LEGAL RESEARCH

RUFUS B. RODRIGUEZ
A.B. (DLSU), M.A. (XU), LL.B. (UP),
LL.M. (Columbia

TABLE OF CONTENTS

CHAPTER 1

INTRODUCTION TO LEGAL RESEARCH

A. Legal Research, defined

B. The Need for Legal Research

C. Sources of Legal Research

D. Sources of Law
1. Primary Sources
2. Secondary Materials 3
3. Finding Tools

CHAPTER 2

THE LEGAL RESEARCH PROCESS

A. Systematic Approach to Legal Research

1. Identify and Analyze the Significant Facts
2. Formulate the Legal Issues to be Researched
3. Research the Issues Presented
4. Update

CHAPTER I
INTRODUCTION TO LEGAL RESEARCH

A. Legal Research, defined

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.

Legal research is also defined as the investigation for information necessary

to support legal decision making. Legal research includes each step of a
process that begins with analyzing the facts of a problem and concludes with
applying and communicating theresults of the investigation.

B. The Need for Legal Research

A lawyer is required to provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation. Clearly, a
lawyer must be able to research the law to provide competent representation.

In addition to requirements of professional responsibility, questions relating to

competency in legal research may arise in suits for damages, arising from
legal incompetence or claims for malicious prosecution.

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,"

In a primarily civil law jurisdiction like the Philippines, the products of

legislative actions, codes and statutes, are the first major primary sources.
Codes and statutes have come to govern an even greater variety of human
activity.

The second major category of primary sources is judicial decisions. Our

Philippine Supreme Court and Court of Appeals produce decisions that
constitute our case law.

Our judicial system consists of a hierarchy of courts, including a number of

trial courts (RTC, MTC, MCTC), one intermediate appellate court (CA), and a
court of last resort, the Supreme Court. This system incorporates the
processes of appellate review, in which higher courts review the decisions of
lower courts, and judicial review, in which courts determine the validity of
legislative and executive actions.

A third important primary source is administrative law, or the regulations and

decisions of government agencies. State agencies promulgate regulations
governing behavior within their areas of expertise. Agencies also act in a
"quasi-judicial" capacity by conducting hearings and issuing decisions to
resolve particular disputes.

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,

Finding appropriate secondary materials is most often accomplished through

the use of law library catalogs, legal periodical indexes, and other
bibliographic aids. In addition, court decisions and other secondary sources
frequently provide citations to persuasive treatises and law review articles."

3. Finding Tools

Our legislative, executive and judicial branches of government have been

enacting and promulgating codes, statutes, rules, regulations and court
decisions and these have grown into a large body of law. The researcher
therefore needs search materials or finding tools in order to locate these legal
sources. Without a topical approach to legal sources, researchers could not
find existing statutes or decisions on point.
A varied group of finding tools provides such access. Digests reprint
headnotes summarizing points of law from court decisions in a subject
classification and annotations summarize cases on particular topics. The
SCRA Quick Index-Digest is one finding tool available to the legal researcher.
PHIL.JURIS and LEX LIBRIS, two comprehensive and competing computer-
based legal research systems, provide the capability to search for cases and
other documents by using practically any word or combination of words.

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 LEGAL RESEARCH PROCESS

A. Systematic Approach to Legal Research

In order to solve legal problems accurately and comprehensively, there must

be a systematic approach to legal research.

Four basic steps are recommended, namely:

1. Identify and analyze the significant facts.
2. Formulate the legal issues to be researched.
3. Research the issues presented.
4. Update

1. Identify and Analyze the Significant Facts

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 thing or subject matter in a problem or controversy may be a significant

element. For example, when a party claims that there if? a violation of the
terms of a contract, the contract becomes an essential fact in the dispute.

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.

The parties or persons might be individuals, or might be a group that is

significant to the solution of the problem or the outcome of the lawsuit.
Similarly, the relationship between the parties, such as exists between lessor
or lessee in a contract of lease
will be of special importance to the case." '

2. Formulate the Legal Issues to be Researched

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.

Consult general secondary sources for an overview of all relevant subject

areas. In the example above, if the legal issue involves a violation of a
contract, the research could start by reading the textbooks or treatises on
obligations and contracts by noted authorities. At this stage, these secondary
sources are used to provide background information and to help you
formulate issues; they are the tools, not the objects of research.
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.

3. Research the Issues Presented

After the facts have been analyzed and the issues have been framed, it is
time to begin researching the first issue.

a. Organize and Plan.

Good legal researchers, as a rule, are systematic, methodical, and
organized; and they keep good records. For each issue, it is important to
decide which sources to use, which sources not to use, and the order in
which sources should be examined. The best practice is to write down all
sources to be searched under each issue to be researched, even if sources
are repeated.

b. Identify, Read, and Update All Relevant Constitutional

Provisions, Statutes, and Administrative Regulations.
These primary sources can be identified in several ways.

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.

Computer-Assisted Legal Research.

The Constitution, statutes and administrative regulations are available on
PHILJURIS and LEX LIBRIS. It is possible to search the full text of these
documents for statutes and regulations that apply to your problem.
Secondary Sources. Secondary sources such as treatises and commentaries
and law review articles, commonly cite relevant constitutional provisions,
statutes, and administrative regulations.

c.Identify, Read, and Update All Relevant Case Law.

After identifying and reading the relevant constitutional provisions, statutes
and administrative regulations, you must identify, read, and update the case
law that has interpreted and applied those forms of enacted law, as well as
other case law that is relevant to your fact situation.

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."