Oran 039 s Dictionary of the Law 3E Oran 039 s Dictionary of the Law

ORAN’S DICTIONARY OF THE LAW 3rd Edition Daniel Oran, J.D Mark Tosti, J.D Contributing Author Africa • Australia • Canada • Denmark • Japan • Mexico • New Zealand • Philippines • Puerto Rico • Singapore • Spain United Kingdom • United States NOTICE TO THE READER Publisher does not warrant or guarantee any of the products described herein or perform any independent analysis in connection with any of the product information contained herein Publisher does not assume, and expressly disclaims, any obligation to obtain and include information other than that provided to it by the manufacturer The reader is notified that this text is an educational tool, not a practice book Since the law is in constant change, no rule or statement of law in this book should be relied upon for any service to any client The reader should always refer to standard legal sources for the current rule or law If legal advice or other expert assistance is required, the services of the appropriate professional should be sought The Publisher makes no representation or warranties of any kind, including but not limited to, the warranties of fitness for particular purpose or merchantability, nor are any such representations implied with respect to the material set forth herein, and the publisher takes no responsibility with respect to such material The publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or part, from the readers’ use of, or reliance upon, this material West Legal Studies Staff: Business Unit Director: Susan Simpfenderfer Executive Acquisitions Editor: Marlene McHugh Pratt Acquisitions Editor: Joan Gill Editorial Assistant: Lisa Flatley Executive Marketing Manager: Donna Lewis Channel Manager: Nigar Hale Executive Production Manager: Wendy Troeger Production Editor: Betty L Dickson Cover Design: Lauri Baram COPYRIGHT © 2000 West Legal Studies is an imprint of Delmar, a division of Thomson Learning The Thomson Learning logo is a registered trademark used herein under license Printed in Canada 10 XXX 05 04 03 02 01 00 99 For more information, contact Delmar, Columbia Circle, PO Box 15015, Albany, NY 12212-0515; or find us on the World Wide Web at http://www.westlegalstudies.com All rights reserved Thomson Learning (c) 2000 The text of this publication, or any part thereof, may not be reproduced or transmitted in any form or by any means, electronics or mechanical, including photocopying, recording, storage in an information retrieval system, or otherwise, without prior permission of the publisher You can request permission to use material from this text through the following phone and fax numbers Phone: 1-800-730-2214; Fax 1-800-730-2215; or visit our Web site at http://www.thomsonrights.com Library of Congress Cataloging-in-Publication Data Oran, Daniel Oran’s Dictionary of the Law / Daniel Oran.—3rd ed p cm Rev ed of: Oran’s dictionary of the Law 2nd ed ©1991 ISBN 0-7668-1742-3 Law United States Dictionaries I Title KF156.069 1999 349.73′03 dc21 99-047650 A bout the Authors Daniel Oran is a graduate of Hamilton College and Yale Law School He has practiced law in Connecticut and the District of Columbia In addition, he has been Assistant Director of the National Paralegal Institute, Professor of Law at Antioch Law School, staff counsel to a member of Congress and the House Appropriations Committee, and president of Foresight, Incorporated He has written an internationally reprinted novel and business text as well as professional and popular articles on paralegal education, psychiatry and law, poverty law, and individual rights Mark Tosti, contributing author, is a graduate of Princeton University, Columbia College, and the Washington College of Law of The American University He practices general business, entertainment, and intellectual property law, and was Professorial Lecturer of Law at The American University In addition, he has been the producer, director, and editor of several feature films iii This Page Intentionally Left Blank C ontents INTRODUCTION ix ACKNOWLEDGMENTS x READING THE DEFINITIONS xi PRONUNCIATION xii THE BASIC 50 xiii DICTIONARY APPENDIX A Where to Go for More Information 533 APPENDIX B Lawyer Talk 535 APPENDIX C Legal Research 539 How to Use This Appendix 539 Concepts in the Law 541 Techniques of Research 548 Sources of the Law 552 Computer-Assisted Legal Research 572 ILLUSTRATIONS Organization of the Federal Government 543 U.S Courts of Appeals and U.S District Courts 545 Cartwheel 549 Sources of the Law 554–5 National Reporter System 559–560 Introduction to a Case in the National Reporter System 561 Example of Legal Subjects Subdivided 564 v This Page Intentionally Left Blank I ntroduction This is a guidebook to a foreign language The language of Law uses mostly English words, but they rarely mean what they seem Many look like everyday English, but have technical definitions totally different from their ordinary uses Some mean several different things, depending on the area of law or business they come from The language of Law also contains more “leftovers” than most languages Hundreds of Latin, Old French, Old English, and obsolete words are still used in their original forms When I wrote my first law dictionary in 1975, I hoped that most of these old words would be long buried by the first decade of the twenty-first century, but like Chucky, Freddy, and assorted vampires and aliens, they just won’t die “Plain language” court rules and federal commissions can’t kill them Things are even worse now A flood of new technologies has created many legal sub-specialties and surprise an explosion of confusing new legal words The dictionary has two main purposes Like any specialized dictionary, it helps the reader to understand and use a technical vocabulary It also tries to help the reader to recognize and discard the many vague words that sound precise and that lawyers often use as if they were precise The book was written with the needs of many different readers in mind: lawyers, law and pre-law students, paralegals, legal secretaries, consumers, businesspersons, and persons in law-related fields such as criminal justice, journalism, social work, and government Because the dictionary covers so many different fields, I need suggestions for additional words and definitions If you have any ideas for the next edition, please send them to the e-mail address listed at the end of the book I have tried to make this guidebook as complete, clear and easy to use as possible Using it, you will be able to understand most contracts, court decisions, laws, and lawyers vii A cknowledgments By this third edition, I’ve accumulated huge debts to people who were willing to invest their time correcting ignorance Some, like Tom Emerson, taught me how to “think like a lawyer.” Others, like Fred Rodell, taught me how to stop writing like one Bill Statsky gave me several excellent ideas for the first edition and has contributed to each succeeding one Sally Determan corrected large portions of the first edition and my wife, Elaine, read the whole thing without mentioning “divorce” out of context Mark Tosti contributed hundreds of hours of hard work and intellectual rigor to the second edition An alphabetical listing of names cannot begin to thank all those who have helped me I hope that everyone has been properly listed, but no one has been properly thanked: Silvia Arrom, Sandy Augliere, Edwin Barrett, Max Baucus, Henry Black, Tom Blackwell, David Boris, Elizabeth Boris, Jay Boris, Katrina Boris, Linda Boris, Maria Boris, Paul Boris, Stephanie Boris, Fred Brandow, Margery Braunstein, Jonah Brown, Beau Brown, Edgar Cahn, Jean Cahn, Karen Clark, Dean Determan, Charles Docter, Henry Docter, Marcie Docter, Ashley Doherty, Marcie Evans, Stanley Field, Joseph Fortenberry, Leslie Foster, Robert Foster, Robert Fracasso, William Fry, Royce Givens, Ronald Greene, Sunny Greene, Lonn Hoklin, Carolyn Hunter, Richard Jackson, Nick Kalis, Barbara Lampe, Martin Lampe, Liz Loeb, Sam Mansfield, Barbara Martin, Rick Martin, Edward Mattison, Steve Merlan, Rachel Mosher, Kirsten Mueller, Edward Oberhofer, Christina Oran, Daniel D Oran, David Oran, Max Oran, Minerva Oran, Karen Pierce, Flavia Ploog, Victoria Powell, Connie Rappaport, Steve Rappaport, Bonnie Rathjen, Charles Reich, Karen Reivich, David Robinson, Ruth Robinson, Sandra Robinson, Susan Sands, Peter Schulman, Martin Selegman, Gary Selers, Jay Shafritz, Allan Smith, Carl Smith, Helene Smith, Joel Smith, Josh Smith, Rose Smith, John Stein, Doris Surick, Herman Surick, Stuart Surick, Stuart R Surick, Charles Todd, Cindy M Tosti, Marian Tosti, Thomas Weck, Dorothy Weitzman, and Thomas Willging Many thanks also go to the publishing team who produced this edition: Joan Gill, Betty Dickson, Lisa Flatley, Mary Jo Graham, Dana Wilson, Denise Sadler, and Lori Kueter Not on the list are the anonymous reviewers who told it straight and the many people who wrote to suggest additions and corrections to prior editions This third edition would not have been the same without their help viii R eading the Definitions Finding the Word Skim the area near where the word should be The word you want may be printed in the definition of a nearby word Also, look up both halves of a compound word or two-word phrase The word you want may be in either place Boldface If a word in a definition is in boldface, it is defined in the dictionary You can look it up if you need it If you are also directed to “see that word,” you must understand the boldface word in order to understand the definition Italics Italics are used to emphasize a word or to illustrate its use Ordinary English Everyday English definitions of legal words are omitted unless needed to avoid confusion ix 566 Appendix C into related fields In this respect, A.L.R (with its various indexes and digests) is a combination of case reporter, digest, and encyclopedia It is cross-referenced with the American Jurisprudence (Am Jur.) encyclopedia and many other West Group publications Recent A.L.R volumes begin each annotation with sections called scope (what is covered generally), related matters (where to look for related topics not covered), summary (a brief review of the legal concepts), practice pointers (a list of information on pleading, evidence, and tactics), and an index of points covered The bulk of the annotation is a detailed discussion of the caselaw with complete statutory and other references How Do You Use It? American Law Reports includes the following series of books: A.L.R (state and federal cases from 1919–1948), A.L.R 2d (state and federal 1948–1965), A.L.R 3d (state and federal 1965–1969, state only 1969–1980), A.L.R 4th (state only, 1980–1990), A.L.R 5th (state only 1990 on) and A.L.R Federal (federal only, 1969 on) Volumes are updated on different schedules You will occasionally be referred directly from a citator, treatise, or encyclopedia to the one A.L.R lead case that gives you everything you need Otherwise, start by using the Index to Annotations (which cumulates individual indexes to A.L.R 2d, 3d, 4th, 5th, and Federal ) It classifies thousands of topics legally and factually The Index also has a table of statutes and regulations cited, a “history table” that shows how each annotation has been updated or replaced, and pocket parts that must be checked for the most recent entries in A.L.R 5th and Federal If the Index yields no results, you can try the Digest, which classifies annotations in A.L.R 3d, 4th, 5th, and Federal into a few hundred legal topics Finally, once you have material you need, make sure to update it by checking separate volumes called Later Case Service for A.L.R 2d, and by checking the pocket parts in each volume of A.L.R 3d, 4th, 5th, and Federal This can be crucial Also, A.L.R is still growing, with new indexes and services coming out all the time Citators: Shepard’s, KeyCite, etc What Are They? A citator is a set of books or a computerized database used to determine the current validity of a legal authority (such as a case, statute, regulation, or law review article) by listing the places that it has been cited (mentioned) Citators are a good way to find relevant authority and are the only way to validate your research Citators confirm that the statutes you quote are still in force and unchanged, that the cases you rely on are still good precedent and the best available to prove your point, and Legal Research 567 that you have found the most relevant material You should never formally use a case, statute, or other authority without validating it with a citator On a complex, time-consuming project, you probably shouldn’t even bother to take notes on a long case without cite-checking it first Until recently, all comprehensive legal citators came printed on paper from Shepard’s, so all cite-checking was called Shepardizing Shepardizing involves reading tiny symbols with exhausting care to follow long citation trails though countless books and supplementary pamphlets Computerized cite-checking has lightened this burden greatly for those with access to use it This appendix uses Shepardizing a case to illustrate paper-based cite-checking (Shepards is also available on CD-ROM and online through LEXIS), and uses KeyCite to describe computerized citechecking (KeyCite is available on CD-ROM and through WESTLAW) Shepardizing a Case through Books and Pamphlets A typical listing under a case in a Shepard’s citator will give parallel citations (other places the same case has been printed), the history of the case (has it been appealed, overruled, etc.?), the treatment of the case (other cases where it has been followed, distinguished, or otherwise mentioned), and a list of the law journal articles, annotations, etc that have analyzed or mentioned the case A typical “simple” Shepardizing might go like this: You find Case A, which is very similar to your research problem and says exactly what you want to hear (good) You Shepardize that case and find that it was not overruled (good), was followed in two later cases (good), and was distinguished in three later cases (bad) You read and Shepardize the cases that followed Case A and find nothing useful (bad) You read and Shepardize the cases that distinguished Case A and find that two of them are very different from your original research problem and, besides, nobody else mentions them (good) But the third, Case B, is very similar (bad) You Shepardize Case B and find that it was overruled (good) You have a case worth citing Here is how to deal with the books: A set of Shepard’s citators may cover more than one set of case reporters, so you may have to look around a bit First, make sure that you have found a complete set of citator main volumes and supplements You this by getting the latest pamphlet (usually no more than a month old) and reading the box on the cover, which lists all volumes and supplements in current use If your set is incomplete, your research is suspect and, perhaps, worthless Second, use all the volumes and check each one carefully for citations Continue tracking down each chain of citations until you come to the end Shepardizing is repetitive, so it’s easy to accidently skip a crucial book, flip past a crucial page, or skim by a crucial cite Be methodical Also, 568 Appendix C Shepard’s citators use dozens of symbols and abbreviations of their own Be sure to check the front of the volume for a table or explanation of any you don’t know to avoid missing or misinterpreting key information Third, make sure you get all the information provided For example, if one of the citations in the list is j224NW2d11231, you know that the case was mentioned on page 231 of volume 224 of the Northwest Reporter, Second Series You also know from the “j” that the case was mentioned in a dissent (because you checked what “j” meant in the front of the book) And you know from the raised “11” that the judge in the later case discussed the specific legal point mentioned in the eleventh summarizing introductory headnote to the earlier case And you are ready to beg for a computerized citator KeyCite, a Computerized Citator Computerized citators (such as KeyCite on WESTLAW or Shepard’s on LEXIS) contain the same general types of information as Shepard’s books, and you follow the same general citation trails, but the process couldn’t be more different With KeyCite, for example, you simply type in a case citation and the computer displays a list of citing materials, with most of the information in plain English rather than abbreviations and symbols You can go directly from one citation to another You can custom tailor the type of information displayed, choosing, for example, to see only those cases that have a strong negative impact on the cited case Also, each citing case is given one to four stars to show how thoroughly it discusses the cited case KeyCite is also integrated with the rest of the WESTLAW system of case reporters, Key Number Digests, statute and regulation databases, law journals, ALR, etc If, for example, one of the citing references given is an ALR annotation, you can go directly to that annotation if you are linked to it on-line This allows you to “cruise” back and forth among various types of material very quickly (See Computer-Assisted Legal Research for more information.) Legal Encyclopedias What Is in Them? Legal encyclopedias, like general encyclopedias, are multivolume information sets arranged alphabetically by topic They usually have extensive cross-referencing, so they are a good way to get a reasonably quick general handle on a legal topic, especially if you need background material or initial leads to major cases and statutes They are not, however, good books to quote as authoritative sources of law The two large national legal encyclopedias are Corpus Juris Secundum (CJS) and American Jurisprudence, Second (Am Jur 2d) CJS is crossreferenced with Key Number Digests and the National Reporter System Legal Research 569 Am Jur 2d is cross-referenced with American Law Reports and, increasingly, with the Key Number Digests and the National Reporter System Some states also have state legal encyclopedias How Do You Use Them? CJS and Am Jur 2d are available on WESTLAW, integrated with the bulk of WESTLAW’s materials (See Computer-Assisted Legal Research for more information.) The paper versions have huge general index volumes at the end of the series Use these indexes fully Be creative Then, even if the general indexes lead you straight to a topic or section within a subject volume, not bypass the subject and analysis outlines They may lead you to additional material (Once you reach the right topic sections, not forget to check the pocket part for updates.) Other Important Secondary Sources Words and Phrases Words and Phrases (West Group) is a set of books plus supplements that list alphabetically thousands of legal, technical, and everyday words Each word or phrase is followed by short summaries of how it was defined by judges in various cases Words and Phrases is large, but easy to use (see Appendix A of this dictionary for more information) Looseleaf Services A looseleaf service provides information on one specialized area of the law (such as tax law, family law, or even medical devices law), on one court, or on more general legal topics Looseleaf services often send out supplements every week, which either add to or replace older sections They usually include relevant statutory law, regulations, caselaw, practical advice, and news about major activities in the field Four large looseleaf publishers are Commerce Clearing House (CCH), Bureau of National Affairs (BNA), Prentice-Hall (PH), and Matthew Bender (MB) Treatises and Law Journal/Law Review Articles Treatises are individual books or small sets written for lawyers and law students (Treatises for students are sometimes called hornbooks.) They cover specialized areas of the law, such as contracts or federal practice You can find treatises through your law library’s catalog Law Review and Law Journal articles (plus shorter “notes” and “comments”) analyze legal issues They are usually written by law professors, practicing lawyers, or top law students The footnotes can lead to important cases You can find these articles through the Index to Legal Periodicals, the Current Law Index, or the on-line Legal Resources Index Form Books, Practice Books, and Procedure Books Form books are collections of sample forms that have been used in legal practice (rental agreements, wills, pleadings, etc.) They often have blanks to be filled in 570 Appendix C The larger form books annotate the forms with extensive information on the statutes they are based on, case decisions interpreting them, and practical advice These forms, however, must always be tailored to the individual legal situation Thousands of legal forms are available on-line and on CD-ROMs, ready to be custom-tailored and filled in on your computer Practice and procedure books (sometimes also called form books) contain the detailed technical rules by which each system of courts, and each individual court, operates Many are annotated with case decisions and practical examples Attempting to practice before a court without a knowledge of these rules is embarrassing at best Books by Advocacy Groups and General Publishers Organizations such as the ACLU, HALT, and others publish paperbacks and pamphlets on areas of the law important to nonlawyers These include such things as probate law, mental patients’ rights, etc Publications from trade associations, consumer groups, other advocacy organizations, and general publishers are often found in bookstores and general libraries They should be relied on for general information only Books on Doing Legal Research You may already know the basics of legal research, or you may want to start off with more detailed information Here are some different types of books that may fit your knowledge level and learning style: Books on a Specific Jurisdiction’s Materials These include books on finding and using the law of most of the major states and the federal government If much of your work depends on the law of one jurisdiction, one of these books (such as West’s Pennsylvania Law Finder) may be your fastest entry point Books and Materials for Paralegals and Other Nonlawyers There are several “how to legal research” books in this category (such as Statsky’s Legal Research and Writing: Some Starting Points) as well as sections in more general works (such as the N.A.L.A Manual for Legal Assistants) In addition, some commercial publishers (such as Nolo Press) and companies that teach individuals how to handle their own simple legal work tailor their legal materials for nonlawyer use Many of these books and materials include information on computer-assisted legal research Books for Lawyers and Law Students Nonlawyers can use many of these books effectively They range from the handy (such as Cohen and Olson’s Legal Research in a Nutshell) to the huge (such as Jacobson, Mersky, and Dunn’s Fundamentals of Legal Research) If you can’t “test drive” your Legal Research 571 choice in a law library, compare a few in a law school bookstore by checking how the books find and use something you’ve already found and used on a prior research project Books on Computer-Assisted Legal Research These range from free servicespecific materials (such as those that accompany subscriptions to WESTLAW and LEXIS) to books that include long lists of law-related Internet sites Since specific research techniques and sites change rapidly, consider any book a short-term investment in getting up to speed quickly, and select a very recent copyright date (The section starting on page 572 concentrates on basic techniques and mental approaches to computer-assisted research.) Law Libraries If you are familiar with, and comfortable in, law libraries, you not need this section If, however, you imagine a law library as a huge, dark cave, filled with dangerous ambiguities lurking to embarrass you, read on How you find a law library? Most small law firms have access to computer-assisted legal research and enough books to handle many specialized problems and simple problems of a broader nature Large law libraries exist in large law offices, bar associations, courthouses, and administrative agencies They can handle almost any research problem, but not always in the most convenient way Extensive law libraries exist in most law schools, some government agencies and courthouses, and a few general libraries How you get in? First, call around Some are open to the public, especially some courthouse and law school libraries All “depository libraries” must allow public access to materials (such as the Code of Federal Regulations) that they get free from the federal government Some law librarians will bend policies, even ignore “no public entrance” signs, if you begin by asking a research question Before you go Do the preliminary fact analysis and problem definition before you go, not in detail, but enough to know why you need the library (see Know Your Facts, Know Your Objectives, and Create a Word List sections) Read the Concepts and Sources of the Law sections of this appendix, but not bother reading the “How Do You Use It?” parts before you have the books in hand You’re in Now what? Take time to orient yourself, with a library map if needed Ask for any free materials on library or source use If necessary, ask the librarian for the location of the books you need and about computer and copier use Don’t hide what you don’t know Be effusive with thanks 572 Appendix C Then, before you start using the library’s materials and computer resources, briefly review why you are there and what you hope to accomplish If you are using law books and other “paper-based” materials, think about some of the “rules for library use” from the HALT pamphlet Using a Law Library (HALT, Inc., Wash., D.C.): 1) Write down complete source information before you take notes, including date, volume, section, and page 2) Read all prefaces and content descriptions 3) Put a bookmark in abbreviation tables 4) When you see a reference you might want, make a note about it 5) Take breaks before you get tired 6) Do not rush or take shortcuts 7) Do not hoard books Take only what you need; find out library policy on reshelving and follow it If you are using the library’s computer, see the Computer-Assisted Legal Research section that follows here Computer-Assisted Legal Research Much legal research is still done from books, but it is often done more quickly, easily, and accurately by accessing searchable databases for the materials discussed earlier in this appendix The three main ways to access these databases are: Commercial legal database services such as WESTLAW and LEXIS A researcher typically connects to these services through a computer and either takes notes while searching the databases or transfers documents stored on a database to the researcher’s computer or printer These services are the most effective, but expensive, ways to most legal research (This Appendix uses WESTLAW as its primary example, but includes LEXIS’s similarities and differences.) The Internet, especially the World Wide Web This is a vast and quickly changing storehouse of legal and nonlegal information that can be reached from any computer with Internet access The Appendix gives you a general approach to using this confusing, but essential, resource CD-ROMs and other storage media These are produced by commercial database services, government, and nonprofit organizations They require no remote computer connection because they are used on-site They contain the same type of information as in #1, and can be searched by the same techniques, so this Appendix does not discuss them (See page 579 for a Website that lists available CD-ROMS.) Legal Research 573 Commercial Legal Database Services: WESTLAW and LEXIS What Is in Them? WESTLAW contains the full text of many different types of documents: cases from the National Reporter System, federal and state statutes and administrative regulations and decisions, Key Number digests and encyclopedias, legal texts and periodicals, ALR and KeyCite, and a wide range of articles from looseleaf services and nonlegal newsletters and periodicals LEXIS, while less comprehensive and integrated, contains many of the same materials and, where they differ, provides similar services that use their products (such as Shepard’s Citators) rather than WESTLAW’s WESTLAW and LEXIS also provide direct access to other companies’ information services All of these documents and services can be searched using the same general techniques and can be “downloaded” to your computer or printer Once you learn how to use WESTLAW or LEXIS, the computer can search millions of words in seconds to find the documents you need You can focus your research broadly or narrowly, and conduct searches by legal or nonlegal subject, by terms you choose (such as product names or persons) in the relationship you specify, and, in WESTLAW, by a specific West Digest Topic or Key Number The computer will then give you a list of documents that meet the criteria you’ve specified You can display these documents in full text or by a specific part You can then take a few notes from the screen, print or “download” text, or print a list to find the documents in the law library Here is an example of how to use computer-assisted research to conduct your legal search: ■ ■ Suppose you need to know whether a U.S district court in the First Circuit is likely to overturn a decision by the Immigration and Naturalization Service regarding deportation Courts will usually this only when the agency’s decision is not based on substantial evidence But what is “substantial evidence”? A general definition does no good; you need to know how the U.S Court of Appeals for the First Circuit defined this term in cases as similar to yours as possible How you find these cases? Library research might require wading through so many books that you are tempted to rely on general definitions and quotes from cases “sort of” like yours WESTLAW and LEXIS can, however, retrieve any case from the First Circuit using the words substantial evidence Because a large number of cases contain 574 Appendix C these words, searching additional descriptive terms is better You want the cases retrieved to also contain the word deportation (as well as deport, deported or deporting) A WESTLAW or LEXIS search can be refined further by searching for these terms only in synopsis and digest paragraphs (summaries of the main legal points and case disposition) Computer-assisted research is sometimes the best way to “creative” legal research, such as finding persuasive judicial statements not easily found by traditional methods Here is an example of how a lawyer conducted a creative search: ■ ■ ■ ■ ■ ■ When a wily businessman discovered some proposed changes in a federal agency’s regulations, he tried to rush through some purchases and sales before the new regulations took effect The sales took longer than expected and he was stuck with a huge pile of goods The federal agency refused to grant him an exception to the new regs, so the businessman sued A lawyer who represented people who wanted to prevent the businessman from selling the goods needed a way to make a case against an exception based on what looked like either hard luck or mere stupidity The law books are full of cases in which persons who used trickery were prevented from winning in court, but this businessman had not clearly done anything sneaky There might not be any obvious legal phrases to lead the lawyer to the cases he needed, but he knew there were some good nonlegal ideas floating around that judges might have used in the past So he searched WESTLAW for any cases in his jurisdiction in which the terms chestnut, fire, and cats-paw appeared Why? To retrieve every judge’s opinion that used phrases from the old story about the monkey who convinced a cat to pull hot chestnuts out of a fire WESTLAW retrieved several cases in which a judge essentially said, “The Federal Courts are not in the business of being used as a cats-paw to pull a private businessman’s chestnuts out of the fire.” Not a person to rely on one precedent, the lawyer then searched for the combined terms orphan, mercy, murder, and court Can you guess why? The computer quickly scanned millions of words and produced several cases in which a judge said, “This reminds me of a man Legal Research 575 who murders his parents and throws himself on the mercy of the court as an orphan.” One of the cases was quite similar to the lawyer’s To find that case by traditional library research he might as well have thrown darts at a wall of books There are two other major advantages of commercial legal databases First, they have many legal decisions that are not collected or distributed any other way Database services also make it much easier to verify a case’s current validity by tracing the course of litigation and how the case is mentioned in later cases and other authorities How to Use Them Connect with the WESTLAW or LEXIS system, identify yourself by a user number and password, and identify your research However, you should take your first research step before you use the computer Before you begin, you should consider whether computer-assisted legal research is the most cost-effective method for your specific research issue You should also define your issue and know what you want to find (For more on this, review the Concepts in the Law and Techniques of Research sections at the start of this appendix.) For example, before you start paying for connect time you should consider the following: Is your research limited to a specific jurisdiction or type of court? What key terms, including synonyms, express your issue? Does your issue involve technical legal terms? In what relationship you want your terms to appear in the documents retrieved? Should they be in the same sentence or the same paragraph? Once you know the answers to these questions, you can start your electronic research and maximize your efforts To start your research, select the information source you want to search You might choose, for example, the database containing cases decided by the U.S Supreme Court This is abbreviated sct on WESTLAW Now you are ready to enter a search request or query Suppose you want to know what the Supreme Court has said about attorney fees in bankruptcy cases One way would be to request all Supreme Court cases where the words attorney, fees, and bankruptcy appear in the same sentence To search WESTLAW or LEXIS for these three terms in the same sentence, you would type attorney /s fee /s bankrupt! In this search the /s connector specifies that these terms must appear in the same sentence The exclamation point will retrieve any term that contains the root bankrupt Searching the term bankrupt! retrieves all of the following: bankrupt, bankruptcy, and bankrupting But you may still miss relevant cases Your search does not include synonyms, such as lawyer, counsel, or costs, that may be used in court 576 Appendix C opinions Always include synonyms; computer-assisted legal research systems are very literal They not assume you want lawyer just because you searched for attorney A better WESTLAW search is attorney lawyer counsel /s fee cost /s bankrupt! (On LEXIS, you would need to say attorney or lawyer or counsel /s fee or cost /s bankrupt!) Plurals and possessives are retrieved automatically If your search is too narrow or too broad, you can modify it in several ways To broaden your search, use a broader “connector” between your search terms For example, use /p instead of /s to request that your terms be in the same paragraph instead of the same sentence or use a “but not” connector (%) to exclude a term (On LEXIS, you would use the phrase and not instead of the % sign.) These are only a few of the connectors you can use to specify the relationship between the terms you search If your search is too narrow, check your database Did you really want cases from all federal courts, not just the Supreme Court? If so, run your search again in the appropriate database Also, make sure you are searching all important terms that could be used to describe your issue If you are still stuck, try a “natural language” search, as described later This is only one small example of how to computer-assisted legal research For example, in addition to the method described above, you can also search for specific phrases (On WESTLAW, you must put the phrase in quotation marks, but on LEXIS you just type the phrase.) Use phrase searching when your terms always appear in the same order with no other intervening terms Technical terms such as habeas corpus and ex post facto are good examples You can also limit your search to a specific field, such as a case synopsis You can even search for cases decided by a particular judge It is also possible to a Key Number Digest search within the WESTLAW system Key numbers categorize and index thousands of legal topics, with subtopics (then sub-subtopics) adding more numbers to the end of the identifying number (See Key Number Digests on page 563 for basic information.) The computer-assisted version is faster, more flexible, and more thorough In the search request 48ak107(2), 48a is the West digest topic, k replaces the key symbol, , and 107(2) is the key number A search within the topic 48a retrieves every case found within the topic; a search within 48ak102 retrieves every case found within the key number 102 under topic 48a; and a search within 48ak107(2) retrieves only cases found within the subclassified key number 107(2) under topic 48a If you find too many irrelevant cases, search within a subcategorized key number For too few relevant cases, search within a main key number or the whole key topic You can also limit your search to a digest for your geographical region or, sometimes, for your specific legal subject Key Number Digests can also be searched for specific words within a specific key topic or key number by using the techniques described earlier in this section Legal Research 577 Finally, both WESTLAW and LEXIS allow you to an entirely different type of search within the same databases: a “natural language” or “plain English” search You can ask a question such as “What is the statute of limitations in a personal injury action?” or make a request such as “Give me all the cases interpreting the statute of limitations in personal injury actions.” This may not seem like “plain English” to most people, but the computer must first “translate” the request into the type of search discussed earlier It decides which are the important words and looks for cases with the words near each other, looks for other forms of the words and for synonyms, and generally performs many of the “thinking” tasks you perform when doing a search with terms and connecting symbols A natural language search may find a general answer quickly, and it may help you to broaden your search thinking, but it is not a substitute for a more precise search You may want to rephrase the question more clearly and concisely, restrict the question in ways supplied by the computer (such as to a specific range of dates), add related concepts from the computer’s thesaurus, or switch to a terms and connectors search As these search programs become more sophisticated, an interactive series of questions may make them even more useful Computer-assisted legal research systems such as WESTLAW and LEXIS provide extensive on-line and phone customer assistance and written support materials Because services, databases, and commands change, you will need to consult these research systems directly for specific questions The Internet: Especially the World Wide Web What Is In It? The Internet can give you a huge amount of the world’s collected information, assuming that you can find it, absorb it, and believe it This information includes the text of many, but not all, cases, statutes, and administrative materials from federal, state, local, and foreign jurisdictions; legal periodicals, legal practice-area materials, legal forms, and law directories; massive amounts of information about government agencies, businesses, and nonprofit organizations; financial, scientific, medical, historical, geographical, and other information on almost every topic; plus news and opinions, both expert and far from expert Where Is It Located? The Internet is a growing and changing network of computer networks Information flows from computer to computer through millions of constantly different pathways Some of this information sits in computers accessible to users through the Internet These computers, called 578 Appendix C Legal Research 578 “servers,” contain the computer-assisted legal research systems such as WESTLAW discussed in the prior section, plus the document, linking, search, and listserv sites discussed here All of this is “on the Internet,” as is your personal computer while it is connected to another computer outside its own locally wired group Much of the information on the Internet is available on a “system within the system” called the World Wide Web The Web uses hypertext to directly link information in different documents stored at different sites This means that you not need to know where information is stored, merely how to get to it, and can often examine the information through the same sorts of word and phrase searches used on WESTLAW and LEXIS, but for free The text of the U.S Constitution, for example, is stored on many Web sites, and is accessible and “searchable” through many more How to Use It ■ ■ ■ ■ ■ Start learning the Internet with the subjects you know best or the work you most often After an initial “surf” around the legal websites to see the range of things available, pick a familiar topic and dig in You will learn and be productive faster, and develop a “built-in filter” that helps reject unreliable sites Search narrowly if you know exactly what you want Use as many descriptive words as possible Use restrictive connectors (such as BUT NOT) to eliminate words and concepts If permitted, use them to limit the search to words in the same phrase or sentence Search broadly unless you know exactly what you want Use a search engine from the list below, use a search-word expansion technique from Finding the Law on page 549 to create many different searches, and don’t use restrictive connectors If available, try a “natural language search” that uses complete sentences “Bookmark” all of your most useful sites Add Internet addresses to your permanent collection (often called “Favorites”) on the computer You will otherwise forget many good ones or lose them when the link you used to get there disappears Get help when stuck Help comes in many forms Search engines have “help” areas that explain their techniques Someone on a listserv (a site Legal Research 579 where computer users answer each other’s questions on specific topics) may have exactly what you need Friends and co-workers may have faced the same problem Legal Resource Web Sites NOTE: The web sites listed here are illustrative only because sites often come and go, improve and fall behind, change names and net addresses, and generally refuse to behave properly Also, one-subject sites are omitted to save space because hundreds of useful ones are available through many of the comprehensive sites listed below Most of these sites have a master screen with “buttons” that let you first choose a type of information, then specific information within the type Many have built-in “search engines” that let you type in a request for information Even these sites were chosen from among many more good ones A few hours “surfing” around the links of any of these will introduce you to the amazing variety of material that is easily available ABANet (http://www.abanet.org) The American Bar Association’s many activities AccountingWEB (http://www.acountingweb.co.uk) Links to accounting information Chicago-Kent Law School (http://www.kentlaw.edu/legal_resources) Comprehensive links to legal information Cornell Law School (http://www.law.cornell.edu) Comprehensive links to legal information Dogpile (http://dogpile.com) A “metasearch” engine that searches other search engines for general information Findlaw (http://www.findlaw.com) Comprehensive links to legal information plus Lawcrawler, a good search engine Glen S Bacal (http://www.azlink.com/lawyers/hotlist.html) A lawyer’s selection of good sites Google (http://www.google.com) A good general search engine HotBot (http://www.hotbot.com) A good general search engine Information Publishing (http://www.inforsourcepub.com) A directory of available CD-ROMs Infoseek (http://www.infoseek.com) A good general search engine Internet Legal Resources (http://www.ilrg.com/gov.html) Comprehensive links to legal information plus Lawrunner, a good search engine 580 Appendix C Katsuey’s Legal Links (http://www.katsui.com) A paralegal’s selection of good sites LawGuru (http://www.lawguru.com) Links to state laws and more ‘Lectric Law Library (http://www.lectlaw.com/ref.html) Comprehensive, quirky links to legal information Legal News Network (http://www.legalnewsnetwork.com) A site with late-breaking legal news LEXIS Counsel Connect (http://www.counsel.com) The free part of LEXIS’s legal information National Federation of Paralegal Associations (http://www.paralegals.org) Comprehensive links to legal information Newspapers On-line (http://www.newspapers.com) A site with links to thousands of newspapers Northern Light (http://www.northernlight.com) A good general search engine Ohio Northern University (http://eugene.onu.edu/internet/default.htm) Comprehensive links to legal information Tax Prophet (http://www.taxprophet.com) Information on taxes and links to tax-related sites Villanova Law School (http://www.law.vill.edu) Links to federal and state government sites West Legal Directory (http://www.lawoffice.com) The free part of WEST’s legal information Yahoo (http://www.yahoo.com) A good general search engine A Final Note While you’re on the Internet, please let me know what you think about this dictionary I’d especially like to know if anything is dead wrong or if you failed to find an important word Nothing on the Internet remains constant, but the odds are that I am still at home at danoran@rcn.com, lurking virtually at danoran@aya.yale.edu, or in touch through the publisher at info@delmar.com