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How to do legal research in 3 steps

Knowing where to start a difficult legal research project can be a challenge. But if you already understand the basics of legal research, the process can be significantly easier — not to mention quicker.

Solid research skills are crucial to crafting a winning argument. So, whether you are a law school student or a seasoned attorney with years of experience, knowing how to perform legal research is important — including where to start and the steps to follow.

What is legal research, and where do I start?

Black's Law Dictionary defines legal research as “[t]he finding and assembling of authorities that bear on a question of law." But what does that actually mean? It means that legal research is the process you use to identify and find the laws — including statutes, regulations, and court opinions — that apply to the facts of your case.

In most instances, the purpose of legal research is to find support for a specific legal issue or decision. For example, attorneys must conduct legal research if they need court opinions — that is, case law — to back up a legal argument they are making in a motion or brief filed with the court.

Alternatively, lawyers may need legal research to provide clients with accurate legal guidance . In the case of law students, they often use legal research to complete memos and briefs for class. But these are just a few situations in which legal research is necessary.

Why is legal research hard?

Each step — from defining research questions to synthesizing findings — demands critical thinking and rigorous analysis.

1. Identifying the legal issue is not so straightforward. Legal research involves interpreting many legal precedents and theories to justify your questions. Finding the right issue takes time and patience.

2. There's too much to research. Attorneys now face a great deal of case law and statutory material. The sheer volume forces the researcher to be efficient by following a methodology based on a solid foundation of legal knowledge and principles.

3. The law is a fluid doctrine. It changes with time, and staying updated with the latest legal codes, precedents, and statutes means the most resourceful lawyer needs to assess the relevance and importance of new decisions.

Legal research can pose quite a challenge, but professionals can improve it at every stage of the process .

Step 1: Key questions to ask yourself when starting legal research

Before you begin looking for laws and court opinions, you first need to define the scope of your legal research project. There are several key questions you can use to help do this.

What are the facts?

Always gather the essential facts so you know the “who, what, why, when, where, and how” of your case. Take the time to write everything down, especially since you will likely need to include a statement of facts in an eventual filing or brief anyway. Even if you don't think a fact may be relevant now, write it down because it may be relevant later. These facts will also be helpful when identifying your legal issue.

What is the actual legal issue?

You will never know what to research if you don't know what your legal issue is. Does your client need help collecting money from an insurance company following a car accident involving a negligent driver? How about a criminal case involving excluding evidence found during an alleged illegal stop?

No matter the legal research project, you must identify the relevant legal problem and the outcome or relief sought. This information will guide your research so you can stay focused and on topic.

What is the relevant jurisdiction?

Don't cast your net too wide regarding legal research; you should focus on the relevant jurisdiction. For example, does your case deal with federal or state law? If it is state law, which state? You may find a case in California state court that is precisely on point, but it won't be beneficial if your legal project involves New York law.

Where to start legal research: The library, online, or even AI?

In years past, future attorneys were trained in law school to perform research in the library. But now, you can find almost everything from the library — and more — online. While you can certainly still use the library if you want, you will probably be costing yourself valuable time if you do.

When it comes to online research, some people start with free legal research options , including search engines like Google or Bing. But to ensure your legal research is comprehensive, you will want to use an online research service designed specifically for the law, such as Westlaw . Not only do online solutions like Westlaw have all the legal sources you need, but they also include artificial intelligence research features that help make quick work of your research

Step 2: How to find relevant case law and other primary sources of law

Now that you have gathered the facts and know your legal issue, the next step is knowing what to look for. After all, you will need the law to support your legal argument, whether providing guidance to a client or writing an internal memo, brief, or some other legal document.

But what type of law do you need? The answer: primary sources of law. Some of the more important types of primary law include:

Case law, which are court opinions or decisions issued by federal or state courts
Statutes, including legislation passed by both the U.S. Congress and state lawmakers
Regulations, including those issued by either federal or state agencies
Constitutions, both federal and state

Searching for primary sources of law

So, if it's primary law you want, it makes sense to begin searching there first, right? Not so fast. While you will need primary sources of law to support your case, in many instances, it is much easier — and a more efficient use of your time — to begin your search with secondary sources such as practice guides, treatises, and legal articles.

Why? Because secondary sources provide a thorough overview of legal topics, meaning you don't have to start your research from scratch. After secondary sources, you can move on to primary sources of law.

For example, while no two legal research projects are the same, the order in which you will want to search different types of sources may look something like this:

Secondary sources . If you are researching a new legal principle or an unfamiliar area of the law, the best place to start is secondary sources, including law journals, practice guides , legal encyclopedias, and treatises. They are a good jumping-off point for legal research since they've already done the work for you. As an added bonus, they can save you additional time since they often identify and cite important statutes and seminal cases.
Case law . If you have already found some case law in secondary sources, great, you have something to work with. But if not, don't fret. You can still search for relevant case law in a variety of ways, including running a search in a case law research tool.

Once you find a helpful case, you can use it to find others. For example, in Westlaw, most cases contain headnotes that summarize each of the case's important legal issues. These headnotes are also assigned a Key Number based on the topic associated with that legal issue. So, once you find a good case, you can use the headnotes and Key Numbers within it to quickly find more relevant case law.

Statutes and regulations . In many instances, secondary sources and case law list the statutes and regulations relevant to your legal issue. But if you haven't found anything yet, you can still search for statutes and regs online like you do with cases.

Once you know which statute or reg is pertinent to your case, pull up the annotated version on Westlaw. Why the annotated version? Because the annotations will include vital information, such as a list of important cases that cite your statute or reg. Sometimes, these cases are even organized by topic — just one more way to find the case law you need to support your legal argument.

Keep in mind, though, that legal research isn't always a linear process. You may start out going from source to source as outlined above and then find yourself needing to go back to secondary sources once you have a better grasp of the legal issue. In other instances, you may even find the answer you are looking for in a source not listed above, like a sample brief filed with the court by another attorney. Ultimately, you need to go where the information takes you.

Step 3: Make sure you are using ‘good’ law

One of the most important steps with every legal research project is to verify that you are using “good" law — meaning a court hasn't invalidated it or struck it down in some way. After all, it probably won't look good to a judge if you cite a case that has been overruled or use a statute deemed unconstitutional. It doesn't necessarily mean you can never cite these sources; you just need to take a closer look before you do.

The simplest way to find out if something is still good law is to use a legal tool known as a citator, which will show you subsequent cases that have cited your source as well as any negative history, including if it has been overruled, reversed, questioned, or merely differentiated.

For instance, if a case, statute, or regulation has any negative history — and therefore may no longer be good law — KeyCite, the citator on Westlaw, will warn you. Specifically, KeyCite will show a flag or icon at the top of the document, along with a little blurb about the negative history. This alert system allows you to quickly know if there may be anything you need to worry about.

Some examples of these flags and icons include:

A red flag on a case warns you it is no longer good for at least one point of law, meaning it may have been overruled or reversed on appeal.
A yellow flag on a case warns that it has some negative history but is not expressly overruled or reversed, meaning another court may have criticized it or pointed out the holding was limited to a specific fact pattern.
A blue-striped flag on a case warns you that it has been appealed to the U.S. Supreme Court or the U.S. Court of Appeals.
The KeyCite Overruling Risk icon on a case warns you that the case may be implicitly undermined because it relies on another case that has been overruled.

Another bonus of using a citator like KeyCite is that it also provides a list of other cases that merely cite your source — it can lead to additional sources you previously didn't know about.

Perseverance is vital when it comes to legal research

Given that legal research is a complex process, it will likely come as no surprise that this guide cannot provide everything you need to know.

There is a reason why there are entire law school courses and countless books focused solely on legal research methodology. In fact, many attorneys will spend their entire careers honing their research skills — and even then, they may not have perfected the process.

So, if you are just beginning, don't get discouraged if you find legal research difficult — almost everyone does at first. With enough time, patience, and dedication, you can master the art of legal research.

Thomson Reuters originally published this article on November 10, 2020.

Related insights

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Case law is law that is based on judicial decisions rather than law based on constitutions , statutes , or regulations . Case law concerns unique disputes resolved by courts using the concrete facts of a case. By contrast, statutes and regulations are written abstractly.

Case law, also used interchangeably with common law , refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. In that sense, case law differs from one jurisdiction to another. For example, a case in New York would not be decided using case law from California. Instead, New York courts will analyze the issue relying on binding precedent . If no previous decisions on the issue exist, New York courts might look at precedents from a different jurisdiction, that would be persuasive authority rather than binding authority. Other factors such as how old the decision is and the closeness to the facts will affect the authority of a specific case in common law.

Federalism also plays a major role in determining the authority of case law in a particular court. Indeed, each circuit has its own set of binding case law. As a result, a judgment rendered in the Ninth Circuit will not be binding in the Second Circuit but will have persuasive authority. However, decisions rendered by the Supreme Court of the United States are binding on all federal courts, and on state courts regarding issues of the Constitution and federal law.

[Last updated in May of 2020 by the Wex Definitions Team ]

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Every law student and practicing attorney must be able to find, read, analyze, and interpret case law. Under the common law principles of stare decisis, a court must follow the decisions in previous cases on the same legal topic. Therefore, finding cases is essential to finding out what the law is on a particular issue.

This guide will show you how to read a case citation and will set out the sources, both print and online, for finding cases. This guide also covers how to use digests, headnotes, and key numbers to find case law, as well as how to find cases through terms and connectors searching.

To find cases using secondary sources, such as legal encyclopedias or legal treatises, see our Secondary Sources Research Guide . For additional strategies to find cases, like using statutory annotations or citators, see our Case Law Research Tutorial . Our tutorial also covers how to update cases using citators (Lexis’ Shepard’s tool and Westlaw’s KeyCite).

Basic Case Citation

A case citation is a reference to where a case (also called a decision or an opinion ) is printed in a book. The citation can also be used to retrieve cases from Westlaw and Lexis . A case citation consists of a volume number, an abbreviation of the title of the book or other item, and a page number.

The precise format of a case citation depends on a number of factors, including the jurisdiction, court, and type of case. You should review the rest of this section on citing cases (and the relevant rules in The Bluebook ) before trying to format a case citation for the first time. See our Bluebook Guide for more information.

The basic format of a case citation is as follows:

Parallel Citations

When the same case is printed in different books, citations to more than one book may be given. These additional citations are known as parallel citations .

Example: 265 U.S. 274, 68 L. Ed. 1016, 44 S. Ct. 565.

This means that the case you would find at page 565 of volume 44 of the Supreme Court Reporter (published by West) will be the same case you find on page 1016 of volume 68 of Lawyers' Edition (published by Lexis), and both will be the same as the opinion you find in the official government version, United States Reports . Although the text of the opinion will be identical, the added editorial material will differ with each publisher.

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Writing Effective Legal Case Briefs for Law Students

How to write a case brief, complete with examples.

tl;dr - Case briefs help your understanding of legal concepts and enable you to better prepare for exams. Here are some example case briefs .

As a new law student, one of the essential skills you need to develop is the ability to write effective legal case briefs. A case brief is a concise summary of a legal case that highlights the key issues, legal principles, and holdings of the court. Writing a good case brief can help you better understand the law, prepare for class discussions and exams, and become a more effective legal professional. In this article, we'll explore the key elements of a good legal case brief and provide some tips on how to write one effectively.

Legal case briefs are an essential tool for you as a law student, as they provide a concise and organized summary of a court case. Case brief examples serve as a means for you to understand the facts, issues, and legal principles underlying a court decision, and are crucial in helping you develop analytical and critical thinking skills.

One of the primary reasons why case briefs are important for you is that they help you understand the law in a practical and applied manner. In law school, you study legal principles and concepts in a theoretical sense. However, case briefs provide a means for you to see how these principles are applied in real-world situations. By analyzing and dissecting court decisions, you are able to gain a better understanding of how legal principles and concepts are applied in practice. For example, case brief examples of landmark cases like Marbury v. Madison or Brown v. Board of Education can help you understand the historical and legal significance of these cases.

Understand the Structure of a Legal Case Brief

Before we dive into the details of how to write a good legal case brief, it's important to understand its structure. A typical legal case brief, such as the examples of case briefs available on LSD , includes the following sections:

Title and Citation: This section includes the name of the case, the court that decided the case, and the citation (i.e., the reference that identifies where the case is published).
Facts: This section provides a brief summary of the key facts of the case, including who the parties are, what they did, and how the case came to court.
Issues: This section identifies the legal issues that the court was asked to decide, and focuses on the questions that the court addressed in its decision.
Holding: This section summarizes the court's decision on the legal issues presented in the case.
Analysis: This section provides an explanation of the court's reasoning in arriving at its holding, including the legal principles and rules that the court relied on.

Focus on the Key Facts and Issues

When writing a case brief, it's important to focus on the key facts and legal issues presented in the case. You should avoid including unnecessary details or information that is not relevant to the legal issues. Instead, focus on the facts and issues that are essential to understanding the court's decision. This is evident in many examples of case briefs written by legal professionals.

Identify the Legal Principles and Rules

In addition to focusing on the key facts and issues, it's important to identify the legal principles and rules that the court relied on in arriving at its decision. This will help you understand the court's reasoning and the legal principles that are relevant to the case. Many examples of case briefs available online also highlight the legal principles and rules that were applied in a particular case.

Use Clear and Concise Language

A good legal case brief should be written in clear and concise language, as seen in examples of case briefs written by legal professionals. You should avoid using legal jargon or technical terms that may be difficult for a layperson to understand. Instead, use plain language that accurately conveys the meaning of the court's decision.

Be Organized and Structured

To make your case brief more effective, it's important to be organized and structured in your writing. Use headings and subheadings to separate different sections of your brief, and make sure that each section flows logically from one to the next. This is evident in many examples of case briefs available online, which are organized and structured in a clear and logical manner.

So, what’s the point?

Developing analytical and critical thinking skills.

Writing case briefs helps you develop analytical and critical thinking skills. By analyzing court decisions and identifying key facts, issues, and legal principles, you are practicing your ability to think critically and to identify relevant legal issues. Case briefs provide a practical way to develop these skills and apply them to real-world legal problems.

To further develop your analytical and critical thinking skills, you can practice writing your own case briefs. Take a recent court decision and write a brief that summarizes the key facts, issues, and legal principles involved. This will help you become more proficient at identifying relevant information and organizing it in a structured manner.

Preparing for Class and Exams

In addition to being a valuable tool for developing analytical skills, case briefs also help you prepare for class discussions and exams. As you read cases and write briefs, you are gaining a deeper understanding of the law and the reasoning behind court decisions. This knowledge will help you participate more effectively in class discussions and will also help you prepare for law school exams.

To get the most out of case briefs when preparing for exams, you can practice writing case briefs for cases that you studied throughout the year, or to hypotheticals from past exams. This will help you apply the analytical skills you've developed to new situations and ensure that you are able to communicate your understanding of legal principles effectively.

In conclusion, case briefs are an essential tool for law students as they provide a practical application of legal principles, help develop analytical and critical thinking skills, and aid in preparing for class discussions and exams. By studying case brief examples, practicing writing your own briefs, and developing a deep understanding of the law in context, you can become a more proficient and effective student and legal professional. For examples, check out LSD's case brief database .

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Discussion Forum
Why and How: Using the Case Study Method in the Law Classroom

Post by: Jackie Kim and Lisa Brem

Why should legal educators use case studies and other experiential teaching methods, such as role plays and simulations, in their classes? Hasn’t the Langdell method served legal education well these last 140 years? Certainly creating and using experiential materials requires a different set of skills from faculty, elicits a different response and level of engagement from students, and poses barriers to implementation. The ABA’s LEAPS Project [i] has a comprehensive list of objections to practical problem solving in the classroom: materials are time consuming and expensive to create and deploy; addition of a case study or simulation to a syllabus inherently displaces other material; and there are few incentives from law school leaders to introduce this type of teaching.

Yet, the argument promoting experiential materials and techniques is strong. The 2007 Carnegie Report [ii] recommended integrating lawyering skills practice into the curriculum alongside doctrinal courses, and the ABA added simulation courses to the list of practical experiences that can and should be offered by law schools in its 2015 Guidance Memo [iii] .

In a 2007 Vanderbilt Law Review article [iv] , HLS Dean Martha Minow and Professor Todd D. Rakoff argued that Langdell’s approach to teaching students using appellate cases does not do enough to prepare law students for real-world problems: “The fact is, Langdell’s case method is good for some things, but not good for others. We are not talking about fancy goals here; we are talking about teaching students ‘how to think like a lawyer.’”

But does the case study method result in a higher degree of student learning? While we have not yet seen a study on the efficacy of the case study method vs. the Langdell method in law schools, research [v] from political science professor Matthew Krain suggests that case studies and problem-based activities do enhance certain types of learning over other types of pedagogy. In his investigation, Krain compared the results of pre-and post-course surveys of students who participated in active learning with those who received a traditional lecture course. The case studies and problems that Krain used in his non-traditional classes included: case studies in the form of popular press articles, formal case studies, films, or problem-based case exercises that required students to produce a work product.

Krain found that:

Student-centered reflection, in which students have the opportunity to discuss their understanding of the case, allows both students and instructors to connect active learning experiences back to a larger theoretical context. Case learning is particularly useful for dramatizing abstract theoretical concepts, making seemingly distant events or issues seem more “authentic” or “real,” demonstrating the connection between theory and practice, and building critical-thinking and problem-solving skills (Inoue & Krain, 2014; Krain, 2010; Kuzma & Haney, 2001; Lamy, 2007; Swimelar, 2013).

This study suggests that case-based approaches have great utility in the classroom, and they should be used more often in instances where students’ understanding of conceptual complexity or knowledge of case details is critical. Moreover, case-based exercises can be derived from a variety of different types of materials and still have great utility. If deployed selectively in the context of a more traditional classroom setting as ways to achieve particular educational objectives, case-based approaches can be useful tools in our pedagogical toolbox.

For those who might be ready to try a case study, role play, or simulation, there are resources that can help. Harvard Law School produces case studies for use throughout the legal curriculum. The HLS Case Studies program publishes these teaching materials, and makes them available to educators, academic staff, students, and trainers. Outside of Harvard Law School, links to resources for educators implementing the case study method can be found on the Case Studies Program Resources page. Listed are case study affiliates at Harvard, legal teaching and learning tools, tips for case teaching, and free case materials. Examples include the Legal Education, ADR, and Practical Problem Solving (LEAPS) Project [vi] from the American Bar Association , which provides resources for various topics on legal education, and the Teaching Post , an educators’ forum offered by the Harvard Business School where professors can seek or provide advice on case study teaching.

“… [O]ur society is full of new problems demanding new solutions, and less so than in the past are lawyers inventing those solutions. We think we can, and ought to, do better.” – Dean Martha Minow & Professor Todd Rakoff. [vii]

[i] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.” Legal Education, ADR & Practical Problem-Solving (LEAPS) Project, American Bar Association, Section of Dispute Resolution. Accessed March 16, 2017, http://leaps.uoregon.edu/content/overcoming-barriers-teaching-%E2%80%9Cpractical-problem-solving%E2%80%9D. [ii] William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman, “Educating Lawyers,” The Carnegie Foundation for the Advancement of Teaching (2007). [iii] American Bar Association, “Managing Director’s Guidance Memo,” Section of Legal Education and Admissions to the Bar (2015). [iv] Martha Minow and Todd D. Rakoff, “A Case for Another Case Method,” Vanderbilt Law Review 60(2) (2007): 597-607. [v] Matthew Krain, “Putting the learning in case learning? The effects of case-based approaches on student knowledge, attitudes, and engagement,” Journal on Excellence in College Teaching 27(2) (2016): 131-153. [vi] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.” [vii] Minow and Rakoff.

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The Case Study Teaching Method

It is easy to get confused between the case study method and the case method , particularly as it applies to legal education. The case method in legal education was invented by Christopher Columbus Langdell, Dean of Harvard Law School from 1870 to 1895. Langdell conceived of a way to systematize and simplify legal education by focusing on previous case law that furthered principles or doctrines. To that end, Langdell wrote the first casebook, entitled A Selection of Cases on the Law of Contracts , a collection of settled cases that would illuminate the current state of contract law. Students read the cases and came prepared to analyze them during Socratic question-and-answer sessions in class.

The Harvard Business School case study approach grew out of the Langdellian method. But instead of using established case law, business professors chose real-life examples from the business world to highlight and analyze business principles. HBS-style case studies typically consist of a short narrative (less than 25 pages), told from the point of view of a manager or business leader embroiled in a dilemma. Case studies provide readers with an overview of the main issue; background on the institution, industry, and individuals involved; and the events that led to the problem or decision at hand. Cases are based on interviews or public sources; sometimes, case studies are disguised versions of actual events or composites based on the faculty authors’ experience and knowledge of the subject. Cases are used to illustrate a particular set of learning objectives; as in real life, rarely are there precise answers to the dilemma at hand.

Our suite of free materials offers a great introduction to the case study method. We also offer review copies of our products free of charge to educators and staff at degree-granting institutions.

For more information on the case study teaching method, see:

Martha Minow and Todd Rakoff: A Case for Another Case Method
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How to Prepare for Law School
Reading a casebook
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How to Read a Law School Casebook

Excerpt reproduced from guide to the study of law: an introduction , second edition (lexisnexis 2001) by l.h. larue chapter 2: reading the law school casebook.

In the first chapter, I talked about rules, and in particular, about getting used to the way that lawyers use rules as the starting place for an argument. In passing, I mentioned “cases.” I said that arguments were presented in cases, but I didn't explain what a case was. However there are some things that need to be explained; let me start with the most obvious and simplistic facts. In law school, law students study from casebooks.

There are textbooks for most courses; these textbooks are useful; for example, they are a convenient reference when one starts a research project. However, we don’t usually deal with the textbooks in class; instead, in class we deal with casebooks, and the cases. Consequently, beginning law students must learn a new skill, how to read cases. The art, or skill, of reading a case well is less difficult than is the skill of reading well when one reads a poem or a mathematical proof. However, there are difficulties, many of which rest on the fact that the beginner lacks knowledge of many of the relevant background facts that those who are more experienced take for granted.

In the chapter on rules, I have already given some advice that is useful in reading cases, namely, that one must be alert to the possibility that there will be some unusual and perhaps even startling “moves” in the arguments that are presented. The judicial opinion goes along routinely, and then there are some surprises. The argument takes a turn that can surprise one who is new to the game. One must be alert for such twists and turns. In addition, there are some other things that are good to know: first, there is some useful information about courts; and second, there is some advice about technique. Picking up the relevant background information is rather easy, but learning good technique is harder.

§ 2.01 Background Information

One should start by asking: What is a case?, and how is it produced? The word “case” is a shorthand expression, and like all shorthand expressions it can be misleading.

When we refer to a “case,” we are speaking of the “opinion” written by the judges of an appellate court. (By the way, there are some interesting historical questions about the judicial practice of writing opinions. Why did it develop? How has it changed? What differences in this judicial practice can one discover? Are the differences important?)

This phrase, “appellate court,” is a technical phrase among lawyers. Like most technical phrases, it is meant to mark off a distinction, and in this case the distinction is the contrast between a trial court and an appellate court. When people go to court and fight for their rights, they go to a trial court. Appellate courts don't try cases; they hear appeals from the trial courts.

It follows that three things have to happen before we ever get an appellate opinion. First, someone must take a problem to court, and this problem, this dispute, must go all the way through the trial process. Second, the outcome of this trial process must be unsatisfactory to at least one of the participants in the trial, and this lack of satisfaction must be intense enough to lead to an appeal. And finally, the appellate court must take the case, decide it, and write an opinion. In other words, an appellate opinion is a rare event in the totality of legal events. Rare is perhaps not the best word, but I want to emphasize that appellate courts and their opinions are a small part of the world of the law. The rarity of the appellate opinion can be illustrated, although not explained, by statistics.

Of course, statistics won't show the number of times people do not take disputes to court, and so any statistical analysis must begin a few steps too late in the overall process of law. We have no statistics on the number of times people go to a lawyer’s office and are told not to sue.

Furthermore, we have no statistics on the number of times people have disputes and do not even consult with a lawyer. However, let us ignore these limitations and summarize the statistics that we do have, using the information for a recent year.

The statistics for the courts of the United States, the national or “federal” courts, are set forth in the Statistical Abstract of the U.S., which is published by the Bureau of the Census. In the 1999 volume, the most recent set of numbers cover the year 1997. (Tables 370, 371, and 372.) There are three levels of courts in the national system: the District Courts, which is the place one goes to start a lawsuit; the Courts of Appeals, which review the work of the District Courts; and the Supreme Court, which reviews the work of the Courts of Appeals and of the Supreme Courts of the several states. As one goes from the bottom to the top, the number of cases filed drops dramatically. Rounding off the numbers, one goes from 300,000 to 50,000 to 2,500. (Actually, the Supreme Court has a total of 7,500 cases filed, but about 5,000 of those are pauper cases, filed by prisoners who lack money, and these cases get only cursory review, so I have subtracted them from the total.) And if one looks at the numbers for the state systems, the numbers are even more dramatic. In other words, when we look at the cases decided by the United States Supreme Court, or by the Supreme Court of one of the States, we are looking at the tip of the iceberg.

Furthermore, the statistics understate what a rare event a Supreme Court case (national or state) really is. Consider the beginning of the whole process, the act of taking a problem, a dispute, to court. This is a rare event. People do not generally take their legal problems to court. (I know that we Americans have the reputation for being litigious, and compared to the rest of the world, we are. But even so, most disputes are not taken to court.) People sometimes fail to sue because they are afraid to sue, or they just do not want to cause trouble, or maybe they can’t afford to sue, or it could be that they are ignorant about what one needs to do to take a lawsuit to court. It may be unjust that this is so, but failing to sue because of inertia, poverty, or ignorance is common.

However, sometimes the failure to go to court is based on better reasons. For example, there may have been negotiation and compromise, and if the process of negotiation was fair and accompanied by good faith, then the out of court settlement is probably just.

At any rate, whatever the explanation, most legal disputes are not taken to a court of law.

Even if a dispute is taken to a court, it is not likely that it will be appealed. Once it gets to court, the parties may decide that it is in their interest to forgo the trial and settle. Alternatively, the judge may give a decision that is satisfactory. And of course, an appeal costs money, so even those who are unsatisfied may not appeal. In short, there are good reasons why a case may not be tried and then, even if it is tried, there may be good reasons why it is not appealed.

Finally, if it gets to the appellate court, we still may not get an opinion. The appellate judges may give the case a rather summary treatment: they may decide that the appeal is frivolous and so they might refuse to look at the case; or if they look at it, they may dispose of it by way of a simple order, and they may publish no more than two or three lines of explanation about what they are doing. Consequently, a full dress opinion, the sort of thing that one reads in casebooks, is not routine, even if the case gets to the appellate level. For example, consider the 2,500 cases in the United States Supreme Court; in only 100 of those will there be a full oral argument by counsel and formal written opinions by the court.

If I could use a metaphor, I would say that the appellate opinion stands to the world of the law as the autopsy report stands to the world of medicine. So long as one is alive and well, and indeed, even if one is sick, there is no autopsy report. If there is a death, it is still not likely that there will be an autopsy report; the percentage of deaths in which there is an autopsy report is rather small. And finally, even if we get an autopsy, it may be rather summary, and the report may be highly abbreviated.

Since the appellate opinion is such a small slice of the law, there is a sense in which the study of the appellate opinion is not the study of the law in any simple (or simplistic) sense of that phrase, “the study of law.” Instead, one uses the appellate opinion as a lens through which to look at the larger world of the law. Like any lens, it distorts, but sometimes it can focus events and put them into an interesting perspective. Looking through this lens, one can see lawyers and judges at work, although one can only see part of their work; furthermore, we can focus the lens on different slices of the part.

Consequently, different professors are able to use cases to focus on different aspects of the law. Some of us are interested in the logic of the ideas and concepts that are used in legal rhetoric. Others of us are interested in the political agenda of those who try to use the law for social purposes. Some of us are interested in the historical developments of the law; others in its current consequences. One can use the lens of the appellate opinion to focus on any of these things, and indeed, on many other things.

However, regardless of these differences, the case is the starting place, and there are difficulties that arise for most students because of certain features of an appellate opinion.

§ 2.02 The Fundamental Difficulty in Reading Opinions

The main problem that a beginner has arises from the following fact: the opinions were not written with the law student in mind. The opinions were written by judges for other judges, and for lawyers. For example, a lawyer will take a case on appeal and will argue that the judge made a mistake at trial. In the appellate opinion, this question of the alleged mistake will be the focus of the discussion, and the appellate judge is not going to spend very much time talking about the undisputed matters. However, law students routinely have trouble understanding the importance of the disputed question unless they also understand the background of undisputed questions of law that are not being discussed. The beginner is thrown into the world of the law, and quite often, into the deep end of the pool.

I can put the problem by way of a hyperbole: law students study law by reading opinions that are written on the assumption that they already know law. It's sort of like learning to ride a bicycle by jumping on and starting to ride. There is no way to start except by starting; a legal dictionary will help; it will also help if one can tolerate ambiguity and uncertainty. It may also help if one remembers that dealing with unstated assumptions is something that one has done rather often in life. In any conversation, people say things that make sense only against a background of common understandings, which are unstated. When one reads historical documents, such a speeches, letters, and diaries from time past, one often has to do a little digging to discover those things which are taken for granted and left unsaid, but which are also essential to understanding the words that have come down to us.

Perhaps I can illustrate this phenomenon by going back to the burglary example of Chapter One. Imagine a case in which the facts are clear that the defendant broke into the victim’s dwelling, in which the facts are also clear that the defendant stole something while in the dwelling, but in which the facts are not at all clear, indeed, highly ambiguous, about when the defendant informed the intent to steal. If the defendant were to be convicted, we can imagine an appeal in which the defendant's lawyer would argue that the jury's resolution of the ambiguity was unreasonable. Since I have discussed this hypothetical already, one who has read Chapter One will understand why the issue of timing, of when the intent was formed, is so crucial. But imagine someone coming to the appellate opinion without the background of reading Chapter One. Unless one knows that the actus reus and the mens rea must happen at the same time, then any discussion of when the defendant formed the intent to steal will seem bizarre (we do not normally discuss the timing of an intent), and yet the author-judge of the opinion might fail to spell out the assumption that compels a discussion of “the when” of an intent. To an insider, the assumption is obvious and need not be stated; to the beginner, who is an outsider scrambling to get in, the assumption will not be obvious.

There is no easy way to deal with unstated assumptions, and so I have no simplistic recommendation. Sometimes one must “wing it.” Sometimes the only thing to do is to just read the material and hope that all will become clear in class. A more promising strategy is to ask others. Perhaps a classmate knows the crucial unstated assumption; discussion of the material, both before and after class is quite likely to improve ones understanding. Perhaps a second or third year student will help. Furthermore, the instructor and the editors of the casebook may have recommended collateral reading; sometimes these materials have the missing key. Sometimes all that one needs to do is to re-read the case. Perhaps one read too quickly and did not notice a crucial detail. But by far the most important thing is not to panic. Everyone who has ever gone to law school has had the same problem; we all got through it. I can guarantee that the problem of unstated assumptions will become less severe as time passes.

§ 2.03 Breaking a Case into its Elements

Given the difficulty of teasing out the unstated assumptions, one needs a good technique for reading the cases and preparing for class. Since one is being thrown into the deep end of the pool, it is prudent to wear a “life preserver.” Thrashing about aimlessly is both tiring and dangerous; it is better to have a good strategy. As a general rule, the best strategy is “divide and conquer.” The big problem, as I have just stated, is to learn the assumptions that underlie legal argument, but attacking this problem head on can be frustrating; the problem is too big. So one should break the problem down into pieces that are small enough to be within one's grasp. The immediate problem is reading cases in order to prepare for class, and so one needs to break down the big problem into a series of smaller problems by having a disciplined technique for dissecting cases. The time honored technique is called “briefing a case;” one writes a short, that is, brief, outline of the salient features of the case. However, there is more than one way to brief a case; what follows is my advice, not everyone’s advice.

I recommend that one begin by focusing on the overall structure of the case; one should try to understand the overall picture of: (1) what has happened that has provoked someone to take this case to court; (2) what happened at the trial court that has provoked someone to appeal; (3) what did the higher court do with this case. (By the way, there are manuals that describe a more complicated way of briefing a case. I think that the customary advice of these standard manuals is too complicated for the beginner, and so I have an alternative proposal. However, caveat emptor : the reader should be warned that my advice is somewhat non-standard.)

In other words, one should understand the history of the case. There are three stages: (1) from the world to the lower court; (2) from the lower court to the higher court; (3) from the higher court to a disposition. One should break down the opinion and identify which parts of it talk about each of these three stages of the case.

When one writes up a brief, one should be brief; don't try to write down everything; write down the essence of the matter. My advice is to concentrate on the movement, the “from-to” of a move. (1) From the world to the court: not everything that has happened in the world, but the things that have happened that have led someone to go to court. (2) From lower to higher: not everything that the trial judge did, but the things done that are the basis for the appeal. (3) From higher to disposition: not everything that is said, but the core of it, the key move in the argument that yields the result.

§ 2.04 From the World to the Trial Court

Breaking the opinion down in the way that I have just suggested is not too hard. At first, it is confusing, but anything that is new will normally require some experience before one becomes handy at it. However, there is a subtlety here that is tricky, and experience alone will not make it easy. The tricky and difficult aspect of briefing a case is something that a beginner is not likely to appreciate, that is, the technical vocabulary. Since this is so important, I wish to emphasize its importance.

Consider the first stage, the movement from the world to the trial court. My advice, as set forth above, was that one should ask: what happened that led someone to take this case to court? The problem here is: how do we describe what happened? Do we describe the “what happened” using the ordinary colloquial vocabulary of the average speaker of English? Or do we use the technical vocabulary of the law? The best answer is – both. But the minimum answer is – use the technical vocabulary. Let me explain what is at stake in answering this question, since the answer that I have just given may seem rather confusing.

Suppose that a Good Guy says that a Bad Guy ran into him with an automobile. We can describe this event in many different ways. An automotive engineer would probably describe it rather differently than would the average person. However, if we take this case to court, it will be described in both the ordinary idiom of the witnesses and in the language of the law. For example, are we to say that the Bad Guy committed a crime, for which he may be fined or imprisoned? If so, then we must use the technical vocabulary of the criminal law. (What are the elements of the offense for which the Bad Guy has been charged? What sort of proof must the prosecutor introduce to prove these elements?) On the other hand, we might be saying that the Bad Guy committed a civil wrong for which he might have to pay damages, and then we would have to use the vocabulary of the law of torts. (The plaintiff’s lawyer must prove the elements of the claim? What are they?) In this lecture, I cannot even begin to introduce the complexity of this vocabulary. But I do wish to insist upon its importance.

Perhaps the metaphor of “translation” will be helpful. When things that happen in the world are taken into court, they are “translated” in several senses of that useful word. In the physical sense (“to translate” is “to carry across”), we take the witnesses and documents into the courtroom and present them to the judge and the jury. And in the linguistic sense, which is the sense that I wish to emphasize, we substitute legal language for colloquial language. Of course, people do speak colloquial English in courtrooms; indeed, on a percentage basis, colloquial phrases outnumber technical ones. However, those sentences that are strategically and tactically crucial are technical.

Recall that in the last lecture I discussed a hypothetical in which someone sawed the lock off a garage door, opened it, and walked in. When the case like this is presented in court, we say that the defendant is charged with “burglary” and that the act that I have just mentioned – sawing through the lock, etc. – is described as “breaking and entering.” In the context of this lecture, I would like to emphasize that one must master this technical vocabulary. We translate the events into the technical language of the criminal law.

There are two mistakes that a beginner can make: ignoring the technical jargon; becoming seduced by it. One can't ignore it. When cases are presented in court, lawyers do not present them as generalized grievances. The plaintiff in a civil case, and the prosecution in a criminal case, do not present a generalized argument that the defendant is a bad guy who has done bad things. Instead, specific legal claims are presented, and there is no way that one can assert a specific legal claim without using the language of the law.

However, one must not be seduced by this language; one must not fall into the trap of supposing that this legal jargon can be taken at face value. Consider again the phrase “breaking and entering.” It has some meanings in the law that will surprise you and that are completely unpredictable. The colloquial sense of the word “breaking” connotes some violence and force; however, when you study criminal law, you will find out that entries that seem quite peaceful, to the ordinary eye, are classified as a “breaking.” This phenomenon of unanticipated meanings is routine, but if you have studied a foreign language and considered problems of translation, it should not be a total surprise to you. Perfectly ordinary words, such as “carry” or “work,” can have radically different connotations in different languages.

I wish that I could say more about the process of “translation,” but I cannot do so unless I exceed the scope of an introduction. The techniques for translating ordinary grievances into legal claims are the core of the lawyer’s art, and indeed, the study of this art will be one of your principal tasks. However, I cannot anticipate here the full range of what you will study in law school, so let me move to the next step in briefing, about which it is possible to be more specific.

§ 2.05 From the Trial Court to the Appellate Court

The next stage in a case, the next step toward having an appellate opinion, is the trip from the lower court to the higher court, from the trial court to the appellate court. The historical explanation is simple enough; those who have lost think that they should have won, and they can afford to appeal. But there is a problem here. One can’t go to the appellate court and say that the trial judge was a jerk and an idiot, and then argue that the appellate court ought to go through the case all over again and do justice.

The simplest reason that one can't make such a straightforward plea is a reason of time and other resources. If the higher court judges were to make a practice of re-trying the cases that lower court judges have already tried, then we would need as many appellate judges as we have trial judges. But we have far fewer. Given the statistics, one can't ask the appellate courts to redo what has already been done, which is try the case. Instead, one does something that has a more limited scope; the lawyer who manages the appeal must point out some particular error that the trial judge has made. It is not enough to complain about the result generally. One must be particular; one must point to some particular act that the trial judge did in the course of the trial and say that this particular act was an error.

Of course, as a practical matter, the only reason for caring about an error is that one cares about the result. The result is what counts. However, the lawyer must “translate” the client’s displeasure with the result into more formal terms. Just as lawyers take generalized complaints about what happened in the world and translate the complaints into legal claims, so too lawyers take a generalized disappointment with the results in trials and translate them into assignments of error. To be sure, one must complain about the result; however, one does not complain about it directly. One complains about the result via an error. One tries to identify an error that has led to a bad result, i.e. , to an error that has harmed the client.

This limitation, i.e. , that one must specify a particular error, is not a logical requirement; it is a practical requirement. But at any rate, for a lawyer, it is a requirement, it is one of the facts of life. Since it is a requirement, the law student must read cases with this particular fact, this fact of life, in mind. As you read the case, ask yourself: what is the error about which the lawyer is complaining? As to this, I can offer specific advice, since the errors which one may allege, the so-called assignments of error, are limited in number. My advice is to think about the case in terms of the sequence of its drama; the progress of a case is highly stylized; the drama varies from case to case, but the sequence is always the same. Let me now describe this sequence; I shall describe a civil case with a jury, ignoring non-jury trials and criminal trials.

The case always starts with the plaintiff filing a pleading. At this point, the defendant can object. The defendant can say: “Why that’s the silliest piece of paper that I have ever seen; even if you believe everything in it, I still haven’t done anything wrong.” Of course, it will be said more formally, and some special jargon will be used; however, that is the gist of what might be said. At this point, the judge must rule; the judge must say whether this assertion is well founded. The judge can rule in favor of either side; whichever way the judge rules, someone will be unhappy, and it may be that this ruling about the pleadings is the error that is assigned on the appeal.

But then again, maybe it isn't; it may be that the next stage of the trial is the problem.

The next stage of the proceedings are called the “pre-trial.” We call everything that follows the pleadings but precedes the actual trial, the part where the witnesses get up and tell their story, by the name “pre-trial.” Lots of things happen at pre-trial; we decide what the issues are going to be, gather evidence, and so forth. Needless to say, something can go wrong at this stage, and the assignment of error may relate to this. For example, one might ask for the right to inspect an opponent’s records, and inspection might have been denied.

The next stage is the trial itself. At this point, each side will put forth its witnesses, its documents, and so forth. And of course, there can be lots of complaints about this process. As for the evidence that is let in, there will be arguments that it should have been kept out. As for the evidence that was kept out, it can be argued that it should have been let in.

After the evidence is in, we can get another round of assertions that the case should be ended. The defendant can say: “Well, now that you have seen the evidence, you can see that I was right; there is nothing to this case.” The plaintiff will argue in response to this that the case must go to the jury. Alternatively, the plaintiff might say: “The evidence is overwhelming; you ought to give me a victory right now.” And defendant can counter that it must go to the jury.

The trial judge will have to rule on these assertions, and the assignment of error might be about these rulings. In other words, the trial judge may rule that the case overwhelmingly favors either the plaintiff or the defendant, or alternatively, the judge may rule that the case should go to the jury. No matter which of these three possibilities is chosen, someone may assign it as error.

If the judge lets the case go to the jury, then there must be what we call “instructions.”

The judge has to tell the jury what the law is; we call this, giving instructions to the jury, or instructing the jury. By now, you know how my story goes; one can object to these instructions, claiming that they are erroneous.

All of this may sound very complicated, but it only sounds complicated because it is new.

Furthermore, it must seem as though a lawsuit is like a minefield; there are too many ways to make an error. True enough, but there is a redeeming fact; most errors don’t make any difference to the way that things come out, and one does not have to worry about harmless errors. (In your courses, you will learn the details about the “harmless error” principle.)

The most important thing for a law student to know is that the trial goes through its stages, and that lawyers who take cases to an appellate court are arguing that the trial judge made a mistake at one of these stages. Furthermore, I can simplify the possibilities: very few civil cases involve an appeal on the grounds of the pleadings or the pre-trial. Most appeals are about the trial itself.

As for the trial, one can ask three questions, and these will suffice for most of the cases in the casebooks. The judge made decisions about whether to admit or exclude evidence: Is the appeal on these evidentiary decisions? The judge made a decision about whether to let the case go to the jury: Is the appeal about this? The judge made decisions about how to instruct the jury: Is the appeal about these instructions?

If one breaks it down in this way — Was the right sort of evidence admitted?, Did the evidence create a jury question?, How should the jury be instructed? — then one will be able to sort through the technicalities of most cases. I am frank to admit that these technicalities sometimes get in the way of doing justice; one must read with this in mind. However, you must master these technicalities; the question is whether you master them, or let them master you.

§ 2.06 The Appellate Court Reaches a Result

The third stage of the process is the appellate court and its opinion. What did they do with the case? There is not much that they can do, so this is a fairly straightforward question; they can approve or disapprove of what was done. If they approve, then they can let stand what was done. If they disapprove, then they can send it back and tell the trial court to do something different.

Recall what was said about the comparison in numbers between trial judges and appellate judges: appellate judges do not re-try the case. When I made this point before, I was emphasizing the relevance of these statistics to the practice of appeals; I said then that one couldn't get the appellate judges to look at the whole case; one had to point out some error.

These statistics are still relevant, but now in a different context. Suppose one has convinced the appellate judges that an error was made. Will they step in and try to correct the error themselves? No. They will send it back to the trial judge and have that judge do something. For example, suppose that the appellate judges think that the case should have been dismissed. They will not dismiss it. They will send it back to the trial judge with instructions for the trial judge, telling that judge to dismiss the case.

Once one understands what the appellate judges have done, then the next task is understanding why they did it. They will give many reasons; sometimes they write long opinions that have all sorts of reasons. The student's job is to pick out which of these are most important. Of course, this may require that one “read between the lines.” Sometimes judges are reluctant to be frank about how they have decided a case. Another possibility is that the judges were willing to be frank, but that they have not expressed what they are doing with clarity. A good deal of class discussion will be about this problem of the “real” reason.

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The term case law refers to law that comes from decisions made by judges in previous cases. Case law, also known as “ common law ,” and “case precedent ,” provides a common contextual background for certain legal concepts, and how they are applied in certain types of case. How much sway case law holds may vary by jurisdiction , and by the exact circumstances of the current case. To explore this concept, consider the following case law definition.

Definition of Case Law

The law as established in previous court rulings; like common law, which springs from judicial decisions and tradition.

1860-1865 English common law

What is Case Law

Statutory laws are those created by legislative bodies, such as Congress at both the federal and state levels. While this type of law strives to shape our society, providing rules and guidelines, it would be impossible for any legislative body to anticipate all situations and legal issues. The court system is then tasked with interpreting the law when it is unclear how it applies to any given situation, often rendering judgments based on the intent of lawmakers and the circumstances of the case at hand. Such decisions become a guide for future similar cases.

In order to preserve a uniform enforcement of the laws, the legal system adheres to the doctrine of stare decisis , which is Latin for “stand by decided matters.” This means that a court will be bound to rule in accordance with a previously made ruling on the same type of case. Precedent, or case law, is binding on courts of the same level or lower, and applies only if there is no legislative statute created, or higher court ruling, that overrules it.

Example of Case Law Application

Stacy, a tenant in a duplex owned by Martin, filed a civil lawsuit against her landlord, claiming he had not given her enough notice before raising her rent, citing a new state law that requires a minimum of 90 days’ notice. Martin argues that the new law applies only to landlords of large multi-tenant properties. When the state court hearing the case reviews the law, he finds that, while it mentions large multi-tenant properties in some context, it is actually quite vague about whether the 90-day provision applies to all landlords. The judge , based on the specific circumstances of Stacy’s case, decides that all landlords are held to the 90-day notice requirement, and rules in Stacy’s favor.

A year later, Frank and Adel have a similar problem. When they sue their landlord, the court must use the previous court’s decision in applying the law. This example of case law refers to two cases heard in the state court, at the same level. The ruling of the first court created case law that must be followed by other courts until or unless either new law is created, or a higher court rules differently.

Case Law by Jurisdiction

Case law is specific to the jurisdiction in which it was rendered. For instance, a ruling in a California appellate court would not usually be used in deciding a case in Oklahoma. While there is no prohibition against referring to case law from a state other than the state in which the case is being heard, it holds little sway. Still, if there is no precedent in the home state, relevant case law from another state may be considered by the court.

Rulings made by federal appellate courts, and the U.S. Supreme Court, however, are binding on state courts. Such rulings become “binding precedent,” which must be adhered to by lower courts in future similar cases. Rulings by courts of “lateral jurisdiction” are not binding, but may be used as persuasive authority, which is to give substance to the party’s argument, or to guide the present court.

Case Law Search

Just a few years ago, searching for case precedent was a difficult and time consuming task, requiring people to search through print copies of case law, or to pay for access to commercial online databases. Today, the internet has opened up a host of case law search possibilities, and many sources offer free access to case law. Doing a case law search may be as easy as entering specific keywords or citation into a search engine. There are, however, certain websites that facilitate case law searches, including:

Google Scholar – a vast database of state and federal case law, which is searchable by keyword, phrase, or citations. Google Scholar also allows searchers to specify which level of court cases to search, from federal, to specific states.
Justia – a comprehensive resource for federal and state statutory laws , as well as case law at both the federal and state levels.
Public Library of Law – offers access to cases from the U.S. Supreme court since 1754, the U.S. Circuit Courts of Appeal since 1951, and from each state since 1997. In addition to allowing users to search by keyword, court, and case, the website provides tutorials on “ Finding a Case ,” and “ Searching Statutes .”

In addition, the Law Library of Congress offers a great deal of information on statutes, case law, and other legal issues. This includes a Guide to Law Online .

Dissecting Case Law Citations

Finding a relevant case law ruling, and inserting a reference to that case into a current legal pleading , is not enough to direct the court to the specific issue. In many instances, court rulings in the U.S. deal with multiple issues, and include drawn-out descriptions of how the court, especially an appellate or supreme court, came to its conclusion. Because of this, simply citing the case is more likely to annoy a judge than help the party’s case. Think of it as calling someone to tell them you’ve found their lost phone, then telling them you live in such-and-such neighborhood, without actually giving them an address. Driving around the neighborhood trying to find their phone is likely to be more frustrating than it’s worth.

For legal professionals, there are specific rules regarding case citation, which vary depending on the court and jurisdiction hearing the case. Proper case law citation in a state court may not be appropriate, or even accepted, at the U.S. Supreme Court. Generally speaking, proper case citation includes the names of the parties to the original case, the court in which the case was heard, the date it was decided, and the book in which it is recorded. Different citation requirements may include italicized or underlined text, and certain specific abbreviations.

In the United States, people are not required to hire an attorney to represent them in either civil or criminal matters. Laypeople navigating the legal system on their own can remember one rule of thumb when it comes to referring to case law or precedent in court documents: be as specific as possible, leading the court, not only to the case, but to the section and paragraph containing the pertinent information. The Cornell Law School website offers a variety of information on legal topics, including citation of case law, and even provides a video tutorial on case citation .

Case Law Example in Civil Lawsuit Against Child Services

In 1996, the Nevada Division of Child and Family Services (“DCFS”) removed a 12-year old boy from his home to protect him from the horrible physical and sexual abuse he had suffered in his home, and to prevent him from abusing other children in the home. The boy was placed in an emergency foster home, and was later shifted around within the foster care system. The DCFS social worker in charge of the boy’s case had the boy made a ward of DCFS, and in her 6-month report to the court, the worker elaborated on the boy’s sexual abuse history, and stated that she planned to move him from a facility into a “more homelike setting.” The court approved her plan.

In 1997, the boy was placed into the home of John and Jane Roe as a foster child. Although the couple had two young children of their own at home, the social worker did not tell them about the boy’s history of both being abused, and abusing other children. When she made her report to the court the following day, the worker reported the boy’s placement in the Roe’s home, but didn’t mention that the couple had young children. She did note that the boy still needed extensive therapy in order to cope with his abusive past, and “to reach the point of being safe with other children.” The boy was receiving counseling with a DCFS therapist. Again, the court approved of the actions.

The Roes accompanied the boy to his therapy sessions. When they were told of the boy’s past, they asked if their children were safe with him in their home. The therapist assured them that they had nothing to worry about. Unfortunately, that was not true. Just two months after being placed with the Roe family, the Roe’s son told his parents that the boy had molested him. The boy was arrested two days later, and admitted to having sexually molested the couple’s son several times.

On June 16, 1999, a lawsuit was filed on behalf of the boy by a guardian ad litem , against DCFS, the social worker, and the therapist. A similar lawsuit was also filed on behalf of the Roe’s victimized son by a different guardian ad litem. The defendants petitioned the trial court for a dismissal based on absolute immunity , as they were all acting in their jobs with DCFS. If granted absolute immunity, the parties would not only be protected from liability in the matter, but could not be answerable in any way for their actions. When the court delayed making such a ruling, the defendants took their request to the appellate court.

In determining whether employees of DCFS are entitled to absolute immunity, which is generally held by certain government officials acting within the scope of their employment, the appellate court referred to case law previously rendered on similar cases. The appellate court determined that the trial court had not erred in its decision to allow more time for information to be gathered by the parties – specifically regarding the issue of absolute immunity.

Related Legal Terms and Issues

Binding Precedent – A rule or principle established by a court, which other courts are obligated to follow.
Lateral Jurisdiction – A court at the same level.
Persuasive Authority – Prior court rulings that may be consulted in deciding a current case. It may be used to guide the court, but is not binding precedent.

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US Case Law

The United States Supreme Court is the highest court in the United States. Lower courts on the federal level include the US Courts of Appeals, US District Courts, the US Court of Claims, and the US Court of International Trade and US Bankruptcy Courts. Federal courts hear cases involving matters related to the United States Constitution, other federal laws and regulations, and certain matters that involve parties from different states or countries and large sums of money in dispute.

Each state has its own judicial system that includes trial and appellate courts. The highest court in each state is often referred to as the “supreme” court, although there are some exceptions to this rule, for example, the New York Court of Appeals or the Maryland Court of Appeals. State courts generally hear cases involving state constitutional matters, state law and regulations, although state courts may also generally hear cases involving federal laws. States also usually have courts that handle only a specific subset of legal matters, such as family law and probate.

Case law, also known as precedent or common law, is the body of prior judicial decisions that guide judges deciding issues before them. Depending on the relationship between the deciding court and the precedent, case law may be binding or merely persuasive. For example, a decision by the US Court of Appeals for the Fifth Circuit is binding on all federal district courts within the Fifth Circuit, but a court sitting in California (whether a federal or state court) is not strictly bound to follow the Fifth Circuit’s prior decision. Similarly, a decision by one district court in New York is not binding on another district court, but the original court’s reasoning might help guide the second court in reaching its decision.

Decisions by the US Supreme Court are binding on all federal and state courts.

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Law Studies

How to Analyze Case Law

Last Updated: January 21, 2023 Fact Checked

This article was written by Jennifer Mueller, JD . Jennifer Mueller is an in-house legal expert at wikiHow. Jennifer reviews, fact-checks, and evaluates wikiHow's legal content to ensure thoroughness and accuracy. She received her JD from Indiana University Maurer School of Law in 2006. There are 7 references cited in this article, which can be found at the bottom of the page. This article has been fact-checked, ensuring the accuracy of any cited facts and confirming the authority of its sources. This article has been viewed 126,374 times.

When you hear the word "law," you may assume the word refers to statutes passed by Congress and state legislatures. But a major portion of American law actually is case law – the rules appellate judges distill from their interpretation of statutes and other sources. Accordingly, much of law school is spent learning how to analyze case law. However, attending law school isn't strictly necessary to acquire this valuable skill. You can teach yourself how to analyze case law, which begins – but doesn't end – with a thorough reading of the court's written opinion.

Summarizing the Facts

The first time you read through a case, don't worry about trying to understand it. Just read for a sense of what's happening, who the major parties are, and what they want the court to do.
Keep in mind that legal opinions aren't written for laypeople, or even for law students or attorneys – they are written for other judges. If you don't understand something (assuming you're not an appellate court judge), there's nothing wrong with that.
You may have to go outside the opinion itself and look at other articles about the case, and then come back to it. For example, if you're reading a case that caused quite a stir in the media when it was decided, there will no doubt be newspaper and magazine articles about it. Reading those can help you better understand the court opinion.
Many cases have summaries that appear before the case and let you know the basics of what happened, the issue before the court, and how the court resolved that issue. The summary can be helpful, but don't use it as a substitute for an initial read-through of the case.

To make party identification even more confusing, party names may switch sides of the "v." in the case caption depending on who appealed. For example, suppose when a case began, Sally Sunshine sued Marvin Moon. The case's caption would be "Sunshine v. Moon." The trial court found in favor of Ms. Sunshine – but Mr. Moon appealed. The caption then became "Moon v. Sunshine."
To continue the example, suppose the appellate court found in favor of Mr. Moon, but Ms. Sunshine appealed that ruling to a higher court. Now the case's caption is "Sunshine v. Moon" again.
Since litigants in written opinions typically are only identified by their roles – appellant and appellee, for example – their names may only be mentioned once.

Step 3 Outline the case's procedural history.

Since the procedural history determines the role of the litigants, and thus what each of them is called throughout the written opinion, understanding how the case moved through the court system – who sued whom, and who appealed – is paramount to understanding the case.
At the same time, you don't need to go into too much detail here. You just need to understand who filed the original lawsuit (which will help you understand the facts of the case), the decision at trial, and who appealed and why.

At the appellate level, the courts are concerned with legal issues, not questions of fact. So, for example, if you are reading a case that came about as a result of a bar fight, the factual question of whether one party assaulted the other has already been resolved.
In many cases, the initial facts that prompted the dispute may be summarized in a sentence or two. Often, what's really important is what happened afterward.
Keep in mind that not all judges are the best writers. While you may be tempted to believe a particular fact is important because the judge who wrote the opinion spent several paragraphs discussing it, this is not necessarily the case.
As you read more and more cases, particularly if the cases you read are focused on a particular court, you will become familiar with the styles of individual judges. This can make it easier for you to immediately notice when the judge is focusing on facts he or she believes are central to the case's holding.

Identifying the Issue and Decision

Step 1 Determine the legal issue raised by the facts.

Essentially, you're looking for what the person who appealed the lower court's ruling wanted to happen, that didn't. To find the issue, you must figure out what that person thought the lower court did wrong, and why.
This usually isn't about something as simple as one person believing he should have been awarded more money, or a criminal defendant not wanting to go to jail. That might be part of an appellant's personal motivation, but to have a legitimate appeal you must be able to point to some way that the lower court made a legal error.
In many cases, the legal error isn't an obvious error. The lower court may have applied the law correctly – but the appellant is arguing that her case is different from the cases that developed the rule the lower court used, or that the lower court should have used a different rule.
Often in Supreme Court cases, there isn't a rule that can be handed down from previous cases and applied in this case, because no court has ever decided a case like this one. In these situations, it's up to the court to figure out how to tackle this new issue, and where it fits in to the long line of American jurisprudence.

Step 2 Phrase the issue as a yes/no question.

In some cases, the issue before the court involves multiple yes/no questions, or a follow-up question that is conditional on the answer to the first.
This usually happens when a particular factual situation present in the case has never been explored by any other court. The court must first determine whether a particular law applies to that factual situation at all before it can decide how the law applies.
For example, suppose a baker has been fined by the local government for creating cupcakes with expletives written in icing. The court may first have to determine whether icing on cupcakes is the sort of speech or expression protected by the First Amendment, before it can reach the real issue of whether the baker's First Amendment rights have been violated.

Step 3 Provide the court's answer to the question.

Some judges have a very clear, straightforward writing style, and they'll phrase the issue as a question and answer it directly. However, this isn't usually the case. In most written opinions, you should expect to dig for the question and answer, which you'll have to craft yourself.
When more than one question is asked, sometimes the answer to the first takes care of all the others. To look at the earlier cupcake-icing example, if the court had determined that no, icing on cupcakes is not protected by the First Amendment, the second question disappears. You don't have to consider whether the baker's First Amendment rights were violated by the fine, because she didn't have any First Amendment rights in the first place.
When the answer is qualified with a "sometimes," any conditional questions that follow likewise will have qualifications. #Note any significant dissents. In many cases, particularly at the Supreme Court level, a justice who disagrees with the majority will issue a dissent. As time passes and court interpretation evolves, a significant dissent may end up being a majority opinion later on when the court reverses or overturns an earlier decision. [12] X Research source
There also may be concurrences, which are separate opinions written by justices who agree with the ultimate outcome of the case, but not with the reasoning the majority applied to get there. Often a concurrence can help you understand the majority's reasoning, particularly if it seemed convoluted on first read.
Unless you understand where the case you're reading falls in the history and development of that particular area of law, you may not be able to recognize which other opinions are important until you do further research.
If you're unsure, it's best to simply note other opinions – be they dissents or concurrences – and the key difference between them and the majority's opinion.
Especially if you're reading a Supreme Court case, you also should note which justice authored the dissent or concurrence. As justices leave the court and are replaced, the values and judicial temperament of the majority also can change.
A dissent from a decade ago may become a majority opinion tomorrow – often written by the same justice, now carrying the majority where he or she once held a minority view.

Understanding the Reasoning

Step 1 Identify the legal rules used by the court.

Make note of the case from which the rule came, although typically it's not necessary for you to go back and read the case itself to understand the rule.
However, if a significant portion of the opinion discusses the previous case, you may want to go back and read it as well so you have a better understanding of what the court is talking about.
In some opinions (especially those penned by judges with straightforward writing styles), the rule used by the court will follow trigger phrases such as "the rule we apply is" or "we decide this case by applying the rule from" – phrases that alert you the court is about to tell you exactly what rule they used.
Most opinions won't be this direct, and require a closer analysis of the language to ascertain the rule the court used. Sometimes you can figure this out by working backwards. Read the court's decision, and then follow the court's train of logic in reverse until you reach the rule.

Step 2 Apply the rule to the facts of the case.

The application of a legal precedent to the facts of a case is the heart of legal analysis. This typically is done using similes. Seldom has the exact issue been presented before – to make a decision, the court must determine that this case is like a different case, and therefore the same rule should apply.
Keep in mind that, especially if you're analyzing a Supreme Court case, the court wouldn't have accepted that case on appeal if it didn't present a new issue that had not already been decided in an earlier case.
For this reason, there likely won't be a precedent that is entirely on point, or a previous case with the same fact pattern in which the same issue was raised and decided.
Rather, the court must compare cases to find a rule that applies closely and is based on a similar situation that is analogous to the dispute presented.

Step 3 Highlight facts the court found most important.

Sometimes the easiest way to locate the court's pivotal fact or facts is to consider what would have happened if they'd chosen to focus on a different fact.
For example, if the court in the case of the beleaguered baker had decided to focus on the fact that cupcakes are food, and food has never been protected under the First Amendment, it might have arrived at a different decision than it did. Because the court focused instead on the fact that the baker wrote words with icing, just as writers write words in ink, and concluded that written words inarguably enjoy First Amendment protection.
Although many other facts may be relevant, or important to some other aspect of the case, those aren't the facts that made the court rule the way it did.

Step 4 Consider how the rule would apply to different facts.

No court case exists in isolation. Once a court issues a decision, the legal interpretation and rules it establishes become part of the larger body of law devoted to that particular issue. Each opinion helps future courts understand more about the statute or constitutional provision at the heart of the case.
You don't have to wait for future courts to apply the rule you've just learned to other cases, however. Take the facts in the original case and twist them slightly, then apply the rule yourself.
Law professors call these imaginary cases "hypotheticals," and spend a good portion of class churning them out and asking their students to apply the rule they've learned to sometimes bizarre and convoluted stories.

Expert Q&A

About This Article

Case law refers to the decisions appellate judges make from their interpretations of former cases. To analyze specific case law, you’ll need to read the case through and try to get a feel for how the court made their decision. It can be pretty complex when you’re first reading a case, so jot down the main parties, the main dispute, and a brief history of the case to help yourself keep track. Once you understand the case, try to identify the legal rules the court used to make their decision. It’s also helpful to imagine different scenarios where the rule the case established could be applied, and whether or not the outcome would be the same. To learn how to focus on the most important facts of a case, read more from our Legal co-author! Did this summary help you? Yes No

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Home » Case Study – Methods, Examples and Guide

Case Study – Methods, Examples and Guide

Table of Contents

A case study is a research method that involves an in-depth examination and analysis of a particular phenomenon or case, such as an individual, organization, community, event, or situation.

It is a qualitative research approach that aims to provide a detailed and comprehensive understanding of the case being studied. Case studies typically involve multiple sources of data, including interviews, observations, documents, and artifacts, which are analyzed using various techniques, such as content analysis, thematic analysis, and grounded theory. The findings of a case study are often used to develop theories, inform policy or practice, or generate new research questions.

Types of Case Study

Types and Methods of Case Study are as follows:

Single-Case Study

A single-case study is an in-depth analysis of a single case. This type of case study is useful when the researcher wants to understand a specific phenomenon in detail.

For Example , A researcher might conduct a single-case study on a particular individual to understand their experiences with a particular health condition or a specific organization to explore their management practices. The researcher collects data from multiple sources, such as interviews, observations, and documents, and uses various techniques to analyze the data, such as content analysis or thematic analysis. The findings of a single-case study are often used to generate new research questions, develop theories, or inform policy or practice.

Multiple-Case Study

A multiple-case study involves the analysis of several cases that are similar in nature. This type of case study is useful when the researcher wants to identify similarities and differences between the cases.

For Example, a researcher might conduct a multiple-case study on several companies to explore the factors that contribute to their success or failure. The researcher collects data from each case, compares and contrasts the findings, and uses various techniques to analyze the data, such as comparative analysis or pattern-matching. The findings of a multiple-case study can be used to develop theories, inform policy or practice, or generate new research questions.

Exploratory Case Study

An exploratory case study is used to explore a new or understudied phenomenon. This type of case study is useful when the researcher wants to generate hypotheses or theories about the phenomenon.

For Example, a researcher might conduct an exploratory case study on a new technology to understand its potential impact on society. The researcher collects data from multiple sources, such as interviews, observations, and documents, and uses various techniques to analyze the data, such as grounded theory or content analysis. The findings of an exploratory case study can be used to generate new research questions, develop theories, or inform policy or practice.

Descriptive Case Study

A descriptive case study is used to describe a particular phenomenon in detail. This type of case study is useful when the researcher wants to provide a comprehensive account of the phenomenon.

For Example, a researcher might conduct a descriptive case study on a particular community to understand its social and economic characteristics. The researcher collects data from multiple sources, such as interviews, observations, and documents, and uses various techniques to analyze the data, such as content analysis or thematic analysis. The findings of a descriptive case study can be used to inform policy or practice or generate new research questions.

Instrumental Case Study

An instrumental case study is used to understand a particular phenomenon that is instrumental in achieving a particular goal. This type of case study is useful when the researcher wants to understand the role of the phenomenon in achieving the goal.

For Example, a researcher might conduct an instrumental case study on a particular policy to understand its impact on achieving a particular goal, such as reducing poverty. The researcher collects data from multiple sources, such as interviews, observations, and documents, and uses various techniques to analyze the data, such as content analysis or thematic analysis. The findings of an instrumental case study can be used to inform policy or practice or generate new research questions.

Case Study Data Collection Methods

Here are some common data collection methods for case studies:

Interviews involve asking questions to individuals who have knowledge or experience relevant to the case study. Interviews can be structured (where the same questions are asked to all participants) or unstructured (where the interviewer follows up on the responses with further questions). Interviews can be conducted in person, over the phone, or through video conferencing.

Observations

Observations involve watching and recording the behavior and activities of individuals or groups relevant to the case study. Observations can be participant (where the researcher actively participates in the activities) or non-participant (where the researcher observes from a distance). Observations can be recorded using notes, audio or video recordings, or photographs.

Documents can be used as a source of information for case studies. Documents can include reports, memos, emails, letters, and other written materials related to the case study. Documents can be collected from the case study participants or from public sources.

Surveys involve asking a set of questions to a sample of individuals relevant to the case study. Surveys can be administered in person, over the phone, through mail or email, or online. Surveys can be used to gather information on attitudes, opinions, or behaviors related to the case study.

Artifacts are physical objects relevant to the case study. Artifacts can include tools, equipment, products, or other objects that provide insights into the case study phenomenon.

How to conduct Case Study Research

Conducting a case study research involves several steps that need to be followed to ensure the quality and rigor of the study. Here are the steps to conduct case study research:

Define the research questions: The first step in conducting a case study research is to define the research questions. The research questions should be specific, measurable, and relevant to the case study phenomenon under investigation.
Select the case: The next step is to select the case or cases to be studied. The case should be relevant to the research questions and should provide rich and diverse data that can be used to answer the research questions.
Collect data: Data can be collected using various methods, such as interviews, observations, documents, surveys, and artifacts. The data collection method should be selected based on the research questions and the nature of the case study phenomenon.
Analyze the data: The data collected from the case study should be analyzed using various techniques, such as content analysis, thematic analysis, or grounded theory. The analysis should be guided by the research questions and should aim to provide insights and conclusions relevant to the research questions.
Draw conclusions: The conclusions drawn from the case study should be based on the data analysis and should be relevant to the research questions. The conclusions should be supported by evidence and should be clearly stated.
Validate the findings: The findings of the case study should be validated by reviewing the data and the analysis with participants or other experts in the field. This helps to ensure the validity and reliability of the findings.
Write the report: The final step is to write the report of the case study research. The report should provide a clear description of the case study phenomenon, the research questions, the data collection methods, the data analysis, the findings, and the conclusions. The report should be written in a clear and concise manner and should follow the guidelines for academic writing.

Examples of Case Study

Here are some examples of case study research:

The Hawthorne Studies : Conducted between 1924 and 1932, the Hawthorne Studies were a series of case studies conducted by Elton Mayo and his colleagues to examine the impact of work environment on employee productivity. The studies were conducted at the Hawthorne Works plant of the Western Electric Company in Chicago and included interviews, observations, and experiments.
The Stanford Prison Experiment: Conducted in 1971, the Stanford Prison Experiment was a case study conducted by Philip Zimbardo to examine the psychological effects of power and authority. The study involved simulating a prison environment and assigning participants to the role of guards or prisoners. The study was controversial due to the ethical issues it raised.
The Challenger Disaster: The Challenger Disaster was a case study conducted to examine the causes of the Space Shuttle Challenger explosion in 1986. The study included interviews, observations, and analysis of data to identify the technical, organizational, and cultural factors that contributed to the disaster.
The Enron Scandal: The Enron Scandal was a case study conducted to examine the causes of the Enron Corporation’s bankruptcy in 2001. The study included interviews, analysis of financial data, and review of documents to identify the accounting practices, corporate culture, and ethical issues that led to the company’s downfall.
The Fukushima Nuclear Disaster : The Fukushima Nuclear Disaster was a case study conducted to examine the causes of the nuclear accident that occurred at the Fukushima Daiichi Nuclear Power Plant in Japan in 2011. The study included interviews, analysis of data, and review of documents to identify the technical, organizational, and cultural factors that contributed to the disaster.

Application of Case Study

Case studies have a wide range of applications across various fields and industries. Here are some examples:

Business and Management

Case studies are widely used in business and management to examine real-life situations and develop problem-solving skills. Case studies can help students and professionals to develop a deep understanding of business concepts, theories, and best practices.

Case studies are used in healthcare to examine patient care, treatment options, and outcomes. Case studies can help healthcare professionals to develop critical thinking skills, diagnose complex medical conditions, and develop effective treatment plans.

Case studies are used in education to examine teaching and learning practices. Case studies can help educators to develop effective teaching strategies, evaluate student progress, and identify areas for improvement.

Social Sciences

Case studies are widely used in social sciences to examine human behavior, social phenomena, and cultural practices. Case studies can help researchers to develop theories, test hypotheses, and gain insights into complex social issues.

Law and Ethics

Case studies are used in law and ethics to examine legal and ethical dilemmas. Case studies can help lawyers, policymakers, and ethical professionals to develop critical thinking skills, analyze complex cases, and make informed decisions.

Purpose of Case Study

The purpose of a case study is to provide a detailed analysis of a specific phenomenon, issue, or problem in its real-life context. A case study is a qualitative research method that involves the in-depth exploration and analysis of a particular case, which can be an individual, group, organization, event, or community.

The primary purpose of a case study is to generate a comprehensive and nuanced understanding of the case, including its history, context, and dynamics. Case studies can help researchers to identify and examine the underlying factors, processes, and mechanisms that contribute to the case and its outcomes. This can help to develop a more accurate and detailed understanding of the case, which can inform future research, practice, or policy.

Case studies can also serve other purposes, including:

Illustrating a theory or concept: Case studies can be used to illustrate and explain theoretical concepts and frameworks, providing concrete examples of how they can be applied in real-life situations.
Developing hypotheses: Case studies can help to generate hypotheses about the causal relationships between different factors and outcomes, which can be tested through further research.
Providing insight into complex issues: Case studies can provide insights into complex and multifaceted issues, which may be difficult to understand through other research methods.
Informing practice or policy: Case studies can be used to inform practice or policy by identifying best practices, lessons learned, or areas for improvement.

Advantages of Case Study Research

There are several advantages of case study research, including:

In-depth exploration: Case study research allows for a detailed exploration and analysis of a specific phenomenon, issue, or problem in its real-life context. This can provide a comprehensive understanding of the case and its dynamics, which may not be possible through other research methods.
Rich data: Case study research can generate rich and detailed data, including qualitative data such as interviews, observations, and documents. This can provide a nuanced understanding of the case and its complexity.
Holistic perspective: Case study research allows for a holistic perspective of the case, taking into account the various factors, processes, and mechanisms that contribute to the case and its outcomes. This can help to develop a more accurate and comprehensive understanding of the case.
Theory development: Case study research can help to develop and refine theories and concepts by providing empirical evidence and concrete examples of how they can be applied in real-life situations.
Practical application: Case study research can inform practice or policy by identifying best practices, lessons learned, or areas for improvement.
Contextualization: Case study research takes into account the specific context in which the case is situated, which can help to understand how the case is influenced by the social, cultural, and historical factors of its environment.

Limitations of Case Study Research

There are several limitations of case study research, including:

Limited generalizability : Case studies are typically focused on a single case or a small number of cases, which limits the generalizability of the findings. The unique characteristics of the case may not be applicable to other contexts or populations, which may limit the external validity of the research.
Biased sampling: Case studies may rely on purposive or convenience sampling, which can introduce bias into the sample selection process. This may limit the representativeness of the sample and the generalizability of the findings.
Subjectivity: Case studies rely on the interpretation of the researcher, which can introduce subjectivity into the analysis. The researcher’s own biases, assumptions, and perspectives may influence the findings, which may limit the objectivity of the research.
Limited control: Case studies are typically conducted in naturalistic settings, which limits the control that the researcher has over the environment and the variables being studied. This may limit the ability to establish causal relationships between variables.
Time-consuming: Case studies can be time-consuming to conduct, as they typically involve a detailed exploration and analysis of a specific case. This may limit the feasibility of conducting multiple case studies or conducting case studies in a timely manner.
Resource-intensive: Case studies may require significant resources, including time, funding, and expertise. This may limit the ability of researchers to conduct case studies in resource-constrained settings.

About the author

Muhammad Hassan

Researcher, Academic Writer, Web developer

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Northern Illinois University College of Law David C. Shapiro Memorial Law Library

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David C. Shapiro Memorial Law Library

Basic Legal Research

Commonly Used Legal Terminology
Welcome to Basic Legal Research!

Legal Dictionaries

Legal terminology: general terms, legal terminology: case law, legal terminology: codes, statutes & administrative law.

Court Systems & Legal Authority
Fact Pattern Analysis
Secondary Legal Sources
Understanding Case Citations
Case Law Reporters
Using Digests to Find Case Law
Statutes & Codes
Illinois Administrative Materials
Federal Administrative Materials
Terms and Connectors Searching
Creating/Determining the "Best" Online Search
Integrating Print & Online Resources
Updating Your Research Using Shepard's & KeyCite
Illinois Legislative History
Federal Legislative History
Appendix: Illinois Materials
Appendix: Sample Bluebook Citations
Appendix: Study Aids

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The Law Library has several print legal dictionaries available. One of the most frequently used is Black's Law Dictionary , 10th ed. (copies on Reserve and located elsewhere in the library)
The major legal databases ( Bloomberg , Lexis Advance , Westlaw ) have online legal dictionaries (login required to access)
Law.com has a free online legal dictionary at http://dictionary.law.com/
Words and Phrases is a useful source similar to a dictionary. It provides judicial definitions of legal and non-legal terms. Information is compiled from headnotes containing judicial definitions. It is useful for discovering if any court, or a specific court, has ever defined a term or phrase. The Law Library's print copy (KF 156 .W57) is no longer updated as of 2015, but an up-to-date online version is available on Westlaw .

Analogize: To take the facts, rationale or argument of a written decision and explain how the argument relates to your case/issue.

Citation: A reference to a legal precedent or authority (primary or secondary) such as a case, statute or treatise. Case citation: The alpha numeric identifier provided to enable researchers to locate written decisions. The format usually consists of a volume number, the abbreviated reporter name, and a page or paragraph number. (e.g. 268 N.E.2d 1247)

Citators: A tool used in legal research to update legal authorities by listing their subsequent history and treatment. Also provide additional research references to primary and secondary resources citing your original document.

Civil Law: The body of law imposed by the state; the law of civil or private rights; a civil law system relies on codes that provide explicit rules of a situation. A judge's decision in a civil law system does not become binding or form a precedent. Many European countries are civil law countries.

Constitution: A type of primary authority that is a set of principles that a country or state is governed by. Constitutions generally establish the branches of government, the scope of powers for each branch, and a set of guaranteed civil rights and civil liberties.

Criminal Law: The body of law defining offenses against the community at large, regulating how suspects are investigated, charged and tried, and establishing punishment for convicted offenders.

Court Rules: Rules that control the operation of the courts and the conduct of the litigants appearing before the court.

Distinguishing an Authority: Taking the facts, rationale or arguments of a written decision or other primary authority and showing the differences between that authority and your case, even if on the surface they seem similar.

Federal Jurisdiction: A federal court's power to hear matters. Under this type of jurisdiction federal courts may decide a question of civil and/or criminal federal law.

Index: An alphabetical listing of items (topics or names) available in the resource along with an indication of where each item may be found within the work. This finding tool is available in both print and electronic resources.

Hypothetical: Discussion of a legal principle based on a fictitious or assumed set of facts.

Mandatory (Binding) Authority: A primary legal authority that is binding on a court. Jurisdiction and court level determine whether a primary legal authority is mandatory or persuasive.

Moot Court: A fictitious court held, usually in law schools, to argue hypothetical cases, especially at the appellate level.

Persuasive Authority: A primary or secondary authority. The legal authority is not binding on a court, but the court may still rely on the authority when making its determination. Jurisdiction and court level determine whether a primary legal authority is persuasive or mandatory/binding. Secondary authority is always only persuasive.

Pinpoint Citation: The page on which a quotation or relevant passage appears, as opposed to

the page on which a case or article begins.

Procedural Law: Rules that describe the steps for having a right or duty judicially enforced,

as opposed to the law that defines the specific rights and duties themselves.

Primary Legal Authority: Authority that issues directly from a lawmaking body such as constitutions, legislation, regulations, and the reports of litigated cases (court opinions) among others.

Relevance: Relation or pertinence to the issue at hand.

Relief: The compensation (monetary or other- e.g., injunction) or benefit that a party asks of another party, sometimes received through settlement and other times received through the courts.

Secondary Legal Authority: Authority that explains the law but does not itself establish the law, such as a treatise, annotation, or law review article among others.

State Jurisdiction: A state court's power to hear matters. Under this type of jurisdiction state courts may decide a question of civil and/or criminal state law.

Socratic Method: A technique of law school instruction, whereby a professor questions one or more students, building on each answer with another question.

Substantive Law: The part of the law that creates, defines and regulates the rights, duties and powers of parties.

Table of Contents: Usually located at the beginning of the work, it provides a list of chapters/sections within the work, often in outline form, and the page numbers where the topics for each chapter/section begin. Some resources provide tables of contents for each chapter. Electronic resources provide them through a separate link. This finding tool is available in both print and electronic resources.

Uniform Laws: An unofficial law proposed as legislation for all the states to adopt exactly as written, the purpose being to promote greater consistency among the states.

Appeal: To seek review by a higher court. (e.g. appeal trial court decisions to the appropriate higher court; appeal appellate court decisions to the appropriate highest court.)

Appellant: One who brings the appeal of the lower court decision (the loser in the lower court).

Appellate Briefs: Written argument submitted to the appellate court in support of a position on appeal (not the same as a case brief).

Appellee: One against whom the appeal is brought and must respond to the appeal (the winner in the lower court). Also called respondent.

Case: Generally used in law to refer to the written decision of a court.

Case Law: All reported decisions within a jurisdiction. May consist of common law decisions as well as judicial decisions interpreting statutes, regulations, constitutions etc.

Case Reporters: Court opinions that are gathered together and published in chronological order. The books containing these cases are called case reporters. Even though most cases are available online, they are still organized and cited to according to the print reporter system. Cases are primary sources regardless of publication in an official or unofficial reporter, the case decision is the primary source. Case reporters can be official or unofficial.

Official Reporter : The governmentally approved publication reproducing reported cases within a given jurisdiction. The official reporter is the reporter that should be cited when submitting documents to the court.
Unofficial Reporter : Reporters published by commercial publishers (West, Lexis, BNA) in either print or online formats, reproducing the reported decisions within a given jurisdiction. Commercially published reporters are considered unofficial reporters.

Citator: A tool used in legal research to update legal authorities by listing their subsequent history and treatment. With case law, legal citators indicate when a case has been cited by a later case, and what effect, if any, the later citation had on the original case. The three main citators are Shepard's on Lexis, KeyCite on Westlaw and Bcite on Bloomberg Law.

Common Law: The body of judge-made law having no basis in statutes. NOTE: Case law that interprets a statue is NOT common law.

Common Law Tradition: The basis for the American legal system where courts create rules called common-law rules and those rules govern future cases in that particular area. For example, Tort cases are governed by common law rules.

Concurring Opinion: A separate written opinion explaining a vote cast by one or more judges in favor of the judgment reached, often on grounds different from those expressed in the opinion explaining the judgment.

Defendant: A person sued in a civil proceeding or accused in a criminal proceeding.

Dicta: A comment by a court that is unnecessary to a decision and therefore not precedential. There are several types of dicta in Black's. You do rely on judicial dictum, but dicta is actually short for obiter dictum. Judicial dictum is considered binding by courts while obiter dictum is not.

Digest: A case finding tool that organizes cases by subject. Within each subject digests provide summaries of cases that discuss the law on that subject. Digests allow you to find cases on a particular point of law in a particular jurisdiction. Online services also provide digests for particular topics.

Dissenting Opinion: An opinion by one or more judges who disagree with the decision reached by the majority.

Docket Number: Courts assign each newly filed action with a number. The number usually refrences the year the case was commenced followed by a series of numbers or letters that represent the type of action (civil, criminal, family court, etc.) or location of filing.

Federal Circuit Courts: The appellate court level in the federal court system. There are 13.

Federal District Courts: The trial court level in the federal court system. There are 94.

Headnote: A brief summary of a specific point of law decided in a case. Headnotes appear before the judicial opinion, and are generally written by a publisher's editors. Headnotes are a great research tool, but are not considered legal authority and should never be cited to.

Illinois Circuit Courts: The trial court level in the Illinois state court system. There are 24.

Illinois District Courts: The appellate court level in the Illinois state court system. There are 5.

Intermediate Appellate Courts: Appellate courts that are in the middle of the judicial hierarchy in a jurisdiction, they are above the trial court and below the highest court/court of last resort. Their opinions are binding on the courts below them (trial courts).

Judge: A public official appointed or elected to hear and decide legal matters in court.

Judiciary: The branch of government responsible for interpreting the laws and administering justice; a body of judges.

Justice: A judge, especially of an appellate court.

Litigation: The process of carrying on a lawsuit; the lawsuit itself.

Litigator: A lawyer who prepares cases for trial as by conducting discovery and pretrial motions, trying cases and handling appeals; a trial lawyer.

Litigant: A party to a lawsuit.

Majority Opinion: see Opinion.

Minority Opinion: see Opinion.

Official Reporter: see Case Reporter.

Opinion: The written decision of a court.

Majority Opinion: An opinion joined in by more than half of the judges considering a given case.One judge writes the opinion when a majority of judges agree with the holding.
Minority Opinion: An opinion by one or more judges who disagree with the decision reached by the majority - also called a dissenting opinion.
Concurring Opinion: A judge who voted with the majority opinion, but writes separately because her reasoning is different.
Dissenting Opinion: A judge who writes a separate opinion where the reasoning and the holding are different from the majority.
Per Curiam Opinion : Literally "By the Court." This happens when the court issues a unanimous opinion, typically on a controversial topic, so that no single author can be identified.

Opinions, unpublished : An opin io n is considered publish ed unless it is specifically designated as "unpublished." The court typically designates an opinion as "unpublished" if it doesn't add anything new to the body of law. Courts have different rules about whether they will accept citations to unpublished opinions.

Parallel Citation: An additional reference to a case that has been reported in more than one reporter. Example: Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773, 82 L. Ed. 1129 (1938), where 58 S. Ct. 773 and 82 L. Ed. 1129 are parallel citations to the decision cited in the official reporter at 304 U.S. 1 .

Petitioner: A party who presents a petition to a court or other official body, especially when seeking relief on appeal (where the Petitioner is the Appellant).

Plaintiff: The party who brings a civil suit in a court of law.

Precedent: A decided case that furnishes a basis for determining later cases involving similar facts or issues.

Reporter: see Case Reporters.

Respondent: The party against whom an appeal is taken (appellee); the party against whom a motion or petition is filed.

Slip Opinion : The opinion issued by the court as a stand-alone document on the day it is decided, before it has been assigned a volume and page number in the official reporter.

Star Pagination: A device, typically one or more asterisks (*), used in in cases online to designate differences in pagination of the case as it would appear in print in different reporters.

Stare Decisis: "To stand by things decided." An American legal system doctrine of precedent under which it is necessary for a court to follow earlier judicial decisions when the same points are again in litigation.

Supreme Court: This is the court of last resort, or the highest court in the judicial hierarchy. The opinions of a supreme court are binding on all the courts below it (Trial and Appellate). Note that some jurisdictions refer to the highest court as a Court of Appeals or Court of Last Resort, e.g., in New York State the Supreme Court is not the highest court in the state.

Syllabus/Synopsis: A summary of the case. It will usually describe the procedural posture (how the case made it to to the court) and the holding. It is not part of the official opinion.

Table of Authorities: The list of primary authorities (cases, statutes, regulations, or constitutions) and secondary authorities relied upon in the document you are viewing.

Topic & Key Number System : A proprietary system developed by West Publishing (now ThomsonReuters) to identify related cases on a similar issue. Each headnote in cases published by West will be assigned a corresponding topic and key number.

Trial Courts: Trial courts are at the bottom of the judicial hierarchy in a jurisdiction. They are usually persuasive primary authority. Trial court opinions bind only the parties involved in the case, other trial courts hearing similar cases are not bound by the opinions, and the appellate courts in the jurisdiction are not bound by the trial court opinions.

Code: The subject arrangement of the laws or regulations of a jurisdiction.

Annotated Code: A publication of all the laws of a jurisdiction organized by subject matter which contains research references that include summaries of cases or citations to secondary sources that discuss that particular law. Annotated codes only contain select case law interpreting the statute, not every case ever citing the statute.
Unannotated Code: A publication of all the laws of a jurisdiction organized by subject matter. No research references are included in unannotated codes.

Legislative History: The proceedings leading up to the enactment of a statute. This includes hearings, committee reports, and floor debates among other resources. Legislative history is recorded so that it can be used to interpret the statute at a later date. Legislative history records are available for federal statutes. Many states keep records of legislative history, but the extent of the record varies from state to state. Legislative history is considered a primary authority.

Regulation: In administrative law, a primary authority that stems from the executive branch. It is a directive issued by a government agency that implements and/or carries out a governmental policy or program. The directive must be within the agency's statutory authority.

Session Laws: A body of statutes enacted by a legislature during a particular annual or biennial session; the books containing these statutes. Maintained in public act or public law format.

Statute: A law passed by a legislative body. Often also called laws and codes.

Federal Statute: Written laws passed by the United States Congress. Statutes are primary authority.
State Statute: Written laws passed by the state legislature. Statutes are primary authority.

Statutes at Large: An official compilation of the acts and resolutions that become law from each session of the United States Congress. They are printed in chronological order.

Statutory Annotations: In statutory research, the term is used to refer to brief summaries of court decisions interpreting and applying statutes as well as summaries of secondary materials referencing the statutory section. These summaries appear in annotated statutory compilations, after the text of individual statutes. They are also referred to as research references.

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Ninth Circuit Told It Should Review Pre-Trial Gun Ban Again

By Bernie Pazanowski

A panel opinion holding that the federal government’s ban on pre-trial defendants possessing guns is constitutional was “egregiously wrong,” and, in any event, the case was moot when it was handed down, a petition seeking review of the opinion by Ninth Circuit en banc says.

Since the US Supreme Court handed down N.Y. State Rifle & Pistol Ass’n Inc. v. Bruen , upholding the right of law-abiding citizens to possess ordinary firearms for self-defense outside the home, the US Court of Appeals for the Ninth Circuit has taken on a number of Second Amendment questions. Whether bans on guns in ...

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What could appeal of Fani Willis fight mean for Fulton Trump case?

Fulton County DA Fani Willis (center) confers with then-special prosecutor Nathan Wade (left) and Chief Senior DA Donald Wakeford (right) during a Jan. 24, 2023, hearing. Miguel Martinez / miguel.martinezjimenez@ajc.com

Credit: Miguel Martinez

Wednesday’s announcement from the Georgia Court of Appeals that it will review a judge’s ruling that allowed Fulton County District Attorney Fani Willis to continue prosecuting former President Donald Trump will have major implications on the election interference case.

Here’s what the consideration from the state’s second-highest court could mean:

Significant delays coming

Even before this week it was looking unlikely that Fulton prosecutors were going to get their wish of an August trial start date . Now, with the question of Willis’ removal tied up in appeals court, legal observers are predicting that any major action on the underlying Trump election case will be postponed until well into 2025 . That means voters heading to the polls this fall almost certainly will not know if the expected GOP nominee for president will be found guilty or not by a jury for his efforts to overturn the results of the 2020 election.

As to why analysts are so confident nothing will happen before the new year? The busy Court of Appeals isn’t known for moving particularly fast. Once three judges are assigned to the case they must schedule oral arguments and make a decision within two terms of court. If judges are assigned before July, that means a decision would need to be made by mid-March 2025. After that, whichever side loses is expected to appeal to the Supreme Court of Georgia. That’s before jury selection for the underlying case could begin.

The Georgia Court of Appeals, housed within the Nathan Deal Judicial Center. (Bob Andres/The Atlanta Journal-Constitution/TNS)

Credit: TNS

Possible nightmare scenarios for Willis

For the first three months of the year, the DA faced a barrage of negative headlines and court filings that delved into the most intimate details of her personal life. It all culminated in a dramatic evidentiary hearing in February in which Willis and Nathan Wade, her ex-boyfriend who at the time was the lead prosecutor on the election case, both took the witness stand to defend their actions — all under the glare of the national media.

Even with Wade off the case , many of those matters will be re-litigated before the appeals court. The panel won’t be collecting new evidence, but it will determine whether Fulton Superior Court Judge Scott McAfee arrived at the correct legal conclusions when he gave Willis a path to stay on the case . It’s possible the court overturns McAfee’s ruling and issues what would be a nightmare decision for Willis and her office: mandating that she be removed from the biggest case of her career and that her staff, with expertise generated over more than three years of work, also be disqualified. Trump and his co-defendants also want the charges against them dropped, which if granted would be a catastrophic result for prosecutors.

The court’s pace also means that the fight will continue to loom over Willis as she runs for reelection . She faces a primary challenger in Christian Wise Smith on May 21, and the winner of the Democratic contest will move on to face Republican Courtney Kramer in November. Willis is seen as the overwhelming favorite in both contests, but the revival of the disqualification fight certainly isn’t what the DA wants to be talking about on the campaign trail. Her GOP critics will make hay of the appeals’ court’s consideration and continue to slam her for it in public.

Fulton County District Attorney Fani Willis rides in a car while participating in the Inman Park Parade on Saturday, April 27, 2024, in Atlanta. (Elijah Nouvelage for The Atlanta Journal-Constitution)

Credit: Elijah Nouvelage for the AJC

A revival of other pretrial fights?

The Court of Appeals’ decision to take up the disqualification issue also could open the door to revisit other pretrial issues Judge McAfee previously has decided, said Atlanta defense attorney and appellate lawyer Andrew Fleischman. In other words, now that the appeals court has agreed to hear the disqualification issue, defendants may be able to challenge other rulings they’ve lost in the election case since August, when McAfee was assigned. Among the items that could be considered: McAfee’s recent refusal to drop some of the charges against Trump and others on First Amendment grounds.

Judge Scott McAfee presides over a hearing regarding media access in the case against former President Donald Trump and 18 others, at the Fulton County Courthouse in Atlanta on Aug. 31, 2023. (Arvin Temkar/The Atlanta Journal-Constitution/TNS)

McAfee can keep working – for now

McAfee previously said he intends to keep moving forward on some of the case’s other outstanding procedural issues as the appeals court proceeds. Among them are pretrial motions challenging the soundness of multiple counts in the indictment, including the racketeering and false statements charges. Defendants have also challenged the indictment based on the U.S. Constitution’s Supremacy Clause, double jeopardy and the idea that former federal officers should be immune from state-level prosecutions. They have asked for him to change the venue of the trial out of Fulton County and to split up the 15 remaining defendants. The judge recently asked the two sides to brief him about several counts in the indictment that have to do with materials presented to Georgia’s federal court in late 2020. Some legal experts have argued that those alleged criminal acts could fall under federal, not state jurisdictions.

However, it’s possible that Trump or his co-defendants could seek a stay from the appeals court, which would bar McAfee from moving forward until the appeal is resolved. That would further delay matters.

Staff writer Bill Rankin contributed to this article.

About the Author

Tamar Hallerman is an award-winning senior reporter for The Atlanta Journal-Constitution. She covers the Fulton County investigation into whether former President Donald Trump or his allies criminally interfered in Georgia's 2020 elections.

The mother, sister, and brother of slain UGA law student Tara Louise Baker are seen behind a photo of Baker during a press conference announcing an arrest in the 23-year-old cold case death on Monday, May 13, 2024, in Decatur. (Elijah Nouvelage for The Atlanta Journal-Constitution)

Credit: Elijah Nouvelage

Stewart Detention Center (AP Photo/David Goldman)

Credit: David Aaro/AJC

This is a rendering of a planned distribution center by Oxford Industries in Toombs County.

Credit: Greater Vidalia Chamber and Toombs County Development Authority

Mose James IV, who grew up in the Sunrise community in College Park, is fighting against a battery storage facility that is planned for the land behind him where he played as a kid. Photographed on Thursday, April 4, 2024. (Ben Gray / Ben@BenGray.com)

Credit: Ben Gray

Former President Donald Trump and attorney Susan Necheles attend his trial at the Manhattan Criminal court, Tuesday, May 7, 2024, in New York. (Win McNamee/Pool Photo via AP)

What is an indictment? What the legal proceeding means and how it works in the US

In March, Donald Trump became the first former U.S. president to face criminal charges after a New York grand jury voted to indict him in connection with hush money payments.

In June, Trump was indicted once again over his alleged mishandling of classified documents. On Aug. 1, Trump was indicted a third time on accusations that he tried to steal the 2020 presidential election from President Joe Biden.

Now, the former president is facing a fourth indictment . On Monday, Trump was indicted by a Georgia grand jury on conspiracy charges of trying to steal Georgia's electoral votes from Biden after the 2020 election.

But what does this mean? What is an indictment, and how does this impact Trump's run for president? Here’s what you need to know.

What is an indictment?

An indictment is a formal charging document used when it’s believed a person has committed a crime. It contains information on the charges being brought forward against someone, according to the U.S. Justice Department.

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

An indictment means a grand jury has decided there’s "more likely than not" enough evidence – based on testimony – to move forward with charging a person, according to David Weinstein , a former federal and state prosecutor.

A grand jury does not decide whether someone is guilty or not. Its role is to decide whether prosecutors have given sufficient evidence to formally charge someone. States, generally, only require grand jury indictments for prosecution of serious crimes.

Before a case can move forward in a court, an indictment should be filed, Weinstein said.

In a federal court, all felony cases proceed via indictment.

An arraignment occurs after someone is indicted. An arraignment is when formal charges against the accused are read by the judge. This proceeding is the first time the accused appears before a judge and is told about the specific charges they are facing.

What was Trump indicted for?

Trump faces four indictments:

First indictment

Trump was indicted by a New York grand jury on March 30.

He is accused of falsifying business records about hush-money payments to two women, including adult film actress and director Stormy Daniels , who tried to sell her story about an alleged affair with Trump. Prosecutors said a $130,000 payment was made to keep Daniels' story from going public during Trump's 2016 presidential run.

Trump faces 34 felony counts in this indictment. He was arraigned on April 4, and he plead not guilty. This trial is set for March 25, 2024, in New York.

Second indictment

Trump was indicted by a federal grand jury in the Southern District of Florida on June 8.

He is accused of mishandling classified documents seized at Mar-a-Lago. Charges against Trump also include obstructing justice, making false statements, and trying to "alter, destroy, mutilate, or conceal evidence," by asking a Mar-a-Lago staffer to delete video footage at the estate.

Trump faces 40 felony counts in this indictment. He was arraigned on June 13. He plead not guilty. This trial is set for May 20, 2024 in Fort Pierce, Florida.

Third indictment

Trump was indicted by a federal grand jury for the District of Columbia on August 1 .

He is accused of conspiring to steal the 2020 election from President Joe Biden , ahead of the insurrection of Jan. 6, 2021 . He faces four felony counts, including:

Conspiracy to defraud the United States.
Conspiracy to obstruct an official proceeding.
Obstruction of and attempt to obstruct an official proceeding.
Conspiracy against rights.

He was arraigned on August 3. He plead not guilty.

Fourth indictment

Trump was indicted by a Georgia grand jury on August 14.

He, along with several others, are accused of trying to unlawfully discard President Joe Biden’s win in Georgia during the 2020 presidential election. The indictment is made up of 41 charges against 19 defendants, from Trump to his former attorney Rudy Giuliani and former White House Chief of Staff Mark Meadows.

Can Trump still run for president if he’s indicted?

Yes, Trump can run for president and continue his 2024 campaign.

"Legally speaking, there is nothing to bar a former president from being indicted for a state crime, running for office – even convicted," said Jessica Levinson , founding director of Loyola Law School's Public Service Institute. "It really just becomes an issue of, practically, how could you run the country behind bars, if ever came to something like that?"

According to the U.S. Constitution , there are only three requirements for someone to serve as president:

Must be at least 35 years old
Be a natural-born citizen
Must be a resident of the U.S. for at least 14 years.

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What a judge’s gag order on Trump means in his hush money case

The judge overseeing Donald Trump’s New York hush money trial has clarified the gag order pertaining to the ex-president doesn’t prohibit him from testifying on his own behalf.

Donald Trump has been fined $9,000 for repeatedly violating a gag order that barred him from making public statements about witnesses, jurors and some others connected to his New York hush money case.

FILE - Former President Donald Trump speaks outside the courtroom in New York, April 30, 2024. A gag order bars him from making public comments on witnesses, jurors and some others connected to the case. The judge found that Trump repeatedly violated the order and he fined Trump $9,000 and warned that jail could follow if Trump keeps it up. The order doesn’t stop Trump from talking about the allegations against him or commenting on the judge or the elected top prosecutor. And it doesn’t stop him from testifying in court if he chooses. (Justin Lane/Pool Photo via AP, File)

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Former President Donald Trump returns to the courtroom following a break in his trial at Manhattan criminal court in New York, on Friday, May 3, 2024. (Charly Triballeau/Pool Photo via AP)

Former President Donald Trump speaks to media as he returns to his trial at the Manhattan Criminal Court, Friday, May 3, 2024, in New York. (Curtis Means/Pool Photo via AP)

Former President Donald Trump speaks to media as he returns to his trial at the Manhattan Criminal Court, Friday, May 3, 2024, in New York. (Charly Triballeau/Pool Photo via AP)

NEW YORK (AP) — Virtually every day of his hush money criminal trial , former President Donald Trump talks about how he can’t talk about the case.

A gag order bars Trump from commenting publicly on witnesses, jurors and some others connected to the matter. The New York judge already has found that Trump, the presumptive Republican nominee for president, repeatedly violated the order, fined him $9,000 and warning that jail could follow if he doesn’t comply.

What to know about Trump’s hush money trial:

Follow the AP’s live coverage as Trump’s former lawyer takes the stand.
A guide to terms used in the Trump trial.
Trump is the first ex-president on criminal trial. Here’s what to know about the hush money case.
Trump is facing four criminal indictments, and a civil lawsuit. You can track all of the cases here.

But the order doesn’t stop Trump from talking about the allegations against him or commenting on the judge or the elected top prosecutor. And despite a recent Trump remark, it doesn’t stop him from testifying in court if he chooses .

As he fights the felony charges against him while running for president, Trump has at times stirred confusion about what he can and can’t do in the case. He has pleaded not guilty.

So what does the order do, what doesn’t it and where did it come from?

WHAT IS A GAG ORDER?

Generally speaking, a gag order is a judge’s directive prohibiting someone or people involved in a court case from publicly commenting about some or all aspects of it. In Trump’s case, it’s titled an “Order Restricting Extrajudicial Statements,” with “extrajudicial” meaning outside of court.

Former President Donald Trump returns to the courtroom following a break in his trial at Manhattan criminal court in New York, on Friday, May 3, 2024. (Charly Triballeau/Pool Photo via AP)

Gag orders, particularly in high-profile cases, are intended to prevent information presented outside a courtroom from affecting what happens inside.

Trump also is subject to a gag order in his federal criminal election interference case in Washington. That order limits what he can say about witnesses, lawyers in the case and court staff, though an appeals court freed him to speak about special counsel Jack Smith, who brought the case.

In his recent New York civil fraud trial , Trump was fined a total of $15,000 for comments he made about that judge’s law clerk after a gag order barred participants in the trial from “posting, emailing or speaking publicly” about the court’s staff.

The U.S. Supreme Court has acknowledged that gag orders can pit fair trial rights against free speech rights. The court has struck down some orders that barred the press from reporting on certain cases or court proceedings and rejected as too vague a Nevada court rule that limited what all lawyers could say out of court.

FILE - Republican presidential candidate former President Donald Trump speaks at a campaign rally May 1, 2024, in Waukesha, Wis. Trump told Republican donors Saturday, May 5, at Mar-a-Lago, that President Joe Biden is running a "Gestapo administration," the latest example of the former president employing the language of Nazi Germany in his campaign rhetoric. The remarks were described by people who attended the event and spoke on condition of anonymity to discuss the private session. (AP Photo/Morry Gash, File)

IS TRUMP FIGHTING THE GAG ORDER?

Yes. Before the trial, he asked a state appeals court to postpone the trial while he appeals the gag order , but the court refused. His appeal of the order itself is ongoing.

WHO IS COVERED BY THE GAG ORDER ON TRUMP?

Initially imposed March 26 , the gag order bars Trump from making or directing others to make public statements about any juror and about any “reasonably foreseeable” witness’ participation in the investigation or the trial.

It also bars any statements about lawyers in the case, court staffers, prosecution aides and relatives of all of the above, to the extent that the statements are intended to “materially interfere with, or to cause others to materially interfere with” their work on the case “or with the knowledge that such interference is likely to result.”

The order doesn’t apply to Judge Juan M. Merchan or to Manhattan District Attorney Alvin Bragg, whose office is bringing the case. It does apply to comments about their family members, however. Merchan added that provision on April 1 after Trump lashed out on social media at the judge’s daughter , a Democratic political consultant, and made a claim about her that was later repudiated by court officials.

Trump is also allowed to talk about his political opponents, as Merchan made clear on Thursday.

The order also doesn’t bar witnesses from commenting on Trump. Michael Cohen, Trump’s ex-lawyer and an expected witness, has routinely attacked his former boss, leading Trump to complain about not being able to respond in kind.

CAN TRUMP TESTIFY?

Yes. The U.S. Supreme Court has held that criminal defendants have a constitutional right to take the stand in their own defense — or not to .

There was some confusion after Trump said Thursday that because of the gag order, he was “not allowed to testify.” In context, it appeared he was actually referring to his ability to respond to a reporter’s court-hallway question about a witness’ testimony that afternoon.

Trump clarified to reporters Friday that he understood the order wasn’t a bar on testifying. Merchan emphasized the same in court.

“I want to stress, Mr. Trump, you have an absolute right to testify at trial, if that’s what you decide to do after consultation with your attorneys,” Merchan said.

WHY DID TRUMP GET FINED? WHAT CAN’T HE SAY?

Merchan found that Trump violated the gag order with social media posts that laid into Cohen. Among the offending posts: one that asked whether “disgraced attorney and felon Michael Cohen been prosecuted for LYING,” a repost of a New York Post article that described Cohen as a “serial perjurer,” and a Trump post referring to Fox News host Jesse Watters’ claim that liberal activists were lying to infiltrate the jury.

Merchan noted that Trump’s comment on the Watters segment misstated what the host had actually said, making the comment “the words of Defendant himself.”

On the other hand, Merchan declined to sanction Trump for an April 10 post that referred to Cohen and Stormy Daniels, the porn performer who got a $130,000 hush money payment that’s at the heart of the case, as “sleaze bags.”

Trump contended that he was responding to previous comments by Cohen, and the judge said the back-and-forth gave him pause as to whether that post met the bar for a violation.

COULD TRUMP REALLY GO TO TO JAIL OVER THE GAG ORDER?

When Merchan fined Trump $1,000 apiece for nine violations — the maximum fine allowed by law — he wrote that “jail may be a necessary punishment” for some wealthy defendants who won’t be deterred by such a sum.

Merchan added that he “will not tolerate continued willful violations” of the gag order and that, if “necessary and appropriate,” he “will impose an incarceratory punishment,” meaning jail.

It’s unclear what would rise to the level of “necessary and appropriate.”

Defense lawyer Todd Blanche indicated in court Friday that he plans to appeal the judge’s finding this past week that Trump violated the gag order.

Prosecutors have asked Merchan to hold Trump in contempt again and fine him $1,000 for each of four alleged violations from April 22-25. But the prosecution isn’t asking for the former president to be locked up over those comments because they happened before Merchan’s jail warning and because “we’d prefer to minimize disruption to this proceeding,” prosecutor Christopher Conroy said.

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