Once a law student has conducted their research for their open-research brief, they should do the following:
You may ask your professor “How many cases do I need?” However, there is no magic number of cases, but there is a core group of essential cases and a larger universe of potentially useful cases. Your professor expects you to find the essential cases and additional information that will help bolster your point. Law students usually find too much information so they must figure out when to stop and when to start analyzing.
The best mandatory authority is from an appellate court in the relevant jurisdiction, and recent, involving facts similar to those of your assignment.
Find relevant cases with favorable and unfavorable outcomes. The purpose of a memo is to provide objective, balanced analysis of a legal issue or claim, giving you the opportunity to view a problem from all sides and to present both analysis and counter-analysis. To facilitate this goal, many memo assignments are based on essential cases that have varied outcomes. These outcomes are driven by the facts, which may be more or less analogous to yours. If all the cases you have found are favorable to your client’s position, you may have missed something along the way.
There are many paths through research. If you are doing things right, they all lead to the same place. Using multiple research techniques provides a check on the process and increases the chances that you have found what you need. For example, you might find the same case(s) in secondary sources, by digesting, in annotations to a statute for a statutory issue, by online key number searches, etc. Law students who have tried several techniques and have the same results are likely done with their research.
Find “good law.” This means the cases you are relying on have not been reversed or overturned. Remember that a case that is appealed will be reversed or affirmed. An unrelated case may overturn the holding of an older case on the same issue. Check the subsequent history of every case you are relying on in your memo. Citing an overturned opinion will hurt your grade. If you are actually representing a client, the consequences will be greater: malpractice and possible loss of your job. Keep a very strict eye on trial court opinions, such as those of the Federal District Courts, because they are the most likely to be appealed.
Find the most recent cases that cite your key cases. In addition to making sure your cases have not been reversed or overturned, follow the trail of cases that cite your cases. Theoretically, this could lead to a never-ending daisy chain of citations. Realistically, the cases that matter are those that cite your case for the relevant issue and that are (1) mandatory, (2) recent, and/or (3) provide detailed or different analysis on similar facts.
Use persuasive authority. Persuasive authority refers to cases from jurisdictions other than your own, or decisions of a trial court in your jurisdiction. The best persuasive authority is recent and involves facts similar to yours. Persuasive authority is crucial if there is no mandatory authority on your issue.
Avoid weak persuasive authority. If you found a case from the 1970s in Florida that interprets a statute phrased similarly to a California law you are using, learn how to let it go.
Consider the very first case that articulates a rule and can deepen your understanding of the law and its development. Finding a case like this demonstrates the thoroughness of your research, and is especially valuable if it is from the highest court in your state – or SCOTUS.
Throw out the old cases and keep the new ones. If you found two cases from your jurisdiction that apply the same rule to similar facts and reach the same outcome, one from 1940 and one from 1980, keep the one from 1980.
Label the cases that have been reversed or overturned clearly so you do not use them by mistake.
Hold on to secondary sources for reference, but do not cite them in your memo. They helped you find and understand the law, but they are only secondary.
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