Mark: Statutes, rules and regs are black letter law. Why?
Caller: My master - ah - my attorney says we need annotations.
Mark: And, how does said attorney get along with his computer?
Caller: Oh my Gawd! How did you know?!
According to Westlaw®, "more than half of all federal and state court actions involve interpreting statutes."
Accordingly, this tutorial teaches you how to find: (a) all opinions in any database that cite any statute in your primary jurisdiction, (b) the subset of opinions that cite your statute only for the reason(s) you specify, and (c) any and all opinions nationally that cite your statute for the reason(s) you specify.
For this tutorial, we begin with a Federal law - 18 U.S.C. § 1344 - the criminal bank fraud statute. Like most statutes, this one is broadly worded to cover a wide array of conduct. Our client is charged with making a false loan application. (That's right. Back to a time when lenders solicited applications, not just signatures.)
If you're like me, you're anal. Meaning, you don't need me to tell you that different judicial opinions cite the same statute differently. Some may cite as 18 U.S.C. § 1344. Others, 18 U.S.C. sec. 1344. Others, 18 U.S.C. section 1344. Others, may have a typo - 18 U.S.C § 1344. Or, your statute may be cited in a string of related statutes, i.e. 18 U.S.C.A. §§ 1001, 1014, 1344.
Our primary jurisdiction for this tutorial is the United States Court of Appeals for the Second Circuit in New York, where we're guaranteed to find some excellent bank fraud!
Remember. Our first goal is to find every opinion in our primary jurisdiction that cites our controlling statute in a single click. This is best practices. We do this because most statutes have not been cited that many times. Many have never been cited. More often than not, you're going want to check whatever opinions you find. When we find too many opinions, we narrow our search based on the facts of our case and/or by adding nomenclature that we copy directly from the text of our controlling statute.
To ensure we find all potentially relevant opinions in the database we use the "within" connector as a generic substitute for any possible citation format variations that may exist from opinion to opinion. We could enter, for example: "18 U.S.C. § 1344" or "18 U.S.C. sec. 1344" or "18 U.S.C. section 1344" or "18 U.S.C.A. §§ 1001, 1014, 1344".
Why do all of that typing when all we have to do is enter: 18 w/5 1344?
18 w/5 1344 asks for any opinions where the section number appears within five words of the title number. Because the codified item of information driving our search is a statute, we use the title and section numbers assigned to that statute to find all of the opinions. We do not use the phrase "bank fraud" because we want to avoid diffuse results.
On this day, the Second Circuit lists 197 opinions containing the phrase "bank fraud." But, we only want opinions citing the item of information driving our search. We don't care about opinions involving, for example, a defrocked bank president, convicted of bank fraud, now embroiled in civil litigation with his former bank employer. We want opinions that cite to the law.
Remember, our client is charged with submitting a false loan application. We don't want to read opinions about embezzlement. Not in this search. So, we refine our search to reflect the relevant law and facts.
18 w/5 1344 and "false loan application"
On this day, our results drop from approximately 100 Second Circuit opinions to 4. Using Westlaw, you would have slogged through a lot of headnotes, annotations and key numbers to isolate the four judicial opinions that mention your controlling statute in the context of a false loan application prosecution.
Want to be more specific? Let's say your guy is involved in real estate. With TheLaw.net you can go national. Two clicks adds all Federal appellate and all Federal districts. Then add "real estate" to your query.
18 w/5 1344 and "false loan application" and "real estate" finds the four opinions nationally that match our search criteria. One from the Second Circuit, two from the Eighth Circuit and one from the Eleventh Circuit. These are the only citable opinions on the planet that include at least one reference to the phrase "false loan application" and at least one reference to the phrase "real estate" and at least one citation to the Federal bank fraud statute.
It is well settled that all research starts with the black letter law. In this case, the black letter law is the Federal bank fraud statute. From there, instead of plowing through headnotes, annotations and key numbers, we make a specific request for exactly what we need based on the unique facts and circumstances of our client's situation. This is the new Gold Standard for caselaw research! If you still think Westlaw is the greatest (and you never want that swimming pool) use what you've learned here to save yourself some time and consider this.
As a Westlaw subscriber you pop up the statute and beneath the statute you're presented with a set of headnotes. I happen to know a lot about the Federal bank fraud statute. Enough to know that I can't individualize my research browsing West headnote. Moreover, I have other thing to do.
I pulled the headnotes for this statute. 30 categories/160 headnotes/12,000 headnote words. All posted for your convenience here on my server. Can you say, "Information overload?"
What they don't have (surprise) is the category I want. I want opinions treating the statute in the context of a false loan application. They don't have a category for that. They have seven headnotes under a generic Misrepresentations Category. There's an ATM card case and a bogus check case. The term "loan" does not appear anywhere in these seven headnotes under Misrepresentation. Nor is there another category even begins to approach what I'm looking for.
This is a problem because I know 18 opinions nationally construe this statute for the reason I care about. I know this because I retrieved them use TheLaw.net Equalizer 7.0. The summary of the results are republished here on my server.
This is the difference between a manmade index and a computer generated index. For you, it's the difference between spinning your wheels and pulling up just what you want in one mouseclick.
Here's the other problem. The Federal bank fraud statute has been construed nearly 1,500 times in published opinions by Federal courts. Yet, Westlaw only gives me 164 headnotes. Where are my other 1,200 headnotes? And, who's making these decisions?!
In many states, the statutory citation format is a lot more straightforward. Florida is one of several states that follows a chapter number.section number format. Let's say you want to check for opinions discussing the recovery of costs from the losing party.
Florida has more than 500 judicial opinions containing the phrase "losing party". Only 200 cite the controlling statute - 57.041. The other 300 reference losing parties in some other context. "Sarah Palin represented the losing party." Using Westlaw, pop up the text of 57.041. You'll see tons of headnotes. Knock yourself out!
The text of the 57.041 says: "The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs."
How many opinions reference the statute number, but also make an explicit reference to the circumstances under which you are entitled to recover your costs?
57.041 and "shall recover" reduces your results to 70 opinions. Using TheLaw.net Equalizer 7.0, results are sortable. It only takes one mouse click to learn that the most recent opinion to match our search criteria is Port-a-Weld, Inc. v. Padula & Wadsworth Construction, Inc., 984 So.2d 564 (Fla. App., 2008) dated May 21, 2008. Another mouse click tells us that the most cited opinion to match our search criteria is Roberts v. Askew, 260 So.2d 492 (Fla., 1972).
Today's Homework. Using West headnotes, key numbers and annotations see how long it takes you to get to Port-A-Weld. Then see how long it takes you to determine that Roberts is the most cited of the 70 most relevant opinions.
What's that? You don't have access to Florida cases. As a Westlaw user you only have your state. With TheLaw.net you get all 50 states and D.C..
What's that? The human editors at Westlaw don't have a headnote section captioned "shall recover?" Shocking.
What's that? West search results don't include a sortable citation frequency column? Hmmm.
What's that? West search results don't include a sortable date column? Hmmm.
Maybe a Westlaw reference attorney can help. Make sure he doesn't lead you outside The Plan!
Incidentally, it took us less than 10 seconds to surface the most recent and most cited opinions using TheLaw.net Equalizer 7.0. I'm jus' sayin'.
If you want to give TheLaw.net a whirl, you can subscribe online with the security of a 30-day unconditional money back guarantee. It's $48 a month annualized for unlimited, coast-to-coast access. Install at work, at home and on your desktop. Every lawyer on the license books their paralegal at no extra charge. Print, cut, copy, paste, view, download. (Like you, we don't do free trials.)
You'll be up and running in less than five minutes.
