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CHAPTER 1

AN INTRODUCTION TO LEGAL RESEARCH

Legal research is the process of identifying and retrieving the law-related information

necessary to support legal decision-making. In its broadest sense, legal research includes each

step of a course of action that begins with an analysis of the facts of a problem and concludes

with the application and communication of the results of the investigation.

Many types of information are needed to support legal decision making. Although this

book focuses on information sources that are concerned explicitly with law, legal decisions

cannot be made out of their economic, social, historical, and political contexts. Today, legal

decisions often involve business, scientific, medical, psychological and technological

information. Consequently, the process of legal research often involves investigation into other

relevant disciplines.

This chapter, an introduction to legal research explains why researchers seek certain

types of information. This chapter explains the basic jurisprudential model upon which legal

resources are designed, created, and collected, and introduces materials that are covered more

comprehensively in the subsequent chapters.

SECTION A. SOURCES OF LAW

There are two primary sources of the law:

Statutes or statutory law - Statutes are defined as the written enactment of the will of

the legislative branch of the government rendered authentic by certain prescribed forms or

solemnities are more also known as enactment of congress. Generally they consist of two

types, the Constitution and legislative enactments.


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In the Philippines, statutory law includes constitutions, treaties, statutes proper or

legislative enactments, municipal charters, municipal legislation, court rules, administrative

rules and orders, legislative rules and presidential issuance.

Jurisprudence - or case law - are cases decided or written opinion by courts and by

persons performing judicial functions. Also included are all rulings in administrative and

legislative tribunals such as decisions made by the Presidential or Senate or House Electoral

Tribunals. Only decisions of the House of Representatives Electoral Tribunal are printed as

House of Representatives Electoral Tribunal Reports, volume 1 (January 28, 1988-October

3, 1990) to present. They will be available electronically at the Supreme Court E-Library.

For Muslim law, the primary source of Shariah are Quran, Sunnaqh, Ijma and Qiyas.

Jainal D. Razul in his book Commentaries and Jurisprudence on the Muslin Law of the

Philippines (1984)

It is important for legal research experts to know the source where the materials were

taken. One has to determine whether they came from primary (official) sources or secondary

(unofficial sources).

Primary sources "are those published by the issuing agency itself or the officialrepository, the Official Gazette. Thus for Republic Acts and other "laws" or statutes, the

primary sources are the Official Gazette published by the National Printing Office and the

Laws and Resolutions published by Congress. For Supreme Court decisions, the primary

sources are the Philippine Reports, the individually mimeographed Advance Supreme Court

decisions and the Official Gazette. Publication of Supreme Court decisions in the Official

Gazette is selective. Complete court reports for Supreme Court decisions is the Philippine

Reports.

The Secondary Sources are the unofficial sources and generally refer to those

commercially published or those that are not published by government agencies or

instrumentalities. Vital Legal Documents contains a compilation of Presidential Decrees

(1973) to the present Republic Acts, published by Central Book Supply. Sulpicio Guevara


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published a compilation of all laws from 1901 to 1935 entitled Public Laws Annotated (7 vols.)

and a compilation of laws from 1935-1945 entitled Commonwealth Acts Annotated (3vos.).

Guevara has also published The Laws of the First Philippine Republic (The Laws of Malolos)

1898-1899. For the Supreme Court decisions, Supreme Court Reports Annotated (SCRA), a

secondary source, published by the Central Book Supply is more popular and updated than the

Philippine Reports. In the absence of a primary source, the secondary source may be cited.

With the advent of the new information technology, electronic or digitized sources are

popular sources of legal information for the following reasons: a) updated legal information

is readily available and b) the search engines used facilitate research. These electronic

sources are in the forms of CD ROMS, online or virtual libraries, or the websites of the

issuing government agency of instrumentality.

In the Philippines, the problem is how to classify sources published in the newspapers.

Since 1987, based on the definition of primary and secondary source, they may be considered

as primary sources pursuant to Executive Order No. 200, s. 1987 which provides that laws

become effective fifteen (15) days after publication in the Official Gazette or in two

newspapers of general circulation. In case of conflict between the two versions, the version of

the Official Gazette holds.

In finding the law, our ultimate goal is to locate mandatory primary authorities which

have bearing on the legal problem at hand. If these authorities are scarce or nonexistent, our

next alternative is to find any relevant persuasive mandatory authority. If our search is still

negative, the next alternative might be secondary authorities. There are however instances

where the secondary authorities, more particularly the commentaries made by experts of the

field, take precedence over the persuasive mandatory authorities. With the availability of both,

using both sources is highly recommended.

1. The Nature of Legal Authority


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Legal authority is any published source of law setting forth legal rules, legal doctrine or

legal reasoning that can be used as a basis for legal decisions. In discussions about legal research,

the term authority is used to refer both to the types of legal information and to the degree of

persuasiveness of legal information.

When the term is used to describe types of information, legal authority can be categorized

as primary or secondary. Primary authorities are authorized statements of the law formulated by

governmental institutions. Such authorities include the written opinions of courts (case law),

constitutions, legislations, rules of court, and the rules, regulations, and opinions of

administrative agencies. Secondary authorities are statements about the law and are used to

explain, interpret, develop, locate, or update primary authorities. Treatises, articles in law

reviews and other scholarly journals, Supreme Court Reports Annotated (SCRA) restatements of

the law, and looseleaf services are examples of secondary authorities.

When the term is used to describe the degree of persuasiveness of legal information,

authority is an estimation of the power of information to influence a legal decision. In this sense,

authority can be termed binding (also called mandatory), meaning that a court or other decision-

maker believes the authority applies to the case before it and must be followed: or authority can

be considered persuasive, meaning that a decision-maker can, if so persuaded, follow it.

Only Primary authority can be binding; but some primary authority will be merely

persuasive, depending on the source of authority and its content. Secondary authority can never

be binding, but can be persuasive. The application of legal authority to individual problems is a

complex and often controversial process. Variations in the facts of individual cases enable

judges, influenced by their own philosophies and perspectives, to exercise wide discretion in

interpreting and applying legal authority.

Classification by Authority

"Authority is that which may be cited in support of an action, theory or hypothesis."

Legal of materials primary authority are those that contain actual law or those that contain

law created by government. Each of the three branches of government, Legislative, Executive

and Judiciary, promulgates laws.

The legislature promulgates statutes, namely: Act, Commonwealth Act, Republic Acts,

Batas Pambansa. Executive promulgates presidential issuances (Presidential Decrees,


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Executive Orders, Memorandum Circular, Administrative Orders, Proclamations, etc.), rules

and regulations through its various departments, bureaus and agencies. The Judiciary

promulgates judicial doctrines embodied in decisions. We however need to clarify that the

Presidential Decrees or law issued by Pres. Marcos during Martial Law and Executive Orders

issued by Pres. Aquino before the opening Congress in July 1987 can be classified as

legislative acts, there being no legislature during these two periods.

Primary Authority or sources may be further subdivided into the following:

Mandatory primary authority is law created by the jurisdiction in which the lawyer

operates like the Philippines;

Persuasive mandatory authority is law created by other jurisdictions but which have

persuasive value to our courts e.g. Spanish and American laws and jurisprudence. These

sources as used specially when there are no Philippine authorities available or when the

Philippine statute or jurisprudence under interpretation is based on either the Spanish or

American law;

It is in this regard that the collections of law libraries in the Philippines include United

States court reports, West's national reporter system, court reports of England and

international tribunal, important reference materials such as the American Jurisprudence,

Corpus Juris Secundum Words and Phrases and different law dictionaries. Some of these law

libraries subscribe to the Westlaw and/or Lexis. The Supreme Court , University of the

Philippines, University of Santo Tomas and a number of prominent law libraries also have a

Spanish collection where a great number of our laws originated.

Secondary authority or sources are commentaries or books, treatise, writings, journal

articles that explain, discuss or comment on primary authorities. Also included in this

category are the opinions of the Department of Justice or Securities and Exchange

Commission. These materials are not binding on courts but they have persuasive effect and

the degree of persuasiveness depend on the reputation of the author. These authors of good

reputation are considered experts in the field e.g. Chief Justice Ramon C. Aquino and Justice

Carolina Grino Aquino on Revised Penal Code or Criminal Law, Senator Arturo M.

Tolentino on Civil law, Chief Justice Enrique M. Fernando and Fr. Joaquin Bernas on

Constititional Law, Prof. Perfecto Fernandez on Labor Law, Vicente Francisco, Chief Justice

Manuel Moran on Remedial Law, etc.


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2. Case Law and the Doctrine of Precedent

a. Structure of the Court System. The typical court structure consists of three levels and it

is important to understand what types of information are created at each level and where that

information can be found.

Trial courts are courts of original jurisdiction that make determination of law and of fact.

Documents prepared by the parties, called pleadings (complaint, answer, interrogatories, among

others) and motions, are filed before, during and After a trial, the trial court issues a judgment or

decision and sometimes a written opinion; the opinions of trial courts are infrequently published,

reported, or otherwise made generally available to the public.

Intermediate appellate courts often called circuit courts or courts of appeal, have

authority over lower courts within a specified geographical area or jurisdiction. Appellate courts

generally will not review factual determinations made by lower courts but will review claimed

errors of law that are reflected in the record created in the lower courts. Appellate courts accept

written briefs (statements prepared by the counsel arguing the case) and frequently hear oral

arguments.

A court of last resort, typically called a supreme court, is the highest appellate court in a

jurisdiction.

Case Law or Judicial decisions are official interpretations or manifestation of law

made by persons and agencies of the government performing judicial and quasi-judicial

functions. At the apex of the Philippine Judicial System is the Supreme Court or what they

call as court of last resort. The reorganization of the Judiciary of 1980 (Batas Pambansa

Bldg. 129) established the following courts:

a. Court of Appeals;

b. Regional Trial Courts divided into different judicial regions,

c. Metropolitan Trial Court;

d. Municipal Trial Court in Cities;

e. Municipal Trial Courts;


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d. Municipal Circuit Trial Courts.

Supreme Court Decisions (Doctrine of Precedent)

Decisions of the Supreme Court bind the lower courts and are a source of law. It is the

judgment of this court which determines whether a law is constitutional or not.

Unconstitutional laws even though it is signed by the President and passed by both house of

congress cannot take effect in the Philippines.

Decisions of the Supreme Court are classified as follows:

"Regular decisions" and extended Resolutions are published in court reports either in

primary or secondary sources. These decisions provide the justice who penned the decision or

ponente and the other justices responsible for promulgating the decision, whether En Banc or

by Division. Separate dissenting and/or concurring opinions are likewise published with the

main decision. These regular and extended resolutions are available electronically in the

Supreme Court E-Library under Decisions.

Unsigned Minute Resolutions are not published. Although they bear the same force as

the regular decisions or extended resolutions, they are signed and issued by the respective

Clerks of Court En Banc or Division. They are not published. Thee Supreme Court E-

Library has now incorporated these Minute Resolutions, more particularly those that resolve

a motion for reconsideration or those that explain or affirm a decision; and (2) Administrative

Matters.

Case Reports in the Philippines such the Philippine Reports, SCRA, SCAD come in

bound volume which generally covers a month. The Official Gazette and Philippine Reports

are the official repository of decisions and extended resolutions of the Supreme Court. The

difference between the two lies with the fact that the Official Gazette selectively publishes

Supreme Court decisions while Philippine Reports contains all decisions of the Supreme

Court except minute resolutions. However, from 1901 until 1960, there were unpublished


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decisions of the Supreme Court. The list and subject field are found at the back of each

volume of the Philippine Reports. Some of these decisions are cited in treatises or

annotations. In view to the importance of these decisions, the late Judge Nitafan of the

Regional Trial Court of Manila started publishing Supreme Court Unpublished Decisions;

vol. 1 covers decisions from March 1946 to February 1952.

The doctrine of precedent is closely related to three other concepts represented by the

Latin terms stare decisis, ratio decidendi, and dictum.

Stare decisis, literally "to stand on what has been decided," is the principle that the

decision of a court is binding authority on the court issued the decision and on lower courts in the

same jurisdiction for the disposition of factually similar controversies. The decision of the

Supreme Court applying or interpreting a statute is controlling with respect to the

interpretation of that statute and is of greater weight than that of an executive or

administrative officer in the construction of other statutes of similar import.

The legal maxim which requires the past decisions of the court to be followed in the

adjudication of cases is known as stare decisis et non quieta movere. It means one should

follow past precedents and should not distrub what has been setteled. The rule rests on the

desirability of having stability in the law.

Accodringly, a ruling of the Supreme Court as to the construction of a law should be

followed in subsequent cases involving similar questions. In other words, once a case has been

decided one way, then another case, involving exactly the same point at issue, should be

decided in the same manner. For the Supreme Court has the constitutional duty not only of

interpreting and applying the law in accordance with prior doctrines but also of protecting

society from the improvidence and wantonnes wrought by needless upheavals in such

interpretations and applications.

The ratio decidendi is the holding or the principle of law on which the case was decided.

It is the ratio decidendi that sets the precedent and is binding on courts in the future. The ratio

decidendi, or rule of the case, must be considered in conjunction with the facts of the case.


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In contrast, dictum (or orbiter dictum) is language in an opinion that is not necessary to

the decision. Dictum comes from the Latin verb decire, "to say," and refers to what is "said by

the way," that which is not essential to the holding of the court. Although language categorized

as dictum is not binding on future courts, it might be persuasive. Yesterday's dictum may develop

into today's doctrine.

It is often difficult to distinguish the ratio decidendi of a case from dictum. The

determination of what is the ratio decidendi, and what is dictum, is a focus of much legal

analysis and is often the critical point of legal argument.

Courts have much leeway in interpreting cases put forth as binding precedent. No two

cases are exactly the same, and, on one or more points, binding if it shares the same significant

facts with the case at issue and does not differ in any significant facts from the instant case.

Furthermore, similar issues must be presented in the two cases and the resolution of those issues

must have been necessary to the decision in the previous cases put forth as binding authority by

distinguishing the cases on their facts or issues, thus finding that the previous cases are different

from the instant case in some significant way. In some situations, a court can avoid being bound

by a previous case by finding that the rule put forth in the previous case is no longer valid and

overruling it.

The doctrine of precedent assumes that decisions of common law courts should be given

consideration even if they are not binding. Accordingly, researchers often look to relevant

decisions in other states, jurisdiction may contain principles or legal theories on which legal

arguments can be based. Decisions that are not binding, either because they have different fact

situations or because they are from another jurisdiction, can be persuasive because of the depth

of analysis and quality of reasoning in the opinion, the identity of the jurist writing the opinion,

the agreement (or lack thereof) among individual members of the court (i.e., unanimous

decisions versus split decisions), and subsequent judicial and academic treatment of the opinion.

Policy considerations supporting the doctrine of precedent include the resulting fairness,

as it encourages similar cases to be treated similarly; the predictability and stability it encourages

within the legal system; and its efficiency in terms of time and energy as it enables decision-

makers to take advantage of previous efforts and prior wisdom. Critics argue that a reliance on


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precedent can result in a rigid and mechanical jurisprudence that can force us to treat unlike

cases as if they were similar; that the doctrine of precedent can perpetuate outmoded rules; and

that its inherently conservative nature can impede the law from being responsive to new social

needs.

Notwithstanding these criticisms, the doctrine of precedent remains the foundation upon

which our models of legal research are constructed. The written opinions of courts, particularly

appellate courts, are the stuff of legal argument and the major source of legal doctrine.

Consequently, they are the primary, but certainly not the only objects of legal research. Law

libraries and legal electronic databases are filled with published court opinions, along with

secondary sources and index tools to help researchers find, interpret, and update opinions that are

relevant to particular fact patterns.

3. Legislation and the Interpretation of Statutes

a. Legislation. A statute, sometimes referred to as legislation is a positive statement of

legal rules enacted by a legislature. In comparison, a constitution is the fundamental body of

principles, most often written, by which a political body, such as a nation or state, governs itself.

Because many of the of the basic concepts and techniques of statutory and constitutional research

are similar, they can be discussed together at an introductory level.

Statutes, and collections of statues arranged by subject called codes, have become very

important n common law systems. Statutes are used to create new areas of law; to fill gaps in the

law; and to change court-made rules.

b. Statutory Interpretation. Courts play predominant roles in interpreting and applying

statutes and in extending the law to subjects not expressly covered by statutes. The legislature

may state a general legal rule in the form of a statute, but it is the judiciary that interprets the

general rule and applies it to specific cases. Under the doctrine of precedent, it is the statute asinterpretedby the courts that is applied in the next case. In theory, if the legislature disagrees

with the way a court has interpreted a statute, the legislature should revise the statute.

Statutory interpretation is an important part of legal research. Researchers must not find

only the statutes applicable to a problem, but also must find information that will help determine


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what the statues mean and how they should be applied. After looking for the plain meaning of

the words of a statute, and applying traditional canons or principles of statutory interpretation to

the text of the statute, researchers resort to a number of approaches to statutory interpretation.

An important method of statutory interpretation is to look for judicial opinions that have

construed the specific statute. The persuasiveness of interpretive opinions depends on the

similarity of facts involved and on the courts issuing the opinions. Legislatures sometimes pass

laws that are designed to reflect existing common law rules; in such situations judicial opinions

that pre-date the statute are useful aids to interpretation.

Researchers often attempt to identify the legislatures purpose in passing a statute and the

legislatures intended meaning for specific statutory provisions. To do this, researchers look at

the legislative history of the statute-documents, such as the original bill and revisions thereto,

revised versions of bills and legislative debates, hearings, reports, and other materials, created by

the legislature while the statute was under consideration- for evidence of legislative purpose and

intent. Although controversy exists over their proper use, legislative histories are often consulted

by lawyers and judges and are frequently used in legal argument.

Researchers also research for cases from other jurisdictions that have interpreted similar

statutes. Although these opinions are not binding authority, well-reasoned opinions from other

courts can be very persuasive. This approach is consistent with the doctrine of precedent, under

which the decisions of other common law courts may be considered, even if they are not binding.

4. Administrative Law:

Administrative acts and commands of the President of the Philippines touching on the

organization or mode of operation of the government of the rearranging or readjustment of

the districts, divisions, part or parts of the Philippines and all acts and commands governing

the general performance of duties by public employees or disposing of issues of general

concern are made effective by the issuance of Executive Orders. Those orders fixing the dates

when specific laws, resolutions or orders are to have or to cease to take effect and any

information concerning matters of public moment determined by law, resolution, or executive

orders, take the form of executive proclamations. Ordinarily, administrative orders are


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confined to the exercise by the President of the Philippines of his power deciding

administrative cases. Sometimes they may contain regulations for the conduct of subordinate

officers in the executive department in the performance of their official duties.

To assist the President of the Philippines in the performance of his executive functions,

various departments, bureaus, agencies and other offices under them have been established.

The head of the departments, and head of bureaus and other agencies, are authorized to issue

orders, rules and regulations for the proper and efficient performance of their duties and

functions or the effective enforcement of the laws within their respective jurisdiction.

However, in order that such rules and regulations may be valid they must be within the

authorized limits and jurisdiction of the office issuing them and in accordance with the

provisions of law authorizing their issuance.

SECTION B. THE MATERIALS OF LEGAL RESEARCH

Published legal resources can be divided into three broad categories: (1) primary sources

or authorities; (2) secondary sources; and (3) index, search, or finding tools. All of these

published legal sources can appear in more than one format, including printed books,

electronic databases, digital images, microforms, compact discs (CD-ROMS, and DVDs),

videos, and audio cassettes. Many resources contain more than one type of information and serve

more than one function. For example, some electronic resources and loose leaf services include

both primary authority and secondary materials; they are at the same time, designed to be finding

tools. An understanding of how legal materials are structured and organized (regardless of the

media in which they are published) is necessary to effective legal research.

1. Primary Sources

As noted earlier in this chapter, primary sources are authoritative statements of legal rules

by governmental bodies. They include opinions of courts, constitutions, legislations,

administrative regulations and opinions, and rules of court. Because many primary sources are

published in the order they are issued with little or no subject access, secondary sources and

indexing tools are needed to identify and retrieve them.


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2. Secondary Sources

Secondary sources are materials about the law that are used to explain interpret, develop,

locate, or update primary sources. These sources are published both in paper and electronic

formats. The major types of secondary sources are treatises, restatements, looseleaf services,

legislative histories, law reviews and other periodicals, legal encyclopaedias, Supreme Court

Reports Annotated (SCRA), legal dictionaries. Secondary sources can be interpretive and may

contain textual analysis, doctrinal synthesis, and critical commentary of varying degrees of

persuasiveness. Depending upon the reputation of the author or publisher, some secondary

sources, such as restatements, scholarly treatises, and journal articles, are often persuasive to a

court. In contrast, practice manuals and legal encyclopedias have little persuasive values but are

useful for basic introductions to subjects, for concise or black letter statements of legal rules,and for practical advice. Secondary sources can be used as finding tools to locate other

information. For example, cases cited in treatises, law review articles, and encyclopedias can

lead to other cases.

3. Index, Search, and Finding Tools

Index, search and finding tools help locate or update primary and secondary sources. The

major types of finding tools are digests (to locate cases discussing similar points of law),annotations in annotated statutes and codes, citators, and legal periodical indexes. Index, search

and finding tools are not authority and should never be cited as such.

Looseleaf services and computer assisted legal research (CALR) systems, such as Westlaw and

LexisNexis, are among the most valuable finding tools. They must be distinguished from other

finding tools because they contain full text of primary authorities, a well as materials from

secondary sources.

4.Philippine Law Publishing

Official and Unofficial Publications. Philippine Legal Sources, whether books, legal

databases, or other media, can be divided into those that are official, and those that are

unofficial. This distinction is important but often misunderstood. An official publication is one


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that has been mandated by statutes or governmental rule. It might be produced by the

government, but does not have to be. Citation rules often require both official and unofficial

citations, but the authority of official and unofficial publications are equivalent.

Unofficial publications of cases, statutes, and regulations are often more useful than

official publications. Unofficial publications of primary authorities are published more quickly

and usually include editorial features and secondary information that help interpret the primary

sources, along with important locating or finding tools.

Law Publishers

Institutional Publishers:

National Printing Office

Supreme Court of the Philippines

University of the Philippines Law Center

Commercial Publishers:

Anvil Publications

Central Books Supply

National Book Store

Rex Book Store Legal Materials

Law books/treaties at times are published by individual authors. They may be available

either thru Central Books Supply or Rex Books Supply.

5. Evaluating Legal Resources

When inspecting and evaluating legal resources, it is important to determine and

understand the purposes the resources were designed to serve. An awareness of the functions,


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features, interrelationships, strengths, and weaknesses of resources, whether they are traditional

paper resources or electronic resources, is valuable for effectively conducting legal research. Is

the resource part of the set, or is it designed to be used with other resources? Does it have finding

tools or special features, such as indexes and tables? Is the text searchable electronically? How is

the resource updated, and when is it last updated? The credibility of the authors, publisher, or

producer should be considered, together with the types of authority (primary or secondary)

included and the potential persuasiveness of the authority. With the expansion of the resources

available on the World Wide Web, evaluating resources for accuracy, credibility, and currency is

increasingly important.

SECTION C. AN ESSENTIAL SKILL

The Code of Professional Responsibility Canon 2 states: "A lawyer shall make his legal

services available in an efficient and convenient manner compatible with the independence,

integrity and effectiveness of the profession."

Clearly, a lawyer must be able to research the law to provide competent representation. In

addition to issues of professional responsibility, questions relating to competency in legal

research may arise in legal malpractice actions in which an attorney is sued for failing to know

"those plain and elementary principles of law which are commonly known by well-informed

attorneys, and to discover the additional rules which, although not commonly known, may

readily be found by standard research techniques." Issues relating to an attorney's competence in

legal research also have been raised in claims for malicious prosecution, and in claimed

violations of the Sixth Amendment right to effective assistance of counsel.

The ability to use fundamental legal research tools and to implement an effective and

efficient research plan must become part of every lawyer's training if she or he is to provide

competent representation and uphold the standards of the legal profession.

CHAPTER 2

THE LEGAL RESEARCH PROCESS*


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Legal research is as must art as science; it calls for strategy as well as serendipity. There

are many approaches to legal research, and there is no single, or best way to conduct legal

research. Methods vary according to the nature of the problem and depend on the researcher's

subject expertise and research skills.

Approaches to legal research also may be shaped by the availability of research materials.

Knowledge of alternative research tools is valuable, because researchers do not always have

access to all off the different paper, microform, or electronic resources described in this book.

Moreover, preferred resources do not, at times, produce the expected results.

Regardless of one's level of expertise in a particular field of law, a lawyer encounters problems

involving unfamiliar subjects. The capacity to solve legal problems rapidly and accurately is

developed best by constructing a systematic approach to legal research.

The processes of legal research and legal writing are closely related. Legal research is

often wasted if the results are not communicated effectively. Legal research informs legal

writing, and legal writing is meaningless without accurate content. Many differing viewpoints

exist about how the disciplines of legal research and legal writing interrelate. Some researchers

prefer to conduct most of their research before beginning to write. others prefer to write as they

conduct their research.

This chapter presents a general approach to legal research that can be modified and

applied to most problems and can be merged with various approaches to legal writing. The

approach is resource-neutral in taht it can be applied to research in books, electronic resources,

or a combination of media. In the end, researchers must develop research and writing

methodologies that are most effective for their needs.

A GENERAL APPROACH TO LEGAL RESEARCH

A general approach to legal research, which can be modified to accommodate most problems,

can be broken down into four basic steps. These are:

STEP 1. Identify and analyze the siginificant facts.

STEP 2. Formulate the legal issues to be researched.

STEP 3. Research the issues presented.

STEP 4. Update.


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This discussion focuses on each of these steps individually; each step, however, is closely

related to the others. Legal research, moreover, is rarely a linear process. It often is necessary to

revisit previous steps and revise and refine previous work.

1. STEP 1: identify and Analyze the Significant Facts

The researcher's first task is to identify and analyze the facts of the problem. Some facts

have legal significance; others do not. The process of legal research begins with compiling a

descriptive statement of legally significant facts. It is often difficult for a beginner to identify

significant facts and to discard insignificant ones. Consequently, when researching a problem in

an unfamiliar area of law, it is best to err on the side of over-inclusion rather than exclusion.

Factual analysis is the first step in identifying the legal issues that will be researched.

Factual analysis also enables a researcher to locate access points to the available resources.

Which volumes are relevant? Which subjects should be consulted in indexes and tables of

contents? Which words should be used in an initial search of an electronic database? Which

websites should be examined? An experienced researcher, who does not issues and appropriate

subjects; the beginning researcher, who does not have the experience to examine a fact pattern

and readily categorize it and formulate legal issues, needs to devote more time and attention to

this activity.

Inexperienced legal researchers might tend to skim over the facts and immediately begin

researching. No productive research can be done outside a particular fact pattern. Most

controversies are over facts, not law; and cases are most often distinguished on their facts. Rules

stated by courts are tied to specific fact situations, and they must be considered in relation to

those facts. Because the facts of a legal problem control the direction of research, the

investigation and analysis of facts must be incorporated into the research process. Taking the

time to identify relevant facts and writing them down in some narrative form is usually a

worthwhile investment of time and energy.

The TARP Rule. A useful technique is to analyze facts according to the following factors:

T - Thing or subject matter;

A - Cause ofaction or ground of defense;


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R - Reliefsought;

P - Persons or parties involved in the problem.

Thing or subject matter. The place or property involved in a problem or controversy

may be important. Thus, when a consumer is harmed after taking a prescription drug, the drug

becomes an essential fact in the dispute.

Cause of action or ground of defense. Identify the claim that might be asserted or the

defense that might be made. For example, the cause of action might involve a breach of contract,

negligence, intentional infliction of emotional distress, or some other legal theory giving rise to

litigation.

Relief sought. What is the purpose of the lawsuit? It might be a civil action in which the

party bringing the suit is seeking monetary damages for an injury, or an action in which a party is

asking the court to order another party to do specific act or to refrain from doing a specific act.

Alternatively, the litigation may be a criminal action brought by the state.

Persons or parties involved in the problem; their functional and legal status and

relationship to each other. 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 husband and wife or employer and

employee, might be of special importance.

2. STEP 2: Formulate the Legal Issues to Be Researched

This is the initial intellectual activity that presumes some knowledge of the relevant

substantive law and, consequently, the point at which inexperienced legal researchers are most

likely to have trouble. The goal is to classify or categorize the problem into, first general, and

then increasingly specific, subject areas and to begin to hypothesize legal issues. For example, is

this a matter of civil or criminal law? Does the litigation involve contracts or torts, or both? If

torts, is it a products liability or a negligence case? Problems are often not easily

compartmentalized; problems can fall into more than one category, and categories affect each

other.

a. Get an Overview. To assist in formulating issues, it is useful to consult general

secondary sources for an overview of relevant subject areas. These sources can include nation


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legal encyclopedias, state encyclopedia, treatises, looseleaf services, or one or more subject

periodicals or journals. The best choice varies according to the researcher's background, but it is

wise to start with the most general and work to the more detailed and specific. These secondary

sources can provide valuable background information and can direct a researcher to issues and to

primary sources. Be sure to note any constitutional provisions, statutes, administrative

regulations, and judicial and administrative opinions cited by these sources. At this preliminary

stage of research, these secondary sources provide background information and help 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. Failure to frame all issues raised by a particular set of facts can

result in incomplete and inadequate research. It is better, when framing the issues, for a beginner

to err on the side formulating too many issues. Insignificant issues can always be eliminated after

they have been thoroughly investigated, and overlapping issues can be consolidated.

b. Create an outline. Once statements of the issues have been drafted, they should be

arranged in a logical pattern to form an outline. Logically related issues might be combined as

sub-issues under a broader main issue. Issues that depend upon the outcome of their issues

should be revised as research progresses. As a particular issue is researched, it might be found to

be too broad; the statement of the issue should then be narrowed. It might also be necessary at

times to split an issue into two, or to divide an issue into sub-issues. Alternatively, an original

issue might be deemed too narrow and unlikely to lead to any relevant information. In such

instances, the issue should be broadened. Many times, during the process of research, it becomes

apparent that issues not originally considered are relevant. The task of framing issues is, thus, an

ongoing one.

3. STEP 3: Research the Issues Presented

After the facts are analyzed and the probable issues are framed, it is time to begin

researching the first issue.


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Organized and Plan. Although serendipity can play an important role in legal research,

good legal researchers, as a rule, are systematic, methodical, and organized, and they keep good

records. Every researched must develop a system for taking and organizing notes.

For each issue, decide which sources to use, which sources not to use, and the order in

which sources should be examined. A good practice would be to write down all sources to be

consulted for each issue, even if sources are repeated. As relevant information is found, its

source and relevance should be recorded, and the legal research outline accordingly expanded.

Maintaining an accurate list of sources consulted, terms and topics checked, and updating steps

taken prevents inefficient uses of time and omissions of crucial information.

Frequently, it is not possible to research each issue completely before moving to the next

issue. It is common to move back and forth between issues, revising and refining them. As ageneral practice, it is best to research each issue completely before moving to the next issue. The

ongoing nature of legal research emphasizes the importance of good note taking, record-keeping,

and organization.

It is often very tempting to include information in a written product that has taken many

hours to develop, but which ultimately is irrelevant to a proper analysis of the issues. Any

number of legal research leads may ultimately prove to be irrelevant to a resolution of the issues;

irrelevant information detracts from, and often masks, analysis that is directly on point.

Identify, Read, and Update All Relevant Constitutional Provisions, Statutes, and

Administrative Regulations. Identifying and reading relevant constitutional provisions, statutes,

and administrative regulations provides the framework on which the rest of the research is built.

The primary sources can be identified in several ways.

Statutory Compilations. Statutory compilations almost always include tables of contents andindexes listing the subjects and topics covered by the statutes. Because relevant statutory

provisions are often found in several places in the compiled status, consult both the table of

contents and index.

Electronic Legal Research. The full text of the 1987 Constitution of the Philippines,statutes, and administrative regulations are available on the internet, PHILIJURIS and LEX

LIBIRS.


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Secondary Sources. Secondary sources, such as encyclopedias, treatises, looseleaf services,and law review articles, commonly cite relevant constitutional provisions, status, statutes, and

administrative regulations. Electronic versions of many secondary sources are available

onPHILJURIS, LEX LIBRIS, and other commercial electronic services.

It will not always be easy to identify all relevant statutes at the beginning of a research

project. Indexing problems sometimes make it difficult to match concepts with indexing terms.

Sometimes issues are too vague or underdeveloped to ensure that relevant statutes are identified.

Accordingly, research involving relevant constitutional provisions, statutes, and administrative

regulations should be continually undertaken and issues and strategies modified accordingly.

Identify, Read, and Update All Relevant Case Law. After relevant constitutional

provisions, statutes, and administrative regulations are identified and read, case law that

interprets and applies those forms of enacted law, as well as other case law that is relevant to the

fact situation, must be located.

Do not limit research to cases that support a particular position. A competent researcher

anticipates both sides of an argument and identifies cases that result in contrary conclusions. In

many situations, the same case can be interpreted to support both sides of an issue; the argument

may involve the question whether the facts of the cases can be distinguished. It is common,however, for sides to argue that entirely different lines of cases are controlling.

The goal, at this stage of research, is to compile a comprehensive, chronological list of

relevant opinions for each issue. Because no two cases are exactly alike, it is unlikely for a

researcher to find cases with identical fact patterns to the situation at hand. The most relevant

judicial opinions come from the same court or superior appellate courts in the jurisdiction in

question, as they are the only cases that are potentially binding. Next in importance are judicial

opinions, which might be persuasive, from other courts and jurisdictions dealing with similar

facts, statut3es, and issues. Even if binding, authoritative cases are located, persuasive authority

from other jurisdictions might support an argument, particularly if the opinions are from well-

known and respected judges. Reading cases chronologically can reveal background information


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that is not necessarily repeated in each case, show the development of the case law, and point to

the "lead" case that is cited in other opinions.

Cases that interpret statutes can be identified in several ways.

Annotated Statutes and Codes. Annotated statutes and codes list interpretative cases aftereach statutory provision.

Treaties and Looselef Services.A type of publication used in legal research which bringstogether both primary and secondary source materials on a specific field or topic in law. For

this reason they are sometimes called "subject-matter services."

Computer-Assisted Legal Research (CALR). Materials available inPHILJURIS and LEXLIBRIS and in other electronic sources can be searched for cases that have cited a particular

statute.

Other Sources.eSCRA through subscription at Central Books and legal encyclopedias oftenprovide relevant case citations. Relevant cases providing statutory interpretation can also be

identified with finding tools, such as digests, which contain a subject arrangement of abstracts of

cases that can be accessed through a table of contents and descriptive-word index.

After identifying the relevant cases, as you read and brief or digest each case, be sureto 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. (Legal Research by Rufus Rodriguez)

d. Refine the Search. After primary sources are identified, read, and organized, secondary

sources can be used to refine the search and expand the argument. Invariably, new cases and

lines of argument appear. Treatises, law review articles, and restatements of the law are not

binding authority, but they can be persuasive and can provide ideas on how best to utilize

primary sources. 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,


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social, economic, and political information can put legal arguments in their proper context and

can support policy arguments.

4. STEP 4: Update

The importance of updating legal research warrants special attention. Law changes

constantly. Legislatures pass new statutes and modify old ones. Each appellate court decision

creates new law, refines the law, reaffirms the law, or changes the law; researchers must be

aware of the most recent decisions on the subject they are researching. Research that is current

today may be out of date tomorrow. Few lawyers would disagree that failure to update legal

research can be careless and negligent, and sometimes leads to disastrous results.

Electronic databases, such asPHILJURIS and LEX LIBRIS, should be consulted, aswell as pocket parts and supplements, looseleaf services, and advance sheets, to determine

whether the authorities have been interpreted or modified, or whether new cases, statutes, or

regulations have been published.

5. When to Stop

The question of when to stop researching is a difficult one. With experience, researchers

develop insight into the point at which further legal research is unproductive. In many instances

an obvious repetition of citations or absence of new information suggests that enough research

has been done. However, there is no uniform rule on how extensive research should be, and

knowing when to stop is a skill that only develops over time.

Occasionally, researching a problem in all conceivable sources is needless, unwarranted,

or repetitious. It is possible to over-research a problem. All cases are not of equal importance;

much information is redundant. Including too much information can obscure important points.

Furthermore, many simple problems do not call for exhaustive research. Common sense and

professional insight play significant roles in legal research.

In the last analysis, research skills are measured as much by the knowledge of what can

be omitted as by which research materials are used and how they are used. The attorney's stock

in trade is time; a skilled legal researcher knows how to use it wisely.


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