by Bret Christensen
As a Librarian in the public services arena, I help lots of different people who have lots of different problems to solve. We get transactional attorneys who only want forms. We get litigation attorneys who only want trial practice materials. We get ambulance chasers who only want money (not that that’s a bad thing and someone’s gotta do it). We get pro se litigants who want everything (because they don’t really know what they want when they first start). Then we get the newly minted attorneys who just passed the bar and don’t have a clue how to actually practice law and make money. They just knew that they had to pass this thing called a “bar exam” aaaaannd that’s about as far as they took it.
The thing is that I really dig these new attorneys. Most are scared out of their minds, what, with having just taken on their first case, accepting their first check(s) as a retainer, and then realizing that they don’t know where to start. I mean, they all look great in their tailored suits, but it’s the practical skills they lack – although now they’re motivated to learn. In law school, students weren’t really paying attention (which is surprising given that most 4-unit classes cost upwards of $2,100 a pop). After they pass the bar, it’s a whole new ball game. So, the other day, a newly minted lawyer came to me saying he passed the bar, got his first case representing a client, took the client’s money and didn’t know what to do next.
I said to Newly Minted, “Well, first things first. What do you know about law and legal research?” “Nothing. Didn’t pay attention in school, ” he responded. (No surprise there). “Then let’s start with the basics. First, there’s primary authority.” Newly Minted says, “What is primary authority?” Having taught countless pro se litigants, attorneys, paralegals, a few judges and even a couple elected public servants, I confidently said, “Primary authority is that which is handed down by a governing body.”
Newly Minted counters saying, “What’s a governing body?”
“Well, a governing body hands down rules and laws that govern their area of influence. For example, how many governing bodies are there at the state level?” Newly Minted said thousands.
“Actually, there are only three: Executive, Legislative, and Judicial. That’s it. Oh, there are branches from those three, but that’s basically it. Three governing bodies that govern a state (same with the Federal system). Some easy examples of primary authority include cases (judicial), regulations (executive), and codes and statutes (legislative; for the record, codes and statutes are not the same thing).”
I went on. “Of course, when you dial in to look for individual governing bodies you’ll find county boards of supervisors (that govern a county), city counsels (that govern a city), there’s a governing body for each Home Owners’ Association, you can have a governing body for a neighborhood watch group, even governing bodies for a book club. Each of these governing bodies make rules and regulations for their respective spheres of influence.”
Newly Minted says, “What’s so important about knowing what is primary authority?” I’m thinking, where did this guy go to law school?! But I didn’t say that. Instead, I explained that it is important to know what primary authority is because attorneys use it to write legal documents. Primary authority is mandatory authority, and judges must follow it. They may not want to and sometimes buck the system and go all political and make their own law but basically, that’s why.
“So, what’s all the rest of this stuff on these shelves,” asked Newly Minted waiving his hand around the library. The rest of this “stuff” is called secondary authority. Secondary authorities explain, interpret, and analyze primary authority. Secondary authority puts primary authority in context (helps you see the forest for the trees). More importantly, secondary authority is merely persuasive authority and should NOT be cited in your legal documents. If you do cite to secondary authority, judges can ignore it (and they do; I’ve had countless attorneys complain about motions being dismissed simply because they cited a secondary authority instead of the case or code that authority addressed).
Examples of secondary authority include dictionaries you use to get a definition (like Black’s Law Dictionary). Another great example is the American Law Reports (TR). These tomes of knowledge contain intensive examinations of legal concepts helping researchers get to the real guts of any issue. If you’re looking to work in bankruptcy, two great secondary authorities include Collier’s Bankruptcy Practice Guide (Lexis) and Norton Bankruptcy Law and Practice (TR). Maybe you, like so many pro se litigants, want to sue a bank because they foreclosed on your (or a client’s) house. If so, then might I suggest a looksee at Michie on Banks and Banking (Lexis) or Foreclosures and Mortgage Servicing (NCLC). Maybe you’re looking into representing plaintiffs in personal injury actions. If so, then you’re going to want to look at Am Jur Trials (TR), Personal Injury: actions defenses damages (Lexis), or Lawyers’ Cyclopedia of Medicine (Lexis).
The thing is, for as many primary authorities that exist in legal research land, there are dozens more secondary authorities (because people want to make lots and lots of money so they print lots and lots of books to help the legal researcher provide context to the cases and codes).
And there you have it – these are the basics of practical legal research that I provide to Newly Minted as a reminder of what Newly Minted surely learned in law school. When the researchers know what they’re looking at, they are better prepared to know what they’re looking for. So, when next a Newly Minted comes to you, you may use this blog post or a similar method to help them start their next research project.