(Feel free to move this to a different board if I posted it in the wrong place)
Looking to get some general feedback and insights on how practicing lawyers “figure out the law.”
From my summer gig, and currently doing about 70% Clinic work this semester. I find myself exploring every legal question at the start. I go to the statute, read it, look at relevant notes on the statute, look up all major cases, shepardize them to read further cases, etc. This is all good. I’m learning things, getting better at finding what I want faster, etc. but it seems unsustainable as a practicing lawyer. Do lawyers frequently use treatises or other secondary legal materials to first get familiar with a topic? If you are in a small firm, do you heavily lean on these? Just trying to get a sense on what practice looks like…
If you need to look at different sources to understand something, you do. If one case gives you the answer, you stop there. But if you’re briefing something, you might need more than one case.
Unsustainable in the sense that anytime there’s a small legal question are you looking up all the relevant statutes, then finding all the relevant case law, or if it’s some settled manner do you just look up some hornbook law? Not talking about briefing something or even filing a motion. A client calls up and says “hey any idea if I could do this?”
@OP: it sounds like you’re reinventing the wheel every time. Some things are complicated, some are straightforward. You don’t need to spend a shit ton of time researching when there is an easy answer.
Not an attorney, but I am a law clerk that works at an in-house office with a handful of attorneys. One of them uses/directs me to use the Rutter Guide on westlaw all the time, for finding elements of causes of action, discovery rules, motion practice, etc.
Yeah, I use secondary stuff all the time. Frequently it points me directly to the established rules and central cases, from which I can quickly find jurisdiction-specific stuff. Frankly in my practice (which isn’t biglaw) a lot of the applicable law is not that complex and relatively settled, so I’m not doing extensive research to figure out what the legal rule actually should be. Instead I’m just trying to figure out if there are cases with analogous facts so I can make smart arguments about whether a given rule does/doesn’t apply to my specific facts. (I mean that’s kind of an oversimplification but it’s much truer than I would have expected out of law school, where you’re doing the whole “what IS the law and should it be what it is” kind of debate much more often than you apply the law to facts.)
I work for the courts, and I use treatises all the time for procedural stuff or if an issue is really poorly briefed. Still have to look at (and cite) cases, but it really cuts down on reasearch time for settled law.
I usually start by Googling and that often gives you the leading case or at least a good starting place if the issue has come up recently or has been written up somewhere. If I don’t find anything there, then I would look for a treatise.
With additional experience, I find myself using treatises and secondary sources more and more. Not only is it more efficient, but if you’re giving an answer to a senior attorney, it gives them much more comfort that you have the right answer if you can tell them that your research is consistent with the treatise written by someone smarter than you.
I’m in litigation and always start my research with secondary sources. The key is using the right source. For example, a federal court litigator would be wise to begin research on procedural questions with the Federal Practice and Procedure treatise. With respect to state law, I practice in Louisiana and frequently use the civil law treatise series. The only pitfall stems from the stagnant nature of the treatise. Unless your firm has the resources to update it every year, be weary of changing law.
I’m in tax and I constantly use secondary sources. If you are a tax attorney, you basically live on a database called “Checkpoint.” I use Checkpoint nonstop to find secondary sources that allow me to more quickly figure out the law / issue.
This is super helpful. Appreciate all of you giving your input. Didn’t know if treatises were academic exercises or things that practicing lawyers used.
Secondary sources are love, secondary sources are life.
My firm, and most, has a flat rate for westlaw searches monthly. However, the contract price changes each year based on the previous year’s usage. The amount of money I would cost the firm and clients year over year by searching for every statute/case/shepardize them would be astronomical. I get mostly all of that with one click to a secondary source.