Vol. 42 No. 4
By Shawn G. Nevers
Shawn G. Nevers (firstname.lastname@example.org) teaches legal research and is a research librarian at the Howard W. Hunter Law Library at Brigham Young University.
“I will not reinvent the wheel.” Say it a few times. Memorize it. Make it your legal research mantra. There’s simply no need to do work that’s already been done. You already have enough to do. In most cases, what you’ll be asked to research isn’t totally new. Someone has researched it before (and someone will research it again). The trick is finding the research that’s been done and making it work for you.
That’s where legal treatises come in. Think of them as prepackaged legal research. Open them up and you’ll find a summary of the law with citations to relevant primary authority waiting for you. The work’s been done. Why do it again?
Unfortunately, most students don’t become very familiar with legal treatises in law school. Sure, they may have heard of them. Some of the names, like Williston on Contracts or Wigmore on Evidence, may even sound familiar. But, it’s rare to find a law student with a vision of how important a treatise can be.
Take the following example. Suppose you’ve been asked to research what types of employees are eligible for leave under the Family and Medical Leave Act (FMLA) and whether migraine headaches trigger FMLA leave. You’ve never even heard of the FMLA (although you have become much more familiar with headaches since you started law school).
You could spend the next several hours looking up the applicable statutes, regulations, and cases that apply to the FMLA. But (remember your mantra) why reinvent the wheel? Instead, head to a treatise. Because your organization works frequently with employment law you’ll most likely have access to a treatise called Labor and Employment Law.
A quick search or glance in the index will reveal a whole section on the FMLA written by a lawyer and FMLA expert. In this case, the author has practiced and taught employment law for more than 20 years. Not a bad person to give you a lesson on the FMLA.
You’ll quickly find a chapter on “eligible employees” that lays out all the requirements to qualify for FMLA leave and provides citations to primary authority so you can investigate further. You’ll also learn that qualifying employees, or their family members, must have a “serious health condition” to trigger FMLA leave.
This knowledge will lead you to a chapter on “serious health conditions” and an easily digestible explanation of the legal meaning of that phrase. Again, citations to primary law are plentiful, so you can look them up yourself. There’s even an “Ailment Analysis” section where you can see how courts have ruled on headaches (not to mention other ailments like chicken pox, poison ivy, and sleep apnea).
You’ll find that a treatise like Labor and Employment Law will prevent quite a few legal research headaches. The truth is, lawyers frequently use legal treatises, especially early on in their practice, for a variety of reasons. First and foremost, they save time. Treatises allow you to avoid hours of preliminary research and analysis, leaving you with more time to examine the primary law and apply it to your specific facts.
This is especially true for summer associates with little practical experience. One summer I was asked to research an issue dealing with lawyer advertising. I went straight to LexisNexis and began running all the searches I could think of. It took me a few hours, but I finally got a handle on the issue and got the project done. My answer was good, but my approach was not—although I didn’t know it at the time.
I later learned about legal treatises. All the “original” research I did on lawyer advertising appears in one section of Nowak and Rotunda’s Treatise on Constitutional Law: Substance and Procedure. I could have reduced my hours of research to 20 minutes if I had known the mantra and headed to a treatise.
In addition to saving time, lawyers also like treatises because they provide a good overview of the law. Treatises don’t always answer every specific legal question, but they do provide helpful background information. Think of it like stepping into the middle of a conversation. To make total sense of what you’re hearing, you need someone to catch you up on what’s been said. Treatises are the friends that fill you in.
As a new associate, you’ll be especially grateful for this type of help. For example, you may be asked to work on a Chapter 11 bankruptcy case. You probably took bankruptcy as a 2L, but you may be amazed (or not) at how little you remember. Spending some time with Collier on Bankruptcy will get you back up to speed and help avoid embarrassment.
Lawyers rely on treatises because they are written by experts. If you want a lesson on something, you want it from the best. Legal treatise authors are generally well-respected experts in their fields. Some authors are higher up the reputational totem pole than others, but most are well qualified to teach you about the subject.
A few of these authors and their treatises are so well respected in their fields that you’d better get to know them. If a partner tells you to find out what Wright and Miller say about federal preemption, for example, you don’t want to be the person asking where their offices are. That’s because Wright and Miller are the authors of an important civil procedure treatise. It is so well known that most people just call it “Wright and Miller.” (I had to become a law librarian to find out that the real name is Federal Practice and Procedure.)
Federal Practice and Procedure is a large multi-volume treatise, but other treatises are just one volume.Powell on Real Property and others fall somewhere in between.
Just as the size of treatises differs, so does their coverage of legal topics. Nimmer on Copyright covers the general topic of (yep, you guessed it) copyright, while others treat highly specialized areas like elder abuse litigation in California. The key is to find out what’s available in your area of law and become familiar with it.
Don’t be surprised to find print versions of legal treatises wherever you work. Many lawyers still cling to print versions of their favorite treatises. LexisNexis and Westlaw have also added many legal treatises over the last several years. Access to electronic treatises may be outside your employer’s subscription, so be careful. However, the research time saved with a treatise may be worth the access cost. It would be wise to consult with someone in your organization before proceeding.
But, whether print or electronic, it’s what’s inside that counts. Much of your research has been done for you in a legal treatise—and by an expert no less. So, take that work and roll with it. You’ll most likely pass a few wheel reinventers along the way. (They forgot the mantra!)