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Methods of Legal Research
Methods of Legal Research
ij
yi3, i:. METHODS OF LEGAL RESEARCH
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to the inquiry, if it exists, is usually there to be unearthed. If it
is not dug up, the research is'a dismal failure.
No true researcher gives up easily. No excuses are accept-
able. True research is, indeed, a search that is diligent,
CHAPTER ELEVEN intelligent and continued. If time is of the essence, he must
know how to zoom toward his object of search swiftly and easily.
He must, therefore, employ all the means and resources avail-
able at his command, including befriending the librarian, if
necessary.
METHODS OF LEGAL The general problem, at any rate, is that the researcher
does not have all the time in the world. In this day and age, time
RESEARCH is a prime commodity one can ill afford to waste. Lawyers, and
even judges, have their deadlines to meet. Those who need the
research cannot wait forever. Hence, hit-and-miss tactics have
specifrc soulce materi- no place in any intelligent research. What is required is a
BEING AWARE of the existence of
unleis they are used and scientifrc use of the books. To be able to undertake the legal
als in law does not mean anything research with facility, one needs skill and technique.s
research'
tfr"o r." is maximized' This means legal
Skill and technique compose the art of legal research.
RESEARCH These qualities, however, cannot form part of the normal
I. THE ESSENCE OF LEGAL
equipment of the researcher unless he is thoroughiy at home
a continued repeti- with the legal tomes the tools of his trade. Only then can he
Originally, the term "research" meant -
thus means a compre- exploit his search time to the hilt.a
tion of slarch. Genuine legal research
mere aimless' unrecorded'
hensive search ,r.J'"-t"u'"th' But Since the basic research approach to a specific problem will
unchecked search, so it is s vary from country to country and depend on the subject under
repeated. It can never, exce consideration and the published sources available for that
sions. Research is diligent, jurisdiction, it is impossible to offer one effective model proce-
arch is not a dure.5
asPectoflife'
veritablY co-
I
- ita
GO TO THE LAW: Go to wher,e your answer-isfound
may not always be where you thought it would be, but
cross reference will no doubt direct you to the proper place.
This !s the book which contains the statement ojlhe law.
di-o .+-+^-.-^-+ L; ^ ^^ .^-=" ^r^r--r^ ^: -^--t^a:^- ^--
-^.,
359
METHODSOFLEGALRESEARCH
A GUIDE TO PHILIPHNE LEGAL MATERTALS
B. Gommon Methods of Search
or is deter-
The specifrc method of search depends upon
search book being used' It is the search book
that
-ir"a Uyi'tte method'
tells you how to co.rdrct the search' It prescribes the
of books and services are found:
Common methods are at least five:
Statutes (Annotated and unannotated) Fact Word Method
'
'o Topic Method
ffiil*tt Rulings and Regulations Case Method
"ative
Annotations in ALR and Lawyers'Edition DictionarY Method
of U. S. RePorts '
' Popular Name Method
Textbooks or in
EncycloPedias The methods may be used isolatedly' consecutiv^ely
the given facts, the
Restatements and Commentaries combination with one lnother depending on
results'
Loose Leaf Services available search books and subsequently on the
Handbooks and Manuals
Articles in Periodicals
ullg uv6uu
Step 3: iar with the fact words used in theI
obviously
search book he will consult. The index is constructed
i" .".ota.nce with the predilections of the indexer'
a
Ifthe subject ofthe research is a car accident between
various intervals. Tlpical supplements are: instead of using
motorcycle crossing a road and speeding truck'
may look
Cumulative Pocket Parts G.i .or."pts as tile iearch, the researcher
Bound SuPPlements up such fact words
Replacement Volumes LIMIT,VEHICLES,
Later Editions like. These suggested terms we
exist'
Advance OPinions Iar search book in mind; hence, they may or may not
irr
Legislative Services If a person eating in a restaurant had a frshbone stuck
Slip Laws his throat and he *rit. to sue, the search for legal authglJy
Loose Leaf Releases ;;y;" through the fact words rime, RESTAURANT' FOOD' FISH'
BO"IrfE, or FIS--H BONOS. This these terms come to mind
from a previous personal experience'
The T onic Method - This is also
Saoroh i s eo The FiliPino lawYer
f-^*
from |ho
the
Iegal prootem ano lf,s components
---^-^-+^
ation is
dThe topic classification in Gupit's Supreme Court Doclrittes is generally as
: Consti , Administrative Law, Suffrage
Supposeyou are handlingaproduct liabilitycase involvingpajamas particularly frustrating when this type of situation is
that caught fire. You instruct LE)trs to find cases in which the Lncountered. For instance, in researching the tax
word "pajamas" appears in proximityto the word.fire" or 1flamma_ consequences of a particular kind of contract, do you
ble" or "inflammable." other potentially relevant words may be consider tax the primary issue and the contract sec-
included such as'bu,r," ",ig!it*," "spark,,,,.flame," etc. LEXIS will ondary, or vice versa? With LEXIS you have the
then search through the cases electronically and retrieve those flexibility to combine the ideas without worrying
that contain your "search words." The cases may be reviewed about how an indexer would classify a case which
immediately on the screen. LEXIS can scan only the section ofthe involves legal principles from more than one ipe-
case in which your search words appear. cialty.
LEXIS can find specific cases in several ways: (1) by judge; "3. Locating cases involving specific legal
Q)by court;(3) by date (before a given date, after a given aaie, principles, such as res ipsa loquitur an.d mens rea'
on a given date, or between two given dates); (a) bV words or "4. Identifying opinions written by a particular
phrases or combinations of words or phrasos used in the judge, or in which particular counsel appeared.
decision; (6) bv counsel (in some libraries); or (7) by section of a
statute or regulation. "5. Locating cases or statutes containing particu-
Iar terms or phrases (e.g., de facto segregation,
The researcher may also use combination searches to find, unconscionable, short swing profrts).
say, the opinions of a particular circuit court judge between two
"6. Retrieving cases that discuss the language
specific dates, or from a specifrc date to the present. perhaps the
contained in a standard contract.
researcher needs to review chief Justice warren Burger's
opinions on double jeopardy. "7. Finding cases that construe particular statu-
tory provisions or contain defrnitions of statutory
If a lawyer wishes to undertake a thorough research for a Ianguage or discuss several statutory provisions'
case he is handling, he would most likely review pertinent case
law, study the judge's previous decisions and opinions, analyze "8. Locating a case when only the name of a
prior tactics of opposing counsel and gain background material party, or docket number, or other limited information
on the litigants by reading relevant news stories. All of this is known.
information may be obtained through LEXIS. "9. Using LEXIS as a citator to locate the most
recent cases citing an earlier decision, statute, trea-
As pictured by LEXIS itself, it can do the following:
tise or article. I
"1. Locating cases involving specif,rc fact pat_ "10. Obtaining the text of a recent opinion lhat is
terns. For example, what are the legal consequences
not yet available in the advance sheets.
of leaving an ignition key in an unattended boat?
LEXIS permits searching for specifrc fact patterns "11. Obtaining the text of a U.S. district court
independently of the legal concepts and principles decision that was not included in any case Iaw reporter'
involved. Fact pattern searches are particularly useful "L2. Deterrnining how federal circuit or district
in areas of law in which principles are well defrned courts have applied a U.S. Supreme Court decision in
and cases are decided on nuances offact. subsequent cases.
"2. Finding cases involving two or more distinct "13. Double checking other research. LEXIS can
frelds oflaw. Using hierarchically organized indices is be used to examine the accuracy of previously pre-
366 AGUIDE TO PHILIPPINE LEGAI MATERIALS
METHODS OFLEGALRESEARCH 367
pared work or of a brief submitted by opposing
counsel." current materials that come their way. The files are either
called reference materials or research materials or both. For
The foregoing should be enough to illustrate how
the instance, articles of incorporation of specifrc types of corpora_
computer can facilitate search.
tions are frled and used as models.
D. Creating Own Sources and Methods of Search
E. Preparing the Search
In the ultimate analysis, storage and retrieval problems
Before you even start your adventure into the law books,
are personal to the res_earcher. If legal research is
a regular there are indispensable preparatory steps that you have to take:
activity to him, he will doubtless his
-"i.rt"i, own stJe of ,
source materials, small or big depending on his resources, as Get the Facts
well as his own ways of sea".ti"j through them. 7- Analyze the Facts
-a
Form a Preliminary Hypothesis
The beginner in law is unconsciously inaugurated
into the /a List Access Words
world of storage the moment he buys lawbooksl"a
t"te. ao*r, a Search
If he writes all his notes in one lecture notebook,
wishes that he should have placed his notes for 1. Get the Facts.
subjects in separate notebooks. That is his frrst
experience at classification and simpry marking
the cover of a
lecture notebook with the name of irr! u* subject
is already
establishing a method of retrieval.
Legal problems are rarely simple. Law, it is said, is a the theory is the final formula, thdcourse of action, or the game
"seamless web." One cannot simply tag a case as just a labor plan by which the lawyer puisues his objective and hofts to
problem, or merely one involving contracts or procedure. There achieve it.
are more sides to a case than meets the eye. Because a legal
problem is often multifaceted, no one case can be said to be on
A couple of things, however, must be constantly kept in
mind in developing a theory from a hypothesis. First, hypothe-
"all fours" with another case as to resolve all the issues that may
sis being tentative, the researcher must always keep an open
arise in the latter. No two cases are exactly alike in much the
same way that no two faces, even those of Siamese twins, are
mind, be alert for other possibilities, accept new twists and
perfectly identical. There are bound to be some variations that turns, and be ready to modify, even to discard, the hypothesis
would distinguish one case from the other. if the results of his search do not validate its accuracy or truth.
second, he must carefully examine the facts before formulating
AII this only illustrates the need to analyze a legal problem ihe hypothesis. with the formulated hypothesis as a guideline,
thoroughly and to leave nothing to chance. As a pathologist the researcher can then begin to gather the pertinent Iaws and
would minutely dissect the tissues of a patient, so must the cases.
researcher examine in detail the facts of a case, if he is to arrive
at a correct perspective for proper search. But the researcher 4. List access words.
need not do a search of authorities on al! the perceived compo- It should go without saying that as one goes through the
nents of the problem. His search may be confined to just one or process of getting the facts, analyzing the facts, and forming a
two aspects of the case, or he may need just a couple of decided preliminary hypothesis, possible access words should already
cases to support a principle oflaw he hasjust cited. This brings be listed, having in mind all the prescribed methods of search
us to the next preparatory step. as well as the specific search books to be consulted.
3. Form a preliminary hypoihesis.
lhe key.ryo1ds- or the index words
t is highly possible that some of the
A-b,p"q!hesis":san-i4&t-",tl.-e*o:a-q-o-qi-9g!ure-a---rr__q{y
offered as a formula or as a proposition based on wn may not be found at all in the
ifrable data. It is tentative because evidence is search books. That is why as many possible access words as the
not sufficient or is incomplete,ind remains so until validated irnagination would permit, should be included in the list to
assure a truly comprehensive search.
by trut_h tested by authorities.
Th If in taking down the facts and forming your hl,pothesis, you
in relation to the facts of the case."o-p.i.a."AftsiinguEea
The hypothesis, therefore, have not really thought of making a list of accer.
*oid., then you
serves merely as a pointer to guide the researcher in his hunt can always make them as you review your notes before you
for authorities. Viewed from another angle, a hypothesis is seen actually begin the sea_rch. Ifyou have good notes, you can even;udt
as the most reasonable formula, explanation, or solution con- ,nderline or highlight the words in your notes that you plan touse
sidering the existing and verifrable facts or data. as access words, which may be fact words or topic words.
Hypothesis must be distinguished from theory, which ' 5. Search.
means a little more than mere hypothesis or conjecture.
Theory is a validated hypothesis. It presupposes that there is T!-e. qct_qql__qeg.fch- begrns with finding-toois or search
much more supporting evidence or authority than hypothesis b.gqriss.described at some length in th6previous chapter. The
does, and greater likelihood for truth. Hypothesis, if not valid- Filipino lawyer's search for authority, however, is not confined
ated, is either modifred or fiscarded. After proper evaluation, to Philippine law and jurisprudence l:ut reaches out to the
American and Spanish authorities. In recent years though,
\
370 A GI,,IDE TO PHILIPPINE LEGAL MATERIAIS
METHODS OF I,EGAL RESEARCH 377
there has been a noticeable departure from dependence on
them. Recent supreme court decisions show ress reriance on his citation turns out to be wrong, no amount ofjustifrcation can
spanish and American authorities. still, the Filipino rawyer make his citation right.
knows the high esteem his colleagues place on both Spanish and
American authorities, and the great persuasive effect that they IV. EVALUATTON
have on our courts; so we still look into them.
As previously disEussed, the Filipino lawyer,s preference
^
for textbooks as his frrst searchbooks is undisputed. in the first
place, he generally has them as part ofhis personal collection
from his student days. In the second prace, he is most famiriar
with them and frnds them easy to use through the table of
contents even if they may have no index or a defrcient index at
the end of the books. In the third place, he feels that the A. Evaluation of Law
textbooks, rightly or wrongly, give him an extensive treatment
ofthe subject ofhis search. Law, as we use it here, is the Constitution, the statute, or
the administrative regulation with the force of law. It must be
Finding the pertinent case or statute in a search book is subjected to both internal and external evaluations.
often the end of the search for many lawyers, which is very
incorrect. They are content with citing the encyclopedia, the
dictionary, the digest or the textbook. some do not even bother
to mention the search book and simply cite the case or the
statute without bothering to go to any source book of primary
authority. In terms of the "Living Law,, approach, ihey go
through the initial step oflaw finding only without going to til"
law itself.
It is nbt an uncommon experience ofresearchers who go to
the books of primary authority to discover erroneous, mislead_ ceases, then the law has no more reason for being.
ing or imprecise summaries, restatements or digests of court
rulings. This is due primarily to the lack of skill ortl" staffers
who made them.
There is nothing basically wrong with secondary author_
ity; in fact it is highly desirable if
it consists of a profound
exposition or critique of law by an eminent legal scholar or a
well reasoned case review by even an unknown writer. But
secondary authority should not ordinarily be acceptable.
The problem sometimes is not so much laziness or lack of Evaluation of statutory revisions is a combination of both
time to go to a book of primary authority as its non- accessibility external ev guage ofthe law as
to the lawyer. Oftenwise, he has to make do with what he has. subsequent and interpreted to
It may be understandable but it cannot be excusabre in that if e true inten
372 A GUIDE TO PHILIPPINE LEGAL MATERIALS ME"TIIODS OF I,EGALRESEABCH 3
court cases.
"(7) Repealizg. Rules considered obsolete or
irrelevant are deleted. Example: The provisions in
the rules regarding the function of the municipal
apr on
frled ted
onge na-
other parts ofthe rules. This is one pitfall of all annotators. They follow doctrines es r
have to be alert. jurisdictions, it is e
l.
376 A CUIDE TO PHILIPPINE LEGAI MATRIAI.S
METHODSOFLEGAIRESEAXCH 377
(b) The ponente.
ir&
METHODS OF LEGAL RESEARCH 379
378 A GUIDE TO PHILIPPINE LEGAI MATERIALS
rsConcurring Opinion of Bocobo, J., in Erefia us. Vera (July 27, 1943, 74 Phil.
381
METHODSOFLEGALRESEARCH
A GUIDE TO PHILIPPINE
LEGAL MATERIALS
)
Backed up with a sound theory, the truth and correctness
for some time' Of course' of which are validated by authorities, the lawyer can
now
,mputerizes, this problem may exist
a case ruling into account' confrdently prepare the proper pleadings and the
needed
hether or not the court has taken
nary aynotknow' Still' chances evidence to pursue the indicated course ofaction'
someth is not mentioned in the
re that bein
s not red bY the court' VI. PRESENTING THE FRUITS OF LEGAL
ecision,
it may be'freely
y overruled' but RESEARCH: LEGAL WRITING
A case
subsequent decisions although
riticized. b without
b is not
At the same time' the court We cannot end this discussion on Legal Research
point the
" the case it m a pre\lous touching on legal writing. No matter how squarely in
nay merely distinguish the
but it may be that it is actu
the d'octrine fruits .." - tt L laws anJ cases picked out and gathered in
:ase, st be in the solution ofparticular controvet.i"., ifsuch fruits are
not palat-
:stablished in the previous. case judge or whoever will act
ably presented by the gatherer to the
:onsciousness of the evaluator'
o.t inl problem, all his efforts may be in vain'
THE LAW
V. FINALIZING THE THEORY OF Legal writing is to be found generally in three areas:
(1) Legal opinions and Memoranda; (2) Trial Court Pleadings;
is used in
The search that starts w ig) ep"p"ff"ie Court Pleadings' The term "pleadings"
not include motions'
r loore sense- Technically, pleadings do submit
memorand.a and briefs.la The frrst kind is what lawyers
tothetrialcourt;thethird,beforetheappellatecourt'Decisions
penned by not included in the last two
groups but frrst group since they would
be covered
Each one of these three kinds of legal writing may
be
not the
treated according to their nature and purposes' This is
conclusions- This means' rn so pru""todiscussthem'butitisnotdiffi.cuittohaveaccesstogood
Iosses in time, effort and moneY' books on them'
A researcher may be a go
A. The Process
Legal writing involves the communication process'
It has
at least thr"" thought, language and symbols; and
"o-io.tents: a writer
at least two participants: a sender and a receiver' or
and a reader.
r{Pleafings are delined as the writt'en allegations of the parties of their re-
tion ofjustice' spectiveclaimsanddef.ensessubmittedtothecourtfortrialandjudgment.Rule6'
Cross-claim' Reply' Third-Parby
frnalizing Sec. t. Example", Compianl, ellt*"t, Counterclaim'
--^.^ +^ -ll +hic ic to tro dead slow in /r^mnlaint Forrrf.h-Partv Complaint, etc. Rule 6, Sec' 2'
382 A GUIDE TO PHIUPPINE
LEGA.L MATERIATS
METHODSOFLEGALRESEARCH 383
tstowrite anything, he must certainlyhave
lfat i9 why the .._r""ri"#o"., O.o.".. understood. write like a nonlawyer or a layman to readers
who
should be imagined also as being nonlawyers or laymen.
see
ffi:lH'o"""'i3u'f
lated to symtols,
Lffi;T?ill#::J TI;.f ;.* how clear the writing will turn out to be'
C. often needed.
The Three C,s
Long ago, Aristotle himself has classifred proof into three
the three C,s: clarity, conciseness kinds: togi"at, emotional, and personal' Logical proof certainly
,r, involveslogic or reason, but emotional proof, using the emo-
"ff;|"Xir",]ngmusthave
Clarity in legal_writing is-a-big
.rs orten
^ problgT, because a lawyer tions, is far stronger than logical proof' Personal proof is
tempted to use too *""rrr"s?ie.".,u cr..itvr""ri.i"irrg furnished by the writer himself.
Gupit, Jr. *Too Much Legal r6Frank E. Cooper, Writing in Law Practice (New York: The Bobbs-Merill
err*':1"**ato ese,, Integmted Bar Journal,1976
second Company,
' Inc., Indianapolis, 1963), p' 4.
of the Law," The Lawyers'Reuiew'
"i'ortrnato Gupit, Jr.; 'Thep,i{uman Side
vol- TV- No. 8. .Aueust 31. 1990, 56.
A GLTIDE TO PHILIPPINE LEGAI MATERIALS METIIODS OF LEGA], RESEARCH 385
cardinal sin. A researcher who fails to undertake an intensive the search and index books, even mastering their placements in
inquiry proceeds at his own risk. the library, and perusing them as often as he can. Browsing
through a law library is like browsing through a supermarket.
C. Experience It can be highly educational.
But to attain real profrciency, there is no substitute for As a matter of fact, the lawyer who is just planning to
experience. Experience not only speeds up the research process plunge into research, should already prepare himself by per-
because of the skills already obtained, but also gives substan-
sonally acquiring books, if possible, and compiling notes and
tial assurance as to the validity of the conclusion reached. clippings on legal materials. The key to elfrciency is knowing in
For one, a lawyer who has researched often enough, aI- advance where to frnd the answer, if not the answer itself,
ready possesses a working knowledge of the books. The topic before any legal query is even posed.
classifrcations are so farniliar to him that he can pick up the
What the future has in store for us, however, in legal
relevant materials almost instantly.
bibliography and legal research may already be envisioned
For another, from constant research work on various with the giant strides in computer and fax technology. Those
subjects, the researcher has already assimilated many legal who know the advances being made are all excited about their
and jurisprudential principles along the way such that in his developments and wait with bated breath. The revolution has
appreciation of alegal problem, pertinent principles, which are started and all forthe good. Meantime, the lawyerwho does not
{D
readily accessible to him, immediately come to mind. In fact, the i) wish to lag behind, must prepare himself to keep abreast. Let
chances for the more experienced to arrive at a correct solution u us all have open arms to welcome these exciting developments.
to a legal problem are far greater, as compared to the less I
t
experienced, because he may see meaningin certain facts inthe ,
problem in the light of established principles of which he is a
aware, which the less experienced would not see at all. It may
H
c
rt
-$$s-
thus be said perhaps that a highly experienced researcher is a I
)
walking tertiary authority himself. t{
U