LEGAL RESEARCH

INTRODUCTION
Legal research is an essential lawyering skill (& studying law).

Lawyers duties
- give clients advice based on adequate consideration of the
applicable law
- inform the court of relevant material authorities
- keep abreast of developments in law

To fulfill these duties will require legal research.

Though a lawyer is not required to know all the law applicable to

the performance of a particular legal service, but he should have a
basic & sufficient knowledge of the fundamental principles of law
applicable to the particular work he has undertaken.

This will enable him to perceive the need to ascertain the law on
relevant
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 To discover those additional rules of law which, although not
commonly known, may readily be found by doing legal research.

What is legal research? Why lawyers do research? (discover/find)

The process of identifying & retrieving legal authorities necessary to

solve a legal issue and support a legal argument
(submission/opinion/judgment).

Finding legal authorities is the main part of legal research.

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Complexity of modern legal research

Although we have more tools for conducting legal research than

before, the research task has become harder rather than easier.

Computer research has introduced the need to be completely

current, and to develop new sets of skill.

There has been a dramatic increase in the volume of case law and
statutory material.

Secondary sources also have grown exponentially.

The law of other jurisdictions must often be researched.

In order to cover this large volume of material, lawyers need to

conduct efficient and effective legal research.
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Research Strategy IRAC

ISSUE: Issue identification is crucial for effective research.

The most basic step in legal research is to find the issues in

question. Often the issues are not correctly identified, or some
issues are missed altogether.

RULE/LAW: Finding the law is the main important part of legal

research. The law is constantly changing. Need to be updated.

ANALYSIS: Researcher must be able to analyze what he has found.

CONCLUSION: At the end, he should have reach a conclusion (or

formulate an argument) based on the analysis he has done.

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Legal Research Techniques/Resources

The resources available to find legal authority are vast and

complicated.
(i) Library /Printed Resources:
- Traditional method
- Finding authorities from printed sources in the library.
- Books, journals, law reports etc.

(ii) Online/Internet Resources

- Modern technique
- Finding authorities from electronic, non printed resources using
online tools/search engine.
- Google, e-books, online journals, online law reports

Both provide valuable tools in the research process, and it is

important to think carefully before choosing one or the other
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Online/Internet Research Technique
Do not be misled by the ease of running online searches.
Online legal research does not mean clicking a mouse and
watching the information fall into place before you.
It requires analytical ability to drives the research process. You still
must decide which sources to check and which authorities to
accept.

Advantages
Easy access
The speed at which documents become available.
- Some documents are available for download on the same day they
are issued or appear on an official site before a paper version
becomes available.
Broad range of documents that are available.
- Obscure documents include policy statements, forms, studies,
reports, and smaller information collections. Law libraries do not
necessarily carry these documents in print within their collections.
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Disadvantages
Rarely authoritative and credibility of sources is always a question
- cannot cite to Google in court, Wikipidea

The format of a document taken from the Internet may be difficult to

cite.
- the current standard is to recognize print collections as the official
source of cases when both a print and online version exists.

Lack of research aids comparable to those in print.

- Legal opinions on the web are usually without reference to citations
as they appear in printed reporters.

Costly
- Must pay a considerable amount for a better search
- Free online legal materials are frequently in the rawest form
available and often do not link to other relevant documents, even
those which may be available in the same online collection.
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Legal Authorities
As a lawyer, you need to base your analysis on legal authorities.

Legal authorities is organized into two (2) general categories:

(1) Primary Authorities: The rules of law that are binding upon the
courts, government, and individuals.
E.g. statutes, regulations & case law.

(2) Secondary Authorities: Commentaries on the law that do not have

binding effect but aid in explaining primary law and legal theory.
Cited by lawyers to persuade a court to reach a particular decision in
a case, but which the court is not obligated to follow.

E.g. dictionary, legal digests, treatises, journals, scholarly legal

writings, encyclopedias, Annotations & Digests

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Primary Authorities: Constitution

State Constitution

Supreme law

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 LEGISLATION
Laws made the legislature (i.e. YDPA, Parliament/State
Assemblies) under powers conferred on them by the constitution

Divided into 2 types:

(i) Federal Legislation
(ii) State Legislation

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Federal Legislation State Legislation

enacted by Parliament enacted by State Assemblies

applicable to all states applicable only to a
particular state
Act = after 10/09/1959 Enactment
e.g. Age of Majority Act 1971 e.g. Environment Protection
Ordinance = b4 10/09/1959 Enactment 2002 (Sabah)
e.g. Adoption Ordinance 1952 Ordinance Sarawak
e.g. Native Courts Ordinance 1992
* Special Code e.g. Penal Code (Sarawak))

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 Subsidiary Legislation
Laws made by persons/bodies (e.g. YDPA, ministers, directors,
local authorities, councils and boards) under powers delegated on
them by the legislature via a parent statute (also known as
delegated legislation)

S.3 Interpretation Act 1948 and 1967(Consolidated and Revised

1989)[Act 388]).
any proclamation, rule, regulation, order, notification, by-law or
other instrument made under any Act, Enactment/other lawful
authority and having legislative effect

Divided into 2 types:

(i) Federal Subsidiary Legislation
(ii) State Subsidiary Legislation

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 Dangerous Drug Act 1952 Environment Protection
(Parent Act) Enactment 2002
(Parent Act)

Dangerous Drugs (Forms) Environment Protection

Regulations 2001 Rules 2005
(Subsidiary) (Subsidiary)

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 JUDICIAL DECISIONS/
CASE LAW

Legal principles formulated & laid downs by judges when

passing decisions.

Only decisions of the superior court (i.e. the High Court,

Court of Appeal & Federal Court) form part of Malaysian law.

The decisions become precedents to be followed in future

similar cases - known as the doctrine of binding judicial
precedent or stare decisis

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 Doctrine of Stare Decisis
(to stand by decision)
A judge is bound to follow decision made by previous higher court
(and in some courts its own prior decisions & prior decisions of a
court of the same level) where the material facts are the same.

If he fails to follow a binding precedent, the decision will be legally

wrong and it is likely to be reversed on appeal

Must follow

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 Thisdoctrine depends on a courts position in the hierarchy of
courts & works in 2 ways: (i) vertically & (ii) horizontally.

Vertical operation: a precedent which comes from a court superior

in the hierarchy to the court in which the present case is being tried,
binds all the inferior courts. Example: Harris Solid State (M)

Horizontal operation: a superior court is bound by its own previous

decisions and the decisions of courts of co-ordinate jurisdiction.
Example: Kesultanan Pahang

Reason to use stare decisis is to ensure uniformity & predictability of

decisions.

VERTICAL
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 Federal Court Federal Court

Court Appeal Court Appeal

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How to find Malaysian Statutes/Cases online?

- Refer to the following websites or use the search engines

CLJ Law: http://www.cljlaw.com
LexisNexis Legal Research for Academics:
https://www.lexisnexis.com
Westlaw Asia: https://login.westlawasia.com.
LawNet: http://www.lawnet.com.my
AG Chambers LOM: http://www.agc.gov.my
Parlimen - Hansard: http://www.parlimen.gov.my/
Legal Information Institute (LII):
http://www.asianlii.org/
https://www.law.cornell.edu/world/asia#malaysia
ILBS: http://www.malaysialawbooks.com/
GlobaLex:
http://www.nyulawglobal.org/globalex/Malaysia.html
HeinOnline
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 Justia
World Legal Information Institute
Commonwealth Legal Information Institute
Asian Legal Information Institute
Australian Legal Information Institute
British and Irish Legal Information Institute
Singapore Statutes Online
International Labour Organization

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Library:
The index volumes or annotations for statutes and regulations
compilations provide a quick guide to relevant rules and
regulations. Annotated Statutes of Malaysia (LexisNexis)

Case reporters contain the decisions in cases that have been deemed
important enough to publish.
CLJ, MLJ, AMR
The Jurnal Hukum
Industrial Law Journal (LexisNexis) [ILJ]
Personal Injury Reports [PIR]
Shariah Law Reports (LexisNexis) [ShLR]
Syariah Reports/Laporan Syariah [CLJ(Sya)];
All Malaysia Commercial Reports [AMCR]
Malaysian Consumer Law Journal [My.Consum.LJ] 2011.

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 The law is constantly changing. In discharging his duties, lawyer
need to apply current authorities, not outdated or repealed law.

Ignorance is no excuse.

Lawyer are not expected to search out unreported cases, however if

counsel knows of an unreported case on point, he must bring it to
the courts attention.

If there is lacuna in the law, you may need to research the law of
other jurisdictions.

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How to search for secondary sources?

Online free sources such as the Legal Scholarship Network, Google

Scholar, Blogs, policy websites - must be careful to evaluate the
information on the web for accuracy

Library:
(i) Encyclopedic Works - covering various areas of law is useful for
searching the current legal position on a given point of law. Halsburys
Laws of Malaysia

(ii) Articles:
Law Review (LR) by Sweet & Maxwell;
Quarterly Law Review (QLR) by CLJ;
INSAF, Infoline and Praxis.
MLJ, Jurnal Hukum

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(iii) Case digests: enable a researcher to look up a particular area of
the law and find a list of case decisions that are "reported" in relevant
case reporters. E.g. Malals Digest

(iv) Precedents and Forms

Malaysian Precedents and Forms by LexisNexis contain a variety of
precedents to assist in the drafting of legal documents.

(v) Court Forms

Atkins Court Forms Malaysia by LexisNexis provide the main
procedural documents required for civil proceedings before the court.

(vi) Court Practice Books

Malaysian Court Practice by LexisNexis covering Trial Courts and
Appellate Courts is an aid to practitioners appearing in particular
courts. It sets out all relevant legislation and rules which govern
practice in courts. They also set out informal rules such as Practice
Directions which must be followed. A desk edition is also available
for quick reference.
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(vii)Textbooks

(viii) Practice Directions/Court Circulars

Practice Directions issued by the court are intended to supplement
the Rules of Court by clarifying the proper practice under the rules
and the manner of compliance therewith.

(ix) Bar Council Rulings

The Bar Council issues Rulings from time to time, which relate to
matters of practice, to preserve fundamental principles required in
maintaining the dignity of the legal profession, and serve as a guide
to Advocates and Solicitors as well as pupils reading in chambers.
The Rulings are also accessible on the Malaysian Bar website

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HOW TO DO LEGAL RESEARCH?

1. Identify the ISSUE or scope of the legal question.

Identify: key sources and search terms

2. Begin research by using online and secondary sources.

Halsburys Laws, key articles, can give perspective on how your
specific issue fits into a broader legal context and will assist you in
finding on-point primary authority.
These are particularly useful if you have no experience of the area
of law as they will act as a background.
Note references to pertinent statutes and case citations.
Search for articles on the topic.

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 3. Identify relevant statutes.
If you located an applicable statute in your review of secondary
sources, look up the statutes.
Look also at any analysis available on the statutes.

4. Identify the cases that are on-point for your specific facts.
When reading secondary sources, note cases that relate to your set
of facts. Follow up the cases, checking headnotes and reading
judgments that seem applicable. One good case can be a great
starting point for research on narrow topics.

5. Confirm that your authority is still good law.

Use Westlaw Case Analysis, Lexis Case Search to check that your
cases are still good law and provide the most current, direct
authority available for your set of facts.

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