LEGAL RESEARCH PROCESS

Chapter 7 INTRODUCTION TO LEGAL RESEARCHLEGAL RESEARCHThe search for authority that can be applied to a given set of facts and issuesThe process of identifying and retrieving information necessary to support legal decision-making.Begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation (Wikipedia)The legal research skill is important because this is necessary for solving legal problems

Legal Research DefinedConsequences if inadequately and incompetently performed (Putman 2004): Legal question may be answered incorrectlyLegal researchers dismissal Attorney being disciplined or disbarred

LEGAL RESEARCH (contd)Legal Analysis Definedthe process of determining how the law applies to the problem.Legal Research and Analysis Definedinvolves determining how the law applies to the facts of the case.LEGAL RESEARCH (contd)LEGAL RESEARCH DIFFER FROM RESEACH IN OTHER CONTEXTWhen doing legal research it is essential to establish a clear understanding of the following:Goals of the legal researchThe various types of legal materials and their interrelationships

In the process of researching a legal issue Necessary to consult primary sources of law: (a) statutes (legislative enactment); (b) cases (opinions of the judiciary); (c) regulatory materials (administrative agency regulations and decisions)

Challenges faced by the legal researcher:Gain a perspective how the sources of law may apply to a particular subject matter and how they relate to each otherThe need to analogize - The process that analogizes that a rule of law applied to one set of facts should logically be applied to another set of factual circumstances.LEGAL RESEARCH DIFFER FROM RESEACH IN OTHER CONTEXT (contd)LEGAL RESEARCH DIFFER FROM RESEACH IN OTHER CONTEXT (contd)Legal Research Differ from ResearchThe need for comprehensiveness in primary authority researchThe researcher must be able to locate any potentially relevant authority which would be applicable to the legal issue presentedMust be able to appreciate cases or statutory provisions which seems not to favour a clients position (should be discovered, thoroughly analysed and distinguished if possible)Must learn to appreciate the need to update and verify every source he intends to rely in developing his legal argumentEffects of subsequent judicial decisionsStatutes repealed or amended by the legislatureLEGAL RESEARCH DIFFER FROM RESEACH IN OTHER CONTEXT (contd)FORMS OF LEGAL INFORMATIONLegal Authorities - aids in finding a solution to a legal problem. In particular, it is the concept of authority that drives much of legal research.Main Concerns of Legal Research:Legal authoritiesAppropriate search terms to find the legal rules in the resourceTypes of Legal AuthoritiesPrimary Legal Authorities - that coming directly from a governmental entity in the discharge of its official duties. They refer to authorized statements of law that are usually binding upon the courts, government, and individuals. Examples:Constitution or basic law;Statutes;Treaties and certain other international law materials;Municipal charters and ordinances;Executive orders;Administrative regulations;Court opinions;Rules of court procedure;Rules of evidence;Rules governing the conduct of lawyers;2) Secondary Legal Authorities

descriptions of, or explanation of the meaning or applicability of the actual verbatim texts of primary authorities, which the court may optionally follow.- consist of authoritative sources that interpret, analyze, or compile the law (such as legal encyclopedia).- they are neither mandatory nor persuasive.Examples:Law review articles, comments and notes (written by law professors, practicing lawyers, law students, etc.)Legal textbooks, such as legal treatises and hornbooksLegal digestsAnnotations published in statute books, codes, or other materialsLegal encyclopediasLegal dictionaries (such as Black's Law Dictionary)Restatements of the Law Legal briefs and memoranda;Tax forms and instructions published by governmentsGovernment publications explaining or summarizing the lawsGovernment employee manuals (such as the Internal Revenue Manual for employees of the Internal Revenue Service)Course materials from continuing legal education seminarsDebate in legislatures, including such commentaries published in the Congressional Record (this may reveal legislative intent)Other similar materials

Primary AuthoritiesPersuasive(Non-binding)Mandatory(Binding)When is a Primary Legal Authority mandatory (binding)?Stare DecisisLatin term for let the decision stand which refers to precedent.In essence, it considers mandatory, or binding, an existing decision from any court that exercises appellate jurisdiction over another court, unless the lower court can show that the decision is clearly wrong or is distinguishable from the case at hand. Ratio Decidendi- Latin term meaning the reasons for the decision- The principle or reasoning that has been established in a single case serves as an example or rule to be followed in subsequent cases.When is a Primary Legal Authority persuasive (non-binding)?Obiter Dictum- Latin term meaning an observation (made by a judge) with regards to a matter secondary to the issue before the court and unnecessary for the decision of the case.Hierarchy of LawsConstitutionEnacted laws (legislative and administrative)Common or case lawsHow to Determine Whether an Enacted Law is Applicable to a Legal Question or IssueStep 1: Identify all the laws that may govern the question.

Requires locating all statutes or laws that possibly govern the legal questionOnce identified, determination of which of these laws applies to the specific legal area involved in the dispute must be made. (Analysis of the law.)Step 2: Identify all the elements of the law or statute.

Specific requirements of the law that must be met should be identified as facts of the case.Step 3: Apply the facts of the case to the elements.

If the elements match the facts raised by the legal issue, the law is applied and the outcome governed unless the law is unconstitutional.

Sources of AuthoritiesLegislature - Statutes- Codes (RPC, New Civil Code)Supreme Court of the Philippines- Case Law or Common LawAdministrative BodiesLocal Government Units- Ordinances and Local LawsThe President of the Republic- Presidential Decrees- Executive OrdersPRIMARY SOURCES Publications which contain the original decisions and actions of legislative, judicial and administrative bodies

SECONDARY SOURCES Publications that describe, explain, or analyze the law

DONT CONFUSE AUTHORITIES FROM SOURCESLEGAL RESEARCH PROCESSLegal ResearchNot a linear processOrder may vary depending on information known at the outset of the project, discovered during research process Order may vary on the scope of the project1. Analyze the facts and formulate a preliminary statement of issues

2. Familiarize with the court structure of jurisdiction

3. Conduct background research - get an overview of the subject area, identify issues and terms, get clues to primary sources

4. Search for legal authority using appropriate methods of updating 5. Read and evaluate primary authorities

6. Make sure cases are still good law and have current version of statutes

7. Refine analysis and formulate conclusion

8. STOP: completed the steps in the model; used a variety of appropriate sources; finding the same authorities over and over; cost exceeds benefit, run out of time

Complexity of Modern Legal ResearchComplexityMore bases to coverComputer researchVolume of case law and statutory materialVolume of secondary sources

NEED: Develop a research strategy Follow good research methodology