Category Archives: Advanced Legal Research

ALR Student’s Corner: Bender’s Forms of Discovery

bendersformsofdiscovery

Introduction

Discovery is a key part of a civil or criminal action because it can force an adverse party to disclose information and evidence that is essential to the preparation of the requesting party’s case.  Because discovery is a key part in any trial, there must be rules and regulations monitoring it to avoid abuse by one or both parties.  The purpose of Bender’s Forms of Discovery is to showcase all the different avenues and tools used in the discovery process today.  Since Bender’s publication in 1975, the world of discovery has drastically changed thanks to the Internet and all the technological advances our country has seen over the past 35+ years.  In most cases, the law struggles to keep up with the ever evolving world of technology.  As a subset of that issue, our legal system must address how to handle and deal with each new form of evidence through discovery, and keep pace with its constant evolution.

Background

Bender’s Forms of Discovery, authored by Matthew Bender of Matthew Bender & Company, Inc., a subsidiary of LexisNexis, is a 17 volume, loose-leaf series made up of Treatises and Interrogatories.  The Index for the Interrogatories is volume 10A which provides an index for volumes 1-10A.  The Index for the Treatises is volume 17 which provides an index for volumes 11-17.  Each volume contains its own index for that specific volume.  Each index is given section numbers based on broad topics depending on the type of discovery.  These sections are broken down further into sub-categories, providing its users with even more detailed descriptions.  For instance, within Interrogatories, the categories for the different types of discovery range from accountants to computers to products liability to slip-and-falls to zoning, while the categories for the different types of discovery, in the Treatises, range from discovery generally to production and inspection (federal and state rules) to discovery of electronically stored information.

Bender’s Forms of Discovery was last updated in 2013 and can be accessed in one of the following ways: 1) using the Browse Sources feature on Lexis Advance, search or browse by title; 2) using the Charlotte School of Law Library catalog, locate the title and then click on “Ebook” to be directly linked to the Lexis Advance site; and 3) using the call number – KF 8900.A3 – pulled from the catalog, access the print version of Bender’s Forms of Discovery in the stacks at the CSL Library.

Critique

The volume indices do a great job of grouping categories into broad topics first and then breaking those down further into chapters, subcategories, sections, and subsections.  For example, “Chapter 15: Discovery of Electronically Stored Information” is broken down into such subcategories as Scope, Understanding Electronically Stored Information, Record Retention and Disposition Policy, Litigation Response Plan Formulation Stage, Identification Stage, and Preservation Stage.  These subcategories are further broken down into detailed sections and sub-sections.  However, the Index of Treatises and the Index of Interrogatories may be slightly confusing to a layperson interested in looking up a specific topic because of how the indices refer to specific topics.  The indices refer to topics by chapter numbers and sections rather than volumes, whereas the volumes are not broken down by chapters, but rather by alphabetical categories.  So, you first have to find the appropriate volume based on your topic, and then locate the chapter and section referenced in the Index.

Example

To demonstrate how easy and helpful this form book is, let’s conduct a hypothetical search.  Suppose I were a corporate attorney and had a client who is being charged with embezzlement.  Because electronic data on computers, hard drives, and other storage systems will be sought by opposing counsel, I have a moral and ethical duty to ensure that no evidence is destroyed pending litigation.  I can locate my duties as the defense attorney by using Bender’s Forms of Discovery; within Chapter 15 discussing electronically stored information, I learn everything I need to know about these duties as they pertain to this specific form of discovery.  To get there, I locate Volume 17 because it contains the Chapter 15 discussion about electronically stored information.  Within the table of contents for Chapter 15, I locate the topic “Preservation Stage” and within that, § 15.63[1]0 providing a full description and analysis of the attorney’s responsibilities to advise a client of her duty to preserve, with annotations to primary and secondary authorities.

~ Courtney Carter, L’14 ~

  Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: Arrest, Search, and Investigation in North Carolina

Introduction

Are you a solo practitioner looking for cases to support your client’s unlawful search and seizure? Are you a judge wondering how to correctly apply the law to defendants involved in criminal matters? Or, are you a new police officer eager to carry out your duties within the law, or one looking to fill-out the proper form subsequent to the search of a vehicle? Regardless of your law enforcement role, the resource for you is Arrest, Search, and Investigation in North Carolina by Robert L. Farb, an annotated practice guide that analyzes issues of criminal law and procedure in North Carolina, specifically the law of arrest, search and seizure, and rules of evidence.

arrestinvestigationnc

Content of the Guide

Arrest, Search, and Investigation in North Carolina, currently in its fourth edition, is published by the School of Government at the University of North Carolina at Chapel Hill.  The practice guide is designed to help law enforcement and legal professionals, including judges, public defenders, police officers, law students and law professors, apply federal constitutional law and North Carolina state law as each pertains to arrest, search and seizure, and post-arrest procedures.  Within this practice guide, you will find comprehensive and relative treatment of North Carolina criminal law and procedure, insight into the practical issues of policing, and advisement within the legal field.  The practice guide further breaks down the probable cause requirements necessary to satisfy the Constitution, details the elements and factors of proof of various crimes, and annotates with case law from the United States Supreme Court (highest federal authority), NC Supreme Court (highest state authority) and NC Court of Appeals.

The practice guide is located in the “Reference: Carolinas” section, on the fifth floor of the Charlotte School of Law library.  Taking the search string – “arrest search” – into the CSL library catalog gives you the call number (KFN 7976.F37 2011) for the exact location on the shelf; a reference librarian or student workers at circulation are also there to assist.

Organization of the Guide

Inside the practice guide, there is a general table of contents listing the six chapters and chapter titles. There is a more detailed table of contents for each chapter highlighting the particular subtopics discussed. At the end of chapters two through five, there are appendices for case summaries, and at the back of the book, an index of cases in the case summaries and a subject index. Additionally, the practice guide includes forms that address such criminal procedure issues as search warrants for the search of the home, car, or person (i.e. blood samples when a DUI offender refuses a Breathalyzer), administrative inspections, and non-testimonial identification orders.

Best Way to Navigate the Guide

The general table of contents and the chapter-specific ones make it a breeze to navigate Arrest, Search, and Investigation in North Carolina. For instance, suppose you have a client who questions the lawfulness of a recent police search of his home.  Upon browsing the general table of contents for the search term “Arrests,” you are directed to Chapter 2 which deals with the law of arrest and investigative stops.  This seems relevant to your client’s issue, and upon perusing the table of contents specific to Chapter 2, you discover there are discussion and analysis of the rule of law related to entering a premises to arrest, with annotations to relevant case law and statutory authority.  Additionally, you might consider navigating the practice guide via the subject index, which is organized alphabetically.  For instance, were the same hypothetical client from above searched and frisked on the street, locating “frisk,” under the “F” column of the subject index, leads you to analysis of the rule of law related to stop-and-frisks (i.e. definitions, lawful versus unlawful Terry stops, annotations).

Conclusion

Arrest, Search, and Investigation in North Carolina is an excellent source to consult when involved in any field of criminal law, from investigating crimes to administering justice.

~ Shante’ Burke, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: The North Carolina Defender Manual – Pretrial and Trial

The North Carolina Defender Manual is part of a collection called the North Carolina Indigent Defense Manual Series.  The series serves to provide comprehensive, up-to-date reference materials to attorneys who defend indigent clients.  The Defender Manual has two volumes: volume one addresses the intricacies of pretrial criminal procedure, while volume two provides materials for the trial level.  Each volume includes a complete table of contents at the beginning of the manual, as well as, a more in-depth table of contents at the beginning of each chapter.  The Defender Manual is funded by and made available for free online through the North Carolina Office of Indigent Defense Services.

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Volume one was authored by John Rubin, also the series editor, and Alyson A. Grine.  John Rubin has been with the University of North Carolina at Chapel Hill’s School of Government since 1991.  He specializes in criminal law and procedure and indigent defense education.  Alyson A. Grine has been with the School of Government since 2006 where she serves as defender educator.  Volume two was authored by John Rubin and Julie Ramseur Lewis.  Ms. Lewis has served as an assistant public defender in Charlotte since 1993.

The first volume has 15 chapters that include the following issues related to pretrial criminal procedure: pretrial release, probable cause hearings, discovery, grand jury proceedings, jurisdiction, venue, suppression motions, and stops and warrantless searches.  Case law authority includes decisions through June 30, 2013 and statutory authority, through the end of the 2013 session of the North Carolina General Assembly.  Volume two, current through February 2012, includes the following issues related to criminal procedure at the trial stage: personal rights of the defendant, guilty pleas, jury selection, opening statements, closing arguments, and appeals, post-conviction litigation, and writs.

The manual cites to all relevant case law and statutes.  It lays out the elements of rules in easy-to-read bullet form and then provides an in-depth explanation of the rule.  Throughout the volumes, you will find helpful charts, forms, and other materials. Volume two includes Performance Guidelines for Indigent Representation in Non-Capital Criminal Cases at the Trial Level which acts as a training tool to help practicing attorneys provide quality representation to indigent defendants.  Additionally, the manual includes practice notes that provide instruction for problems that may arise during representation. For example, consider the following practice note below:

Volume two includes about twice as many practice notes as volume one.  But, unlike volume two, volume one includes legislative notes that detail any changes made to the statutes during the 2013 session.

Because this practice guide is available for free online through the Office of Indigent Defense Services’ website, it has the advantage of providing external links to helpful forms and websites, as exemplified below.

Although it places a special emphasis on indigent clients, the North Carolina Defender Manual is a great resource for any attorney practicing criminal defense.  It reads much like one of the many study aids that law students come to know very well.  It is a one-stop-shop for the key legal principles and practice pointers at every stage of litigation. The manual also provides checklists, fillable practice forms, sample questions, and many other helpful practice materials.  It is a great reference guide for anyone who is interested in criminal law.

~ Lindsey Cox, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: North Carolina Estate Settlement Practice Guide

In general, practice guides are secondary sources that aid and guide lawyers through the understanding of a particular area of the law.  In addition to explaining an area of law, practice guides often times provide useful forms and tips, as well.

ncestatesettlementpractice

North Carolina Estate Settlement Practice Guide covers the topic of estate settlement in North Carolina.  The practice guide begins with a checklist that chronologically goes over the steps for settling an estate, and then, over the course of 36 chapters, examines each step, starting with becoming a personal representative and ending with tort actions involving wills and related documents.

Additionally, the practice guide provides useful tips and forms.  For instance, in Chapter 2, there are numerous forms to aid a lawyer in becoming the personal representative of an estate.  These forms and letters, such as the Application for Probate and Letters, will be very helpful to a new lawyer who may not know how to locate such information.

Part of the Charlotte School of Law Library catalog and available for purchase for $259, North Carolina Estate Settlement Practice Guide is also accessible via WestlawNext.  Simply search for the title in the universal search box or drill down within the database in accordance with the following navigational sequence: “Secondary Sources” > “North Carolina” > “North Carolina Texts & Treatises” > “North Carolina Estate Settlement Practice Guide.”  The practice guide is currently in its second edition and was last updated on WestlawNext in March 2014.

To demonstrate how easy and helpful this practice guide is, let’s conduct a hypothetical search.  Let’s say that you are a new attorney and you wish to determine how the laws and courts of North Carolina treat illegitimate children. After considering several different search terms, you decide to take “illegitimate children” into the index of the practice guide.  The index then directs you to § 20-20 where you find a general overview of the topic and references to relevant statutory and case law authority.

North Carolina Estate Settlement Practice Guide offers concise overviews of the relevant law and provides helpful practice tips for lawyers who practice in (or wish to learn) estate law in North Carolina.

~ Marci Gattis, L’ 14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: North Carolina Criminal Trial Practice Forms

A form book can be helpful in many ways to a practicing attorney.  It provides checklists for litigation and fill-able practice forms within various areas of law that become a good starting point for lawyers, particularly were they to need to draw up a form in an area of law that is outside their practice area.  It is important to remember when using this resource that forms are unique in every case and should be modified to reflect the individual defendant.

nccrimtrialpracticeforms

North Carolina Criminal Trial Practice Forms, 5th edition, by Ronald M. Price, is a single volume resource filled with a bounty of criminal trial forms.  It has a table of relevant cases, general index, and a master table of contents, not to mention individual ones at the beginning of each chapter.  According to the table of contents, this form book addresses the following legal issues: stop and frisk, search and seizure, confessions and self-incrimination, double jeopardy and collateral estoppel, bonds, probable cause hearings, venue, arraignment, discovery, and motion to dismiss.  Each of these issues is broken down further in the table of contents by subject matter.  Under “Chapter 18: Capacity,” for example, there are forms dealing with capacity that a practitioner would need to file on behalf of a client, such as notice of defense of insanity, motion for mental evaluation, application of transfer of prisoner to a hospital, and motion questioning defendant’s capacity.

The table of cases is one of the most important features of North Carolina Criminal Trial Practice Forms.  The reader uses the table of cases to quickly look up and consider or cite the law used in any given form.  The index, organized by a more extensive topical listing than the table of contents, includes a range of legal topics and subtopics such as age, Batson, blood, children and minors, burglary, capital cases, interpreter, voir dire, and weapons.  These topical headings make it easier to locate the form relevant to your client’s situation. Additionally, the pocket part, at the back of the resource, includes the most current itineration of each form were its language and corresponding annotation to case law updated since the most recent publication.  This is important because failing to submit to the court the proper form, one that is reflective of the most current and binding legal authority, is a violation of the Rules of Professional Conduct.

To locate North Carolina Criminal Trial Practice Forms, look up the electronic version of the resource in the universal search box on WestlawNext, or conduct a search for the print resource in the Charlotte School of Law Library catalog.  Getting here requires the following steps: 1) access the Charlotte School of Law homepage, 2) follow the link on the left-hand side, to “Our Law Library,” 3) click on the “Library Catalog” link on the right-hand side, and 4) search within the catalog for the call number using the following search string: “North Carolina Criminal Trial Practice Series.”  The print version of North Carolina Criminal Trial Practice Forms is located in the “Reference: Carolinas” section of the library, but unfortunately does not circulate outside of the library.  It’s always nice to have remote access to the electronic version of a specific resource so that you don’t have to commute to the library, but upon my graduation this summer, the luxury of remote access will be no more and, alas, I will have to come on campus for the print resource and its electronic counterpart on WestlawNext, just like the other attorney members of the CSL library.

To demonstrate how easy and helpful this book of forms is, let’s conduct a hypothetical search.  Let’s say that you are a new attorney and you wish to file a motion to suppress a coerced taped confession from your client.  First, you would start in the table of contents and locate “Chapter 5: Confessions and Self-Incrimination.”  It sounds like the perfect place to start, so you proceed to browse through the subtopics within the chapter.  Under “motion to suppress,” you locate two different forms for motion to suppress defendant’s statements and another helpful form for motion for exclusion of involuntary admissions and confessions, but nothing relevant to the element of coercion.  So, you go to the index and look up “confessions, generally.”  There, you find exactly what you are looking for, just in a different chapter, a form called “Suppression Motion for Taped Confession” which has the element of coercion.  After this, don’t forget to check for updates in the pocket part to complete your research effectively!  Also, remember, these forms are not a “one size fits all” kind of thing.  They should be modified and tailored to fit your client specifically; no two defendants are the same.

North Carolina Criminal Trial Practice Forms is an indispensable resource for any lawyer and even more so for newly admitted attorneys just learning which form to submit to which court on behalf of their respective clients.

~ Ashley Lawrence, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: Criminal Procedure in North Carolina

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For 20 seasons, on the television show Law & Order, we watched the police investigate the crime and arrest the criminal, and then, with bated breath, hung on Jack McCoy’s every question and objection as he prosecuted the crime for the win. We’ve seen this scenario play out countless times and believed it to be the criminal process, but is it really? In North Carolina, there is a clear beginning, middle, and end to the criminal justice system, and it revolves around the rules of criminal procedure. But, as new criminal lawyers starting out on our own, how do we know what to do?  After all, the beginning, middle, and end of the criminal justice system can seem a little overwhelming, especially so if we do not have a mentor to guide us through the process.

Luckily, there is hope! Criminal Procedure in North Carolina by Irving Joyner is the very practice guide that can help the new lawyer, and even some seasoned lawyers, navigate the rough waters of our state’s criminal justice system. To find this practice guide, locate the call number (KFN7975 .J69 2005) in the Charlotte School of Law library catalog, or look up the title using the “browse sources” feature in Lexis Advance.

After a defendant has hired you as her defense attorney, how do you know what to do? The great thing about Criminal Procedure in North Carolina is that, similar to the dramatic arc of Law & Order, the practice guide logically and sequentially moves the practitioner from arrest, to pre-trial, to trial, and then to sentencing.  At each stage in the prosecution of a crime, the practice guide explains the relevant processes and procedures, providing annotations to primary authority for greater context, and supplements with a plethora of other useful information for new attorneys, like sample forms.  The pre-trial section, for example, uses precedential case law to explain the importance of discovery and pre-trial motions practice to a client and the pre-trial issues that arise.

Furthermore, the pre-trial section includes sample forms that show the attorney how to draft and file a particular motion. I found the forms particularly helpful because, while I had learned how to file a motion in limine, others like a special venire were foreign to me.  So, how do you file a motion for a special venire? Well, the practice guide explains who can file this type of motion, when it should be filed, and the type of claim the defendant might bring, such as a motion based on array or racial composition. After the full discussions of the motions that a defense attorney can use, the practice guide then provides the forms so that the attorney can properly file the appropriate motion within the court, changing only what they need to change based on the court where the motion is to be filed.

What better way, when lost in the sea of the criminal justice system, than to go to Criminal Procedure in North Carolina to make sure that you are taking proper advantage of any and all pre-trial and trial motions on behalf of your client.  It doesn’t matter if you are a new attorney or have been admitted to the bar for 20 years, this practice guide is a great resource to make sure that you are following the proper criminal procedure guidelines in the North Carolina courts. Criminal Procedure in North Carolina makes better attorneys because it helps them provide their clients the representation that they deserve.

 ~ Adrianne Ribar, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: North Carolina Crimes – A Guidebook on the Elements of Crime

northcarolinacrimes

Introduction

Attorneys use practice guides in different areas of law as a way to quickly identify the rule of law and its respective authorities from which to craft a legal argument. These guides also help practitioners with the procedural elements and motions requirements of a cause of action.

About North Carolina Crimes: A Guidebook on the Elements of Crime

North Carolina Crimes: A Guidebook to the Elements of Crime (7th ed. 2012), written by Jessica Smith of the North Carolina School of Government, is a single volume, soft cover treatise detailing the elements of the criminal laws in North Carolina.  This guidebook only covers the state’s substantive crimes, excluding obscure ones, minor infractions such as traffic offenses, and special offenses related to alcoholic beverage control law and fish and game law.  A student, patron or attorney member can locate the call number (KFN7966.8 .N67) of North Carolina Crimes by plugging the following search terms – north carolina crimes – into the Charlotte School of Law Library catalog.

Key Features of North Carolina Crimes

North Carolina Crimes analyzes each criminal offense within its own chapter and divides each into the following four categories: elements, punishment, notes (explanatory points regarding the offense, including case law) and related offenses. State of mind, defenses, and structured sentencing are additional topics discussed in the introductory chapter of each offense. Because the clear and concise layout of the guidebook makes locating and understanding the criminal elements easy, the supervising attorneys and judges, at my externships, consider it an excellent reference guide during trial or at a court hearing.  For this reason, North Carolina provides the latest version to all state prosecutors, and most state law enforcement officers and judges keep the guidebook handy at all times, as well.  Law enforcement officers refer to North Carolina Crimes when they need to make a quick charging decision about a perpetrator’s alleged criminal behavior; prosecutors use the guidebook when putting their cases together; and judges rely on it when deciding the rule of law or explaining it to a jury.  Essentially, North Carolina Crimes helps to keep all of the parties participating in the prosecution of a crime on the same page.

There are several useful ways to search for your topic in North Carolina Crimes.  To begin, there is a master table of contents at the front of the book, listing every topic and subtopic with its corresponding page numbers, and an individual table of contents at the beginning of each chapter. North Carolina Crimes also has the following useful indexes: 1) a case index that lists the cited cases alphabetically, 2) a table of statutes that organizes the enacted laws in ascending numerical order, and 3) a subject index that helps the reader navigate to a particular subject or crime.

Researching using North Carolina Crimes

North Carolina Crimes is an excellent place to begin legal research on a criminal issue. For example, suppose you need to understand the difference between voluntary and involuntary manslaughter in North Carolina.  Upon consulting the guidebook’s table of contents, you locate the subtopic “manslaughter” within the topic “homicide” and then navigate to the corresponding pages.  In North Carolina, manslaughter is a common law crime which means its rule of law stems from state court decisions and not the legislature.  The “manslaughter” section highlights the elements for voluntary and involuntary manslaughter and provides an extensive list of on-point cases interpreting the scope of each element.  To update the authority, you would then KeyCite with WestlawNext or Shepardize with Lexis Advance.

Conclusion

North Carolina Crimes: A Guidebook to the Elements of Crime uses a simple, easy-to-navigate style to detail and annotate the rule of law of the major North Carolina criminal offenses, making the guidebook an essential tool for law enforcement officers, prosecutors, and judges.

~ Maria Fisichello, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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