Legal Process

Legal Process

-          not a linear process

-          the steps to be undertaken may vary depending on the information at the outset of the process, on information that is discovered during the research process and on the scope of the project

Research strategy

-          both an art and skill

-          may include false starts, dead ends, and revisions

-          no single right path

-          materials needed: description of the problem, legal dictionary, research resources, notebook

Why analyze?

-          To be able to apply the precedents correctly

-          To be able to resolve a case correctly

*Precedent or Stare decisis- binding precedent but not immutable

Article 8 of NCC:

“Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines.”

Values involved:

1.       Stability in decisional law

2.       Checks and balances

Reminders:

1.       For lower courts and administrative tribunal- mandatory authority of Supreme Court doctrines

2.       The duty to know the law- includes familiarity with the judicial doctrine

3.       To mislead the court by erroneous citations or to urge the court to maintain a position that rests in abandoned doctrine- contempt of court

4.       Changed circumstances warranting a distinction

Stare rationibus decidendi- stand by the rationes decidendi of decided cases

*a case is authority only for what it actually decides

*obiter dictum- a Latin phrase meaning “by the way”, or a remark in a judgment that is “said in passing”

*ratio decidendi- the rule of law on which a judicial decision is based

*for the purposes of judicial precedent, ratio decidendi is binding while obiter dicta are persuasive only

*pro hac vice- a ruling or a rationale that is made for a particular case only and is not a precedent for other cases

Structure of the Legal Reasoning:

1.       Don’t just quote. Analysis is not a collage of quotations.

2.       Do not rely on syllabi, digests, citations.

3.       Do not cite a judgment you have not read.

4.       Do not take as conclusive citations of precedent found in brief and memoranda

Constituents of a thorough analysis:

1.       Identify the parties- names, relationship, litigation status

2.       Determine parties objectives- determination of issues, point out relevant laws or rules

3.       Note prior proceedings

4.       Determine key facts

5.       Identify the issues

6.       Study the holding

7.       Follow the reasoning

8.       Note the disposition

Helpful tips:

1.        Summaries are not necessarily accurate or authoritative statements of the law. While they may be helpful as guides, they can never stand in place of the primary authorities themselves. There is no substitute for reading the law in its complete, if not original form.
2.        Titles of subtopics used in case digests, as well as indexes in secondary reference sources, do not classify legal subject matter with scientific precision
3.        When searching through a secondary source, start by reading the table of contents, preface or other introductory remarks. These sections explain the coverage of the reference work and may help determine at the outset its relevance or usefulness to the research.
4.      Always begin legal research by surveying the latest source material, gradually moving on to earlier material, in order to maximize time. In the process, make sure to indicate the date of each research to facilitate future searches on the same subject matter.
5.         Make it a habit to look for authorities that support all preferred arguments and positions in respect of the contentious legal issue/s at hand.

Tips for effective searching:

1.       Define your issues

2.       Select search terms

3.       Use terms and connectors

4.       Relate your terms logically

5.       Order the connectors properly

6.       Select source or database

7.       Limit your search to a field/segment and use data restriction when appropriate

8.       Run and evaluate your search

9.       Field searching (not in natural language)

The 4 C’s of good legal research:

a.       Correct/Accurate.

-          The propositions be correctly stated, the cases be reliably digested, and that principles be candidly stated.

-          Requires that the researcher cite the correct law (statute, case) with proper noting-up as to amendments, repeals, appeals, or overruling, as applicable

b.      Comprehensive.

-          Requires the researcher to consider all the possibilities but to get to the point

-          Use only the cases that most closely bear on the issue

-          Don’t cite 10 cases for a single proposition where I will do

-          Don’t refer to extraneous secondary materials

-          The balance between precision and comprehensiveness is one that comes with experience and related increase in your knowledge of law and judgment in matters of practice

-          Resourcefulness is a virtue

-          A good researcher knows some backroads and by-ways not readily accessible to other lawyers

c.       Credible.

-          Be responsive to the question asked

-          A memo that only digests and quotes from cases is not usually a final product

d.      Cost-effective.

-          Not costly, income to be generated should be considered, time to spend, impact on other work, demands of other clients

Classifying issues involved:

1.       Constitutional

2.       Statutory

3.       Administrative

4.       Case law problem

5.       Procedural law

6.       Question of fact

 “FILAC” Approach for doing Legal Research:

Facts.

-          correctly identify the relevant facts which is sometimes obvious and sometimes not

-          whether the research is for academic or professional purpose, there should be a given set of premises

-          research often begins with a fact pattern

-          you might be given an “on-point” case or statute, but seldom will the facts of you research question fit squarely with the facts of other cases or the language of the statute

-          whatever the case, the researcher must obtain all raw facts involved in the problem in order to be able to sift through them and remove the chaff from the grain

-          when a client narrates his problem, the facts narrated are disorganized and unclassified, has no legal theory to justify or deny compensation

-          it is up to the lawyer to organize the raw materials for analysis and research

-          this is where your legal training come into play as it is extremely difficult for someone untrained in the law to translate a fact pattern into a legal theory of recovery of defense

Issues.

-          Identify relevant issues to be researched arising from the facts which is usually stated in the form of legal questions that the client needs answered

Law.

-          Find the relevant law

1.       Use secondary sources which serve as broad overview

2.       Narrow in on primary sources

Analysis/Application of Law to Facts.

-          Apply the relevant law to the facts to analyze he way a judge would decide the matter given the same set of facts

Communication.

-          Communicate results of the research problem: be clear, accurate, concise

Gathering the Facts:

1.       People- parties, witnesses, victims

2.       Tangible evidence- contract, weapon, etc

3.       Books, periodicals and reports- hospital records, police reports, business reports, ledgers, etc

4.       Expert witnesses

Gathering of Facts from Various Sources

1.       What was done

2.       Who did it and to whom

3.       Where was it done

4.       Why was it done

5.       When was it done

6.       How was it done

Analyzing the Facts (TARP)

1. Thing or subject matter

- that of which is present in the controversy and where the problem would have risen

- identify all significant things perceptible to the senses involved in the problem

2. A cause of action or ground of defense

                - the claim asserted by one person against whom the claim is asserted

                - identify the alleged infraction or wrong suffered by the plaintiff or those reasons in law or fact

given by the defense why these claims arguably should not be recovered or why the cause may

not be successful

3. Relief or object sought

                - involves the purpose of bringing the suit or presenting the claim

                - the determination of the legal remedy in the light of the problem presented

4. Parties, Persons, Places

- includes the relationship of the parties and whether they belong to a special class or group or have similar professional or commercial activities

- one must identify the persons who were directly or indirectly involved in the problem

- the purpose behind this identification is to determine if there are special laws that govern the relationship

                - one should also identify the place where the act occurred for purposes to determine venue

*Search for legal authority using appropriate methods of updating

                - there are many different techniques for finding primary authorities

                - for any given research project, some will work better than others

                - using a variety of tools will ensure comprehensive research and compensate for difficulties       

       that one may encounter in using particular sources

                - always look for pocket parts and other supplements when using print sources

                - note the dates of coverage in all electronic sources consulted

*Read and evaluate primary authorities

                - never overlook the importance of reading cases and other cases

                - do not substitute reading of the headnotes, synopses, or interpretations in secondary sources

       for your own thoughtful reading of the authorities you find

                - look for holdings of cases, not just broad statements of the law

*Make sure cases are still good law and you have the current version of statutes

- time can often be saved by using case validation tools (citators) as soon as you read a case and determine that it is relevant to your issue

- make sure you have checked all available supplements if using print sources

- look up statutes in electronic form to check for recent amendments

*Analyze the facts and formulate a preliminary statement of issues

- this is a continuous process so you need to prepare reframing issues as your research progresses

- conduct background research to get an overview of the subject area, identify issues and terms, and get clues to primary sources

- learn the types of authority involved, whether the issues are governed by case law, statutory law, administrative law, or a combination

- learn some of the “black letter law” to gain a context for research

- secondary sources can be useful for this purpose

*Organizing the legal issues in a logical order will increase the efficiency and effectiveness of your research

1.       threshold issues such as jurisdiction and statute of limitations precede other issues because if their legal requirements are not met, the entire law suit will be dismissed

2.       issues dealing with the legal claim or "cause of action" should precede issues dealing with relief or remedy sought because only a limited range of remedies is available to each cause of action

3.       place the issues in the order that the facts occurred chronologically

4.       in the order that they would be presented in court (claim, defense, rebuttal)

*Refine analysis and formulate conclusion

-returning to secondary sources near the end of a research project can be helpful

-these sources can be easier to understand after you have read some of the primary authorities

Legal research: requires art and skill, calls for judgment, creativity, and flexibility

-there are many approaches to legal research

-it calls for judgment and creativity along with mastery of a set of tools and techniques

-each query calls for a different strategy, depends on the working familiarity of the researcher with the area of law being researched on

-each research question will have a different starting point, process, and conclusion

-there is never one "right" path

-researchers choosing different paths for the same research question may be equally successful

-legal research is never "finished", but the experienced researcher recognizes when to stop

-the ultimate goal of any researcher is to find the primary source materials applicable to the question at hand

When to stop?

-when you have completed the steps in the model

-when you have used a variety of appropriate sources

-when you are finding the same authorities over and over again

-when cost exceeds benefit

More helpful tips:

-the ultimate goal in legal research is to find mandatory primary authorities bearing ont he legal issues at hand

-if these are non-existent or scarce, the next priority is to locate persuasive primary authorities

-should this still fail, relevant secondary authorities are the next resort

-when a search is focused on primary sources, statutes should be the first priority as they can control other types of primary sources except the constitutional provisions

CONCLUSION

·         the law has grown and will continue to grow with the onset of new technologies

·         access to legal information changes rapidly, and we need to adopt, not merely delegate this

·         lawyers must be updated with current technology, and know how to utilize, applying the fundamental concept of legal research

·         our ability to do so could even probably allow us to win our cases

Features of Good/Bad Research:

1.       4C’s

2.       Thoughtful-distinguish away hurtful case, re-cast issue to better express dispute, set out some helpful avenues of factual inquiry, suggest some potential questions for use at trial or discovery

3.       Readable- say what you need to say and no more, be organized, use headings, done quote long passages, explain relevance of the passages quoted, set out connections, highlight the points of distinction

Typical failings:

1. too general- lawyers seeking research will know this sort of law and expect the researcher to go beyond the cases

-the only real cure for this is experience as it brings awareness as to what is trite law and what is not

-the researcher must help find the law that most directly answers the question

2. too vague- awareness of the unexpressed law can assist the researcher in providing an analysis and providing a conclusion

-research is done in order to solve a problem

3. lacking context- when the researcher has sought a bunch of cases

-noticeable when a memo provides many specific case briefs, but fails to cite or even mention the leading cases

-most legal writing benefits from a paragraph or two from the leading text and a statement of the essence of the leading cases

4. no analysis- a collection of case briefs and quotations is not legal research nor a legal memo, but merely a first draft

-materials must be considered, analyzed, and related to the issue at hand

5. too academic- legal writing has a practical purpose

-a memorandum does not exist in order to be a treatise on the law nor is it a showcase for the researcher's erudition or brilliance

-the memo should focus on the case at hand and the law that specifically applies to the question being raised

6. too much quotation- selecting and copying text is not analysis nor is it legal writing

-a great deal of analysis, editing, thinking, and refining are necessary if the researcher is to overcome this failing

Proficiency in Legal Research:

1.       intelligence- implies the ability to grasp the relevant facts, fashion out a good provisional hypothesis, make a methodical and meaningful search through the authorities and come out with the best possible result

2.       diligence- a haphazard or superficial research is dangerous

3.       experience- to attain proficiency, speeds up the research process, gives substantial assurance as to the validity of conclusion reached

Responsibility of researcher

·         maintain high ethical standards in research studies

·         show honesty and adhere to academic integrity

·         show sensitivity to research participants and follow ethical guidelines

·         use appropriate procedures and methods in research

·         report research honestly and fairly

·         provide sufficient data so that other researchers can build on the study

·         reference sources used and give credit to participants involved in the study

·         avoid bias and conflict of interest

·         avoid plagiarism