CHAPTER 9 SECONDARY SOURCES AND PRACTICE AIDS
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Chapter 9 Secondary Sources and Practice Aids
Lawyers use secondary sources to learn about the law and to find references to relevant primary authority. Common secondary sources include treatises, practice guides, legal encyclopedias, and law review articles. These sources are "secondary" because they are written by law professors, practicing attorneys, legal editors, and even law students; in contrast, primary authority is written by legislatures, courts, and administrative agencies.
Under the large umbrella of secondary sources are tools called "practice aids"; they carry no authoritative value but assist in conducting research, creating documents, and staying current in legal developments. Examples include legal forms, continuing legal education (CLE) publications, and blogs. There is no clear dividing line between secondary sources and practice aids, and many of the resources discussed in this chapter might be described as both.
Often, beginning a new research project in a secondary source or practice aid will be more effective than beginning immediately to search for statutes or cases on point. A secondary source or practice aid may provide an overview of the pertinent issues, aiding in the analysis of the legal problem. The text of these sources may explain unfamiliar terminology and concepts, making it possible to develop a more effective list of research terms. Also, secondary sources and practice aids often provide a shortcut to researching primary authority by including numerous references to cases, statutes, and rules.
This chapter introduces treatises, practice guides, and other books; legal encyclopedias; legal periodicals, including law reviews and bar journals; American Law Reports; CLE publications; legal forms; restatements, uniform laws, and model codes; jury instructions and jury verdict information; ethical rules; and current awareness tools.1 The chapter concludes with a discussion of when and how to use secondary sources and practice aids in legal research.
A book on a legal topic can provide an in-depth discussion of the topic and relevant references to primary authority. Legal texts include treatises, practice guides, hornbooks, and Nutshells. All of these books share the purpose of covering a particular legal subject, such as contracts or civil procedure. They are distinguished mainly by their level of coverage.
Treatises are generally considered to be more comprehensive statements on a subject than hornbooks, which offer a slightly more summarized view. Practice guides typically cover an area of law thoroughly, but with a particular focus on the nuts and bolts of practice as opposed to the more theoretical approach of treatises or hornbooks. Nutshells are a series of books published by West that offer a very condensed explanation of law.
Accordingly, an attorney may use a treatise or practice guide to become familiar with a new area of law, while a law student might typically turn to a hornbook or Nutshell to prepare for class, or later to gain a better understanding of a class lecture. This chapter focuses on treatises and practice guides because they are more commonly used and cited than hornbooks and Nutshells.
A. Treatises
Some treatises are so well known and widely respected that a colleague or supervisor may suggest that you begin research with a particular title. Examples include Kirkpatrick's Oregon Evidence and Wright & Miller's Federal Practice and Procedure. The first example covers the law of Oregon evidence in one volume. The second example is a multi-volume treatise. Figure 9-1 provides a sample page from Oregon Evidence, as viewed on Lexis Advance.
Many of the more popular treatises are available on Lexis and Westlaw, but some may be available only in print. Online versions are typically updated only when the print version is. Treatises in print are updated in a variety of ways. Bound volumes may be updated with pocket parts or new editions. Some treatises are published in loose-leaf binders, which are updated by replacing outdated pages throughout the binder with current material. Each page is dated to show when it was last updated. Also, new pages at the beginning of loose-leaf binders are often in different colors to draw the reader's attention to the more recent information.
Source: Lexis Advance. Reprinted with the permission of LexisNexis. All rights reserved.
B. Oregon Practice Guides
One of the most helpful secondary sources for Oregon attorneys is the series of practice guides published by the Oregon State Bar (OSB). Each guide covers one area of Oregon law in depth. Titles address administrative law, construction law, environmental law, family and juvenile law, real property, torts, and trial practice, among many other areas of Oregon law.2 The authors are typically practitioners with extensive experience in the legal area they are writing about. The text is practice-oriented, including explanations, references to primary authority, practice tips, and sample forms. These guides are published in print as loose-leaf binders; they are available for download from the OSB website. For a list of OSB publications, visit the bar's website at www.osbar.org; click on "CLE/Legal Publications." BarBooks are available to bar members for free and to others with subscription access.
In addition to the OSB series, West's Oregon Law and Practice series addresses a few topics of Oregon law in a similar manner. Titles include Business Organizations and Civil Procedure, though neither has been updated for several years; they are available in print and on Westlaw.
More general practice guides are published by the Practising Law Institute (PLI), the American Law Institute (ALI), and the American Bar Association (ABA).
C. Finding and Using Legal Books
Treatises, practice guides, hornbooks, and Nutshells can be located by using a library's catalog and searching for the general subject matter of a research project. For a well known treatise, include the name of the author as one of your search terms. When searching for practice-oriented material, use the name of the publisher (e.g., Oregon State Bar or American Law Institute). After finding one book on point, scan the other titles shelved around it for additional resources. Increasingly, libraries are showing online availability in their catalogs; thus, a treatise reference in the catalog might send you to an online subscription service the library provides to patrons, which contains the treatise you seek.
To use a treatise or other book, begin with either the table of contents or the index. In multi-volume treatises, the index is often in the last volume of the series. Locate your research terms and record the references given. A reference may be to a page number, section number, or paragraph number, depending on the publisher. The table of contents or index should indicate which type of number is referenced. Turn to that part of the book, read the text, and note any pertinent primary authority cited in the footnotes.
The authoritative value of a book depends largely on the reputation of the author. Laird Kirkpatrick is a widely recognized expert on Oregon evidence, and his treatise is so respected that it is cited by courts. In contrast, a Nutshell on evidence is designed as a study guide for students or a quick overview for practitioners; it is not considered authoritative.
Legal encyclopedias provide summarized information on a wide variety of legal subjects. Legal encyclopedias are organized by subject matter under topics selected by the publisher. These topics are presented alphabetically, both in bound volumes and in an online table of contents. The two national legal encyclopedias are Corpus Juris Secundum (CJS) and American Jurisprudence, Second Edition (Am Jur 2d). Figure 9-2 contains a short excerpt from the topic "Contracts" in CJS, as shown on Westlaw. Some larger states have their own encyclopedias, such as California Jurisprudence and Florida Jurisprudence. Oregon does not have its own encyclopedia.
On Lexis Advance, use "Browse" to find encyclopedias or type the name of the source into the universal search bar. (Note that Lexis Advance has Am Jur 2d, but not CJS.) On Westlaw, CJS, Am Jur 2d, and similar materials are available under "All Content," "Secondary Sources," "By Type," and "Texts and Treatises." If...
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