Sued by Debt Collectors – How to Do Legal Research in the Library

The easiest way to do research is often simply to go to the court, get into the files, and look at what other people have said. When that isn’t enough, and you want to make a new point, or the debt collector makes one, and you can’t find a brief that has already been written on it. You need to do some more in-depth research. Then you may need to go to the legal library.

Where Is a Legal Library?

You can find legal libraries in two places, in general, and both of them are, usually, completely open to the public. Every law school has one-it’s probably the central building in the school, as a matter of fact. And the court buildings almost always have them, too.

Introduction to Legal Resources

Let’s go back a step and cover some basics. When looking at a legal “brief” or “memorandum” you’ll notice that usually when a lawyer makes an argument it is followed by a reference. The reference looks like this: ABC, Inc. v. Joe Blow, 86 Cal.3d 115, 118 (3rd Dist. Cal. 1999). [Not a real case, just a made up example.] What is that reference saying?

Case “Citations”

It says that ABC company sued Joe Blow. A court opinion was written and published in 1999 in the third district of California. This is not necessarily the final point in the law suit cited, incidentally. When judges make decisions on various points of law they sometimes, but not always, write opinions which tell the parties why they reached the conclusions they did. The publisher makes the final decision on what to print. This one was published in the California Reporter, third edition (each edition consists of over a thousand books, each one over a thousand pages), beginning at page 115. The judge in that opinion considered a point like the one the memorandum you’re reading makes and ruled the way the writer wants the judge to rule this time. The specific language involving that point is located on page 118.

So to review, a case “citation” tells the judge that another judge has considered the point being raised and ruled a certain way. It says how the judge can check that, and the judge can consider whether he finds the opinion enlightening. If the opinion is by a court that would “review” your court (the court of appeals over your judge), and if the point is exactly the same as the one being made, the opinion is considered “controlling,” and the judge would be required to follow it. Pretty basic, right? The courts of appeal make sure that the law means the same thing from case to case, and the judge tries to follow that rule.

Now you will notice that when a point is made and a case cited, if you go to the case and look up the point, there will usually be a number in front of that paragraph of the opinion in bold print. It looks like this: [1]. This number was put by the publisher, not the judge writing the opinion, and if you go back to the front of the case (on page 115) you’ll see that there are a series of numbered points. They might look like this:

4. Judges [picture of a key] 36

Judges have absolute immunity in the decisions they render.

Or like this

6. Mo. Contracts [key] 118.36(2)

A contract formed for illegal purposes is unenforceable.

Let’s look at the second one, since it involves state law. What this is telling you is that if you go to the State Digest, if you look in the volume dedicated to contracts, you can find a whole bunch of cases which consider this point in section 118.36(2). (There is a huge amount of law written about contracts.) Sometimes there is a specific “law,” (statute) which says it, and sometimes it is a series of decisions in which judges have decided the point. The digest will show you how to find the cases.

Legal Digests, Your Key to Research

And this is your key to research. Find those state digests. Look at them. Are you looking for a point about contract law? Consumer protection? The Fair Debt Collection Practices Act? Look them up in the digest. Every state has a digest, which is a collection of books, basically a huge index, that might have fifty or more books in it. But it is organized, and if you spend a little time looking at them you’ll see what I mean. There are usually a couple of volumes that are simply indexes of words, and there is a volume called “words and phrases.” These are designed to help you figure out how to use the Digest. It isn’t always obvious the first time you try it, but it does make sense.

If you want to know about whether a certain activity by a debt collector is illegal, go to the volume with the F.D.C.P.A. in it and start reading about “violations.” Want to know what you get if the collector did in fact break the law? Look up “remedies.” It actually does make sense. You read the little blurb provided in the digest, and if it is close to the point you want to make, you look up the case.

Using a Case Citation

And in your brief it will look something like this:

A debt collector calling repeatedly between the hours of eleven p.m. and one a.m. violates the F.D.C.P.A.’s prohibition against harassing behavior. Smith v. Jones Collection Agency, 111 F.3d 1118, 1121 (8th Cir. 2004). The jury was entitled to award damages for emotional distress. Id at 1122. An award of $20,000 was not excessive in view of the fact that the collector called for seven consecutive days and left threatening and intimidating messages on the plaintiff’s answering machine. Thomas v. Excelsior, Inc., 22 SW 3d 232, 234 (Mo.App. 3d 2006).

Each of the points with a reference has been has been considered and ruled on by other courts, and your court will probably find it persuasive if you show that the facts in your case are like the facts in the case that was considered.

For almost all purposes in collection cases, you will find what you need by starting with the state digest. Where your case involves federal law (laws enacted by Congress), there is also a Federal Digest which works in the same way as the state digests do.

How to Use Legal Briefs to Conduct Legal Research

There are many ways to conduct legal research, but perhaps the most powerful is through the utilization of one specific document: the legal brief. A brief is a document submitted at the beginning of a case that essentially summarizes exactly what a lawyer will argue on behalf of his or her client throughout that case. Lawyers will spend hundreds of hours preparing their briefs by conducting research in case law in order to find the specific cases that establish precedent for the specific argued. Aside from citing case law within them, legal briefs also provide lawyers with an opportunity to showcase their creativity and ability to write. There have been many famous briefs written, such as the brief written by Louis Brandeis, referred to now as the “Brandeis Brief”, which was the first brief to use empirical evidence collected through scientific processes to prove a case. There have also been many amicus briefs filed, which are filed by a third party, such as an NGO, to show support for an issue at hand. Of late, a few notable amicus briefs have been filed in the issues surrounding gay marriage. Further, different types of briefs are filed at different levels of the court. Briefs flow throughout the court system, but vary in terms of their format and objectives amongst different courses. For example, a legal brief submitted at the beginning of a case in a trial court will be arguing why a case should be ruled in favor of the party filing the brief, while a case filed at the appellate level will argue why a case should or should not be upheld.

There are a few primary steps in terms of writing a legal brief:

1) Fully understand the purpose of preparing a brief
a. The ultimate purpose is to persuade the court that your views and rationale is correct
b. A brief must present the issues at hand in a methodical way

2) Adhere to the proper format of your specific jurisdiction
a. Various courts have various ways and requirements they follow in terms of filing a brief. Make sure yours strictly adheres to these requirements.

Aside from simply writing a brief, a lawyer can utilize them for research purposes too. Searching other briefs previously filed that won a case with the same issues at hand provides a way to speed-up the research process-essentially, lawyers can use briefs to augment their own research by finding briefs filed historically with similar issues to their own. One significant aspect of this process to understand is the validity of case law used in previous briefs. If lawyers use briefs to find a relevant topic, they should make sure to check that the cases cited in that brief are still good law-in other words, that the opinions cited haven’t been overturned since the brief was filed.