March 9, 2011
Finding the elements for a cause of action is often more difficult than you would think. One simple reason for the difficulty is fashioning searches using Professor-speak rather than Judge-speak! Search construction based on treatise-like statements of causes of action is usually less effective when looking for such statements in opinions. The following query is effective and can be adapted successfully to any cause of action:
(TE,HE((#TO +1 (MAINTAIN +3 CAUSE-OF-ACTION)) (#TO +4 PROVE BURDEN PREVAIL RECOVER ESTABLISH) +5 [insert CAUSE OF ACTION]+10 MUST +2 PROVE SHOW)) (TO([insert CAUSE OF
ACTION]) /P HE((ELEMENTS +1 #OF #FOR) MUST-SHOW MUST-PROVE))
An additional resource that may prove helpful is jury instructions which typically have annotations which indicate the decisions from which the elements of a cause of action were obtained.
(Provided by West Reference Attorneys)