LEGAL RESEARCH 101: CLASS 5  
by Joan Olson, CLA, MACP President

American Law Reports (A.L.R.)

American Law Reports (A.L.R.) is published by Lawyers Cooperative Publishing Company. It does not attempt to report every case or even to report most cases. Rather, it selects and publishes only those court cases which are significant.

A case is significant if it indicates a change in law or a new trend in legal thinking.

Example—Caller I.D.—under Right to Privacy

Cases that are published in a volume of the American Law Reports contain extensive editorial commentary (annotations) that follow each reported case.

The annotations:

1.  Examine all sides of the issue;

2.  Present general legal principles gathered from the reported case and from other cases on the subject; and

3.  Provide exceptions, distinctions and qualifications of those legal principles.

FORMAT OF A.L.R. VOLUMES

1.  A.L.R. (sometimes called A.L.R. first) —Covered both state and federal case law (1919-1948);

2.  A.L.R.2d—Covered both state and federal case law (1948-1965);

3.  A.L.R.3d—Covered both state and federal until 1969 when the federal law was reported in its own volume (1965-1980);

4.  A.L.R.4th—State case law (1980-1991);

5.  A.L.R.5th - State case law (1992—date); and

6.  A.L.R. Fed.—Federal case law beginning in 1969 (1969-date).

FORMAT OF AN A.L.R. BOOK

1.  An A.L.R. volume contains approximately 20 cases.

2.  Book format:

a.  Descriptive Title of Annotation;

b.  Table of Contents of the Annotation;

c.  Total Client Service Library References—this section helps broaden your research because it directs you to a specific point in another publication;

d.  Index of the Annotation;

e.  Table of Jurisdictions Represented;

f.  Annotation—which can range anywhere from 1 page to 100;

g.  Scope Note—brief description of the contents;

h.  List of Related Matters—provides you with other A.L.R. citations and annotations dealing with similar but separate legal issues;

i.  Summary; and

j.  Practice Pointers.

RESEARCH APPROACHES

American Law Reports is randomly organized.

1.  Index Method—the basic tool for subject access to A.L.R. is through the Index of Annotations, which consists of an alphabetical list of both factual and legal terms, each thoroughly subdivided by subject.

a.  Index to Annotations—provides coverage of annotations in A.L.R.2d, A.L.R.3d, A.L.R.4th, A.L.R.5th and A.L.R. Fed. and is kept current by quarterly pocket parts.

2.  Digest—divides all the law into approximately 400 titles and then analytically subdivides each title into sub-classifications, each bearing a section number.

3.  Annotation History Table—Use when you know the annotation.

4.  Computer Approach—Located in Lexis/Nexis.

UPDATING

1.  Pocket Part—If later cases substantially change the law on a subject covered by an annotation, a new annotation is written to supplement or to completely supersede the older annotation. The pocket part alerts the researcher to the existence of the newer treatment.

2.  Annotation History Tables—A quick way to determine whether a superseded annotation has appeared in A.L.R.2d, A.L.R.3d, A.L.R.4th, A.L.R.5th and A.L.R. Fed. is to check the Annotation History Table, which is located in the last volume of the Index to Annotations and in the pocket part of the index.

3.  Toll-free number—provided by Lawyers Co-op.

Specific Updating Per Book:

1.  A.L.R.—supplemented by the A.L.R. Blue Book of Supplemental Decisions, which is kept current with a semi-annual supplement pamphlet. (It simply lists the citations without explanation or discussion.)

2.  A.L.R.2d—supplemented by the A.L.R.2d Later Case Service which is kept current with semi-annual supplement pamphlet.

3.  A.L.R.3d, A.L.R.4th, A.L.R.5th—supplemented by an individual cumulative pocket part found at the back of each volume in the series.

4.  A.L.R. Fed—supplemented by an individual cumulative pocket part found at the back of each volume.

Components of A.L.R. citation:

•  Full name of author;

•  The word “Annotation”;

•  Title of annotation (underscored or italicized);

•  Volume number of A.L.R. Series;

•  Abbreviation for American Law Reports (A.L.R.) collection;

•  Page # where annotation begins; Specific page; and

•  Year of publication.

Glenn A. Guarino, Annotation, Pathological Gambling as Basis of Defense of Insanity in Federal Criminal Case, 76 A.L.R. Fed. 749, at 753 (1986)

Joan Olson is the Assistant Vice President of Regulatory and Corporate Compliance for Swiss Re Life & Health America Inc. Joan received a Bachelors of Art in Government from the University of Texas in 1991 and her Certificate of Completion from the Paralegal Program at University of Texas at Arlington in 1992. She is a Certified Legal Assistant and the President of the Metroplex Association of Corporate Paralegals.

INVESTIGATORS... WhEN/WHY TO HIRE ONE AND WHAT KIND OF INVESTIGATOR DO YOU NEED—INQUIRING MINDS WANT TO KNOW

By Sheila M. Rummery

Due in part to modern technology, there is so much information available to you, but you may not have the time to conduct the investigation your case needs or you do not have the means or ability to conduct an investigation yourself. If that is the case, then you should consult with an investigator. There are no standard formats or operating procedures for an investigation. The investigation has to be catered to your specific needs or the specific needs of your client. There are specialized fields of investigations. For the most part, investigators access several resources to gather information. Investigators can retrieve a wealth of information and documentation such as court records, government agencies’ filings, vital statistics, property ownerships, vehicle and vessel records, photographs, videos, witness statements, etc.

Private detectives and investigators offer many services, such as worker’s compensation investigations. They can be involved in insurance claims by locating insurance policies, looking for life insurance policies, as well as disability and property insurance investigations, including insurance fraud. They can also provide assistance in civil liability and personal injury cases and fraud. They can conduct neighborhood canvasses, if needed, continue with further investigations of automobile and/or train accidents, and assist you with investigating bodily or personal injury claims. They can conduct investigations pertaining to a complaint of fire or arson. And they can provide court testimony as well. Private investigators occasionally provide security work for executives, corporations, and celebrities. They can perform pre-employment verification and individual background profiles. If you have issues pertaining to a child custody case or family law related matter, they can provide surveillance, reports or videotape and they can interview neighbors, friends or employers. Sometimes they are asked to help in protection cases, and with pre-marital screening. 

What Can Investigators Do?

In order to find a private investigator that can answer your needs, you must first decide what information you are trying to obtain. Here is a partial list of the types of investigations a private investigator can do: worker’s compensation investigations, including video, film, and/or photographs and surveillance; full-scale asset searches, including bank accounts, stocks & bonds, IRA’s, CD’s, real property, public records, and more; personal injury cases could require the use of an investigator to locate and/or question witnesses to auto accidents or slip and fall cases; a private investigator could be beneficial in locating missing persons, witnesses, or your client’s relatives; securing statements, either written or recorded; conducting pre-employment screenings, including background investigations.

Private investigators can conduct both civil and criminal investigations. They can investigate large and small corporations. Private investigators usually purchase programs that can aid them in locating unlisted phone numbers, and larger investigation firms may purchase databases of persons from third party companies who purchase the information anywhere from local grocery stores to movie rental stores. They can pay for information from credit bureaus and other financial sources to gain current addresses or phone numbers and possible places of employment.

Increasingly, investigators specialize in cases involving the courts and are normally employed by law firms or lawyers. They frequently assist in preparing criminal defenses, locating and interviewing witnesses, serving legal documents, interviewing police and prospective witnesses, and gathering and reviewing evidence. Legal investigators may also collect information on the parties to the litigation, take photographs, testify in court, and assemble evidence and reports for trials.

A high percentage of private investigators are ex-police officers or ex-military personnel. Such experience is beneficial in conducting these types of investigations; however, your investigator does not necessarily need to be an ex-military or ex-law enforcement officer.

Rather than working for investigative firms, corporate investigators work for corporations, for which they conduct internal and external investigations. In internal investigations, they may investigate drug use in the workplace, insure that expense accounts are not abused, or determine if employees are stealing merchandise or information. External investigations typically prevent the origination of criminal schemes from outside the corporation, such as theft of company assets through fraudulent billing of products by suppliers.

Investigators who specialize in finance may be hired to develop confidential financial profiles of individuals or companies who are prospective parties to large financial transactions. These individuals may work closely with investment bankers and accountants. They can search for assets in order to recover damages awarded by a court in fraud or theft cases. 

How Do I Find the Right Investigator?

To start your search for a private investigator in your area, check with the local bar association or the Better Business Bureau. Other paralegals or attorneys are a great place to start, because they often work closely with private investigators or have a company they use often. Word of mouth or professional referral are excellent means by which to find a private investigator. You can also check with a state licensing authority to make sure your private investigator has proper credentials, and it never hurts to get references. A great source is the National Association of Legal Investigators. In the State of Texas contact the Texas Board of Private Investigators & Private Security Agencies, 4930 S. Congress, Suite C-305, Austin, TX 78745 or P. O. Box 13509, Austin, TX 78711, (512) 463-5545, FAX: (512) 452-2307. And you can always check on the Internet using search engines such as Dogpile or Copernic.

Many states require private investigators to register with them. The private investigator is required to provide his current home address, phone number, and the company he works for. The first place to check to find a private investigator in your area is your state’s counsel of law enforcement education and training division. You could also call the local police department or Sheriff’s office; they may or may not be able to recommend the names of some investigators who could help you. One thing you need to keep in mind is that some states do not allow private investigators to conduct investigations if they are not licensed in that state. Some states allow reciprocal licensing, so one question you will need to ask the investigator is whether or not he is licensed to work in the state you are hiring him to work in.

Before You Hire the Investigator. . .

Before you hire the investigator you should take precautions; investigate the investigator, if you will. Call the agency in your state that controls the licensing and see if there have been any complaints filed against your potential investigator. Ask whether or not the investigator has been sued with regard to an investigation.

Be very specific with your investigator. Let him know exactly what you expect and exactly what you are looking for. A professional and ethical investigator will appreciate and respect your candor. After you have “hired” the investigator make sure you bring him up to date of everything you have previously done regarding the case. This will ensure that you do not waste his time by having him re-doing things you have already done. If you have the date of birth, social security number, current address, phone number or places of employment, etc. make sure you provide that information. If you know names of relatives, towns they live in, places they work, supply that information. The more information the investigator has prior to the investigation the less it will cost your employer. Make sure the investigator is not wasting his time doing background investigation when you already have the information.

Ask the investigator for an initial meeting or free consultation. Have him bring to the meeting a copy of his private investigators license or license number. Make a photocopy of it for your file. Ask for his driver’s license and make a photocopy of that also. Ask whether or not he is insured or bonded. Make sure you find out who his carrier is on his bond. Opt for an insured or bonded investigator. Ask for references and call those persons. Ask if he has experience in your type of matter. Ask how he plans to go about conducting the investigation. Ask for a written contract. If he does not have one readily available, create one yourself. Ask how long he anticipates it will take to finish the investigation and how much he thinks it will cost.

Sheila M. Rummery is a former private investigator and police officer. She obtained her Legal Assistant certificate from The University of Tulsa in Oklahoma. She currently works as a paralegal for a law firm in Dallas.

Sheila is the newsletter editor for the Dallas Area Paralegal Association and is the co-chairman of the Animal Law Section of DAPA. She is a member of the Legal Assistants Division of the State Bar of Texas.

A TAX DEFERRED IS A TAX SAVED

By Craig Hackler, Raymond James Financial Services, Inc.

A tax deferred is a tax saved. Tax deferral works because the taxpayer earns a return on the amount that he or she otherwise would have sent to Uncle Sam in taxes. That, of course, leads us to a brief discussion of the tax treatment of annuity contracts. For purposes of this article, we are restricting our comments to some of the rules governing regular, non-qualified annuities. Annuity contracts that are part of IRAs, 403(b) plans, 401(k) plans and other qualified retirement plans are covered by different rules.

The taxation of distributions from annuity contracts depends on two factors: first, whether the withdrawals were made in the form of an annuity and, second, whether they were made before or after the year you turned 59-1/2. If payments from the contract are received in the form of a fixed annuity payment, the taxpayer may exclude a portion of each payment that is considered to represent his or her original investment. The amount excluded is computed by first calculating the “exclusion ratio.” The exclusion ratio equals the original investment divided by the expected return. The expected return is calculated by multiplying the annual payment by IRS approved life expectancy tables (assuming a life annuity) or the period certain of the annuity.

Here’s an example, Arnold invests $50,000 in a deferred annuity contract. Several years later when the contract is worth $225,000, Arnold (then age 67) elects a single life annuity. The company promises to pay him $19,633 per year. Using the IRS single-life unisex tables, Arnold’s life expectancy is 18.4 years. That gives him an expected return of $361,245. That gives him an exclusion ratio of 14% ($50,000/$361,245). Arnold will exclude about $2,749 (19,633 x 14%) from each year’s payment until he recovers all his original investment. Thereafter, 100% of the payment is taxable.

Withdrawals from annuity contracts issued after August 13, 1982 that are not made in the form of an annuity are considered to be ordinary income first, to the extent of any earnings inside the contract, and then a return of capital. Congress has imposed a 10% penalty tax (in addition to any contractual penalties) for withdrawals made prior to turning 59-1/2. The tax is based on the amount of the withdrawal that is included in taxable income. Like most tax rules, there are some exceptions to the 10% penalty.

The penalty does not apply to withdrawals included in taxable income: 1) made on account of death or disability, 2) attributable to premiums paid before Aug 14, 1982, 3) annuity payments that begin within 1 year of the date the contract was purchased and 4) that are part of a series of substantially equal payments over the life of the taxpayer or the taxpayer and a designated beneficiary. There are other exceptions that relate to annuities inside retirement plans and as used in structured settlements of litigation.

Of course, this brief article is no substitute for a careful consideration of all of the advantages and disadvantages of this matter in light of your unique personal circumstances. Before implementing any significant tax or financial planning strategy, contact your financial planner, attorney or tax advisor as appropriate.

Craig Hackler holds the Series 7 and Series 63 Securities licenses, as well as the Group I Insurance license (life, health, annuities). Through Raymond James Financial Services, he offers complete financial planning and investment products tailored to the individual needs of his clients. He will gladly answer your questions. Call him at 512.894.3473 or 800.650.9517

THE NOTARY EMPLOYEE — WHAT YOU NEED TO KNOW ABOUT NOTARIZING DOCUMENTS

By the National Notary Association

Notaries and their Employers must realize that improper notarizations can lead to serious legal and financial consequences.

If you’re a Notary for your employer…You provide an important service with serious responsibilities, ensuring that your organization’s business is transacted efficiently and successfully.

You must realize, however, that despite your loyalty to your employer, you are required to adhere to Notary laws and procedures.

Your commission is yours and yours alone. Even if your employer asks you to perform an improper notarization, you must abide by the law… or risk potentially serious consequences could be varied. For instance, the document could be rejected and require re-notarization, causing inconvenience and embarrassment.

If your improper notarization causes someone a financial loss, the injured party could sue you and your employer, and you would face having to pay for damages. You could also lose your commission, and criminal penalties, even imprisonment, could result.

By adhering to the law, you benefit your organization—and protect yourself and your employer from serious financial and legal consequences.

Here are some of the more common requests for improper notarizations . . . and why Notaries can’t perform them.

To Provide a Notarial Certificate Not Attached to a Document…Is improper. It would be unwise for the Notary to trust that a signed and sealed notarial certificate will be attached to its intended document. This could lead to fraud.

To Certify a Translation…Is not within a Notary’s authority. However, a Notary can notarize the signature of another person on a translator’s declaration.

To Notarize Without Seeing an ID…Is only allowed when the Notary personally knows the person or has the sworn testimony of a personally known third party who also knows the signer.

To Certify an Object or Event…Is outside the authority of Notaries in most states. The Notary’s functions are to give an oath, certify a signature after identifying the signer, and in some states, certify a copy as identical to an original.

To Perform a Notarial Act for Someone Who Does Not Seem to Understand the Document…Would be to violate one of the fundamental duties of the Notary – to screen each signer for identity, willingness and awareness.

To Notarize When There’s a Conflict of Interest…Is improper since neither the Notary nor any subscribing witness, attorney in fact or other representative should have a personal interest in a notarized document.

To Falsify the Date of Notarization…Is a fraudulent act that could lead to criminal prosecution for the Notary as well as the person who instructed him or her to do so.

To Use an Interpreter in the Notarial Act…Is wrong because the Notary must communicate directly with the document signer or oath-taker in order to screen for identity, willingness and awareness.

To Certify the Contents of or Notarize a Photograph…Is outside the authority of Notaries; it is not a notarial act.

Reprinted with permission of the National Notary Association. Founded in 1957, the NNA has been the primary source for Notary education, service and advocacy in the United States, and is the largest and oldest organization of its kind. Based in Chatsworth, CA, with state offices in Florida and Texas, the NNA has 177,000 members nationwide. Contact the NNA at (800) 876-6827 or online at www.nationalnotary.org