March 01, 2005

Somewhere, someone has today off

That someone is not me. I am not snowed in at home, I regret to report. Deeply regret to report, I should say. Instead, I am sitting at my desk and ignoring anything that doesn't bear a label: Caution, contents under extreme pressure and may explode, you dumbass, thus causing malpractice, if you don't attend to said contents, you understand? In other words, I am sort of catching up on long neglected matters which need tending to, prodding, or kicking.

Part of that tending to will be that big ass brief I have to put a reply in on. I don't really like big firm litigation tactics. They kind of suck, for the most part. They throw bodies at issues and attempt to overwhelm with the shotgun, scattershot approach instead of the rifle. I prefer the rifle. I prefer a targeted argument, the most effective argument, not every argument I can possibly think of thrown up without discrimination.

One thing I do find useful from big firms, though? Their legal research and citation. Yeah, pretty much I can rely every time on the big firm litigator to cite cases that are more helpful to me than they are to him/her. With some firms, I can begin my research from their cases.

Let me explain a little about computerized legal research. Cases are summarized by the West Group into headnotes. Headnotes describe the legal proposition advanced by the case. Before computers, you really used to research by headnote. I am of the generation of lawyers who learned to do legal research pre-computers. Let's say you want to find a case that says that to allege a particular kind of business tort, interference with pre-contractual relations, you have to allege that you would have gotten the contract with a certainty. Now, with computers, you can do the following search for the proposition: "certainty" /s "contract" /p interference. That brings up any case that uses certainty and contract in the same sentence and has interference in the same paragraph. Easy, right?

Well, no. You see, American jurisprudence is really based on the facts of each case. The facts decide what legal principles are applied to each situation. So, if all you do is the search and you find your quote and you cite it to the Court and move on as happy as a clam (although why clams are reputed to be happy is beyond me), then you have not really done your job. Big firm lawyers do this all the time. They cite the little bit and move on to the next point.

Then I come along and I read the whole case. And I get to find that in the following paragraph, the court goes on to say that despite the fact that you need certainty, no where in the history of American jurisprudence was a plaintiff required to establish that he could prove his cause of action in his complaint. Kind of an important, maybe even critical, distinction, no?

There was all sorts of other really useful stuff in this case. When I cite a case to the Court, I tend to read the entire case first and only cite it if the whole case is good for me. Takes a little more time in terms of legal research, but really makes all the difference and you are left knowing that your brief and your legal citation is bullet proof. That is peace of mind when you are in front of the Court on oral argument.

I am looking forward to seeing what other useful gems await me in this big firm brief.

But I still wish I had my snow day.

Posted by Random Penseur at March 1, 2005 02:47 PM

Interesting to hear how the big firms slip up. Doesn't make you want to hire one of them, that's for sure.
On a separate note, I love the banners!

Posted by: GrammarQueen at March 1, 2005 02:57 PM

I learned both book searching and computer searching. I usually made the most serendipitous discoveries in the books, not on the computer. I can't believe those lawyers didn't read the entire case they cited. That's just Legal Research and Writing 101. Will you update us on their evisceration, please?

Posted by: JohnL at March 1, 2005 05:07 PM

You're working on a big ass brief? Who the hell are you suing, Sir Mix-a-Lot?

Posted by: Howard at March 1, 2005 07:06 PM

"Despite the fact that you need certainty, no where in the history of American jurisprudence was a plaintiff required to establish that he could prove his cause of action in his complaint."

Makes sense to me. It just means: "While your success requires proof beyond a reasonable doubt in the eyes of a jury, satisfying that requirement before a single judge or grand jury first isn't required for the case to go forward."

While judges and grand juries can stop a frivolous case on a lack of merit, you don't have to prove your case to them - beyond a reasonable doubt - before you can present it to a jury.

Posted by: Tuning Spork at March 1, 2005 10:51 PM

Happy working and enjoy the snow

Posted by: IZ Reloaded at March 3, 2005 02:55 AM
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