LEGAL RESEARCHBy

RUFUS B. RODRIGUEZ

Chapter 1INTRODUCTION TO LEGAL RESEARCH

A. Legal Research, Defined

It is the process of finding the laws, rules and regulations that govern activities in human society.

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.

C. Sources of Legal Research

Legal research involves the use of a variety of printed and electronic sources.

Printed sources: Constitution Statutes Court decisions Administrative rules Scholarly commentaries

Computer databases containing these and other materials have dramatically changed the nature of legal research and improved its effectiveness.

Sources of Law

Three broad categories:

1. Primary Sources

Those recorded laws and rules which will be enforced by the State: Major primary sources: legislative actions, codes and statutes Second major category: judicial decisions Third primary source: administrative law, or the regulations and decisions of

government agencies

2. Secondary Materials

Publications which are not primary authority but which discuss or analyze legal doctrine are considered secondary materials:

Treatises Commentaries Encyclopedias

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. Among the finding tools are:

SCRA Quick Index-Digests PHILJURIS LEX LIBRIS

Chapter 2THE LEGAL RESEARCH PROCESS

A. Systematic Approach to Legal Research

Four basic steps are recommended:

1. Identify and analyze the significant facts2. Formulate the legal Issues to be researched3. Research the issues presented4. Update

1. Identify and Analyze the Significant Facts

The TARP Rule is a useful technique to analyze your fcts according to the following factors:

T – Thing or subject matterA – Cause of Action or group of defenseR – Relief soughtP – Persons or parties involved

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.

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 planb. Identify, read, and update all relevant constitutional provisions, statutes, and

administrative regulationsc. Identify, read, and update all relevant case lawd. Refine the search

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.

Chapter 3FUNDAMENTAL RESEARCH SKILL: CASE BRIEFING

AND SYTHESIS OF CASES

A. Case Briefing

A law school case brief is a student’s digest or condensation of a reported case.

There is no one “correct” form for a case brief since it is a document that is created to meet the student’s needs.

The typical components of a case brief are:

1. Facts – they describe the events between the parties leading to the litigation and tell how the case before the court that is now deciding it. Include those facts that are relevant to the issue the court must decide and to the reasons for it decision. You will not know which facts are relevant until you know what the issue or issues are.

2. Issue(s) – it is the question that the court must decide to resolve the dispute between the parties in the case before it.

3. Ruling – it is the court’s decision on the question that is actually before it, but if they do not relate to the question actually before it, they are dicta.

B. Synthesizing Cases

More likely, your research for a problem will turn up many cases relevant to the problem. In order to use the principles that those cases offer to resolve your problem, you must relate the cases to each other, that is, synthesize them. In that way, you can understand the applicable area of law and then use the synthesis to analyze your problem.