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Report. Introduction To Legal Research Process

Legal research involves determining how the law applies to a given set of facts or issues. It begins with analyzing the facts of a legal problem and concludes with applying and communicating the results. Inadequately performed legal research can lead to incorrect legal answers, dismissal of legal researchers, or discipline of attorneys. Legal research differs from other types of research in that it requires comprehensive searching of primary legal authorities like statutes, cases, and regulations. It also involves gaining perspective on how legal sources relate to each other and applying rules of law to new factual situations through analogy. The legal research process is not always linear and may vary depending on the scope of the project and information discovered. It generally involves formulating issues, researching background, searching authoritative sources

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Bj Carido
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143 views

Report. Introduction To Legal Research Process

Legal research involves determining how the law applies to a given set of facts or issues. It begins with analyzing the facts of a legal problem and concludes with applying and communicating the results. Inadequately performed legal research can lead to incorrect legal answers, dismissal of legal researchers, or discipline of attorneys. Legal research differs from other types of research in that it requires comprehensive searching of primary legal authorities like statutes, cases, and regulations. It also involves gaining perspective on how legal sources relate to each other and applying rules of law to new factual situations through analogy. The legal research process is not always linear and may vary depending on the scope of the project and information discovered. It generally involves formulating issues, researching background, searching authoritative sources

Uploaded by

Bj Carido
Copyright
© © All Rights Reserved
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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Chapter 7

INTRODUCTION TO LEGAL RESEARCH

LEGAL RESEARCH
Legal Research Defined
The search for authority that can be applied to a
given set of facts and issues
The process of identifying and retrieving
information necessary to support legal decisionmaking.
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 (contd)


Consequences if inadequately and incompetently

performed (Putman 2004):


Legal question may be answered incorrectly
Legal researchers dismissal
Attorney being disciplined or disbarred

LEGAL RESEARCH (contd)


Legal Analysis Defined
the process of determining how the law applies to the
problem.

Legal Research and Analysis Defined


involves determining how the law applies to the facts of
the case.

LEGAL RESEARCH DIFFER FROM


RESEACH IN OTHER CONTEXT
When doing legal research it is essential to

establish a clear understanding of the following:


Goals of the legal research
The 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)

LEGAL RESEARCH DIFFER FROM


RESEACH IN OTHER CONTEXT (contd)
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


other
The 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 Research
The need for comprehensiveness in primary
authority research

LEGAL RESEARCH DIFFER FROM


RESEACH IN OTHER CONTEXT (contd)
The researcher must be able to locate any potentially

relevant authority which would be applicable to the


legal issue presented
Must 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 argument
Effects of subsequent judicial decisions
Statutes repealed or amended by the legislature

FORMS OF
LEGAL INFORMATION

Legal 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 authorities
Appropriate search terms to find
the legal rules in the resource

Types of Legal Authorities


1)

Primary 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
hornbooks
Legal digests
Annotations published in statute books,
codes, or other materials
Legal encyclopedias
Legal dictionaries (such as Black's Law
Dictionary)
Restatements of the Law
Legal briefs and memoranda;

Tax forms and instructions published by


governments
Government publications explaining or
summarizing the laws
Government employee manuals (such as
the Internal Revenue Manual for employees
of the Internal Revenue Service)
Course materials from continuing legal
education seminars
Debate in legislatures, including such
commentaries published in the
Congressional Record (this may reveal
legislative intent)
Other similar materials

Mandatory
(Binding)
Primary
Authorities
Persuasive
(Non-binding)

When is a Primary Legal


Authority mandatory
(binding)?

Stare Decisis

Latin 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 (nonbinding)?

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 Laws
1)
2)
3)

Constitution
Enacted laws (legislative and
administrative)
Common or case laws

How to Determine Whether an


Enacted Law is Applicable to a Legal
Question or Issue

Step 1: Identify all the laws that may


govern the question.

Requires locating all statutes or laws that


possibly govern the legal question
Once 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 Authorities

Legislature
- Statutes
- Codes (RPC, New Civil Code)
Supreme Court of the Philippines
- Case Law or Common Law
Administrative Bodies
Local Government Units
- Ordinances and Local Laws
The President of the Republic
- Presidential Decrees
- Executive Orders

PRIMARY

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 SOURCES

LEGAL RESEARCH
PROCESS

Legal Research
Not

a linear process
Order may vary depending on
information known at the outset of
the project, discovered during
research process
Order may vary on the scope of the
project

1.

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.
8.

Refine analysis and formulate conclusion

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 Research

Complexity
More

bases to cover
Computer research
Volume of case law and statutory
material
Volume of secondary sources
NEED:
Develop a research strategy
Follow good research methodology

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