Advanced Civil Procedure Seminar
***THIS is an ARCHIVED guide. It may contain BROKEN links. Its value is HISTORICAL only.***
By Mark Kloempken, Law Librarian and Lecturer in Law, Washington University School of Law
In general, "the rules of substantive law define the rights and duties of persons." James Fleming & Geoffrey C. Hazard, Jr., Civil Procedure 2 (3rd ed. 1985). Procedural rules govern how those rights and duties are adjudicated. Procedural law is created by the legislature and by the judiciary, either by rules promulgated by a court or through cases which interpret those rules. Its purpose is to aid courts in the uniform, orderly and expeditious hearing of a case. In the Advanced Civil Procedure Seminar, "students will explore a variety of legal issues pertaining to civil litigation including primarily procedural and advocacy-related topics that arise in the civil litigation process." Advanced Civil Procedure.
This Research Guide is designed to introduce you to library resources that will allow you to identify and locate materials regarding civil procedure. When researching a legal question, it is vital that the relevant rules or legislation and cases are read. Very often it is useful to begin with a hornbook or an encyclopedia which will provide commentary on the rules and citations to the most relevant cases.
There are two hornbooks available at the reference desk on the subject of civil procedure.
- Friedenthal, Jack H., Mary Kay Kane and Arthur R. Miller. Civil Procedure. 3rd ed. St. Paul, MN: West Group. 1999. [Reserve KF8840 .F72 1999]
- James, Fleming and Geoffrey C. Hazard, Jr. Civil procedure. 3rd ed. Boston, MA: Little, Brown. 1985.
Reserve KF8840 .J3 1985]
There are four encyclopedias devoted to the subject of civil procedure. While they are all explicitly federal they are also important for researching state rules of civil procedure because so many states have their rules of civil procedure modeled after the Federal Rules of Civil Procedure.
- Moore, James William. Moore's federal practice. 3rd ed. New York, NY: Matthew Bender. 1997. (loose-leaf) [Ref. KF8820.A313 M63]
- Moore, James William, Allan D. Vestal, and Philip B. Kurland. Moores manual, Federal practice and procedure. NY: M. Bender. 1978. (loose-leaf) [Ref. KF8820.A313 M643]
- Federal procedure : a problem-solving textual analysis of federal judicial and administrative procedure. Lawyers ed. Rochester, NY: Lawyers Co-operative Pub. Co. 1981. [KF8835 .F4]
- Wright, Charles Alan. Federal practice and procedure. 2nd ed. St. Paul, MN: West Pub. Co. 1982.
[Ref. KF9619 .W72]
On-Line Catalogs -- Treatises
The point of access to a library's collection is its catalog. In order to utilize the Catalog to your greatest advantage, you should first identify those terms that you can use to conduct an efficient search and that will yield materials that are relevant. A second difficulty when researching a subject is locating those materials that you have previously identified as being relevant.
The two most common methods of using the catalog are either by key word or by subject. The advantage to key word searching is that you may begin with the information that you have. There is a disadvantage to key word searching, that being that unless the appropriate key words are used, you may easily miss material that is on point. Titles may be vague or abstract and not adequately convey the subject covered in the article. It is always a good idea to look at the complete record to see what subject headings have been assigned. The advantage to subject headings is their structure, in other words, all the items which are embraced by the subject will be retrieved, irrespective of the words used.
The address for the Washington University Law catalog is http://catalog.wustl.edu/search~b1o1c1i1a1/
One of the topics you might choose to write on is jury selection. If you look in the catalog you would find:
Abbott, Walter F. Analytic Juror Rater. Philadelphia, PA: American Law Institute-American Bar Association Committee on Continuing Professional Education. 1987. Pp. xvii, 142 [KF8979 .A92]
Bennett, Cathy E. and Robert B. Hirschhorn. Bennett's guide to jury selection and trial dynamics in civil and criminal litigation. St. Paul, MN: West Pub. Co., 1993. Pp. xxxvi, 420 [KF8976 .B46]
Wagner, Ward. Art of advocacy.Jury selection. New York, NY: Matthew Bender. 1981. Loose-Leaf. [KF8979 .W33]
Wenke, Robert A. The art of selecting a jury. 2n ed. Springfield, IL: C.C. Thomas, 1989. Pp. xvi, 141. [KF8979 .W46 1988]
George, Jody, Deirdre Golash and Russell Wheeler. Handbook on jury use in the federal district courts. Washington, DC: Federal Judicial Center, 1989. Pp. xiii, 93. [Gov.Docs. Ju 13.10/3:89-1]
Abbott, Walter F. and John Batt, editors. A handbook of jury research. Philadelphia, PA: American Law Institute-American Bar Association Committee on Continuing Professional Education. 1999. [KF8972 .H35 1999]
Abbott, Walter F., Flora Hall and Elizabeth Linville. Jury research : a review and bibliography. Philadelphia, PA: American Law Institute-American Bar Association Committee on Continuing Professional Education. 1993. Pp. xx, 346. [KF8971.A1 A32]
Starr, V. Hale. Jury selection : an attorney's guide to jury law and methods. Boston, MA: Little, Brown. 1985. Pp. xxxvi, 704. [KF8979 .S82]
Rasicot, James. Jury selection, body language & the visual trial. Minneapolis, MA: AB Publications. 1983. Pp. xxiii, 510. [KF8979 .R37]
Ginger, Ann Fagan. Jury selection in civil and criminal trials. 2nd ed. Tiburon, CA: Lawpress. 1984. 2v. [KF8979 .G53 1984]
Van Dyke, Jon M. Jury selection procedures : our uncertain commitment to representative panels. Cambridge, MA: Ballinger Pub. Co. 1977. Pp. xviii, 426. [KF9680 .V35]
Donner, Ted A. and Robert M. Kalec. 2nd ed. Jury selection : strategy & science. Deerfield, IL: Clark Boardman Callaghan. 1997. Looseleaf. [KF8979 .B57]
Jordan, Wlater E. Jury selection: the law, art, and science. 2n ed. Colorado Springs, CO: Shepard's/McGraw - Hill. 1990. Pp. Xxvii, 553. [KF8979 .J67]
Frederick, Jeffrey. TITLE Mastering voir dire and jury selection : gaining an edge in questioning and selecting a jury Chicago, IL: General Practice Section, American Bar Association. 1995 Pp. Xiii, 247 [KF 8979.F66 1995].
Hiroshi Fukurai, Edgar W. Butler, and Richard Krooth. Race and the jury : racial disenfranchisement and the search for justice. New York, NY: Plenum Press. 1993. Pp. xvi, 241. [KF8979 .F84]
Reynolds, Gerald A..Race and the criminal justice system : how race affects jury trials. Washington, DC: Center for Equal Opportunity. 1996. 96p. [KF8979 .R33 1996]
Abramson, Jeffrey. We the jury: the jury system and the ideal of democracy. New York, NY: Basic Books. 1994. Pp. x, 308 [KF8972 A727 1994]
Yet another way in which to identify legal treatise is IndexMaster, http://www.indexmaster.com/. This service is available through the Law Library Web Subscriptions (/library/pages.aspx?id=1162). Please note that a search in IndexMaster only serves to identify those treatises that contain a discussion of your subject. It is a collection of the indexes and tables of contents from thousands of legal treatises. You may search by keyword, topic, title, or author. If you perform a search in IndexMaster using the keywords "peremptory challenges" AND race, you would find 111 publications match your search criteria. You will then have to view the index or the table of contents to determine if the publications serve your needs. Once again, after you determined that a particular publication serves your needs, you then need to identify which library has the publication. Among those publications are:
Antieau, Chester. Modern Constitutional Law, 2d. West Group/Lawyers Cooperative Publishing
Brockett, William A. and John W. Keker. Effective Direct and Cross-Examination. Continuing Education of the Bar-California
Colomb G.E., S.H. Moskowitz, L.D. Moskowitz and E. Johnson, Jr. Federal Trial Guide. Matthew Bender
Donner, Ted A. and Robert M. Kalec Jury Selection: Strategy & Science, 3d Edition. West Group/Clark Boardman Callaghan
Ericson,W.H., W.D. Neighbors and B.J. George, Jr. United States Supreme Court Cases & Comments. Matthew Bender
Feuerstein, Sandra J. and Honorable; Gary Muldoon Handling A Criminal Case in New York. West Group/Lawyers Cooperative Publishing
Frederick, Jeffrey T. The Psychology of The American Jury. LEXIS LAW PUBLISHING (Michie)
Friesen, Jennifer. State Constitutional Law, Litigating Individual Rights, Claims, and Defenses, Second Edition. Lexis Law Publishing (Michie)
Ginger, Ann Fagen. Minimizing Racism in Jury Trials. Meiklejohn Civil Liberties Institute
Johnson, Earl Jr. California Trial Guide. Matthew Bender
Jordan, Walter E. and James J. Gobert Jury Selection: The Law, Art and Science of Selecting a Jury, Second Edition. West Group/Clark Boardman Callaghan
Maddox, Hugh. Alabama Rules of Criminal Procedure. LEXIS LAW PUBLISHING (Michie)
Mogill, Ken and Richard Gonzales Examination of Witnesses. West Group/Clark Boardman Callaghan
Osborne, Thomas L. Trial Handbook for Kentucky Lawyers 2d. West Group/Lawyers Cooperative Publishing
P. Mccloskey, P. and R. Schoenberg, Criminal Law Deskbook. Matthew Bender
Schweitzer, Sidney. Cyclopedia of Trial: Basic Trial & Proof. West Group/Clark Boardman Callaghan
Swartz, F.M., F.A. Swartz and W. Swartz Massachusetts Fms Of Pleading & Practice. Matthew Bender
There are two periodical indexes currently devoted to the subject of law that can be used to identify legal journal articles. All paper versions of these indexes are located in the low stacks in the Reading Room. Each of the two indexes has a parallel in an electronic format. The electronic indexes are limited as to the time period they cover. Both electronic versions begin in approximately 1980.
Index to Legal Periodical Literature
The Index to Legal Periodical Literature, in six volumes, covers the period of December 1886 to 1937. It represents the first attempt to systematically index legal literature. The Subject Index is based upon the system followed by West Publishing Co., in the American Digests. There is also an Author Index as well as an index by Table of Case.
The Index to Legal Periodicals began in the year 1908. It continues to the present. The number of indexed periodicals began with 39 periodicals in 1908 to over 500 periodicals at present. It contains a Subject Index, based originally upon the West American Digest system, an Author Index and a Table of Cases. Beginning in the year 1980, it contains a Table of Statutes. The electronic parallel to the Index to Legal Periodicals is WilsonWeb (http://wilsonweb2.hwwilson.com/autologin).
Current Law Index
The Current Law Index began in the year 1980. The Current Law Index is divided into four parts: Subject Index, Author or Title Index, Table of Cases and Table of Statutes. It indexes over 700 periodicals. The electronic version of the Current Law Index is LegalTrac (http://web6.infotrac.galegroup.com/itw/infomark/0/1/1/purl=rc6_LT?sw_aep=wustl_law). In addition to the periodicals indexed, LegalTrac also indexes legal newspapers and newsletters.
If you search LegalTrac using the terms 'jury selection constitutional' you will retrieve the following items:
ChongMi Lah. Peremptory challenges and the systematic exclusion of minorities: state courts lead the way. 6 Boston College Third World Law Journal 43 (1986)
David Machnacki. Skin color doesn't reason: closing the door on the discriminatory use of peremptory challenges. 64 University of Detroit Law Review 171 (1986)
Dean A. Stowers. Juror bias undiscovered during voir dire: legal standards for reviewing claims of a denial of the constitutional right to an impartial jury. 39 Drake Law Review 201 (1989)
Grant P. Bagely, Mark W. Epstein and Camille N. Johnson. Davis v. People: defendant's Sixth and Fourteenth Amendment rights to be free from gender discrimination in the jury selection process. (University of Utah College of Law's entry in 1988-89 National Moot Court Competition) 15 Journal of Contemporary Law 205 (1989)
Judge must pick Deaver jury in public: trial judge angered by Appeals Court order dismisses jury, postpones trial 'til fall. (Washington, D.C.) 11 News Media & the Law 10 (1987)
Lester W. Armstrong. Impartial jury guarantees of state constitutions may forbid the use of peremptory challenges exercised to exclude jurors solely because of race. (Symposium: State Constitutional Law) 16 University of Toledo Law Review 507 (1985)
Patricia E. Sacks. Challenging the peremptory challenge: Sixth Amendment implications of the discriminatory use of peremptory challenges. 67 Washington University Law Quarterly 547 (1989)
Roger C. Harper. Rethinking limitations on the peremptory challenge. 85 Columbia Law Review 1357 (1985)
Yet another alternative would be the perspective of an alternative discipline. "World Window is your gateway to the collections and services of the Libraries at Washington University in St. Louis" at http://library.wustl.edu/. Click on 'Journal Indexes' located on the toolbar at the top of the window and the then the link 'Journal Indexes, arranged by subject area.' Scroll down to the heading 'Social Sciences,' and there are sixteen indexes, among them:
Social Sciences Abstracts (1983 - )
"Indexing more than 400 periodicals covering sociology, anthropology, geography, economics, political science, and law. Updated monthly."
Social Sciences Citation Index, via Web of Science (1988 - )
"A multidisciplinary database, with searchable author abstracts, covering the journal literature of the social sciences. It indexes 1,700 journals spanning 50 disciplines, as well as covering individually selected relevant items from over 3,300 of the world's leading scientific and technical journals. Updated weekly."
If you search the Social Science Citation Index using the terms 'jury selection' you will retrieve:
Brigham JC and Wasserman AW The impact of race, racial attitude, and gender on reactions to the criminal trial of O. J. Simpson. 29 Journal Applied Social Psychology 1333-1370 (1999)
Cavise LL. The Batson doctrine: The Supreme Court's utter failure to meet the challenge of discrimination in jury selection. 3 Wisconsin Law Review 501-552 (1999)
Forde-Mazrui K. Jural districting: Selecting impartial juries through community representation. 52 Vanderbilt Law Review 353 (1999)
Kadane JB, Stone CA, and Wallstrom G. The donation paradox for peremptory challenges. 47 Theory and Decision 139-151 (1999)
Knack S. Deterring voter registration through juror selection practices: Evidence from survey data. 103 Public Choice 49-62 (2000)
Neilson WS and Winter H. Bias and the economics of jury selection. 20 International Review of Law and Economics 223-250 (2000 )
Pope J. and Meyer R. An attributional analysis of jurors' judgments in a criminal case: A preliminary investigation. 27 Social Behavior and Personality 563-574 (1999)
Rose MR. The peremptory challenge accused of race or gender discrimination? Some data from one county. 23 Law and Human Behavior 695-702 (1999)
Strier F. and Shestowsky D. Profiling the profilers: A study of the trial consulting profession, its impact on trial justice and what, if anything, to do about it. 3 Wisconsin Law Review 441-499 (1999)
Wigley CJ Verbal aggressiveness and communicator style characteristics of summoned jurors as predictors of actual jury selection. 66 Communication Monographs 266-275 (1999)
The point of access to cases is the digest. A digest is much like a large table of contents, publishers divide the law into broad categories, such as Amicus Curiae, Civil Rights, or Federal Civil Procedure. These categories are then subdivided and assigned numbers, known as key numbers. The point of access to the digest is the Descriptive Word Index. It is a subject index to the digest topics comprised of keywords or descriptive words. It is the best starting point for research.
There are five federal digests. To completely research a particular question, each digest must be checked.
- Federal Digest, 1754 - 1938.
- Modern Federal Practice Digest, 1939 - 1960.
- West's Federal Practice Digest, 2nd, 1961 - November, 1975.
- West's Federal Practice Digest, 3rd, December, 1975 - West's Federal Practice, 4th.
- West's Federal Practice Digest 4th, December, 1975 - present.
There are two digests devoted to the United States Supreme Court.
- Digest of the United States Supreme Court Reports, Lawyers' Edition, 1900 - present.
- United States Supreme Court Digest, 1754 - present.
If you look in the Descriptive Word Index of the United States Supreme Court Digest, under the heading 'Selection' and then 'Jury', you will find a reference for "Discriminations, burden of proof. Jury 120".
The Law Library owns all published digests for the states. Two states, Delaware and Utah, have no published digests. Delaware cases can be accessed through the Atlantic Digest on the fifth floor, while Utah can be accessed through the Pacific Digest, also on the fifth floor.
The Nevada Digest is published by the Legislative Council, State of Nevada, and does not utilize the West Key Number system. The states of North Dakota and South Dakota are combined in the Dakota Digest. The States of Virginia and West Virginia are also combined in the Virginia and West Virginia Digest.
The great advantage to searching on Westlaw or Lexis is that the full text of the document is searched. Both Lexis and Westlaw are a resource to legal resources such as cases, statutes, administrative materials, journals, and legal newspapers. Both services also include newspaper databases that can be used for general and political news.
Unless you specialize in a particular area and become familiar with the files appropriate to your subject, it is difficult to construct a search for maximum efficiency at a minimum cost. Both services provide their users with an 800 number, which will connect you with a reference attorney, whose job is to help you identify the proper database and construct an efficient search. The number for Westlaw is (800) 937-8529. The number for Lexis is (800) 543-6862.
When you are conducting a search using either Lexis or Westlaw, it is important to understand the coverage of the file you are searching. The ALLFEDS database in Westlaw covers federal cases after 1944. For a complete search you would need to search ALLFEDS and ALLFEDS-OLD. While both Westlaw (TP-ALL ) and Lexis (Lawrev;Allrev) allow you to search periodicals, both files contain approximately 700 periodicals. The Law Library subscribes to over 1,700 titles. The point being that not everything is in Lexis or Westlaw.
Reference Help in the Law Library
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