The Legal Empowerment Toolkit Series is a project of the Jailhouse Lawyers Initiative (JLI). This is a brief training guide based on parts of a 12-week law clerk course taught in New York—please write to us at the address below if you are interested in a more detailed module.
JLI works to ensure Jailhouse Lawyers have access to effective and relevant training that equips them to meet the diverse legal needs of incarcerated people. JLI is rooted in the legal empowerment of jailhouse lawyers and advocates for leadership, peer support and trauma responsive skills as a part of the jailhouse lawyer training. JLI is a national project of the Legal Empowerment Advocacy Hub (LEAH) and is supported by the Bernstein Institute for Human Rights at NYU School of Law. JLI has partnered with NLG’s Guild Notes in order to help engage and empower NLG jailhouse lawyer members nationwide.
Learning Objectives
1. Identify the five basic steps of legal research.
2. Define precedent and stare decisis
Introduction
People spend many years earning law degrees or studying in facility law libraries to develop their legal research skills. The Jailhouse Lawyer Initiative (JLI) received a letter from Bart W., a jailhouse lawyer in Arkansas who wrote:
“The deficit of knowledge abounds in regards to how to even get started on working on any type of legal case as far as basic research, not to mention filing motions, petitions, or writing briefs.”
Researching what the law says is the first step in the legal empowerment cycle. We must be able to know and use the law, before we can shape and transform the law. In this toolkit, JLI outlines five key steps that can help organize your legal research, leading to more comprehensive and precise legal answers. Legal research is only one part of using the law to achieve justice, but it is an important piece of the puzzle. Stay tuned for future toolkits that cover other topics and strategies to guide and strengthen your legal advocacy.
Five Steps to Legal Research
STEP 1: Identify and Analyze the Significant Facts
Use the “Reporters Questions”: who, what, where, and when to identify the relevant facts and write them down.
Who? Use this question to figure out who the key parties are and who you represent. Are any of the parties legal entities instead of individuals? If one party is a unit of the government or a corporation instead of an individual person, it will make a critical difference in your research.
What? Use this question to think about the legal issues. You may not know what facts are “material” until you start doing some research, but start by just writing down what facts you think are important.
Where? Use this question to think about jurisdiction. If this is an appeal, what court are you appealing and where are they located? If there is a crime involved: Where did the crime occur? Does your legal problem involve state law, federal law, or both? What courts should you look to for binding law?
When? Time is a critical element. If the problem you are researching involves a dispute that happened in 1998, then you will need to look at the statute as it was in 1998 (has it changed?).
STEP 2: Formulate the Legal Issues to be Researched
(Hint: Start general, then move to specific)
Start with what you know. Before you start writing down legal issues, start by categorizing the problem into a general topic. Is this a civil claim against the Department of Corrections? Is it a criminal appeal? Is it a contract dispute? Does it involve federal or state law? Criminal or civil law?
Once you have identified a broad topic, then start honing in on specifics: Is it a criminal appeal based on ineffective assistance of counsel? Or a civil claim with respect to access to medical care? Identify key words or concepts as you go: This could be legal terms, like figuring out the difference between negligent and reckless, or it could be terms related to the facts of the matter, like understanding if contraband includes food. Don’t worry if you don’t know the legal word for a topic you need to research. As you research, you will learn a lot of these legal terms and fill in your research plan.
Then, search secondary sources. Is there a secondary source covering any of the topics you’ve listed above? Treatises, manuals, and encyclopedias can give you an overview of the legal issues and context. Add any related and relevant legal issues you read about that may have missed before.
STEP 3: Research the Issues Presented
A. Organize and Plan
Create an outline of the issues you’ve listed above. Logically related issues might be combined as sub-issues under a broader main issue. The outline should be expanded, modified, and changed as you keep researching. Sometimes an issue may be too broad, and you’ll need to split the issue into smaller topics. Similarly, sometimes an issue may be too specific and unlikely to lead to any useful research.
B. Identify and Read All Primary Sources of Law.
- Constitutions
- Statutory Compilations (McKinney’s, USCA)
- Administrative Rules and Regulations Compilations
- Session Laws
C. Identify and Read All Relevant Case Law
- You must identify and read all case law that has interpreted and applied the above enacted laws.
- Do not limit your research to cases that support your issue or position.
- Anticipate both sides of the argument.
- Your goal should be to compile a comprehensive, chronological list of relevant opinions of each of the issues you plan to argue.
- Apply the doctrines of precedent and stare decisis.
When a case is decided in court, it becomes a guide for the court in the future. We call this precedent. Precedent is the label given to earlier court decisions about a certain set of facts. Stare Decisis (Latin for “let the decision stand”) is the rule that a court must follow the precedent set by an earlier case. That means that if the same set of facts comes before the court, it should decide it in the same way it was decided before. But stare decisis only applies if the earlier court decision is binding. Decisions are typically binding if they are earlier decisions issued by the same court, or a court with appellate jurisdiction over the court hearing the case.
STEP 4: Update the Research
Law changes constantly. Legislatures pass new statutes and modify old ones. Courts may overturn old decisions or decisions from lower courts. Citation services like “KeyCite” and “Shepard’s” can be used to update the status of cases, statutes, and regulations.
STEP 5: Know When to Stop
This can be the most difficult question in the process. You may be done researching if you start seeing obvious repetition, the same citations or statutes appearing in multiple sources, or if you’re not learning any new information.
Know, Use, Shape, Transform
Legal research is a way to gain and organize knowledge about what the law says. Sometimes the legal answer may not be a just answer, but the first step in pushing towards justice is identifying injustice. Law is developed over time by legislatures, courts, government agencies, and the people using these systems. By conducting legal research, and using it in advocacy before courts or other legal bodies, you can be a part of the development of law.
As someone who is incarcerated, your daily experiences give you a nuanced understanding of how the law is not doing “good enough”. Arguing how the system could do things better is most effective when you can have an accurate understanding of how things are working now. Hopefully, the five steps outlined above will help get you over this first hurdle in the long process of shaping and transforming the law.
Activity
Identify something that happened to you or someone else that you are incarcerated with that you think is unfair or unjust. This could be the changing length of your sentence, the ability to use the law library at your facility, altering your child support payments while you are incarcerated, or any other legal question. Use the 5 steps to identify a legal answer in the State where you live to the question you raised.
Become part of the conversation. Write to JLI at:
Jailhouse Lawyers Initiative
Legal Empowerment and Advocacy Hub
PO BOX 2516
Alachua, FL 32616