BRIEF MESSAGE FROM

THE LAW STUDENTS

ASSOCIATION
(Laucala Campus)
 LW304 Week 2
Legal Research and Interpretation (a brief overview)
 HOUSE KEEPING MATTERS
 Sorryabout the 6th tutorial time slot, still
yet to be confirmed.
 Hope to get this done by next week as
tutorials will start in Week 3.
 Tutorial question is now on Moodle.
 Please
note the ASSIGNMENT 1 Question is
now posted on Moodle.
 Duedate is 27/8/23 in the LAUCALA
Dropbox.
 What is Legal Research?
 Two legal research scholars have defined legal research as;
“the process of identifying and retrieving information necessary to support legal
decision making”
(Quoted from J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research,
8th ed. (Foundation Press, 2002) p.1).
 Legal Research plays a primary and important role in the work of a law student and a lawyer.
 The legal research process includes continual analysis and evaluation of the information
found.
 Legal research informs legal writing.
 Legal writing is incomplete without the accurate content gained from the research process.
 Some researchers prefer to conduct most of their research before beginning to write. Others
prefer to write as they conduct their research.
(Prof. Steven M. Barkan; Prof. Barbara A. Bintliff and Mary Whisner; “Fundamentals of Legal
Research, 10th ed. (FoundationPress,2015)
 Legal Research – Where Do I Start?

Good place to start, BUT:

• Not specific enough.

• Not Binding (can’t cite to Google or Wikipedia in court).
• Credibility of sources is always a question.

Use these sources for initial background research only

Legal Research – Sources of Law
 It is important to develop an understanding of the types of resources that
constitute “the law”, and of the relationships between these resources.
 When researching a legal issue, it is often necessary to explore “primary
sources of the law” and “secondary sources” to aid their research process.

Primary Sources Secondary Sources

• Resources which are the law itself • Resources which analyse or
• Lawyers need primary sources to comment on the law
identify what the law says about a • These sources are not ‘the law’
given matter but can be very useful in helping
• Primary sources may be persuasive to understand the law or direct
or mandatory lawyers to relevant primary
• Mandatory means the material is sources
binding on the Court (e.g. • Examples: journal articles,
Constitution/statute) parliamentary reading speeches,
• Persuasive means the Court may
choose whether or not to follow
Legal Research – Sources of Law
 Legal Research – Primary Sources
 BINDING DECISIONS: Since Courts are bound to the precedent of their
jurisdiction when settling legal disputes, it is important for legal researchers
to understand the basic structure of the court system and its hierarchy in your
countries.
 Determining whether a given case is binding is a necessary skill for any legal
researcher. It can be tricky and it may take a bit of time and practice to hone
the results
 Legal Research – Researching Binding
Cases
RESEARCHING BINDING CASES: Finding, reading, and
updating cases is one of the most basic and fundamental
skills for a lawyer.
This process is more complicated than it might seem at first.
Case law is not organized by topic or point of law, so finding
the right cases requires skill in searching and using case law
tools. In addition, a point of law in a case can be affected by
decisions in other cases.
Reading the original case will not give any indication of this
effect. For this reason lawyers must be able to update cases
in order to understand their current value as a precedent,
and how it relates to other cases in the same area of law.
Legal Research – Citation of Cases
Legal Research – Online Sources and Law
Reports
 Using Resources From Paclii
 WHAT IS PACLII? It is the Pacific Island Legal Information
Institute. PACLII is an initiative of the University of the
South Pacific Discipline of Law with assistance from
AustLII.
 PacLII is a signatory to the Montreal Declaration on Public
Access to Law and participates in the Free Access to Law
movement, a grouping of a number of world-wide
organisations committed to publishing and providing free
access to the law.
 PacLII is based at the USP Emalus Campus in Port Vila,
Vanuatu.
How do we Access Paclii?
www.paclii.org
 How to Navigate Paclii
 See info sheet posted on moodle for full guide to paclii and search tips.
 Search by Country:
 How to Use Paclii
PacLII offers 4 different methods of displaying the results of any search. These
are:
 By Relevance – The default results display is by order of likely relevance to the
search request, most relevant first.
 By Date – The results are sorted by date order, most recent date displayed first (ie
reverse chronological order). Legislation is displayed by the date the Act was
passed or the Regulation made.
 By Title – The results are sorted alphabetically by the title of the document, and
displayed from a-z.
 By Database – The search results are displayed grouped into the databases on
which they are located.
The databases are displayed in the order in which they appear in PacLII’s menu
structure (not by number of results found in each). To view the results from only
one database, click on the number of documents next to the name of the
database
 How to Navigate Paclii
Search using Advanced Search (see guide on moodle for search term tips)
How to Navigate Paclii – Search Using
Advanced Search
If you Want to Know Where Else the
Case has been Cited
Using Paclii – Lawcite
Tools for Effective Legal Research
 PLAN AND ORGANIZE YOUR RESEARCH: The first step for
any researcher should be to plan out your path. This step,
though often the most overlooked, is one of the most
valuable. Spending just a little time on planning can be
the key to efficient and effective research results.
 "Untangle" the problem: At this stage it is also important
to make sure you understand the scope of what you are
being asked to do, the desired work product (deliverable),
and any relevant time or money limitations.
Tools for Effective Legal Research
 IDENTIFY THE SCOPE OF THE LEGAL QUESTION. Ask specific questions to
identify:
 the relevant jurisdiction
 key sources and search terms
 the applicable time period
 IDENTIFY KEY KNOWLEDGE GAPS: Once the research problem or legal issue/s
has been broken into parts and the key issues have been identified, a broader
picture will emerge.
 At this stage a legal researcher must identify their own knowledge gaps.
 Take note of broad themes, key terms, and basic background areas you
will need to explore.
 Tools for Effective Legal Research

 Go through provisions of the primary sources for the applicable provisions of

the law and case authorities.
 Take note of cases that relate to your set of facts.
 Follow up the cases, checking headnotes and reading judgments that seem
applicable.
 One good case can be a great starting point for research on narrow topics
 Consult secondary sources
 Identify the gaps in your knowledge base and try to bridge them with background
reading.
 Secondary sources can be a helpful review or a great starting place if you are
unfamiliar with the subject.
 Secondary sources can provide analysis on areas of law that are not clear from
reading of the primary sources
Legal Research – Record, Update, Verify
 It is always important to make sure the law you are using is good law. It is
considered professional incompetence to fail to accurately verify the status of a
precedent.
 Do not assume that law you researched months/years ago remains the same
today.
 A good lawyer will always ensure while they are researching that they check the
materials they are relying on to provide advice is up to date and accurate.
 Remember, law is a living thing and constantly changing (e.g.FNPF in family cases)

 One of the most important steps with every legal research project is to verify
that you are using “good" law—meaning a court hasn't invalidated it or struck it
down in some way. After all, it won't look good to a judge if you cite a case that
has been overruled or you use a statute that has been deemed unconstitutional
(eg Fiji bail cases before the Bail Act 2002).
 You must not use reversed or overruled authority.
 Why Effective Legal Research is
Important
 Effective legal research will directly affect the outcome of your client's legal
problem.
 A lawyer cannot advance the strongest argument if they cannot find the
strongest legal support for that argument.
 Lawyers have an ethical obligation to their clients to be thorough and
efficient legal researchers.
 Efficiency in legal research can be defined as the best possible result, in the
least possible time, at the lowest possible cost. Efficiency is achieved through
knowledge of research techniques and practice.
 Ineffective or incompetent legal research can not only hurt your client, but
can lead to discipline, civil liability, or even disbarment for you.
Effective Legal Research - Summary
 Example of Legal Research Steps
 Legal Issue: What are the legal considerations that the
Court looks at in Fiji to grant a Divorce?
 Next Step: Analyze and Plan What Sources will we use?
✓ Statute that addresses divorce.
✓ Case Laws that address the legal considerations
taken by the Court in dealing with divorce.
 Next Step: Research and identify the legal considerations
 Next Step: Apply the facts as given by the client to the
legal considerations, then communicate it to the client.
 Legal Interpretation
 Legal interpretation is the legal term used to describe the process of reading
and giving meaning to law. Legal interpretation is fundamental to the process
and practice of law
 Legal interpretation is called legislative interpretation, statutory
interpretation, or sometimes statutory construction when it concerns
legislation such as acts, regulations, and bylaws.
 Legal interpretation is also often required when reading private documents
such as contracts and wills.
 Lawyers need to consider that documents they write may end up before a
Judge and so must try to ensure that the Judge will interpret the document
the way the lawyer intended it.
 Interpretation takes place when the meaning of a document is not clear.
 Legal Interpretation – An Example
 Here is what seems to be a rather simple example of law in the form
of a rule: “Motor vehicles are not allowed in the park”.
 This prohibition seems straightforward in its meaning, until someone
asks whether it applies to the following situations:
- a motorized lift (used to trim trees);
- a police officer on a motorcycle chasing a suspect in the Park;
- or a fire truck called to extinguish a fire in the park.
 In response to such questions, it might be decided that the rule needs
to be amended to read: “Motor vehicles are not allowed in the
park, but this does not apply to emergency and maintenance
vehicles”
 Legal Interpretation – An Example
 Then a group of veterans asks for permission to install a restored army truck in working
condition, from the Second World War, on a pedestal, in the park, as a war memorial.
 Again, there might be a further amendment to the law: “Motor vehicles are not
allowed to be operated in the park, but this does not apply to emergency and
maintenance vehicles”.
 However, more questions continue to be raised, such as:
- Can an elderly person use a motorized chair or scooter to get around the
park?
- What about a bicycle with a motor assist?
- What’s the status of a motorized wheelchair used by a person with a
disability?
- How about a remote-controlled model airplane or a drone?
- Can I use my Segway?
 The questions could go on. Should we continue to amend the legislation every time
someone thinks of a new possibility? This seems cumbersome and inefficient.
 Principles of Legal Interpretation
 This area of law is extensive and we cover it very briefly here. You will be given only a
broad overview of the modern principles of interpretation.
 As outlined in the text book pp 53, the modern approach to interpretation is a common
sense one – that looks at the words used but also at the context surrounding those words.
“The meaning of the terms of a contractual document is to be determined by what a reasonable person
would have understood them to mean. That, normally, requires consideration not only of the text but also
of the surrounding circumstances known to the parties, and the purpose and object of the transaction”
(Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179.
 The modern approach therefore looks at
 Internal factors (within the document); and
 External factors (outside the document)
Legal Interpretation – Internal Factors
Interpretation must begin with the text used.
What is the meaning of the words used?
Butt (pp55) outlines two “golden rules” or principles
of interpretation:
1. The ‘Ordinary Sense of the Words’ – this means
that the words are given their ordinary English
meaning
2. Interpret the Document as a Whole.
 ‘Ordinary Sense of the Words’

“In all written instruments, the grammatical and ordinary sense of

the words is to be adhered to, unless that would lead to some
absurdity, or some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary sense of
the words my be modified, so as to avoid that absurdity and
inconsistency, but no farther” (Grey v Pearson (1857) 6 HL Cas 61
at 106)

In identifying the meaning of words

 Judges can consult dictionaries.
 Dictionaries
are not a substitute for judicial determination of
the meaning the parties have given to a word or phrase.
Interpret the Document as a Whole
A document must be interpreted as a whole document –
that means that individual parts of the document must
be read in context with the whole document.
 You cannot gain a full understanding of any document
without having read it in full.
 This approach means that you need to read the
meanings of words/phrases with regard to the whole
document and what the purpose of the document is.
Legal Interpretation – External Factors
Courts will also look to external factors such as the context of the document, its
background and its purpose.
Context: this is essentially the circumstances surrounding the document and
how it came into existence.
Background:
 Facts known to the parties at the time of creation of the document
 Who the parties are and the history of their dealings
 The legal framework at the time the document was created
Purpose: The Courts can consider the parties’ purpose in creating the
document and use that purpose to aide the interpretation of the document.
The rationale for looking at the purpose is to give effect to the parties’
intentions.
Examples: Parliamentary debates/reading speeches to determine purpose behind
legislation, pre-contract negotiations that explore the purpose of the contract.
 Summary
 Effective legal research is essential to good legal writing and provision of accurate
information that will meet your client’s needs.
 Failure to research can result in poor outcomes for your client as well as disciplinary
outcomes for the lawyer.
 It is important that we draft documents clearly to avoid problems with
interpretation of the documents.
 Where there is ambiguity in any legal document, it may end up before a Court for
interpretation.
 Modern legal interpretation will explore:
 Internal factors: the ordinary meaning of the words, read in the context of the document
as a whole.
 External factors such as the context, background and purpose of the document.