Nolo’s Encyclopedia of Everyday Law Phần 10 pot

A A ppendix: Legal Research A.2 Learning About a Particular Area of the Law A.4 Finding a Specific Law A.8 Finding Answers to Specific Legal Questions A.10 Finding Legal Forms L egal research is how you learn about the law. It is not a skill reserved exclusively for lawyers; you can find the answers to your legal questions if you are armed with a little bit of patience and a good road map. N o l o ’ s E n c y c l o p e d i a o f E v e r y d a y L a w A. 2 l l l l l l l l l l l l l l l l l l l l l l l l l l l The best legal research method de- pends on what you need to find out. Usually, people want to research the law in order to accomplish one of the following things: • 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) • find the answer to a specific legal question, or • find a legal form. This appendix explains how to do legal research in each of these situa- tions. Learning About a Particular Area of the Law Many people need to understand an area of the law before making an im- portant decision. For example, you might want to know: • What laws are involved when selling a business? • What’s the difference between a living trust and a living will? • What effect does divorce have on pensions earned during marriage? Questions like these can be an- swered 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 back- ground materials. Legal background materials are books, articles and encyclopedia en- tries in which experts summarize and explain the basic principles of a legal subject area, such as bankruptcy, landlord-tenant law or criminal law. These materials come in many forms and can be found in law libraries or, sometimes, 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 your state’s laws. Law schools also maintain libraries for their students and staff. Although public access to some law school libraries is restricted, many are willing to extend help to non-students. If you are looking for material from other states or coun- tries, a law school library is the best place to start. Finally, don’t limit yourself to law libraries. Most major public libraries in urban areas contain both local and state laws. Here are a number of legal back- ground resources that you may find useful: L E G A L R E S E A R C H A.3 l l l l l l l l l l l l l l l l l l l l l l l l l l l • Self-Help Law Books. Self-help law books, such as those published by Nolo, are written in plain English for a non-lawyer audience. They are an excellent starting point for cracking any legal area that is new to you. Law libraries, public librar- ies and bookstores (including Nolo’s online bookstore at http:// www.nolo.com) often carry self-help law books. • Organizations and Advocacy Groups. Many non-profit 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 what groups might have the information you need and then look for them in the Yellow Pages or on the Web. • 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. • Treatises. If you have the time and patience to delve deeply into a subject, you can find comprehensive books—generally known as trea- tises—on virtually every legal topic. For example, if you want to know about some aspect of trademark law, you could use McCarthy on Trade- marks, a multi-volume treatise on all aspects of trademark law. • West’s Legal Desk Reference. This book, by Statsky, Hussey, Diamond and Nakamura, lists background materials both by state and legal topic. In addition, West’s Legal Desk Reference provides keywords and phrases that will help you use the indexes to other resources you may need during your research. • Internet Resources. Nolo’s Legal Encyclopedia, available free at http:// 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, many government agency sites provide legal information, such as state marriage license requirements or downloadable publications on different legal topics. For example, if you visit the Federal Judiciary’s website at http://www.uscourts.gov, you can download Bankruptcy Basics, a pamphlet providing a good overview of bankruptcy. To find government agencies online, see Finding Court and Government Agency Websites, below. N o l o ’ s E n c y c l o p e d i a o f E v e r y d a y L a w A. 4 l l l l l l l l l l l l l l l l l l l l l l l l l l l The Best Legal Websites In addition to our own website at http:// www.nolo.com, Nolo’s favorite legal websites are: • FindLaw http://www.findlaw.com • The National Federation of Paralegal Associations http:// www.paralegals.org/LegalResources/ home.html • The World Wide Web Virtual Library http:// www.law.indiana.edu/v-lib • American Association of Law Libraries: Legal Research Links http://www.aallnet.org/research • The Library of Congress Guide to Law Online http://loc.gov/law/ guide • The Legal Information Institute at Cornell Law School http:// www.law.cornell.edu Finding a Specific Law There are many reasons why you might need to find a specific statute, regulation, ordinance or court deci- sion. For example, you might learn from the newspaper about new state laws governing overtime wages and want to read the laws themselves. Or perhaps the city building department has referred you to a particular city ordinance that covers zoning laws in your neighborhood. Whatever the reason, the research involved in find- ing a specific law or court decision is relatively straightforward. The steps depend on what type of law you seek. City or County Laws You can usually get copies of city or county laws (often called “ordi- nances”) 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. The best place to start is Municipal Codes Online, maintained by the Seattle Public Li- brary at http://www.spl.org/ selectedsites/municode.html. 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 agen- cies (such as the U.S. Department of Transportation or the State Depart- ment of Health) for the purpose of implementing and enforcing statutes. You can find statutes and regula- tions in the library or on the Internet. You can also use legal background materials to point the way to the stat- ute or regulation you seek. L E G A L R E S E A R C H A.5 l l l l l l l l l l l l l l l l l l l l l l l l l l l Finding statutes and regulations at the library. State and federal stat- utes 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, anno- tated statutes or compiled laws. For example, the federal statutes are con- tained in a series called United States Code, and the Vermont statutes are found in a series called Vermont Stat- utes Annotated. (The term “annotated” means that the statutes are accompa- nied by information about their his- tory and court decisions that have in- terpreted them.) Once you’ve located the books you need, search for the specific statute by its citation (if you know it) or by looking up keywords in the index. And 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. Since pocket parts are published only once per year, brand new statutes often have not yet made it to the pocket part. Law libraries subscribe to ser- vices and periodicals that update these books on a more frequent basis than the pocket parts. You can ask the law librarian to point you toward the ma- terials you need. Most federal regulations are pub- lished 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 seek, 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 are harder to find. If you know which agency publishes the regulation you want, call or visit to get copies. 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 Adminis- trative Code, look for loose-leaf manu- als 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. Finding statutes and regulations online. You can find federal statutes, the entire Code of Federal Regulations and most state statutes by visiting Nolo’s Legal Research Center at http://www.nolo.com/research/ index.html. Your best bet for state regulations is FindLaw at http:// www.findlaw.com. FindLaw also of- fers federal statutes and regulations, and state statutes. If you are looking for a brand-new statute online, you may have to search for recently enacted legislation (see be- low), since there is often a delay be- tween the time a statute is passed and the time it is included in the overall compilation of laws. The good legal websites listed earlier in this appendix also offer state and federal statutes. Almost every state maintains its own website for pending and recently enacted legislation. These sites con- N o l o ’ s E n c y c l o p e d i a o f E v e r y d a y L a w A.6 l l l l l l l l l l l l l l l l l l l l l l l l l l l tain not only the most current version of a bill, but also its history. To find your state’s website, see Finding Court and Government Agency Websites, below. Finally, the United States Congress maintains a website at http://thomas.loc.gov that contains all pending federal bills. Using background materials to find statutes and regulations. When looking for a particular statute or regulation (whether it be 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 com- plete set of the federal bankruptcy laws. Even if the background resource does not include the text of the stat- utes or regulations, it will provide citations to the relevant laws and the books in which they are found. Finding Court and Government Agency Websites Many courts and government agencies provide statutes and case law, plus other useful information such as forms, answers to frequently asked questions and downloadable pamphlets on various legal topics. To find to your state’s website, open your browser and type in http://www.state.<your state’s postal code>.us. 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 http:// www.state.ny.us. Nolo’s Legal Research Center (http:// www.nolo.com/research/index.html) provides links to courts across the country and access to small claims court informa- tion for most states. You can also find local, state and federal court websites on the National Center for State Courts’ website at http://www.ncsconline.org. The federal judiciary’s website at http:// www.uscourts.govlists federal court websites. State Case Law State case law consists of the rules established by courts in court deci- sions (or “court opinions”). Court decisions do one of two things. First, courts interpret statutes, regulations and ordinances so that we know how they apply in real-life situations. Sec- ond, courts make rules that are not found in statutes, regulations or ordi- nances. These rules are called the “common law.” Finding state cases in the li- brary. 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 “re- gional reporters.” These volumes con- tain cases from several states in a geo- graphical region. For example, the Atlantic Reporter contains cases from several eastern states, including Dela- ware and Maryland. If you have a case citation, which is the number of the volume and page where the case appears (for example, L E G A L R E S E A R C H A.7 l l l l l l l l l l l l l l l l l l l l l l l l l l l 21 Cal.App.3d 446), you simply lo- cate the correct series of books (in the above example, it would be the Cali- fornia Appellate Reports, 3rd Series), select the appropriate volume (here it’s volume 21) and open the book to the indicated page (in the example, page 446). If you don’t have a citation but 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 par- ties—you can use a “case digest.” Look for the parties’ names in the digest’s Table of Cases. If you don’t know the name of the case or the cita- tion, 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 few years), you may be able to find it for free on the Internet. A good place to start is FindLaw at http:// www.findlaw.com. Also, many state websites now publish recent cases. See Finding Court and Government Agency Websites, above, for informa- tion on how to find your state’s website. If the case is older, you can still find it on the Internet, but you will probably have to pay a private com- pany for access to its database. VersusLaw at http:// www.versusLaw.com maintains an ex- cellent library of older state court cases. You can do unlimited research on VersusLaw for $8.95 per month. You can also get state cases online through the Lexis and Westlaw data- bases. (For more information, see Us- ing Westlaw and Lexis to Do Legal Research on the Web, below.) Federal Case Law Federal case law consists of the rules established by federal courts. Like state cases, you can find federal case law in both the library and on the Web. Finding federal cases in the li- brary. Cases decided by the U.S. Su- preme 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 Re- search Center, available at http:// www.nolo.com/research/index.html, provides U.S. Supreme Court cases decided within the last hundred years. Finding other federal cases on the Web. FindLaw, at http:// www.findlaw.com, contains cases de- cided by the Federal Circuit Courts of Appeal within the last four or five years, some bankruptcy opinions and very recent tax court cases. The Cornell Law School Legal Information N o l o ’ s E n c y c l o p e d i a o f E v e r y d a y L a w A. 8 l l l l l l l l l l l l l l l l l l l l l l l l l l l Institute at http://www.law.cornell.edu provides access to all federal appellate court cases, some District Court cases and some bankruptcy opinions. 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 elec- tronic legal databases which 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, subscrip- tions are pricey. However, both offer some free and some fee-based services to non-subscribers that are both helpful and reasonably priced (between $9 and $10 per document). To find out more about these services, visit Westlaw at http:// www.westlaw.com or Lexis at http:// www.lexis.com. Finding Answers to Specific Legal Questions It’s one thing to track down informa- tion 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 Carolina, and I’ve been charged with second offense drunk driving. My passenger was injured as a result of the accident. What penalties do I face? • My brother is the executor of our parents’ estate, and I don’t like how he’s handling things. What can I do? • Can I run a home school in my state (North Dakota) if I’ve been con- victed of a felony? These are the types of questions that people have traditionally asked lawyers. To answer such questions, you often need to look at all the legal resources we have mentioned thus far. You must also make sure that the law you find is current. If you want to un- dertake this type of legal research on your own, we recommend that you use a comprehensive legal research guide that wallks you through the process step-by-step. (See the list of resources at the end of this appendix.) Here, we can provide just a brief over- view of what you’ll need to do. L E G A L R E S E A R C H A.9 l l l l l l l l l l l l l l l l l l l l l l l l l l l When seeking the answer to a spe- cific 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. Some- times, your question is so basic that the answer is easy to find. But 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, although it can often give you a good idea of what the answer will be. (That’s why lawyers often hem and haw when asked a legal question.) Basic or Common Legal Questions It should be fairly easy to find an an- swer if your legal question is a com- mon one—such as “What is the filing fee for a Chapter 7 bankruptcy?” or “Can the state garnish my wages if I fall behind on child support pay- ments?” These types of questions usu- ally rely on general legal informa- tion—rather than the nuances of your particular circumstances. You should begin your research by consulting one or more of the background resources discussed above. You might focus on organizations, advocacy groups or government agencies that are likely to have the answer you need. For ex- ample, a local tenants’ rights group might provide pamphlets with fre- quently asked questions about evic- tions. Or, the Association of American Retired Persons (AARP) may be able to tell you what the current estate tax rate is. You can often find this kind of information online. Complex Legal Questions If you can’t get an answer to your legal question from a background resource—usually because your ques- tion involves unique facts related to your situation—you’ll need to do more detailed research. But don’t forget what the background materials have taught you. Remember that background resources can give you an important overview of your legal topic and also provide cites to relevant stat- utes and cases. 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 N o l o ’ s E n c y c l o p e d i a o f E v e r y d a y L a w A. 10 l l l l l l l l l l l l l l l l l l l l l l l l l l l • search in case digests by subject area or keywords • 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 on point. (Shepard’s provides a complete list of cases that mention your case.) Making Sure the Law is Up to Date Because 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. Like- wise, 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 li- brary, there are a few things you should do to make sure your research is up to date. • Background Resources. If you use back- ground 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 Shepards’ Citations for Cases. Shepards’ 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. Updating your research on the Web. On the Internet, the updating process is easier, but often more ex- pensive. • Statutes. If you’re checking a state statute, visit your state’s website for current legislative developments. (See Finding Court and Government Agency Websites, above.) If you need federal information, track Congress’ legislative developments through Nolo’s website at http:// www.nolo.com/research/index.html or by visiting http://thomas.loc.gov. You can also get the most recent version of a statute for a fee through Westlaw or Lexis. (See Using Westlaw and Lexis to Do Legal Research on the Web, above.) • Cases. You can check the validity of cases through fee-based services. Try KeyCite at http://www.keycite.com or VersusLaw at http:// www.versuslaw.com. Finding Legal Forms If you must take care of a legal mat- ter, chances are good that you’ll need to use a form of some sort—that is, a pre-formatted document that contains standard (“boilerplate”) language ad- dressing your specific situation. Leases, wills, trusts, sales agreements [...]... driving, 10/ 2-26 buying a new car, 10/ 2-7 buying a used car, 10/ 10-12 driver’s license, 10/ 16-19 drunk driving, 10/ 21-22 expenses for business use, 5/20 financing a purchase, 10/ 12-13 insurance, 10/ 13-16 leasing, 10/ 7 -10 payment problems, 9/12-13 police traffic stops, 10/ 19-20 rental cars, 11/11-16 repossession of car, 9/12-13 traffic accidents, 10/ 23-25 Case law research, A/6-8 Cash advance fees, 9/9 -10. .. “Cooling Off Rule,” 9/5 not available for cars in California, 10/ 4 Copyright Clearinghouse, 7/9 Copyright Office registration information, 7 /10 renewal searches, 7/8 Copyrights, 7/1-12 duration of, 7/3-4 enforcement of, 7 /10- 11 notice for, 7/6-7 ownership of, 7/4-6 patents compared to, 6/14 permissions, obtaining, 7/9 protections, 7/6-9 registration of, 7 /10 trademarks compared to, 8/18 transfer of rights,... questions in a lawsuit and determining the rights and obligations of the opposing parties judgment-proof A term used to describe a person from whom nothing can be collected because he or she has little income and no property, or is protected from collection of the judgment by law for example, a law preventing the collection of exempt property jury A group of people selected to apply the law, as stated... development, 5/6 Buyers Guide, required for used car sales, 10/ 11 l Buying a house, 1/2-9 l Buying a new car, 10/ 2-7 Buying a used car, 10/ 10-12 l Buying goods and services, 9/2-7 l C l California domestic partnership law, 15/16, 16/4 l no “cooling off” period for vehicle sales, 10/ 4 l real estate disclosures, 1/12 refund policy laws, 9/6 l See also State laws I 2 o f E v e r y d a y L a w Canceled flights,... people who inherit the l property l eviction Removal of a tenant from rental property by a law enforcement l officer l evidence The many types of inforl mation presented to a judge or jury designed to convince them of the l truth or falsity of the key facts in a case Evidence may include testimony l of witnesses, documents, photographs, l items of damaged property, governl ment records, videos or laboratory... federal, state, county and municipal courts offer forms on their websites (See Finding Court and Government Agency Websites, above.) Often, these forms are accompanied by instructions and an overview of the relevant law Also, FindLaw at http:/ /www.findlaw.com provides lists of government forms, specific subject matter forms, form collections and indexes Many of these forms are not accompanied by instructions... insurance, 10/ 14 “Comps” and pricing your house, 1/11 Comp time, 4/4 Computer software, patents for, 6/4 Conditions of Carriage, airline tickets, 11/5 Conditions of Contract, airline tickets, 11/4-5 Confirmed hotel reservations, 11/17-18 Consent searches, 18/13 Conservatorships, 13/11-14 Consignment sales, 5/6-7 Consumer protection laws, small business and, 5/6 Consumer Reports, 10/ 3, 10/ 10 Contingency... found in the front or back of a book of laws—such as state statutes—that contains annual changes to the law that are not included in the hardcover version of the book pot trust A trust for children—typically established in a will or living trust—in which the trustee decides how to spend money on each child, taking money out of the trust to meet each child’s specific needs power of attorney A document that... statute A written law passed by Congress or a state legislature and signed into law by the President or a state governor statute of limitations The legally prescribed time limit in which a lawsuit must be filed subpoena A court order that re- quires a witness to appear in court Subpoenas may be issued at the request of a party to a lawsuit Also spelled “subpena.” subpoena duces tecum A type of subpoena,... person against whom a lawsuit is filed In certain states, and in certain types of lawsuits, the defendant is called the respondent defined benefit plan A type of pension plan that pays a definite, predetermined amount of money when the worker retires or becomes disabled The amount received is based on length of service with a particular employer defined contribution plan A type of pension plan that . a specific law or court decision is relatively straightforward. The steps depend on what type of law you seek. City or County Laws You can usually get copies of city or county laws (often called. http:// www .law. indiana.edu/v-lib • American Association of Law Libraries: Legal Research Links http://www.aallnet.org/research • The Library of Congress Guide to Law Online http://loc.gov /law/ guide •. Removal of a tenant from rental property by a law enforcement officer. evidence The many types of infor- mation presented to a judge or jury designed to convince them of the truth or falsity of the