Legal Research in a Nutshell

An efficient way to ‘understand a subject’ is to follow the procedures taught in this article. Through repetition it is hopeful you will learn legal research and better educate yourself regarding the outcome of your case. Knowing the probable outcomes of your case helps in guiding you through the mind field of legal procedures. Few like to spend money on a loosing case! Knowing the probable outcomes of your case allows you to predict probabilities of success. Understanding probabilities of success helps in better understanding what approach to take in resolving disputes.

It is helpful and important to understand the rule of law. The rule of law is that all courts must follow the decisions of their higher court. The District Courts follow the decisions of the Supreme Court. The Circuit Courts follow the decisions of the District Courts. The County Courts follow the decisions of the Circuit Courts.

The Florida legal system is three (3) tiered. The bottom tiered, County and Circuit Courts, are the trial courts with the judges that actually hear the evidence. The judges you see and talk with. The middle tiered layer are the District Courts, they are the appellate courts that make sure the Circuit and County Court’s follow the law previously established. You don’t give evidence to these judges. The top tiered Supreme Court makes sure the District Appellate Courts follow the law previously established. In card playing language, Supreme Court cases triumph all cases.

The rule of law gives great weight to legal precedence, which means – following the order of importance. So your objective is to look for Supreme and District Court cases of similar factual situations to give to your judge, requesting the court to follow the legal precedence previously established by the higher Courts.

The legal research process is simple but time consuming. The process is all important, similar to architectural plans for a tall building. You would not be successful building a skyscraper without architectural plans, or presenting a case without conducting legal research to determine legal precedent. A memo is generally the result of the process and identifies the legal issues to be resolved. The process in any case is always the same.

• Collect all supporting evidence. An argument supported by documents or other testimony carries far greater weight than one’s own personal statement.
• Determine what area of law your case is legally viewed. Family law for divorces, contract law for agreements, criminal law for crimes, tort law for negligence, etc…
• Review the statutes governing the concerned area of law. A review of the Florida Statutes, reveals over one thousand (1,000) chapters of laws codified in forty eight (48) titles. See link, http://www.leg.state.fl.us/statutes/ to Florida Statutes.
• Research the applicable statute and cases with similar fact situations. The “Holy Grails” in the practice of law are cases with similar factual situations. A decision in a similar case is a significant marker as to the possible outcome of your case.
• Prepare a memo outlining the facts, supporting evidence and relevant cases. A memo, like architectural plans, will assist immensely in determining the probability of success of your particular case and help you avoid those expensive legal land mines on the field of litigation.

To illustrate the above process, we will relate to you an actual case. The illustration is a family law case but the process applies to all types of cases. Following, are the facts of the case. The parties were college sweethearts who married while still in school. They continued their education with both receiving college degrees. They have been married for 25 years. At the time of their separation the husband was a manager of a store making $120,000 annually. The wife was an administrator for the county school system making $84,000 annually. The wife contends she is entitled to some amount of permanent alimony because he makes $36,000 more than she does. Furthermore, she has topped out in the school system. Whereas, the husband’s income will continue to increase. The husband wanted to know if the long term marriage and thirty percent income disparity entitles the wife to permanent alimony.

We did not immediately know the answer, but we knew how to determine the probable answer after conducting legal research.

First, we collected the evidence to determine if there was an income disparity, and if so, how much. The evidence a court would expect to see are financial affidavits, tax returns, W-2s and current pay statements. The supporting evidence collected verified the above stated incomes.

Next, we read the Florida statute governing alimony to acquaint ourselves with the statutory requirements. You go to http://www.leg.state.fl.us/statutes/ for an electronic copy of all of Florida’s laws. In reviewing the statutes we found Chapter 61, which is titled – Dissolution of Marriage; Support; Time-Sharing.

Reading Chapter 61 reveals section 61.08, which outlines the law the court will follow in making a decision regarding alimony. Florida Statutes, §61.08 states in part as follows:

1. In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature.
2. In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
   (a) The standard of living established during the marriage.
   (b) The duration of the marriage.
   (c) The age and the physical and emotional condition of each party.
   (d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
   (e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
   (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other.
   (g) All sources of income available to either party.

After reviewing the applicable statute, we next try to find a Florida case with a similar factual situation. Focusing our research on long term marriages with unequal incomes we came across the Perkovich case. To look for relevant cases, we use a commercial service to help in the research process. For those of you without the assistance of a commercial service we recommend trying the below procedure.

The procedure to find supporting cases begins with a review of the cases previously decided by the Supreme and District Courts. If you do not have the assistance of a commercial service, you can start an independent search by logging on to http://www.flcourts.org/ . You should reach the home page of “Florida State Courts”. A left side column lists the various state courts – Supreme Court, District Courts, Circuit Courts and County Courts. Clicking on the link titled ‘District Courts’, you will notice Florida has five (5) District Courts of Appeal. Remember, a thorough search includes a review of all District Courts and Supreme Court decisions. Central Florida is located in the 5th District Court of Appeals, so that is where this search begins.

Click on the link titled “Fifth District Court of Appeal”. This will take you to the 5th DCA’s home page. At the top and bottom of the page is a link titled “search”. Click on the search link. A query box will appear. Type in the box the relevant statute – 61.08. Submit query and ‘poof’, all the relevant cases posted on line by the 5th DCA will appear on the screen. Read the cases looking for a similar factual situation. We didn’t find a similar factual situation in the 5th DCA decisions, but did find a relevant case in the 2nd DCA opinions.

The case is titled Joseph Perkovich v. Wendy Humphrey-Perkovich, Case No. 2D06-407, Second District Court of Appeal, November 26, 2008. Following is a portion of the case. A review will help with understanding the husband’s probability of success regarding the wife’s alimony claim.

JOSEPH I. PERKOVICH
v.
WENDY S. HUMPHREY-PERKOVICH
Case No. 2D06-407.
District Court of Appeal of Florida, Second District.

Opinion filed November 26, 2008

Permanent Periodic Alimony

The parties were married in 1980. During the marriage both the Former Husband and the Former Wife completed postgraduate studies that resulted in professional occupations. The Former Wife is a physician specializing in obstetrics and gynecology. She and a partner practice their specialty as the Southwest Florida Women's Group. The Former Husband is an accountant and licensed attorney with advanced law degrees in tax and estate planning. At the time of the final hearing, he was employed as a chief executive officer of a major corporation.

In awarding the Former Wife permanent periodic alimony of $1000 per month, the trial court gave "large consideration" to the "current disparate incomes as well as the possible impact on the Wife's future earnings due to her medical condition." The trial court found that the Former Wife has a condition known as "benign essential tremor."1 Based on the evidence presented, the trial court stated in the final judgment that it could not "say with any degree of certainty that this condition will, or will not, affect the Wife's future ability to continue in her occupation as a surgeon." There was no evidence that this condition presently caused the Former Wife any disability, nor was there evidence suggesting a present likelihood of a future disability. One witness evaluated the slight tremor in her fingertips as "1" on a scale of "10." The Former Wife did testify, however, that she had been advised that the condition was progressive and thus could be expected to worsen. It is a matter of concern to the Former Wife because approximately 20% of her income is derived from performing surgery.

The purpose of permanent alimony is to provide for the needs and necessities of life to a former spouse commensurate with the marital standard of living. The primary focus is on one party's need and the other's ability to pay support to supply those needs. "To determine need, the court should consider the standard of living the Former Wife enjoyed during the marriage and her age, health, and earning ability." Matajek v. Skoronska, 927 So. 2d 981, 987 (Fla. 5th DCA 2006). Section 61.08(1), Florida Statutes (2005), contains the other factors a trial court must consider in deciding whether to award alimony and in what amount.

Here, the trial court found that the Former Wife's annual income was $320,000 per year, an amount that provided for her needs. Yet, the trial court's justification for the award was the disparate incomes of the parties. The trial court found the Former Husband's annual income was $450,000. By any measure, the Former Husband's annual income substantially exceeds the Former Wife's. However, the measure of income in this instance is an improper basis upon which to award permanent alimony. This court has held that disparate incomes, standing alone, do not justify an award of permanent alimony. Hann v. Hann, 629 So. 2d 918 (Fla. 2d DCA 1993), the wife was forty years of age, in reasonably good health, and had education and experience to allow her to become self-supporting. In light of these factors, we stated, "The fact that the husband's income was more than the income of the wife does not justify the award of permanent alimony." Id. at 920; see also (holding that "the fact that his income substantially exceeds hers does not justify permanent periodic alimony."); Rojas v. Rojas, 656 So. 2d 563, 565 (Fla. 3d DCA 1995) (holding that trial court abused its discretion in awarding the wife permanent periodic alimony where she was thirty-five years old, in good health, and had skills that could enable her to become self-supporting; the fact that the husband's income was greater than hers during her previous employment did not "solely justify the award of permanent periodic alimony to the wife"). In this case, we likewise conclude that the trial court abused its discretion by awarding the Former Wife permanent periodic alimony. She is both highly educated and earns a substantial income. The fact that the Former Husband receives a greater annual income does not support the award of permanent alimony. Thus, we reverse the $1000 monthly alimony award.

Affirmed in part; reversed in part; remanded with instructions.
WHATLEY and CASANUEVA, JJ., Concur.

The above researching process allowed us to find the Perkovich case and answer the husband’s questions with some predictability as to the outcome. Given the facts, case law and all other factors being equal, we opinioned a probability of success rate of 75% to 90% the wife would fail in her claim for permanent alimony. The wife and her attorney did not counter with a similar fact case awarding alimony. Therefore, over time they realized the Perkovich case controlled and dropped their demand for permanent alimony, thereby, settling the issue and resolving the case with little expense or time incurred.

In conclusion, before you litigate, you might want to determine the probability of success of your claim. Otherwise, you may end up incurring significant expenses spinning your wheels and going no where. Learn how to research and find those ‘holy grail’ cases with similar factual situations. Similar fact cases will help you predict the ultimate outcome. Being able to predict the future gives you great advantage on how to act in the present.

This outline gives a summary of legal research in Florida. If you do not have the time to conduct research yourself, please contact this office for specific information directed to your situation.