By Hadas Livnat
June 5, 2014
It’s late afternoon at the reference desk and you’re wrapping up your day, ready to go home and relax with a hot drink, when a wide-eyed law student approaches with the following request:
“I need a Florida case about drug smuggling from South America where the smuggler, who is my client, used a fat suit and claimed unreasonable search and seizure on the airplane when it landed in Florida, so he wants to exclude the evidence for lack of probable cause and, oh, yeah, also the officer was in plain clothes . . . does this make a difference? I’ve been searching for an hour, and I found some drug smuggling cases, but I can’t find any cases with fat suits . . . am I doing anything wrong . . . can you help me?”
Our Task as a Librarian
At times like these, it’s valuable to remember two things. One: if you’re new to the reference desk, don’t panic. This has happened before and will happen again. I hope that by the end of this article I will have laid out some useful strategies to help you tackle these situations. Two: the task of reference law librarians is not just to point students to a resource that may or may not contain that (often elusive) “perfect” case—that is, a case that would suit their fact pattern and legal issue to a point. We are also here to teach them about being a lawyer and how to use legal resources to make their argument. First-year law students who are new to the legal field tend to approach their legal research issue with an assumption that they have to find the perfect
case—factually and legally on-point—to support their position. Coming to understand that the perfect case may not exist is part of the learning process for all law students.
Legal educators have also expressed concern about student focus on finding the perfect case instead of trying to understand the legal research process.
“Too often students lose sight of the big picture by hunting for the perfect case instead of thinking about how to construct the case,” says Randy Diamond in his article, “Advancing Public Interest Practitioner Research Skills in Legal Education,”
published in Volume 7, Issue 1 (Fall 2005) of the North Carolina Journal of Law & Technology
Similarly, Pamela Samuelson, author of “Good Legal Writing: of Orwell and Window Panes,”
published in the Fall 1984 issue of the University of Pittsburgh Law Review
, explains that students tend to express anxiety about writing by setting off on an unfruitful search for the “perfect” case for their issue.
And more recently, in “Think (and Practice) Like a Lawyer: Legal Research for the New Millenials,”
published in Fall 2011/Volume 8 of Legal Communication & Rhetoric: JALWD
, authors Aliza B. Kaplan and Kathleen Darvil note that “In their search to find the ‘perfect’ case, new attorneys either fail to retrieve or overlook key authorities, and therefore miss the fundamental principles governing the issue.” . . . A habit no doubt cultivated in law school and which librarians are in a great position to remedy.
These views expressed by legal writing experts reinforce our role as law librarians: to gently guide students away from the notion that they have to find the perfect case for their legal issue and steer their thoughts instead toward the research and lawyering process.
The Nature of Legal Research Assignments
In most instances, law school professors craft research assignments with the intent of preventing students from finding the case that is faultlessly compatible for their assignment. Their topics will often revolve around current and emerging topics, ones that are newsworthy rather than frequently litigated, or perhaps a new twist on an established law. Complex assignments with unusual fact patterns challenge the students to think about how the law works, to focus on the legal issue first, and to then apply the specific facts of the case.
For example: in the case above, drug smuggling cases may involve private rather than public airplanes or drugs concealed in objects other than a fat suit (cars, coats, etc.) Combining them with search-and-seizure issues helps to complicate the assignment and eliminate any cases that match perfectly in law and fact.
Explain the Need to Become Familiar With the Legal Background
1L legal instructors recognize that they still need to guide the student through the search. So the first thing you can coax out of your anxious student, frustrated by his findings of a deluge of (seemingly) non-suitable cases, is the call of the assignment. In the case above, the words “search and seizure” and “probable cause” were probably mentioned in the assignment.
Your second step is finding out if the student is familiar with the broad legal topic; in this instance, probable cause and search and seizure. If he’s not, it’s important to recommend secondary sources, like encyclopedia chapters, to establish the necessary background before he tries to tackle the specific facts of the case. It’s usually easier to assign a degree of importance to the facts specific to your case when you already have the basic legal background in mind.
Some assignments provide facts that appear to raise more than one issue. In such cases, students will need to understand that they must first take the time to teach themselves about the issues and only then sort through the facts to see which fact is relevant to which issue.
Help Them Understand Their Role as Lawyers
Unless they were previously prepared for law school or have a legal background, 1Ls tend to be a little overwhelmed with the number of facts in their assignment. You can help a student understand that the specific and sometimes seemingly irrelevant facts (was it important that the officer was in plain clothes? Was it important that the transaction took place on an airplane?) simulate what their client would discuss during the client interview. Some clients will be happy to share everything about the situation, including their feelings about the situation, past history of a relationship, and numerous other details. A client may believe that these facts are important, but they may not be legally relevant (though some will assist the lawyer in telling the client’s story). When interviewing a client, it’s the lawyer’s job to write down the facts and then sort out the ones that are actually relevant to the issue.
At this point, it would be extremely helpful to reinforce IRAC, the legal writing method that mandates specific areas of an essay where the student should state the Issue, Rule, Application, and Conclusion. These areas help to distinguish between the facts of a specific case and the law pertaining to it. The “Issue” deals with narrating the specific facts of the case; the “Rule” is the black-letter rule of law. Remind the student that it’s their job as a lawyer to research the legal issues raised by the fact of the case, and then apply the client’s specific fact to argue an outcome favorable to the client.
Binding Versus Persuasive Cases
Finally, help your students distinguish between cases that are controlling for the purpose of formulating the rule of law
and cases following that rule that are persuasive in terms of their fact pattern
. The two-prong analysis below may help them understand that the assignment can be split into two areas:
(1) Formulating the rule based on research into primary law.
(The rule may include the language of controlling statutes, the language of binding/seminal cases [like Supreme Court cases], and any additional “prongs” of analysis added by the court.)
(2) Applying the rule to the fact pattern and arguing your client’s case based on the rule and facts.
(Tell them to use the cases most favorable to their fact pattern, and then argue the same outcome for their own case. At this point they should use binding cases if the facts in these are favorable and persuasive cases if the fact pattern of binding cases is dissimilar or unfavorable.)
Finally, help them see how analogy helps. Perhaps no cases exist that feature fat suits for drug smuggling, but how about cases that have big coats? Large pockets? This also reminds students that they need to “lawyer” the facts—that is, use available authority to argue a favorable outcome for their client.
As a final step, you can always direct students to additional legal sources about writing legal essays and briefs. In law libraries, these items are generally found in the KF250 area of the library.
When a confused student approaches you about a legal assignment that involves a heavy factual component and asks for a case that exactly resembles the fact pattern he is tackling, you can do the following:
Ask if the student is familiar with the legal background of the rule of law. If not, direct the student to a secondary source, like an encyclopedia section or treatise chapter.
Explain that the task at hand is to familiarize himself with the rule of law applicable to the facts. Then the student will be able to sort out the legally relevant facts.
Help the student distinguish between statutes and cases that will help him understand and formulate the rule of law applicable to the case and persuasive cases argued under that rule whose fact pattern may be more suitable to the facts of the assignment.
Help the student see that he can argue by analogy for specific facts.
Direct the student to additional sources that provide instruction about good legal writing.
Hadas Livnat (firstname.lastname@example.org), Associate Reference Librarian, University of California, Hastings. She would like to thank Vince Moyer and Hilary Hardcastle for their beta-reading of this article.