is not binding on how the judge in your case is supposed to decide the issue.  And similarly, if a case is not “on point” because it decides a different, although similar issue, it may provide some guidance.  Lawyers are reluctant to rely heavily on cases that are not “on point” (lawyers call those cases “distinguishable”) because a judge can decide that the difference between the distinguishable case and the case she must decide justifies the difference in her decision.

Lawyers Look for Cases in Books and Online

So how do lawyers find these decisions?  The standard used to be that they looked in books!  Law libraries, which are common in law offices, have leather bound volumes of books with written decisions and other books that serve as indexes to let you know what cases concern what subjects.  Those books usually look like this:

Image credit: CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=2432510

Using books is very cumbersome and there is always the risk that, by the time you read a case in a book, the case is outdated because it no longer accurately reflects the current state of the law.

More and more, lawyers use online services like Lexis or Westlaw.  Browsing cases on Lexis looks kind of like this:

Image credit: https://www.lawsitesblog.com/2011/12/lexis-launches-advance-its-next-generation-research-platform.html

Image credit: https://www.lawsitesblog.com/2011/12/lexis-launches-advance-its-next-generation-research-platform.html

Westlaw looks kind of like this:

Image credit: https://blog.legalsolutions.thomsonreuters.com/law-school-1/using-westlaw-review-tools-pick-left/

Image credit: https://blog.legalsolutions.thomsonreuters.com/law-school-1/using-westlaw-review-tools-pick-left/

These services have a lot of advantages.  One major advantage is that they will let you know about other cases that refer to the case.  That makes it easy to find other cases on the same subject and to determine whether the case has been overturned (the process of confirming whether a case has been overturned is often called “Shepardizing”).  You can also expand or limit your searches to specific courts or time periods. 

Part of the Art of Legal Research is Making Good Search Terms

A major advantage of online legal research is that all of the cases they have are text-searchable, so you can find cases that are specific to your issue by crafting search terms.

You don’t want your search terms to be too broad because then you will have to read dozens or hundreds of irrelevant cases.  But you don’t want your search terms to be too narrow because then you may miss an important case.

Making good search terms is a true art that I think only gets better with practice, trial, and error.  I am far better at it now than I was when I was in law school or a junior associate.  But it’s not uncommon to make a search like this if you are looking for a case concerning reasonable reliance in a bank fraud case that was dismissed because it was in the wrong court:

(reasonabl! /s rel!) AND (“forum non” /5 (deny or deni!) AND (bank or finan!)

Online Legal Research is Expensive

A major downside to using online case research websites is that they are very expensive.  They promote themselves heavily to law students (sponsoring events, giving out free swag, letting the students use the websites for free) so that they grow dependent on them.  But then once students become lawyers, the websites charge hundreds or (usually) thousands of dollars for use.

This is why many lawyers often start their research with books or even regular Google searches to learn the basics before spending money on case law research to confirm their understanding or get more details.