USING LITIGATION SOURCES

In addition to the usual sources for researching case law, statutory law, and administrative law, practice sources can be helpful in preparing to bring an action or defend an action. Attorneys in practice do not “re-invent the wheel” each time they face a drafting project, but rather use a wide variety of forms and practice materials. Many firms maintain their own form and document files for various purposes. There are also numerous commercially published materials, some general and cross-jurisdictional in scope, and some geared to specific jurisdictions.

There are many treatises, practice guides, and form books available that apply specifically to the practice of law in Maryland, other states, and before the federal courts. Some are general in scope while others are written for specialized practice areas. Many of these resources contain, in addition to forms, commentary, planning checklists, and cross-references to primary source materials. It is extremely important to keep in mind that these materials are never a substitute for thorough research in the statutory, case, or agency sources which provide controlling authority for the legal problem you are addressing. Additionally, you will always need to adapt any form you use not only to your particular fact situation, but also to the procedural rules of your jurisdiction. These resources may offer guidance in starting or double-checking a writing project, but substituting their contents for your own research, analysis, and writing is always inappropriate. Copying form language without modifying it for local considerations or common sense factors can be disastrous.

A variety of sources exist that are designed to provide assistance in preparing for trials. Examples of these types of sources are discussed below. Many of these are available on either Lexis or Westlaw. Those that appear below represent only a sample of what is available. If you are looking for a source of a specific type and find nothing helpful listed, consult the library catalog or browse the Lexis and Westlaw directories under the Litigation topics.

Determining Possible Causes of Action

• Causes of Action (Westlaw) This set contains discussions of possible causes of action for specific types of fact patterns.
• Pleading Causes of Action in Maryland (Lexis)

Evaluating the Merits of Proceeding with an Action

Once a determination has been made that a possible cause of action exists, the next practical question is whether filing a lawsuit is worth the cost. Several sources report jury verdicts and settlements for particular causes of action. Selected titles include:

• The National Jury Verdicts Review & Analysis (Lexis)
• National Law Journal – Annual Jury Verdict Reports (Lexis)
• What’s it worth? (Lexis – only most recent version)
• Mealey’s Litigation Reports (Lexis)
• Maryland Jury Verdicts (Westlaw)

General Litigation Sources

• American Jurisprudence Trials (Westlaw and KF8913.A35). This set includes about five sample trials on specific subjects, mostly civil but some criminal, per volume. The following is its statement of purpose: "a guide to the modern practices, techniques, and tactics used in preparing and trying cases, with model programs for the handling of all types of litigation." Examples of examination, cross examination, forms, and discussion of substantive law are included. While most of the Am Jur sample trials cover actions that would be filed in state or federal courts, samples are also included for topics involving administrative hearings.
• American Jurisprudence Proof of Facts (Westlaw and KF8933.A35). This set includes "text and sample testimony to assist in proving contested facts" involving specific areas of the law.

Proceeding with a Trial

In addition to American Jurisprudence Trials and Proof of Facts, many sources exist that deal with specific stages of conducting a trial, beginning with guidelines for interviewing the client. Matthew Bender is one of the major publishers of treatises in all areas of law and many are available through LexisNexis. Under the Secondary Legal category of the Lexis list of sources is a link to Matthew Bender. You can browse the list of Matthew Bender treatises under “litigation” and by area of law. Both the litigation category and the torts category have sources that may be helpful for this fact pattern. For example, Bender’s Forms of Discovery (Lexis, Westlaw and KF8900.A3B4) is a heavily used source for composing interrogatories for various types of actions. Sample interrogatories are included along with the text and discussion of applicable federal rules. Discussions of depositions, requests for admission, and criminal discovery are available.

Another series with useful information on various stages of the litigation process is the West Trial Practice Series. Examples of titles in this series include:

• Roberto Aron, Julius Fast & Richard Klein, Trial Communication Skills (2d ed.) (Westlaw and KF8915.A83) An overview of the litigation process is included in addition to specifics of communication issues at the various trial stages.
• Jeffrey Kestler, Questioning Techniques and Tactics (3d ed.) (Westlaw and KF8915.K47) Questioning strategies as well as principles of cross-examination are discussed in detail in this work.

In addition to Pleading Causes of Action in Maryland, several sources exist to help attorneys prepare for appearances in Maryland courts. Examples are:

• Basic Civil Trial Practice Pre-Trial (Lexis)
• Discovery under the Maryland Rules (Lexis)
• Pattern Examinations of Witnesses for the Maryland Lawyer (Lexis)
• Practice Manual for the Maryland Lawyer (Lexis)

Court Rules

Both U.S.C. S. and U.S.C.A. have volumes that contain the Rules of Federal Procedure, Civil and Criminal, and the Federal Rules of Evidence. Each set gives the text of the rules followed by annotations of decisions as well as comments from the Advisory Committee on the federal rules. Lexis and Westlaw both have databases with the federal rules. Most U.S. District Courts provide local rules on their web sites. Links to court web sites can be found on the U.S. Courts home page: http://www.uscourts.gov

Helpful treatises relating to federal practice and court rules research include:

• Charles Alan Wright et al., Federal Practice and Procedure (KF8816.W7 & Westlaw) Arranged by Federal Rules of Criminal Procedure, Civil Procedure and Evidence. Additional volumes on jurisdiction and related matters.
• Moore's Federal Practice 3d (KF8820.A313M63 & Lexis) Discussion of federal practice arranged by rule numbers.
• Weinstein's Federal Evidence 2d (KF8935.W4 & Lexis) Commentary on the Federal Rules of Evidence with annotations to cases.

Frequently used Maryland trial practice sources include:

• Both Lexis and Westlaw have databases with Maryland Rules.
• Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary (2d ed.) (KFM1729.N67 & Lexis). "A commentary on each rule in Titles I and II of the Maryland Rules." "This Commentary provides an explanation following each rule, which gives the source from which each rule was derived, its interrelationship with other rules, and its intended purpose."
• Robert Dale Klein, Maryland Civil Procedure Forms (Lexis)
• Lyn McLain, Maryland Evidence: State and Federal (2d ed.) (KFM1740.M37 & Westlaw). Overview of the Maryland law of evidence that, while written before the adoption of the Maryland Rules of Evidence, is still valuable for "gathering relevant statutes and rules and discussing the relevant case law in one place."
• Joseph F. Murphy Jr., Maryland Evidence Handbook (3d ed.) (KFM1740.M87& Lexis) Succinct guide to the admissibility of evidence with pertinent cases both cited and described in detail.
• Pattern Examination of Witnesses for the Maryland Lawyer (Lexis)

Court Filings

Another option is to review actual complaints and briefs filed in similar cases.

Fact-specific pleadings are available on Westlaw for federal courts in FED-Filing-All. In addition, both state and federal documents are available in a Pleadings database. Both of these can be narrowed to search only cases arising in Maryland. Lexis has civil docket summaries for U.S. District courts in 48 states.

Appellate court briefs and some district court briefs are available on Westlaw. In a real world setting, if you cannot find the briefs you are looking for, a pay-per-use database called PACER (Public Access to Court Electronic Records) contains case and docket information for most federal appellate, district, and bankruptcy courts.

Briefs from the Maryland Court of Appeals are included in Westlaw.

Locating Expert Witnesses

Both Lexis and Westlaw have databases that support searching for experts on particular topics.

The Forensic Services Directory (Westlaw) provides biographical information on experts in data on translators, testing laboratories, investigators and other specialists providing trial support services.

Martindale-Hubbell (http://resources.martindale.com) offers many resources for legal professionals. FindLaw www.findlaw.com is another free resource with links to information about experts and other litigation-related services.
Several membership organizations exist that provide litigation support services. Examples include ATLA (Association of Trial Lawyers of America), DRI (Defense Research Institute) and idex.com (Collaborative Defense Network of Expert Witness Research).

Jury Instructions

Pattern jury instructions for both federal and state courts are available to use as samples.

• Modern Federal Jury Instructions (Lexis)
• Federal Jury Practice and Instruction (Westlaw)
• Maryland Civil Pattern Jury Instructions, 3d ed. (Lexis & Westlaw)