Lately I’ve been posting a bit on the philosophical side, so, in this post I’m going to get very practical with tips for non-lawyers on legal research and how the system basically works. Finding the law you need is not just about finding a snippet of law that supports your position; rather, it is about finding all the law relevant to a topic, knowing how it all fits together, and making a cogent argument that weaves it all together in a legitimate way to support your position. Often “all the relevant law” is a bit of an art so don’t think that it is purely a black & white matter (see my prior post, “Stepping Outside the Box and Into Fairness Through Equity”).
This short article will not address or examine everything fully. However, a good overview of the entire law landscape is critical to understanding the details you’ll eventually need to handle your own case or speak intelligently with your lawyer.
Criminal or Civil Law?
There is “criminal” law and there is “civil” law. Civil law is the most prevalent in the daily affairs between people. Unless you are charged with a crime civil law is what you are concerned with (e.g., divorce, contracts, real estate, wills/trusts, probate, landlord-tenant, etc.). Many of the concepts for researching criminal laws are the same as in civil law, but just know that they are two very different systems.
Whose Laws/Courts Apply?
The federal government has it own distinct laws & courts as does each of the fifty states. Generally, the particular laws involved determine what court system you are in (e.g. Federal laws = Federal courts, California laws = California courts, etc.). The State laws are administered by county courts throughout the state. Federal courts are divided into 13 Circuits which are then subdivided into districts. The question of what county (in a state system) or district (in the federal system) you need to bring your case to is a question of “venue” and basically involves geographic fairness.
All court systems are organized in a hierarchy starting with the trial court. If a case doesn’t settle early or get thrown out a trial is held where a judge or jury makes a decision. If the losing party doesn’t like the decision they can appeal to the first level appellate court. If anyone doesn’t like the appellate court’s decision they can appeal to the highest appeals court in that system. It’s even possible (but rare) to jump from the highest appellate court in a state system right over to the highest federal appeals court (US Supreme Court) as happened in Bush v. Gore. Appeals are generally not a complete rehearing of the entire case; rather, appellate courts presume that the trial court got it right and will reverse only for substantial and detrimental mistakes (they can disagree with a decision but will not reverse if it was plausibly correct). Only about 10% of appeals are successful.
Is it a Procedural Law or a Substantive Law?
Procedural law deals with the rules of how matters proceed, i.e., “the rules of the game”. Procedural law involves things like when and where you must file a case, when and how you can serve discovery, how you must file a cross-complaint, when the statute of limitations expires, etc. A specific subset of procedural laws are “local rules” which involve things like how to staple your papers, how to request a hearing after a tentative ruling, how to address the judge, etc. (local rules vary but generally each courthouse has its own set of local rules).
Substantive law, on the other hand is getting at the meat of the matter, i.e., whether the underlying behavior at issue is lawful. Typically, at the beginning when filing a lawsuit has not yet happened, substantive law is what you are most interested in (e.g., whether certain behavior is allowed or not). Once the actual filing of a case looms the focus will shift to procedural rules (e.g., how and when you must bring your case). It will stay that way until a trial becomes imminent in which case the laws of evidence will grow in importance.
Distinguish Actual Law From Books Merely About Law
Typically there is a code or statute that specifies the rules for a particular matter. That code or statute is the primary law. Appellate courts often make rulings about the parameters of a code or statute; such appellate rulings are also primary law. A simple example would be if a code said that there’s no parking vehicles in red zones; a court might interpret that to mean that a bike is a vehicle; the net result being that both the code and case law are primary law.
A secondary source is any book that attempts to summarize the law of a topic. So, following the example just given, there might be a “treatise” or “practice guide” on the law of public parking in which the author would tell you all about the code prohibiting parking in red zones and then inform you that that applies to bikes too. Such treatises cite to the applicable codes and cases so that you can turn around and cite them yourself. It’s a good idea to verify the author’s assertions about what a case or code says by reading the cited authority for yourself. Realize that such a book is a secondary source merely explaining the primary law of a topic. Courts are only bound by primary law, i.e., what other courts and lawmakers say in their respective cases and codes. However, it is very common for lawyers and judges alike to rely on secondary sources to get a handle on the primary law. That said, generally stick to citing only primary law in making an argument before a court unless the secondary source is highly respected and authoritative.
How to Find What You’re After
The books that contain the codes are organized by topic, such as the Civil Code, the Evidence Code, the Code of Civil Procedure, and the Family Code. Electronic copies of these codes are usually available on the internet. The books that have appellate case decisions are called “reporters”. These are also available online to some extent. The best way to research cases online is through a service like Westlaw which allows you to use key words to search with. Often Westlaw is free at law libraries. If you know the exact citation of a case (from a secondary source, for example) there are free online ways to look that case up; however, these free sites don’t give page numbers of the case opinions so they’re tricky to cite in your own papers (proper citation to authority must provide a “pinpoint” cite to a specific page within the published opinion).
The general public will be well served by beginning their research with secondary sources. They do a lot of the legal analysis for you. One of the easiest and most “friendly” resource out there is from Nolo Press (nolo.com); next I would seek out a general treatise applicable exclusively to your particular state law on a topic (Witkin, etc.); lastly, I would get the practical “how to” from a “practice guide” on particular topics (Rutter, CEB, Matthew Bender, etc.).
Most county courts have a legal resources center where somebody is there to help you along (these are often located in either the county law library or courthouse); in areas like Family Law there is often a dedicated office that gives really targeted and specific help.
The Life-Cycle of a Court Dispute/Lawsuit
The first stage of a case is the pre-lawsuit phase where hopefully the parties are trying to work it out. If nothing can be worked out then somebody typically files a lawsuit. (Be very sure you have not already somehow bound yourself to arbitration or mediation; most real estate purchase contracts do just that).
Filing a lawsuit involves drafting a complaint that specifies exactly what you allege somebody did wrong and what law they violated. Often states have freely available check-box type forms that make drafting a complaint much easier (California Judicial Council forms).
Once a complaint is filed it needs to be personally served on a defendant (sometimes you can serve it by publication in a newspaper but it’s a hassle). They have 30 days to answer. After that the defendant answers the complaint either denying or admitting what you alleged. If the answering party has sufficient grounds they can turn around and sue you back (a cross-complaint) saying that it’s you who is at fault; then you have to answer the cross-complaint within 30 days.
Often courts try to arrange for the parties to mediate or arbitrate early on to avoid the time and expense of continuing the case (courts do it for selfish reasons, but, as it happens, it is worthwhile IF both parties are reasonable).
Once the initial pleadings are out of the way there is the possibility of having the other side’s case (or part of it) thrown out by a “demurrer” or “motion to strike”. Very technical stuff, and even among lawyers this is often a waste of time. Once the time for all that is done discovery starts.
Discovery is where information, documents, and potential evidence is exchanged through the various means (interrogatories, depositions, document requests, requests for admissions, etc.).
After months of discovery when each side has a better idea of the facts there is the possibility to again end the case by a “motion for summary judgment” or a “motion for judgment on the pleadings.” Tricky stuff, rarely successful.
If the case makes it through discovery and isn’t ended by a motion for summary judgment, etc., it’s pretty much in the pipeline to trial (settlement is still possible and encouraged). If the case is “unlimited jurisdiction” (controversy above a certain dollar amount) then the whole process can take about a year or two. If the case is “limited jurisdiction” (controversy below a certain dollar amount) it can take up to a year. Small claims cases (those with the lowest dollar amount in controversy) usually happen within a few months.
Do you know why big cases most often settle? Because the best and brightest lawyers know that it’s very often the smartest thing to do. That said, often you have to sue somebody just to wake them up and get them on the court’s radar screen. Sometimes without filing suit the offending party just keeps on doing what they’re doing. Lawsuits have a way of getting people to wake up and consider things a little more realistically.