Legal Research

References to federal and state laws that affect mediation are scattered throughout this book. Some of these laws require or allow judges to refer disputes to mediation; others establish rules and procedures for govern­ment-run mediation programs.

Doing a little legal research to prepare for your mediation should not be difficult once you understand a few basics. Which legal research method you should use depends on what you need to find out. Usually, people preparing for mediation want to research the law in order to:

• understand a particular area of the law

• find and read a statute, regulation, ordinance, court decision, or piece of pending legislation (usually called a bill), or

• find the answer to a specific legal question.

This section explains how to use legal research to accomplish each of these tasks.

Need more detailed information on legal research? Check out these resources:

Legal Research: How to Find & Understand the Law, by Stephen Elias & Susan Levinkind (Nolo), is an easy to use book that provides step-by-step instructions on how to find legal informa­tion, both in the law library and online. It includes numerous examples and exercises.

• Gilbert’s Law Summaries: Legal Research, Writing and Analysis, by Peter Honigsberg (Harcourt Brace), is a no-nonsense guide to commonly used law library resources.

• The Virtual Chase, at www.virtualchase.com, offers guides to researching various legal topics, as well as general research tips and legal resources.

1. Learning About a Particular Area of the Law

You may need to do legal research to understand the law that applies to your dispute. For example, you may want to know:

• “Do my partner and I have to follow any legal rules when selling or dividing up our business?”

• “Am I entitled to a share of my former spouse’s pension on divorce?”

• “Do I have the right to take time off work to care for a sick family member?”

Questions like these can be answered without regard to your specific circumstances; they involve a general understanding of the law. To find this type of information about a legal topic, you should turn to legal background materials.

Legal background materials are books, articles, and encyclopedia entries in which experts summarize and explain the basic principles of a legal subject area, such as landlord-tenant law, criminal law, or employ­ment law. These materials come in many forms; they can be found in law libraries and public libraries, and many are also available on the Internet.

HOW TO FIND A LAW LIBRARY

Most counties have law libraries in the government buildings or courthouses at the county seat. These libraries are open to the public. County libraries are a good place to go if you’re looking for legal encyclopedias, treatises, state laws, and court cases.

Law schools also maintain libraries for their students and staff. Although public access to some law school libraries is restricted, many are open to the general public—especially if the law school is part of a university that receives state funding.

Finally, don’t limit yourself to law libraries. Most major public libraries in urban areas contain both local and state laws, self-help law books, and directories of organizations. Public libraries are also good sources of city, county, and state information. And if you’re working with a lawyer, ask to use the lawyer’s own library. Most law firms have large collections of books for their lawyers to use; even solo practitioners probably have a few shelves of books.

Here are a number of legal background resources that you may find useful:

• Self-Help Law Books. Self-help law books, such as those published by Nolo, are written in plain English for a nonlawyer audience. They are an excellent starting point for cracking any legal area that is new to you. Law libraries, public libraries, and bookstores (including Nolo’s online bookstore at www.nolo.com) often carry self-help law books. Nolo publishes titles on employment law, neighbor law, small business issues, criminal law, divorce, child custody, and much more.

• Organizations and Advocacy Groups. Many nonprofit and professional organizations or advocacy groups—such as tenants’ rights groups, the American Association of Retired People (AARP), and local business groups—publish articles or booklets on particular legal topics. Think about which groups might have the information you need and then look for them in the Yellow Pages or on the Web. Most public libraries have reference books that list organizations and associations by topic—these books are an easy way to find leads.

• Legal Encyclopedias. You can often find a good introduction to your topic in a legal encyclopedia. The legal encyclopedias most com­monly found in law libraries are American Jurisprudence and Corpus Juris. Many states have legal encyclopedias that are state-specific— for example, Texas Jurisprudence.

• The Nutshell Series. Another good introduction to legal topics is the Nutshell series, as in Torts in a Nutshell and Intellectual Property in a Nutshell, published by West Group. These books are available in most law libraries and some bookstores.

• Treatises. If you have the time and patience to delve deeply into a subject, you can find comprehensive books—generally known as treatises—on virtually every legal topic. For example, if you want to know about some aspect of trademark law, you could use McCarthy on Trademarks, a multivolume treatise on all aspects of trademark law.

• West's Legal Desk Reference.

• Internet Resources. Nolo’s Legal Encyclopedia, available free at www.nolo.com, explains many common legal issues in plain En­glish. The other major legal websites (listed below) also provide helpful information and links to specific areas of the law. Finally, U.S. and local government agency sites provide basic legal informa­tion for consumers, such as state marriage license requirements or publications on different legal topics. For example, if you visit the website of the Equal Employment Opportunity Commission, at www.eeoc.gov, you will find factsheets, information on antidiscrimi­nation laws, materials on the agency’s mediation program, and much more. To find government agencies online, see “Finding Court and Government Agency Websites”, in Section 2, below.

QThe best legal websites. In addition to our own website at www.nolo.com, Nolo’s favorite legal websites are:

• FindLaw, www.findlaw.com

• The National Federation of Paralegal Associations, www.paralegals.org (click “Legal Resources”)

• Reflaw: The Virtual Law Library Reference Desk at Washburn University School of Law Library, www.washlaw.edu/reflaw/ reflaw.html

• The Library of Congress Guide to Law Online, www.loc.gov/law/ guide

• The Legal Information Institute at Cornell Law School, www.law.cornell.edu

• Legal Research from Jurist, http://jurist.law.pitt.edu/legalresearch.htm.

2. Finding a Specific Law

There are many reasons why you might need to find a specific statute, regulation, ordinance, or court decision. For example, you might want to find out whether your state has any laws requiring mediation. Or, you may want to look up your state’s laws on a particular topic—boundary disputes, enforcement of contracts, or child support, for example.

a. City or County Laws

You can usually get copies of city or county laws (often called “ordi­nances”) from the office of the city or county clerk. The main branch of your public library is also likely to have a collected set of these laws. Once you get there, ask the reference librarian for help.

Many local ordinances are also available on the Web. Your city, county, or state website may have these laws, or a particular depart­ment—like the health or planning department—may post its regulations on its home page. Municipal Codes, maintained by the Seattle Public Library, has links to codes from many U.S. cities: you can find it at www.spl.org/selectedsites/municode.html.

b. State or Federal Statutes and Regulations

Rules established by state and federal governments are called statutes and regulations. Federal statutes are passed by the United States Con­gress, while state statutes are passed by state legislatures. Regulations are issued by state or federal administrative agencies (such as the U.S. Department of Transportation or the State Department of Health) to explain, implement, and enforce statutes.

You can find statutes and regulations in the library or on the Internet. You can also use legal background materials to figure out which statute or regulation you should read.

Finding statutes and regulations at the library

State and federal statutes and regulations can be found at a law library or the main branch of a public library. Depending on the state, statutes are compiled in books called codes, revised statutes, annotated statutes, or compiled laws. For example, the federal statutes are contained in a series called United States Code, and the Vermont statutes are found in a series called Vermont Statutes Annotated. (The term “annotated” means that the statutes are accompanied by information about their history and court decisions that have interpreted them.) Once you’ve located the books you need, search for the specific statute by its citation or by looking up key words in the index.

After you find a law in the statute books, it’s important to look at the update pamphlet in the front or back of the book (called the “pocket part”) to make sure your statute hasn’t been amended or deleted. Pocket parts are published only once a year, so brand-new statutes may not be included in the pocket part. Law libraries subscribe to services and periodicals that update these books on a more frequent basis than the pocket parts. Ask the law librarian to help you find the most recent version of the statute.

Most federal regulations are published in the Code of Federal Regula­tions (C.F.R.), a well-indexed set of books organized by subject. If you don’t have a citation for the regulation you want, check the index. To make sure the regulation is current, look at the monthly pamphlet that accompanies the books, called C.F.R.-L.S.A. (List of C.F.R. Sections Affected).

State regulations may be harder to find. If you know which agency publishes the regulation you want, you can usually call and get a copy. Many states also keep a portion of their regulations in a series of books called the Administrative Code. Check the table of contents. If the regulation is not in an Administrative Code, look for loose-leaf manuals published by the individual agency. If you find a regulation in the Administrative Code or loose-leaf manual, you should still call the agency to make sure the regulation hasn’t recently changed.

HOW TO READ A CITATION FOR A STATUTE OR REGULATION

A citation is an abbreviated reference that tells you where to find a legal resource. Citations for statutes usually include the name of the set of books where the statute appears, the volume or title number, and the section where you can find the statute. For example:

• 42 U.S.C. § 2000e is the citation of Title VII of the Civil Rights Act, which protects workers from discrimination. You can find the text of the law in title 42 of the United States Code, section 2000e.

• Ariz. Rev. Stat. Ann. § 33-1321 is the citation to Arizona’s law on tenant security deposits. You can find the text of the law in title 33 of the Arizona Revised Statutes Annotated, section 1321.

Citations for regulations usually include the name of the code where the regulations can be found, and the volume and section number. For example:

• You can find the regulations interpreting the Fair Credit Reporting Act at 16 C.F.R. § 600.1—volume 16 of the Code of Federal Regula­tions, section 600.1.

• You can find California’s regulations on pregnancy discrimination at 2 C.C.R. § 7291.2—title 2 of the California Code of Regulations, section 7291.2.

Finding statutes and regulations online

You can find federal statutes, the entire Code of Federal Regulations, and state statutes by visiting Nolo’s Legal Research Center at www.nolo.com/ lawcenter/statute/index.cfm. For state regulations, check the agency’s website on your state’s home page. All state websites have a link to government resources, including a list of state agencies. If the regula­tions aren’t posted online, the information on the agency’s website may answer your question—or give you a phone number or email address to contact for help. Another source of state regulations is FindLaw, at www.findlaw.com. Check under “U.S. State Resources.” The major websites listed earlier in Section 1 also provide access to state and federal statutes.

Using background materials to find statutes and regulations

When looking for a particular statute or regulation (state or federal), you may want to consult background materials, which often include relevant laws. For example, Collier on Bankruptcy, the leading bankruptcy treatise, contains a complete set of the federal bankruptcy laws. Even if the background resource does not include the text of the statutes or regula­tions, it will provide citations to the relevant laws and the books in which they are found.

Finding the latest legislation

If you are looking for a brand-new statute, you may have to search online for recently enacted legislation, because there is often a delay between the date a statute is passed and the date it shows up in the overall compilation of laws. Almost every state provides links to its legislature where you can find pending and recently enacted legislation. These sites contain not only the most current version of a bill, but also its history. For help locating your state’s website, see below. To find out about pending federal legislation or to read the latest version of a bill, go to the United States Congress website at http://thomas.loc.gov.

FINDING COURT AND GOVERNMENT AGENCY WEBSITES

Many courts and government agencies provide statutes and case law, plus other useful items like forms, answers to frequently asked ques­tions, and downloadable pamphlets on various legal topics. To find your state’s website, open your browser and type in www.state..us or www..gov. Your state’s postal code is the two-letter abbreviation you use for mailing addresses. For example, NY is the postal code for New York, so to find New York’s state website, type in www.state.ny.us or www.ny.gov.

Nolo’s Legal Research Center (www.nolo.com/lawcenter/statute/ index.cfm) provides links to courts across the country and access to small claims court information for most states. You can also find local, state, and federal court websites on the National Center for State Courts’ website at www.ncsconline.org. The federal judiciary’s website at www.uscourts.gov lists federal court websites.

c. State Case Law

State case law consists of the rules established by courts in court deci­sions (or “court opinions”). Court decisions do one of two things. First, courts interpret statutes, regulations, and ordinances so that we know how they apply to real-life situations. Second, courts make rules that are not found in statutes, regulations, or ordinances. These rules are called the “common law.”

Finding state cases in the library

State cases are found in a series of books called reporters. For example, California cases are contained in the California Reporter. You can also find state cases in books known as “regional reporters.” These volumes contain cases from several states in a geographical region. For example, the Atlantic Reporter contains cases from several eastern states, includ­ing Delaware and Maryland.

Finding cases when you have a citation

A citation indicates the name of the reporter, the volume number, and the page where the case appears. For example, 21 Cal.App.3d 446 tells you that the case is in California Appellate Reports, 3rd Series, Volume 21, on page 446.

Finding cases when you know the name

If you don’t have a citation but you know the name of one or both of the parties in the case—for instance, in the case named Jones v. Smith, Jones and Smith are the names of the parties—you can use a “case digest” to find the citation. There are digests for individual states as well as federal and general digests. Look for the parties’ names in the digest’s Table of Cases. If you don’t know the name of the case or the citation, then it will be very difficult to find the case in the law library.

Finding state cases on the Web

If the case is recent (within the last ten years), there’s a good chance that it’s available free on the Internet. A good place to start is FindLaw at www.findlaw.com. Also, most state court websites now publish recent

cases.

If the case is older, you can still find it on the Internet, but you may have to pay a private company for access to its database. (Your local law library may also have online legal resources available for searching.) VersusLaw, at www.versusLaw.com, maintains an excellent library of older state court cases. You can do unlimited research on VersusLaw for $9.95 per month. You can also get state cases online through Lexis and Westlaw, commercial online legal research services. (For more information, see “Using Westlaw and Lexis to Do Legal Research on the Web”, below.)

d. Federal Case Law

Federal case law consists of the rules established by federal courts. Like state cases, you can find federal case law both in the library and on the Web.

Finding federal cases in the library

Cases decided by the U.S. Supreme Court are published in three differ­ent series of reporters. All three contain the same cases. The names of these series are:

• United States Reports

• Supreme Court Reporter, and

• Supreme Court Reports: Lawyers’ Edition.

Well-stocked law libraries also have cases from other federal courts, including the Federal Circuit Courts of Appeal (federal appellate courts), U.S. District Courts (federal trial courts), and specialized courts such as bankruptcy or tax court.

To find a case in the Supreme Court reporters or any of the volumes containing other federal cases, follow the guidelines for finding state cases by citation or case name, above.

Finding U.S. Supreme Court cases on the Web

Nolo’s Legal Research Center, available at www.nolo.com/lawcenter/ statute/index.cfm, provides U.S. Supreme Court cases decided within the last hundred years.

Finding other federal cases on the Web

FindLaw, at www.findlaw.com, contains cases decided by the Federal Circuit Courts of Appeal going back to 1995, some bankruptcy opin­ions, and recent tax court cases. The Cornell Law School Legal Informa­tion Institute provides access to all federal appellate court cases, some District Court cases, and some bankruptcy opinions (www.law.cornell.edu/federal/opinions.html). VersusLaw (explained above) also has some U.S. District Court cases and some bankruptcy opinions. If you can’t find the case you’re looking for on one of these websites, your best bet is to use Westlaw or Lexis.

USING LEXIS AND WESTLAW TO DO LEGAL RESEARCH ON THE WEB

Lexis and Westlaw are the chief electronic legal databases that contain the full text of many of the legal resources found in law libraries, including almost all reported cases from state and federal courts, all federal statutes, the statutes of most states, federal regulations, law review articles, commonly used treatises, and practice manuals.

Although Westlaw and Lexis databases are available over the Internet, subscriptions are pricey. However, both offer some free and some fee­based services to nonsubscribers that are helpful and reasonably priced (between $9 and $12 per document). To find out more about these services, visit Westlaw at www.westlaw.com or Lexis at www.lexis.com.

3. Finding Answers to Specific Legal Questions

It’s one thing to track down information on a recent case or statute or to read up on general information about a legal topic. It’s quite another to confidently answer a question about how the law might apply to your own situation, such as:

• “I live in North Dakota and my former spouse and I own a business together. What share of the business am I entitled to in the divorce?”

• “My neighbor’s tree is blocking my view. Do I have the right to trim it or cut it down?”

• “I run a business. Another company has opened nearby, and its logo is similar to mine. Can I force them to change their look?”

These are the types of questions that people have traditionally asked lawyers. To answer such questions, you often need to look at all of the legal resources we have mentioned thus far. You must also make sure that the law you find is current. If you want to undertake this type of legal research on your own, we recommend that you use a comprehen­sive legal research guide that walks you through the process step by step. (See the list of resources in Section 1, above.) Here, we can provide just a brief overview of what you’ll need to do.

When seeking the answer to a specific legal question, your ultimate goal is to predict, as near as possible, how a judge would rule if pre­sented with the issues and facts of your case. The closer your facts are to the facts in previous cases or the more directly a statute applies to your situation, the more likely you’ll be able to predict what a judge would decide. Sometimes, your question is so basic that the answer is easy to find. But more often, a statute won’t address each facet of your situation and the facts of other cases won’t match up 100%. Because of this, legal research cannot always provide a definitive answer. (That’s why lawyers often hem and haw when asked a legal question.)

a. Basic or Common Legal Questions

If your legal question is basic and general (such as “Will I have to mediate if I file a lawsuit in small claims court?” or “What kinds of expenses are child support payments supposed to cover?”), then you should begin your research by consulting one or more of the back­ground resources discussed above. The answers to these types of ques­tions are usually based on general legal information rather than on the nuances of your particular circumstances.

If your question is common and straightforward (such as “Can the state garnish my wages if I fall behind on child support payments?” or “What is the fee for filing a civil lawsuit?”) then it should be quite easy to find an answer, since these kinds of questions rely on factual informa­tion that many people need to know. Finding this kind of information doesn’t involve any special legal research methods. Think of the govern­ment branches or agencies that are likely to have the answers. For example, the state court for your county probably has filing fees posted on its website, or you can call the court clerk. And every state has an agency that handles child support payments. Look on your state’s home page to find the agency website or a public information number. You can find phone numbers for city, county, state, and U.S. government agencies in the Government Pages section at the front of your local telephone book.

In some cases, the quickest way to find an answer is by contacting an organization or advocacy group that specializes in the subject of your question. Do you want to know the current estate tax rate? An organiza­tion that advocates for seniors, such as the American Association of Retired People (AARP), may know the answer. If you’re looking for information on evictions, a local advocacy group such as a tenants’ rights union should be able to help. You can find almost any organization or advocacy group on the Internet. Most Yellow Pages also include listings of community resources.

b. Complex Legal Questions

If you can’t get an answer to your legal question from a background resource—usually because your question involves unique facts related to your situation—you’ll need to do more detailed research. Build on the information you found in the background materials.

HOW MUCH IS A BROKEN ARM WORTH?

If you have been injured in a car crash or other accident and will be mediating with an insurance company over how much they will pay you for the accident, a little research can help you learn what a judge or jury might give you for the same type of injury. You can use this information as a benchmark to evaluate whatever offers may be made to you in mediation.

In many states, you can find a weekly or monthly publication called a “jury verdict reporter” in the law library. Ask the law librarian if one is published in your state. In the index to these reporters, you can look up whatever type of injury you have, such as abdominal injuries, ankle injuries, arm injuries, and so on, then find recent awards for those types of cases. If your state does not have a jury verdict reporter, look for an easy-to-use book called What’s It Worth? A Guide to Current Personal Injury Awards and Settlements. This book, published annually by Michie Company, lists injury-related awards for the whole country.

For more on evaluating personal injuries, see the chapter entitled “How Much is Your Claim for Injuries Worth?,” in How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo).

To proceed further, first search for statutes, regulations, or ordi­nances that address your question. If you find relevant statutes, look for cases that have interpreted them. To do this at a law library, you can:

• look at the summaries of cases that follow the statute in an anno­tated code book

• use Shepard’s Citations for Statutes (a book that provides a complete list of cases that mention a particular statute, regulation, or constitu­tional provision), and

• search for cases in “case digests” (books that list cases by subject).

If you can’t find a relevant statute or other legislative enactment, you need to look for case law only. To do this at a law library, you can:

• read any relevant cases mentioned in the background materials

• search in case digests by subject area or key words

• if you find a relevant case, read the cases that it mentions, and

• if you find a relevant case, use Shepard’s Citations for Cases to find more cases that apply. (Shepard’s provides a complete list of cases that mention your case.)

c. Making Sure the Law Is Up to Date

Because the law changes rapidly, you must make sure that the principles stated in your cases and statutes are still valid. A case may no longer be helpful to you if a more recent case has questioned its reasoning, ruled a different way, or expressly stated that your case is no longer good law. Likewise, you should check to make sure your statute has not been changed or eliminated.

Updating your research in the library

If you are using the law library, there are a few things you should do to make sure your research is up to date.

• Background Resources. If you use background materials, be sure to check the pocket part; it contains changes and new developments in the law.

• Statutes. Books containing statutes and regulations also contain pocket parts. Be sure to check these as well. Also check law library periodicals that contain more recent statutory updates.

• Cases. You can check the validity of every case you find by using Shepard’s Citations for Cases. Shepard’s will list every case that men­tions your case, and tell you the reasons why it was mentioned. For example, it might show that a later case overruled your case, which means your case is no longer valid. Using Shepard’s Citations is not simple—ask the law librarian for help.

Updating your research on the Web

On the Internet, the updating process is easier, but might cost some money.

• Statutes. If you’re checking a state statute, visit your state’s website for current legislative developments. If you need federal information, track Congress’s legislative developments at http://thomas.loc.gov. You can also get the most recent version of a statute (for a fee) through Westlaw or Lexis.

• Cases. You can check the validity of cases by using www.westlaw.com or Shepard’s at www.lexis.com. Each service charges $4.25 for each case you check.

d. Information on Mediation and Dispute Resolution

If you need to do additional research about the laws relating to media­tion, an excellent legal research tool is a two-volume treatise called Mediation: Law, Policy, and Practice, by Nancy H. Rogers and Craig A. McEwen (Clark, Boardman Callaghan). In addition to discussing many of the substantive legal issues that can arise in mediation, the book includes tables listing mediation laws by subject matter in all 50 states and the federal government, as well as lengthy excerpts from many of these laws. Although it’s written for use by lawyers, the organization and writing is generally clear enough so that much of it should be useful to nonlawyers, too. It should be available at many of the larger law libraries.

Here are some other resources on mediation:

• www.mediate.com. This website offers lots of free information on mediation, including articles, book reviews, mediator referrals, and much more.

• www.acrnet.org. The website of the Association for Conflict Resolu­tion has a library of free articles on mediation.

• Dispute Resolution Journal, published by the American Arbitration Association. This journal is widely available in law libraries and is especially strong on issues involving mediation of employment and business disputes.

• Dispute Resolution Magazine, published by the American Bar Associa­tion Section of Dispute Resolution. This is a magazine for lawyers that includes well-written articles on a variety of issues, such as divorce and family mediation, new state laws affecting mediation, and the lawyer’s role in preparing clients for mediation. ■