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.

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 official repository, 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

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

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 decisionmaker 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,

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.

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;

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 ELibrary 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

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.

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

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 as interpreted by 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

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

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.

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

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,

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*

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.

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 of action or ground of defense;

R - Relief sought; 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

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.

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 a general 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 and

indexes 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.

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 on PHILJURIS, 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 wellknown and respected judges. Reading cases chronologically can reveal background information

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 after

each statutory provision.

Treaties and Looselef Services. A type of publication used in legal research which brings

together 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 in PHILJURIS and LEX

LIBRIS 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 often

provide 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 sure to note its full citation, the ponente of the decision, the date of the decision, the relevant facts, the holding, a summary of the court's reasoning, and the sources cited by the court. Each of the sources cited should be read and briefed and new cases should be added to your list. Each case you brief should be incorporated into your outline. (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,

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 as PHILJURIS and LEX LIBRIS, should be consulted, as well 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.