Guide to Research in
New York Civil Practice


EXECUTIVE SUMMARY / LEARNING OBJECTIVES

  1. Check Secondary sources - especially Commentaries
  2. READ STATUTE
  3. UPDATE your research
  4. Ask questions - investigate Research Guides

I. A client walks in your door.
Her story: - She started an antiques trading business to buy and sell valuable ceramic cats. She insured her new business through an insurance broker in 2005. Her shop and inventory were destroyed by fire damage in January of 2006. The broker had recommended $50,000 worth of coverage but it cost your new client over $500,000 to replace everything that was destroyed. She first sued in February of 2007 but the action was dismissed because the court held that the three year statute of limitations for malpractice applied, rather than the six year statute of limitations for contractual obligations. She would like you to appeal and sue the bum!!!

Where do you start???

II. Issue spotting

  1. First you must analyze your facts. You then will begin to formulate questions. As you research and become more familiar with the law, both substantive and procedural, you will frequently discover more questions that must be answered. Formulating questions is an ongoing process.

  2. Next, ask yourself - "what are the legal theories?"
    In this situation, we have at least two - malpractice (tort/negligence) and breach of contract. Where and how will you find the applicable statute of limitations for a contract or malpractice claim?

  3. Then, determine the nature of the issues.

III. Research
  1. 1. Print v. Online
    This is a false dichotomy. Depending upon the issue one or the other may be preferable. Typically a combination of both types of resources will prove most useful.

    Online research tends to be more productive when:
    Online research is less useful when:

  2. Once you have analyzed your facts and determined that you have a NY civil practice question:

    A. Get some background - Secondary Sources (stuff to help you find "the LAW")

    1. Why use Secondary Sources?

      If you do not know exactly which section (or sections) of the CPLR applies, or for an overall understanding even if you know which section applies, you should consult secondary sources (i.e treatises {books} or articles written by experts in the field). These sources will help to:

      • help to explain the section in English
      • identify potential issues
      • identify terminology used
      • provide references to CPLR sections, regulations and cases
      • provide a more complete understanding of the interaction and relationship between CPLR sections, cases and court rules
      • keep up-to-date and aware of current issues

    2. Useful secondary sources include:
      • New York Practice, by David Siegel
        This one volume treatise is a good place to start and provides an excellent overview for New York practice issues.
        See sample pages for Siegel's New York Pracitce.

      • New York Civil Practice (frequently referred to as "Benders" or "Weinstein Korn and Miller")
        This multi volume treatise is organized by Article section and will give you a more in depth explanation of a particular CPLR section. This source is available on Lexis (States Legal - U.S. - New York - Treatises & Analytical Materials - New York Civil Practice ).
        See sample pages for Weinstein Korn and Miller's, New York Civil Practice


      • Bender's Forms for the Civil Practice by Louis R. Frumer [and] Oscar L. Warren; Joseph J. O'Connell
        This multi volume collection contains forms which are designed to be used in conjuction with New York Civil Practice.

    3. How to use Secondary Sources:

    4. a. Print
      Consult the index, table of contents and section analysis or synopsis. You must consider the various terms that may be used to express the idea you are researching.
      b. Online
      Many Secondary Sources are not available online. For those that are, use search connectors and look for the Table of Contents feature. In LEXIS, look under New York in Legal Sources. In WESTLAW, look in the Database Directory in State Materials - New York under the Forms, Treatises, etc. heading or the New York tab to determine what Secondary Sources are available.

    5. Keeping up-to-date

    6. To identify other useful treatises, use the Hofstra Library's Web catalog
      • try keyword search, when you see a useful title, look at its subject heading, then search relevant subject heading or headings
      • if fortunate enough to already know one title, look at that title's subject headings, then search relevant subject heading or headings

    7. Index to Legal Periodicals - law review articles index
      • less useful for NY practice research, but may be useful in other areas
      • use same strategy of keyword searching, finding subject headings and subject heading searching

    B. Stop and evaluate your strategy

    C. Conduct research for Primary Authority ("the LAW" - i.e. statutes, cases, regulations, court rules). See Sources of the Law chart.

    1. Statutory research
      1. What are statutes?

        The N.Y. state legislature, comprised of the Assembly and Senate, (or Congress on the federal level) introduces, debates and passes legislation. When this legislation is signed by the governor (or President on the federal level), the legislation becomes LAW.

        If you have discovered that your issue is governed by statute - as will be the case for most New York practice questions - begin primary authority research in the annotated code. The CPLR (Civil Procedure Law and Rules) are statutes enacted by the New York legislature, not court rules established by judges (e.g. the Federal Rules of Civil Procedure). The CPLR is one subject area (known, in New York as "Title") of the New York statutes. Examples of other subject areas or "Titles" of the New York Statutes would be the General Obligations Law or Domestic Relations Law.

      2. What is an annotated code?

        The two annotated codes in New York are McKinney's Consolidated Laws of New York Annotated ("McKinney's") and New York Consolidated Laws Service ("CLS"). The official code in New York is McKinney's and it is the most frequently used of the two. Both annotated codes will provide:

        • text of the statute
        • history of statute
        • In the CPLR in McKinney's, you will find Commentaries. These are discussions by experts about intepretation of the CPLR and the cases that discuss the CPLR. THESE COMMENTARIES ARE EXTRAORDINARILY USEFUL FOR UNDERSTANDING THE CPLR!!!
        • references to related statutes and regulations
        • references to secondary sources
        • case annotations (summaries of and citations to cases that involve the statute, sometimes referred to as "Notes of Decisions").
        • **UPDATE** your research
          • Once you have identified the relevant sections, check the pocket part and supplemental pamplets or going online to LEXIS or WESTLAW (password required).
          • Shepardize or Keycite any relevant cases identified.

        See Sample Pages of McKinneys

      3. How to find statutes in the annotated code
        1. Ideally you will learn some of which CPLR sections you need to consult using Secondary sources (Siegel's, N.Y. Practice, Benders, New York Civil Practice, see above).

        2. Print - In addition to Secondary sources, you should check the index of the annotated code. Remember to check under different terms for the issue you are researching.

        3. Online - Lexis and Westlaw are the preferable online sources for researching statutes. Segment and field searching are useful techniques to narrow your search. New York statutes are available at free sites on the Web - e.g. N.Y. State Assembly and Findlaw - but have limited searching capabilities. As with any free Web site, be careful as to reliability and how often the site is updated.

        4. Print v. Online
        It is strongly suggested that you research the code using print sources in addtion to online sources for the following reasons:
        • statutes use controlled vocabulary (e.g. "special proceedings") which may be unfamiliar
        • identifying relevant code sections is frequently more efficient using the index rather than full text searching (words v. ideas)
        • relational nature of statutes - must see in context of other provisions - online research will show just single section at a time.

      4. DO NOT FORGET:
        You **MUST** read entire statute . For example, CPLR section 7803 includes specific text which must be included in an argument heading.

    2. Legislative History
      1. What is legislative history?
        Researching the legislative history of a particular statute section (or amendment) involves locating and evaluating the documents created by the legislative and executive branches in the process of passing new sections and amending existing sections of the statutes. Legislative history research will provide insight into legislative intent - i.e. what the legislature meant. Courts may look to legislative history documents to interpret the intent of the legislature when determining the meaning of the statutory language.

        Researching legislative history is one of the most complex areas of legal research. When you are ready to tackle it, you should consult a legal research guide. For New York, Gibson's New York Legal Research Guide, 3rd ed. by William Manz (located on Law Reserve and Ready Ref at KFN5074 .G53 2004) is invaluable for legislative history and all other New York legal research questions. You will likely need to research the legislative history of the individual sections of interest as well as the legislative history of the adoption of the applicable revision of the CPLR.

      2. How to search for the legislative history documents of a specific CPLR section.
        1. Read Commentaries in McKinneys.

      3. 2. In McKinney's statutes look at :
        • the history to get the chapter number (in the small print just after the text of the section - remember, you may need to check the pocket part if your section has been amended);
        • the Historical and Statutory Notes, and
        • Legislative Studies and Reports, if any.

        3. Then, with the chapter number, go to McKinney's Session Laws and the New York Legislative Annual. You may also want to obtain the "bill jacket" for the chapter law (session law) which enacted the CPLR section of interest (1950-1958, located on microfilm, 1975-1982, located on microfiche, 1975-present some may be obtained through interlibrary loan or at the New York State Supreme Court Library. Some are also available on Westlaw. Use the Reports and Related Materials link. ) You will find bill jackets for bills from 2000-2007 online at the Digital Collections of the New York State Library and Archives.

        4. New York State bills are availabe on Lexis, Westlaw and at the New York State Assembly website. Other than these sites, most other New York state legislative history documents are not available online.

      4. How to search legislative history for the CPLR adoption, amendments and revisions, generally.
        The best general sources of the legislative history of the CPLR as adopted in 1962 are:
        • the Final Report of the Advisory Committee on the Practice and Procedure (1961) (located on the Lower Level at KFN5990.A17 F5 1961 in the Deane Law Library)
        • the four preliminary reports of the Advisory Committee on Practice and Procedure (1957 - 1961) (located on the Lower Level at KFN5955 .N41 and KFN5955 .N4 1957 in the Deane Law Library)
        • the Sixth Report of the Senate Finance Committee on the Proposed Revision of the Civil Practice Act and Rules (1962) ( located on the Lower Level at KFN6025 .A2 in the Deane Law Library)

        Legislative history of some of the amendments to the CPLR is found in the various annual reports of the Advisory Committee on Civil Practice to the Chief Administrator of the Courts of the State of New York ( located on the Lower Level at KFN5995 .A4 in the Deane Law Library) and in annual reports to the legislature of the Law Revision Commission ( located on the Lower Level at KFN5028 .A3 L3 in the Deane Law Library).

    3. Regulations
      1. What are regulations?
        The legislature delegates its authority to administrative agencies to promulgate rules in order to implement legislation. Theses rules, in their final form, are regulations.

      2. Where to find regulations
        On the federal level, these rules are first published in the Federal Register, a daily publication of the U.S. government. They then are published in the Code of Federal Regulations (CFR), a subject compilation which is updated annually. The CFR and Federal Register are also available on Web.

        In New York, regulations first appear in the weekly New York State Register and then are compiled in a subject (or Title) arrangement in the Official Compilation of the Codes, Rules and Regulations of the State of New York (NYCRR) (located at Reserve at KFN5035 .A22 N4) . New York regulations become relevant in Article 78 proceedings in court when the claim is the agency acted arbitrarily in promulgating or following its own regulations.

        Both the CFR and NYCRR have indexes. The complete NYCRR is available on Lexis and Westlaw. A free unofficial version of the NYCRR is available on the Web. Some of the N.Y. agency websites will have some references to regulations. The Guide to N.Y. Regulations provides a list of the N.Y. agencies which have their regulations available online .


    4. Court Rules
      1. What are court rules
        Court rules contain administrative standards and policies for the unified court system. As to particular courts, court rules regulate practice and procedure before those courts. Some court rules are of statewide effect, and some are of only local effect.
      2. Where to find court rules
        The official source is NYCRR - (title 22 - Judiciary). The best print source is West pamphlets of court rules- McKinney's New York Rules of Court (located in the Reading Room and on Reserve). You can find N.Y. court rules on Lexis and Westlaw. New York State court rules are also available on the Web but you must check the Amendments for any updates. The New York Law Journal provides access to the Judges' Part Rules. You must register to access these rules; registration is free.

    5. Case Research (note that cases come last, not first)
      • How to find cases
        1. When you have identified the relevant section or sections of the CPLR, the best way to identify cases relating to and interpreting those sections is by looking at the Notes of Decisions (i.e. annotations) in McKinney's or CLS. DO NOT FORGET to check the pocket part for more recent annotations.
        2. In addition to these annotations, check the following sources.
          • Online - LEXIS and WESTLAW: Full text searching best used when the topic has "terms of art" (e.g. "self incrimination"). Remember many different terms may be used to express any given subject or concept (e.g. mistake or error) and some terms may be ambiguous (e.g. flight=air travel or flight=escape). Check on Lexis or Westlaw for recent cases on your issue.
          • Print - West's Digests. To find cases on a particular subject, use the Digest for your jurisdiction. This "subject index" to cases is best used when the issue can be expressed using many different terms or phrases. The Digest divides up all of the possible areas of law into Topics - e.g. Insurance - and then subdivides each Topic - e.g. Civil Practice and Procedure. These subdivisions are assigned numbers, which are called Key Numbers .

            You can identify your relevant Topic(s) and Key Number(s):
            Make sure to check the Digest's pocket part for recent annotations. These may still be up to a year out of date. Make sure to Shepardize, Keycite or research your issue on Lexis or Westlaw to get the most recent cases.

            See Cases sample pages.


          • Shepard's and/or Key Cite: Use to determine if cases are still good law and to identify additional relevant cases. In addition, you can Shepardize or KeyCite a statute section to identify cases that cite to that section. Shepard's is available in print and on Lexis. KeyCite is available on Westlaw. Sheparidizing on Lexis or KeyCiting on Westlaw is much easier, faster and straightforward than the print.
          • Secondary sources (see above)
          • New York Law Journal: This daily paper publishes selected New York decisions in full, and provides summaries of many more. Many of these decisions are not reported elsewhere.

            Where to find cases from the New York Law Journal:
            1. The Law Library holds current copies at the Reserve Desk, and older issues on microfilm. Decisions that are only summarized may be obtained by placing a request with a Reference Librarian.
            2. WESTLAW (not LEXIS) provides access to the New York Law Journal cases from 1990 to date in the NYLJ-CS database .
            3. By subscription at http://www.law.com/jsp/nylj/index.jsp. Note - you can access the New York Law Journal on the Web for a 30 day free trial.
            4. The New York Law Journal Digest-Annotator (Law Library Reading Room: KFN5047.1 .C61) provides subject access to cases - both Decisions of Interest" and other decisions published in full text - as well as selected additional cases, and articles, columns and special sections. The Digest-Annotator is also available online at http://da.law.com/ , but a subscription is required.

        3. Updating cases
          Use SHEPARD'S on LEXIS (or in print) or KEYCITE on WESTLAW to make sure that any case you cite is still valid.

IV. Research as a spiral rather than straight line.

You will find that you must repeat many of these steps as you uncover new issues, relevant statutes, regulations, court rules and cases. You should be going back to secondary sources to get background and citations, repeatedly consulting the CPLR, its annotations and references, and continually checking for relevant court rules and cases. Use Shepards and KeyCite to both update your research and to help you find additional sources. Through this iterative process, you will gradually narrow in to the best possible answer.

V. Updating

Throughout the research process, update your sources by consulting pocket parts, supplements and Shepardizing or KeyCiting. Your research is not finished until each and every primary source on which you will rely has been updated.

VI.When is your research finished?

The best signs that you have completed your research are that:



USEFUL* NEW YORK PRACTICE RESEARCH SITES ON THE WEB



* And some not remotely useful (for New York Practice) links
Ernie .
http://people.hofstra.edu/staff/lisa_a_spar/nyprac/nyprac.htm.
This website was created and is maintained by Lisa A. Spar, Assistant Director for Reference and Instructional Services, Deane Law Library, Hofstra University School of Law in consultation with Professor Andrew Schepard, Hofstra University School of Law.
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