Litigation Practice Materials

Vol. 41 No. 1

By

Shawn G. Nevers teaches legal research and is head of reference services at the Howard W. Hunter Law Library at Brigham Young University.  

Law students and young lawyers often have little experience in creating the actual documents upon which a court case is founded. Whether it’s a subpoena duces tecum, a motion for summary judgment, or a complaint—the very foundational document on which a civil lawsuit is based—law students don’t get much hands-on experience with litigation documents in traditional law school courses.

While perhaps not what you’d think of as traditional “cases and statutes” legal research, finding legal practice materials that help you create these documents is certainly within the realm of legal research. And when you find yourself having to draft a document you’ve never heard of, you’ll be glad to have some of these tips in your back pocket.

The first place to check for help is in-house work product. Law firms and other legal employers produce a lot of documents—and I mean a lot. Because of that it’s likely someone in your office has worked on a similar document in the past. Larger employers will have databases of in-house work product, while smaller employers may simply have a computer hard drive with saved documents from previous cases.

The latter was the case as I embarked on my subpoena duces tecum journey (sounds exotic, doesn’t it?). After finding out that a subpoena duces tecum is a subpoena to produce documents and other tangible evidence (not so exotic after all) I headed to an old computer at the firm to search for examples. Sure enough I found a subpoena duces tecum that I could modify to fit the needs of the current case. Problem solved.

In addition to in-house documents, court documents from other attorneys are now much more widely available. Court pleadings, motions, and briefs could always be examined at a courthouse in the past, but with the advent of electronic filing these documents are now available through the internet. Many lawyers now access these court documents on a regular basis.

Federal court documents are available on a website called PACER. Because e-filing is mandatory in federal court, full-text PDF versions of pleadings, motions, briefs, etc. are filed with the court and then uploaded to PACER. Anyone can sign up for a PACER account and can download the documents for ten cents a page. While some have complained about having to pay for public records, most legal employers don’t balk at that cost.

One drawback of PACER is the inability to search the full text of its documents. In order to access materials, you’ll either need the names of the parties or the docket number of the case you’re interested in.

PACER documents are not only useful in showing you what a pleading looks like, but they can also be used for more traditional research. For example, an attorney I know will find cases on point in Lexis or Westlaw and then head to PACER to find the underlying court documents. If he has to write a brief, he’ll take a look at the briefs in the case he likes and see what cases were cited and what arguments were made. This usually gives him some good ideas to go off of before he starts writing his own brief.

State court documents are a little tougher to come by. The reason is that not all states require e-filing yet. Utah for example, just passed a rule that will require e-filing in 2013. Up until this point, the system has been voluntary and so only some documents are available on Utah’s PACER equivalent. Take a look at your state court’s website to see what court documents are available online.

Some court documents, especially briefs, are available on Westlaw or Lexis. This may seem easier to you now, but with cost considerations it’s not always the best alternative outside law school. Check with your employer to see what they prefer.

Another great practice resource are forms. Yes, lawyers use fill-in-the-blank forms. While fill-in-the-blank forms always make me think of Mad Libs, legal forms are a bit more professional. Legal forms provide model language for a specific document and spaces to fill in the specific facts of the case. The language can and should be changed if needed and according to local law, but these forms provide a nice base for creating a legal document.

Westlaw and Lexis have legal form databases, but you’ll want to find out if they’re outside your firm’s subscription. These same legal databases are based off of print versions that may be available at your firm or in a local law library. Sets such as American Jurisprudence: Pleading and Practice Forms, and Bender’s Federal Practice Forms can be extremely helpful in creating legal documents. In our library, these forms are some of the most popular resources among local attorneys.

Practice materials aren’t just limited to legal documents. There are many resources out there to help with such things as conducting discovery, preparing for trial, and trying a case. For example, a series called Art of Advocacy has volumes on such things as “direct examination” and “jury selection.” Another series called Causes of Action lays out elements that need to be proved to make your case and Evidentiary Foundations examines what you’ll need to do to get your evidence admitted into court.

These are obviously only a few examples of many that are available to help get you ready to practice. Some of these are available on Lexis and some on Westlaw, but they may be out of your price plan. Local law libraries will have access to many of these great resources. Search your local law library catalog or ask a law librarian for suggestions.

Another type of practice material you may need in litigation are jury instructions. I still remember the first time someone asked me if I had MUJI. It sounded like they were asking if I had some sort of disease, but I soon found out they were looking for the Model Utah Jury Instructions—MUJI for short. Most states and the federal courts have model (or pattern) jury instructions that are extremely useful in litigation. Many of them are now available on your court’s website, although some still remain in print format.

A final type of practice material that rarely comes up in law school, but can be important in litigation, are verdicts and settlements. These resources examine how much money was awarded to plaintiffs in verdicts or settlements, which can be an extremely important tool when trying to evaluate a case or when you’re in settlement negotiations.

There are many different verdicts and settlement resources, many of which are regional or local. Westlaw and Lexis have these types of databases as well. One that I find intriguing as well as helpful is the Jury Valuation Handbook. It looks at verdicts and settlements across the country and then puts a value on different body parts and injuries. Ever wonder what a broken hand was worth? Just look it up.

Practicing law takes quite a bit of learning on the job. You’ll face your version of a subpoena duces tecum soon enough—if you haven’t already. Knowing about these legal practice materials will help you be prepared to deal with the many litigation tasks you may face.

 

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