Legal Research 1
Legal Research 1
Legal Research 1
RUFUS B. RODRIGUEZ
A.B. (DLSU), M.A. (XU), LL.B. (UP),
LL.M. (Columbia
TABLE OF CONTENTS
CHAPTER 1
D. Sources of Law
1. Primary Sources
2. Secondary Materials 3
3. Finding Tools
CHAPTER 2
In general, legal research is the process of finding the laws, rules and
regulations that govern activities in human society. It involves locating both
the laws and rules which are enforced by the State and the commentaries
which explain or analyze these rules.
The knowledge and ability to use fundamental legal research tools and to
implement an effective and efficient research plan must become part and
parcel of every lawyer's training for him or her to. provide competent
representation and uphold the standards of the legal profession.
In 1992, a special task force of the American Bar Association on law schools
and the legal profession issued a report that stated "[i]t can hardly be doubted
that the ability to do legal research is one of the skills that any competent
practitioner must possess." That report also stated: "[i]n order to conduct legal
research effectively, a lawyer should have a working knowledge of the nature
of legal rules and legal institutions, the fundamental tools of legal research,
and the process of devising and implementing a coherent and effective
research design. "
C. Sources of Legal Research
Legal research involves the use of a variety of printed and electronic sources.
The printed sources include the Constitution, statute; court decisions,
administrative rules and scholarly commentaries. Computer databases
containing these and other materials have dramatically changed the nature of
legal research and improved its effectiveness. They have not, however,
eliminated its complexities. The volume and variety of legal literature
continues to grow, making the researcher's choice of tools and tactics for
each problem more difficult than ever. A thorough understanding of available
legal resources, both published and computerized, is necessary. There are as
many procedures as there are problems, and no
single approach can work every time.
D. Sources of Law
Legal sources differ in their relative authority. Some are binding; others are
only persuasive in varying degrees; and some are only useful as tools for
finding other material. These variations require that researchers make careful
and critical evaluation of the sources they study. Whether researching by
book or by computer, one must be familiar with the three broad categories of
legal literature: (a)primary sources; (b) secondary materials; and (c) finding
tools.
1. Primary Sources
Primary sources of law are those recorded laws and rules which will be
enforced by the State. They may be found in statutes passed by the
legislature, regulations and rulings of administrative agencies and decisions
of appellate courts,"
2. Secondary Materials
Publications which are not primary authority but which discuss or analyze
legal doctrine are considered secondary materials. These include treatises,
commentaries, and encyclopedias. Some of the most influential legal writings
are found in the academic journals known as law reviews of law schools, or in
publications like the IBP Journal and the Lawyers Review. Secondary
materials vary widely in purpose and quality, ranging from authoritative
treatises by great academic scholars to superficial tracts by hack writers. The
best of these works such as the Civil Code of the Philippines by Arturo M.
Tolentino and Remedial Law Compendium by Florenz D. Regalado have a
persuasive influence on the lawmaking process by virtue of the prestige of
their authors or the quality of their scholarship. Secondary sources can help
analyze a problem and provide research references to both primary sources
and other secondary materials,
3. Finding Tools
Finding tools do not persuade, nor do they themselves have any primary or
persuasive authority. Finding tools are only a means for locating primary
sources. It is then necessary to read those primary sources to determine their
applicability to a particular situation. In legal research, as in other aspects of
the lawyer's work, one must employ a highly developed sense of relevance –
a keen appreciation of which sources are legally and factually relevant
to the specific inquiry.
CHAPTER 2
The first task is to identify and analyze the facts surrounding the particular
problem. Some facts have legal significance; others do not. The process of
legal research begins with compiling a descriptive statement of legally
significant facts. Factual analysis is the first step in formulating the legal
issues to be researched.
The TARP Rule is a useful technique to analyze your facts according to the
following factors:
T - Thing or subject matter;
A - Cause of action or group of defense;
R - Relief sought;
P - Persons or parties involved.
The next thing to be done is to identify the claim or cause of action of the
plaintiff and the defense that might be put up by the defendant. In a dispute
over a contract, the cause of action may be breach of contract.
What is the relief sought? It might be a civil action for damages to answer for
the injury caused by the breach of the contract or an action for specific
performance to compel the other party to perform a specific act as mandated
in the contract or to enjoin the other party from doing a specific act probably in
violation of the contract.
This is the initial intellectual activity that presumes some knowledge of the
substantive law. The goal is to classify or categorize the problem into general,
and increasingly specific, subject areas and to begin to hypothesize legal
issues.
Writing a clear, concise statement of each legal issue raised by the significant
facts is an important and difficult task.
Once statements of the issues have been drafted, they shoulbe arranged in a
logical pattern to form an outline. Logically, related issues may be combined
as sub-issues under a broader main issue.
After the facts have been analyzed and the issues have been framed, it is
time to begin researching the first issue.
Statutory Compilations.
Statutory compilations almost always have tables of contents and indexes
that list the subjects and topics covered by the statutes. Because relevant
statutory provisions are often found in several places in the compiled statutes,
consult both the table of contents and the index.
Do not limit your search to cases that support your position. A competent
researcher will anticipate both sides of an argument and identify the cases
that indicate contrary conclusions." Treatises and commentaries on the codes
and statutes cites cases that interpret the statutes they discuss. As to
computer assisted legal research, both Philjuris and Lex Libris can be
searched for cases that have cited the statute."
After identifying the relevant cases, as you read and brief or digest each
case, be sure to note its full citation, the ponente of the decision, the date of
the decision, the relevant facts, the holding, a summary of the court's
reasoning, and the sources cited by the court. Each of the sources cited
should be read and briefed and new cases should be added to your list. Each
case you brief should be incorporated into your outline.
b.Refine the Search. After you have identified, read, and organized the
primary sources, go to secondary sources to refine the search and expand
your argument. If the problem involves a statute, the legislative history might
suggest the legislature's intent in passing the act and the problem the law
was intended to remedy. Historical, social, economic, and political information
can put legal arguments in their proper context and can support policy
arguments.
4. Update
Law changes constantly. Our Congress passes new statutes and modify old
ones. Our Supreme Court either refines the law or reaffirms the law or even
changes the interpretation of the law. Consult the Philjuris or Lex Libris to
determine whether the authorities have been interpreted or altered in any
way, or whether new cases, statutes or regulations have been published."