Legal Assistant Basics

# Legal Assistant Basics Knowledge Pack

## Legal Research Methods

### Primary vs Secondary Sources
Primary authority is binding law: constitutions, statutes, regulations, and case law from cts within the relevant jx. Secondary authority is persuasive but not binding: treatises, law review articles, Restatements, legal encyclopedias (Am Jur 2d, CJS), and practice guides.

Hierarchy of authority within a jx: Constitution > statutes > administrative regulations > case law interpreting the above. Federal questions follow federal hierarchy; state law claims follow state hierarchy. When no binding authority exists, cts look to persuasive authority from other jx.

### Research Process
1. Identify the legal issue and jx
2. Gather background using secondary sources (saves time, provides citations to primary law)
3. Find relevant statutes using annotated codes (USCA, state annotated codes)
4. Find case law interpreting those statutes using headnotes and key numbers (West Key Number System)
5. Update research: Shepardize (LexisNexis) or KeyCite (Westlaw) every case to verify it's still good law
6. Never cite overruled, reversed, or superseded cases — this is malpractice-level error

### Digital Research Tools
- Westlaw/LexisNexis: comprehensive primary and secondary sources, natural language and terms-and-connectors searching
- Boolean connectors: AND, OR, /s (same sentence), /p (same paragraph), /n (within n words), % (but not)
- Google Scholar: free case law search, limited but useful for quick checks
- PACER: federal ct electronic records system ($0.10/page, free for accounts under $30/quarter)
- State ct websites: most provide free access to dockets, some to documents

## Document Drafting

### Legal Writing Principles
- IRAC structure for analytical writing: Issue, Rule, Application, Conclusion
- Plain language preferred in modern practice — avoid unnecessary legalese
- Define terms on first use, then use consistently throughout
- Every factual assertion must cite to record evidence (declarations, dep testimony, exhibits)
- Every legal assertion must cite to authority (statute, case, regulation)

### Common Documents
- Demand letter: factual background, legal basis for claim, specific demand, deadline. Professional tone — may become exhibit at trial
- Mot to dismiss (Rule 12(b)(6) federal, or state equivalent): argues plt's complaint fails to state a claim upon which relief can be granted even if all alleged facts are true
- Mot for summary j (Rule 56): argues no genuine dispute of material fact exists, moving party entitled to j as matter of law. Supported by declarations, dep excerpts, document exhibits
- Mot in limine: pretrial mot to exclude evidence. Must argue specific evidence, specific rule of evidence, and specific prejudice
- Discovery responses: must respond within 30 days (federal). Objections must be specific — boilerplate objections are disfavored and may be waived

### Citation Format
- Bluebook is standard for ct filings: Case Name, Volume Reporter Page (Ct Year). Example: Marbury v. Madison, 5 U.S. 137 (1803)
- Statutes: Title U.S.C. § Section. Example: 42 U.S.C. § 1983
- Short form after first full citation: Case Name, Volume Reporter at pinpoint page
- Signals: see (direct support), see also (additional support), cf. (analogous support), but see (contrary authority)

## K Basics

### K Formation
Four elements: (1) offer, (2) acceptance, (3) consideration (bargained-for exchange of value), (4) mutual assent (meeting of the minds). Absence of any element = no enforceable K.

SOF requires certain Ks in writing: real property transfers, Ks that cannot be performed within one year, Ks for goods over $500 (UCC 2-201), suretyship (promising to pay another's debt), marriage agreements.

### Essential K Clauses
- Recitals: background and purpose ("WHEREAS" clauses — informational, generally not binding)
- Definitions: defined terms capitalized throughout, critical for consistency
- Representations and warranties: factual statements each party asserts are true. Brch triggers indemnification
- Covenants: promises to do or refrain from doing something. Affirmative (shall do) and negative (shall not)
- Conditions precedent: events that must occur before obligations arise
- Indemnification: allocation of risk for third-party claims and losses
- Limitation of liab: caps on dmg, exclusion of consequential/incidental dmg
- Termination: for cause (material brch with cure period) and for convenience (notice period)
- Governing law and dispute resolution: choice of law, choice of forum, arb clause if applicable
- Force majeure: excuses performance for extraordinary events beyond party control
- Merger/integration clause: K is entire agreement, supersedes prior negotiations

### K Review Checklist
1. Are all parties correctly identified with proper legal names?
2. Is the scope of work/deliverables clearly defined?
3. Are payment terms specific (amount, timing, method, late payment consequences)?
4. Is the term/duration clear with renewal provisions?
5. Are termination rights balanced?
6. Is IP ownership explicitly addressed?
7. Are non-compete/non-solicitation provisions reasonable in scope, geography, and duration?
8. Is the indemnification mutual or one-sided? Are there caps?
9. Does the governing law match the intended jx?
10. Is the dispute resolution mechanism appropriate (litigation vs arb vs ADR)?

## Litigation Timeline

### Pre-Litigation
1. Client intake: conflict check, engagement letter, retainer agreement
2. Investigation: gather facts, preserve evidence (litigation hold letter to client)
3. Demand letter: attempt resolution before filing
4. SOL analysis: CRITICAL — missing SOL is malpractice. Common periods: personal injury 2-3 years (varies by state), K brch 4-6 years, fraud 3-6 years with disc rule

### Pleading Stage
1. Complaint filed by plt: jx basis, factual allegations, causes of action, prayer for relief
2. Service of process on def (Rule 4): personal service, substituted service, or waiver of service
3. Def response (21 days after service, 60 if waiver): answer (admit/deny each allegation + affirmative defenses) or pre-answer mot (12(b) mot to dismiss)
4. Counterclaims, crossclaims, third-party complaints if applicable

### Disc Phase (typically 6-12 months)
1. Initial disclosures (Rule 26(a)): names of witnesses, copies of documents, dmg computation, insurance agreements. Due within 14 days of Rule 26(f) conference
2. ROGs (Rule 33): written questions, max 25 including subparts (federal). Answered under oath
3. RFP (Rule 34): requests for documents and electronically stored information (ESI). Respond with production or specific objections
4. RFA (Rule 36): requests to admit facts or authenticity of documents. Deemed admitted if not responded to within 30 days
5. Deps (Rule 30): oral examination under oath, recorded by ct reporter. 7-hour limit per deponent (federal). Max 10 deps per side without ct permission
6. Expert disc: expert reports (Rule 26(a)(2)), then expert deps

### Dispositive Mots
- Summary j mots filed after disc closes (or partial summary j during disc)
- Daubert/Frye mots to exclude expert testimony
- Typical briefing schedule: opening brief, opposition (14-21 days), reply (7-14 days)

### Trial
- Pretrial conference and pretrial order: witness lists, exhibit lists, mots in limine, jury instructions
- Jury selection (voir dire), opening statements, plt's case-in-chief, def's case, rebuttal, closing arguments, jury instructions, deliberation, verdict
- Post-trial mots: renewed mot for j as matter of law (JMOL, Rule 50(b)), mot for new trial (Rule 59), mot to alter/amend j (Rule 59(e))

### Appeal
- Notice of appeal: 30 days from j in federal civil cases (Rule 4, Fed. R. App. P.)
- Standard of review: de novo (legal questions), clearly erroneous (factual findings), abuse of discretion (procedural rulings)
- Appellate brief, appellee brief, reply brief. Oral argument if granted

## Common Legal Terms

- **Res judicata**: final j on merits bars relitigation of same claim between same parties
- **Collateral estoppel (issue preclusion)**: issue actually litigated and decided cannot be relitigated
- **Standing**: plt must show injury-in-fact, causation, and redressability
- **Mootness**: live controversy must exist throughout litigation
- **Ripeness**: claim must be mature enough for ct adjudication
- **Burden of proof**: preponderance of evidence (civil), beyond reasonable doubt (criminal), clear and convincing (certain civil matters like fraud)
- **Stare decisis**: principle that cts follow precedent from higher cts in same jx
- **Pro se/pro per**: self-represented litigant (no atty)
- **Subpoena**: ct order compelling testimony (ad testificandum) or document production (duces tecum)
- **Voir dire**: jury selection examination process
- **In camera**: private review by judge (e.g., privilege review)
- **Amicus curiae**: friend of the ct brief, filed by non-parties with interest in outcome