Internet research for bookworms: accurate and thorough legal research can be done online - and without charge - if you know where to look.
There's hope for you yet. With a little guidance, you can determine what you are looking for and where to find it.
First, ask yourself: What do I need? Cases? Statutes? Treatises? Depositions? Before you can figure out how to find something on the Web, you need to define what you're seeking.
Example: You receive phone calls from two potential clients. Client 1 took leave from his job to care for his ailing mother. His mother died, and he told his employer he needed more leave to attend the funeral in another state. He was gone for an additional two weeks. When Client 1 returned to his job, he was fired.
Client 2's father recently passed away, and she became depressed. She sought counseling and was diagnosed with depressive disorder. She became unable to go to work and eventually told her supervisor she would need a month or two of leave. Shortly thereafter, she was fired.
Before accepting these cases, you need to determine whether the potential clients have any remedies. In particular, you wonder whether they can assert any rights under the Family and Medical Leave Act (FMLA). Assuming the answer is yes, you will also need tools to develop the case--pleadings and information about potential expert witnesses.
What is needed first? A copy of the statute, then some case law interpreting the act--in other words, the primary law. Or you might decide to begin with secondary sources.
What is online? At what cost?
Next, determine what you are willing to pay tot this information. Westlaw and Lexis provide state-of-the-art legal research tools, for a price.
Before rejecting these providers as too expensive, consider that both companies market products designed for the sole or small-firm practitioner for a fixed monthly rate. Both WestlawPro and lexisONE provide plans, including databases geared toward a particular state or practice area. Lexis's product offers additional features: After registering, attorneys can retrieve U.S. Supreme Court cases dating from 1790 and federal and state cases decided after January 1,1998, at no charge; for access to lexisONE research packages, they call pay a per-day charge. Both Lexis and Westlaw allow attorneys access to legal documents on a pay-as-you-go basis, using a credit card.
But before you commit to a fee-based research plan, consider what is on the Internet for free.
FindLaw (www.findlaw.com) features links to other free Web sites with primary and secondary leg-al materials. It's helpful as a jumping-off point for finding the database containing a particular type of legal material.
To use FindLaw, you have to "drill down" from a higher-level link (for example, "U.S. Laws: Cases & Codes") to intermediate levels ("U.S. State Laws--Cases, Codes, Statutes, and Regulations," "New York"), where you find the link to the actual database you will search ("New York Court of Appeals Opinions"). There maybe only one appropriate database, or there may be more, maintained by different information providers. For example, there are three under "New York Court of Appeals Opinions": one maintained by FindLaw, another maintained by the New York court system, and the third maintained by Cornell Law School.
There's no charge to use FindLaw, but your search options are limited: Depending on the database, you may be able to search by only case name or docket number. Only the sites for the federal appeals courts allow some lull-text searching using keywords (for example, "FMLA"). Another drawback is die scope of these databases, which is indicated on the search screen. The federal circuit courts' databases on FindLaw include recent cases only (usually from 1995 or later).
An alternative to FindLaw is the Legal Information Institute, which is run by Cornell University Law School (www.law. cornell.edu). It features the full text of the U.S. Code, searchable by citation or keyword, as well as decisions of the U.S. Supreme Court and the federal courts of appeals. A third source of the U.S. Code, also searchable by keyword, is maintained by the U,S. House of Representatives Law Revision Counsel (uscode. house.gov). On this site, the page showing a particular section of the code includes arrows that let you scroll forward or back by code pages.
Statutes available on these sites are not annotated; that is, yon will not see the "Notes of Decisions" found in the print editions and in the annotated codes provided by Lexis and Westlaw.
As with traditional legal research, often the quickest way to find the answer to a question is not to consult the primary source--at least, not at first--but to start with a secondary source.
Google. This popular search engine (www.google.com) will direct you to useful Web sites where attorneys and other experts often share their knowledge for free. Keep in mind:
Google searches the entire Internet. Unlike Lexis, Westlaw, or FindLaw, Google is not limited to pages with a legal theme, so general search terms will probably yield many junk pages. Also, unlike Lexis or Westlaw, Google does not monitor the Web to ensure that the information posted there is current or accurate. Let the searcher beware.
Google assumes you ,really want every search term to appear in your results. If you enter a term on Google's search screen, you will find only pages that include the term. For example, if you search using "fired mid FMLA," you will not retrieve pages where the word "terminated" was used and "fired" was not. Therefore, you might want to start with a broad search, and then use the Advanced Search feature (found to the right of the Google search box or at the top of each page of results) to narrow your results. For example, the word OR, in capital letters, can be used to specify alternatives, such as "fired OR terminated."
Returning to the case of Client 1, you would want to know whether an employee who takes bereavement leave is covered by the FMLA. On the Google search screen, type: employee "bereavement leave" FMLA. Recently, one of the first "hits" this search produced was a document titled, "Does FMLA cover bereavement leave?" Accessing this document shows that it is provided by Fair Measures, a company that offers executive training programs.
On the Web page, someone named Ann Kiernan answers the question, citing case law to conclude that the FMLA contemplates health conditions "affecting only the living. In other words, Client 1 cannot rely on the FMLA to claim a right to bereavement leave, because he did not stiffer a serious medical condition. Helpfully, however, Kiernan goes on to explain that a person incapacitated by grief, despair, or depression may have an FMLA claim. What luck--she has addressed Client 2's situation.
A couple of cautionary notes: First, you do not know who Kiernan is, whether she is an attorney, or whether she knows what she is talking about, so treat her information with some skepticism. Nor do you know when this page was written. As the disclaimer at the bottom states, "Information here is correct at the time it is posted. Case decisions cited here may be reversed."
FindLaw. Another option for secondary sources is FinLaw. From its home page, click the link to "Legal Subjects" (in the "Legal Professionals" area), which will take you to an alphabetical list.
For our hypotheticals, "Labor and Employment Law" seems the best. Click on that link for an outline of available resources. Select the link for "FindLaw Library--Labor and Employment Law Documents, Briefs, Articles, and Books." That will produce a search screen. Here again, it helps to begin with a broad search--for example, "FMLA." That will yield a list of potentially helpful articles and documents. One that conies up is the Department of Labor's Compliance Guide for the FMLA. It has citations to the Code of Federal Regulations, with links.
Law.com. Yet a third potentially useful site for secondary sources is www.law. com, which allows free searching of law firm white papers. Additional resources are available through Law.com's "Practice Centers," one of which focuses on employment law and lists several "Practice Areas," including the FMLA. You can see summaries of articles on this topic, but you must join the Practice Center ($129 a year) to read the full text. The site's 30-day free trial can help you decide whether to subscribe.
Ask your colleagues
Sometimes we go to the library hoping to find a wise colleague who will listen to the details of a case and lead us to the answer we are seeking. This rarely happens. Instead, we end up with conversations that may be engaging but rarely provide the answer.
But you can ask colleagues for help online and receive answers online--using a list server.
A list server is an ongoing, online group discussion via e-mall. Generally, you can arrange for each message sent by anyone in the group to come to your e-mail address as soon as it is sent, or you can request a "digest" that collects a day's messages into one e-mail sent to you daily. For examples of some list servers, go to www.yahoogroups.com. You will see many categories of groups, where members discuss topics as varied as cooking, investing, and religion. Yahoo! Groups lists over 500 groups for lawyers.
ATLA maintains list servers for each of its practice-area sections, as well as several forums. These are available only to ATLA members. The first hypothetical case in this article was based on a question posted on the Employment Rights Section list server; and yes, several members did respond to answer the question.
Build your case using the ATLA Exchange
After you have a sense of your potential clients' legal posture, you must determine whether to represent them, considering the work you will have to do to file the suits and try the cases. If you are an ATLA member, you might find that some of this work has already been done and is available to you.
The Exchange (www.exchange.atla. org) contains a full-text-searchable "library" of ATLA plaintiff lawyers' complaints, motions, depositions, and other court documents--all reviewed by staff attorneys for potential usefulness to other members--as well as case abstracts, links to additional legal resources, and other pertinent information.
You can search the collection of court documents to see what is available on, for example, the topic of FMLA. You may find ones you can adapt for your case, such as a plaintiff's brief from a case holding that supervisors who exercise sufficient control over an employee's ability to take FMLA leave may be individually liable under the act.
Here's how to do it. Type into the Search box: "FMLA" an d supervisor and liable. Check "Court Documents," and click to search. That yields three documents. Click to view the first one listed, then click on "View Highlighted Search Hits," which shows phrases of text surrounding the search terms throughout the entire document. Or click on "Preview Document," which shows you the first 10 percent of the text. If you want the document, click "add to cart," and proceed to checkout.
One of the Exchange's most popular features is its unique Similar Matters database. It contains contact information provided by ATLA members who have investigated or litigated cases with facts similar to those in your case.
The Exchange's litigation packets--nearly 40 collections of material that apply to many different types of litigation--include sample court documents, ATIA Education materials, articles from TRIAL and commentary from ATLA members. They can assist a seasoned attorney or bring a novice up to speed in a given area of law. For example, you may be concerned about whether the medical expert's testimony in your FMLA case will be admitted under Daubert or other state expert-admissibility standards. You can order a litigation packet on that very question, including strategies and tips from seasoned colleagues.
Ask a librarian
Although there is not a living, breathing reference librarian attending the World Wide Web, you can still consult librarians about Internet research.
The American Association of Law Librarians' Web site (www.aallnet.org/ chapter/chapters.asp) lists almost two dozen regional law librarians' associations across the country. They generally maintain their own directories of useful legal-research Web sites, with links to the sites.
For example, the Northern California Association of Law Librarians (www. nocall.org/collection.htm) maintains an extensive collection of Internet resources, grouped by subject area. When you click on a topic--such as "Labor and Employment"--you are taken to a list of. links to online resources for that topic.
Law librarians at the regional associations are aware of online sources and have already evaluated them for you, placing the useful sites in an online list--a one-stop source for your research.
The Virtual Chase (www.virtualchase.com), for example, is an excellent Web site developed by Genie Tyburski, who works as a law firm librarian in Philadelphia. Her column, the "Tyburski Files," focuses on electronic research strategies, and she often speaks on Internet legal research at librarians' conferences and continuing legal education programs. She has compiled research guides on 20 different leg-al topics, which can be accessed by clicking on the "Legal Research" link at the left of the site's home page. The guides feature annotated lists of, and links to, sources of information for specific topics.
For example, the legal research guide for labor and employment law yields dozens of links, from primary law and regulations to Web sites of organizations such as the National Employment Lawyers Association and other resources. These include the Employment Law Information Network (www.elinfonet.com), which features hundreds of articles on about two dozen employment law topics, including the FMLA.
One of these articles, Employee's Statement That She Would Be Absent for Depression Again May Trigger FMLA, analyzes a recent Eighth Circuit opinion bolding that an employee placed her employer on notice that she required FMLA leave when she said she needed time off because of her depression. The network site is one that a lawyer using Google would probably not find, but its resources are available to an attorney who visits Tyburski's virtual reference desk.
For the last word on how to do online legal research in a particular topic area, consult the Legal Research Exchange (llrx.com). This site is a resource for online-legal-research professionals maintained by Sabrina Pacifici, who has worked as a law librarian in Washington, D.C., for 24 years. Each month it features several articles on legal-research Web sites and technology.
You can search the archives for articles on how to research, for example, "employment law." The first result for that search is "Labor and Employment Law Resources on the Internet 2002," an online article by a Stetson University College of Law librarian, with links to dozens of sites mad descriptions of the type of information each contains. Finally, if you simply want your research conducted for you, and you're an ATLA member, you can purchase that service from the association's Exchange: A staff attorney will conduct the search according to your specific request, for an hourly charge.
Beginning to do legal research on the Web can be intimidating. A printed volume somehow seems more authoritative than information that appears when you strike "Enter" on your computer keyboard. Once you understand how readily information can be accessed online, however, and begin to appreciate such e-tools as list servers, you'll find that becoming comfortable using the Internet will help you serve your clients faster and better.
LINDA FRIEDMAN, an attorney and an associate editor of the Law Reporter, is a former law librarian and Westlaw account manager. The views expressed in this article are the author's and do not constitute an endorsement of any product by TRIAL or ATLA.
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|Date:||Jan 1, 2004|
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