CHAPTER I

INTRODUCTION TO LEGAL RESEARCH

A. Legal Research, Defined

In general, legal research is the process of finding the laws, rules and regulations that govern activities in
human society. It involves locating both the laws and rules which are enforced by the State and the
commentaries which explain or analyze these rules.

Legal research is also defined as the investigation for information necessary to support legal decision
making. Legal research includes each stop of a process that begins with analyzing the facts of a problem and
concludes with applying and communicating the results of the investigation.

B. The Need for Legal Research

A lawyer is required to provide competent representation to a client. Competent representation

requires 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.

In addition to requirements of professional responsibility, questions relating to competency in legal

research may arise in suits for damages, arising from legal incompetence or claims for malicious prosecution.

The knowledge and ability to use fundament legal research tools and to implement an effective and
efficient research plan must become part and parcel of every lawyer’s training for him or her to provide
competent representation and uphold the standards of the legal profession.

In 1992, a special task force of the American Bar Association on law schools and the legal profession
issued a report that stated “[i]t can hardly be doubted that the ability to do legal research is one of the skills that
any competent practitioner must possess.” That report also stated: “[i]n order to conduct legal research
effectively, a lawyer should have a working knowledge of the nature of legal rules and legal institutions, the
fundamental tools of legal research, and the process of devising and implementing a coherent and effective
research design.”

C. Sources of Legal Research

Legal research involves the use of a variety of printed and electronic sources. The printed sources
include the constitution, statutes, court decisions, administrative rules and scholarly commentaries. Computer
databases containing these and other materials have dramatically changed the nature of legal research and
improved its effectiveness. They have not, however, eliminated its complexities. The volume and variety of legal
literature continues to grow, making the researcher’s choice of tools and tactics for each problem more difficult
than ever. A thorough understanding of available legal resources, both published and computerized, is
necessary. There are as many procedures as there are problems, and no single approach can work every time.
D. Sources of Law

Legal sources differ in their relative authority. Some are binding; others are only persuasive in varying
degrees; and some are only useful as tools for finding other material. These variations require that researchers
make careful and critical evaluation of the sources they study. Whether researching by book or by computer,
one must be familiar with the three broad categories of legal literature: (a) primary sources; (b) secondary
materials; and (c) finding tools.

1. Primary Sources – binding

Primary sources of law are those recorded laws and rules which will be enforced by the State.
They may be found in statutes passed by the legislature, regulations and rulings of administrative
agencies and decisions of appellate courts.

In a primarily civil law jurisdiction like the Philippines, the products of legislative actions, codes
and statutes, are the first major primary sources. Codes and statutes have come to govern an even
greater variety of human activity.

The second major category of primary sources is judicial decisions. Our Philippine Supreme
Court and Court of Appeals produces decisions that constitute our case law.

Our judicial system consists of a hierarchy of courts, including a number of trial courts (RTC,
MTC, MCTC), one intermediate appellate court (CA), and a court of last resort, the Supreme Court. This
system incorporates the process of appellate review, in which higher courts review the decisions of
lower courts, and judicial review, in which courts determine the validity of legislative and executive
actions.

A third important primary source is administrative law, or the regulations and decisions of
government agencies. State agencies promulgate regulations governing behavior within their areas of
expertise. Agencies also act in a “quasi-judicial” capacity by conducting hearings and issuing decisions to
resolve particular disputes.

2. Secondary Materials – not binding but persuasive

Publications which are not primary authority but which discuss or analyze legal doctrine are
considered secondary materials. These include treaties, commentaries, and encyclopedias. Some of the
most influential legal writings are found in the academic journal known as law reviews of law schools, o
in publications like the IBP Journal and the Lawyers Review. Secondary materials vary widely in purpose
and quality, ranging from authoritative treatises by great academic scholars to superficial tracts by hack
writers. The best of these works such as the Civil Code of the Philippines by Arturo M. Tolentino and
Remedial Law Compendium by Florenz D. Regalado have a persuasive influence on the lawmaking
process by virtue of the prestige of their authors or the quality of their scholarship. Secondary sources
can help analyze a problem and provide research references to both primary sources and other
secondary materials.
 Finding appropriate secondary materials is most often accomplished through the use of law
library catalogs, legal periodical indexes, and other bibliographic aids. In addition, court decisions and
other secondary sources frequently provide citations to persuasive treaties and law review articles.

3. Finding tools – not persuasive and not binding

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. Without a topical approach to legal sources, researchers could not find existing statutes or
decisions on point.

A varied group of finding tools provides such access. Digests reprint headnotes summarizing
points of law from court decisions in a subject classification and annotations summarize cases on
particular topics. The SCRA Quick Index-Digest is one finding tool available to the legal researcher.
PHILJURIS and LEX LIBRIS, two comprehensive and competing computer-based legal research systems,
provide the capability to search for cases and other documents by using practically any word or
combination of words.

Finding tools do not persuade, nor do they themselves have any primary or persuasive
authority. Finding tools are only a means for locating primary sources. It is then necessary to read those
primary sources to determine their applicability to a particular situation. In legal research, as in other
aspects of the lawyer’s work, one must employ a highly developed sense of relevance – a keen
appreciation of which sources are legally and factually relevant to the specific inquiry.
 CHAPTER 2

THE LEGAL RESEARCH PROCESS

A. Systematic Approach to Legal Research

In order to solve legal problems accurately and comprehensively, there must be a systematic approach
to legal research. Four basic steps are recommended, namely:
1. Identify and analyze the significant facts.
2. Formulate the legal issues to be researched.
3. Research the issues presented.
4. Update.

I. Identify and Analyze Significant Facts

The first task is to identify and analyze the facts surrounding the particular problem. Some facts
have legal significance; others do not. The process of legal research begins with compiling a descriptive
statement of legally significant facts. Factual analysis is the first step in formulating the legal issues to be
researched.

The TARP Rule is a useful technique to analyze your facts according to the following factors:
T – Thing or subject matter;
A – Cause of action or group of defense;
R – Relief sought;
P – Persons or parties involved.

The thing or subject matter in a problem or controversy may be a significant element. For
example, when a party claims that there is a violation of the terms of a contract, the contract becomes
an essential fact in the dispute.

The next thing to be done is to identify the claim or cause of action of the plaintiff and the
defense that might be put up by the defendant. In a dispute over a contract, the cause of action may be
breach of contract.

What is the relief sought? It might be a civil action for damages to answer for the inquiry caused
by the breach of the contract or an action for specific performance to compel the other party to perform
a specific act as mandated in the contract or to enjoin the other party from doing a specific act probably
in violation of the contract.

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 lessor and lessee in a contract of lease, will be of special importance to the case.

II. 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.

Consult general secondary sources for an overview of all relevant subject areas. In the example
above, if the legal issue involves a violation of a contract, the research could start by reading the
textbooks or treatises on obligations and contracts by noted authorities. At this stage, these secondary
sources are used to provide background information and to help you 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.

Once statements of the issues have been drafted, they should be arranged in a logical pattern to
form an outline. Logically, related issues may be combined as sub-issues under a broader main issue.

III. Research the Issues Presented

After the facts have been analyzed and the issues have been framed, it is time to begin research
the first issue.

a. Organize and Plan. Good legal researchers, as a rule, are systematic, methodical, and
organized; and they keep good records. For each issue, it is important to decide which
sources to use, which sources not to use, and the order in which sources should be
examined. The best practice is to write down all sources to be searched under each issue to
be researched, even if sources are repeated.

b. Identify, Read and update All Relevant Constitutional Provisions, Statutes, and
Administrative Regulations. These primary sources can be identified in several ways.

Statutory Compilations. Statutory compilations almost always have tables of contents and
indexes that list the subjects and topics covered by the statutes. Because relevant statutory
provisions are often found in several places in the compiled statutes, consult both the table
of contents and the index.

Computer- Assisted Legal Research. The constitution, statues and administrative regulations
are available on PHILJURIS and LEX LIBRIS. It is possible to search the full test of these
documents for statutes and regulations that apply to your problem.

Secondary Sources. Secondary sources such as treatises and commentaries and law review
articles, commonly cite relevant constitutional provisions, statutes, and administrative
regulations.

c. Identify, Read, and Update All Relevant Case Law. After identifying and reading the relevant
constitutional provisions, statutes and administrative regulations, you must identify, read,
 and update the case law that has interpreted and applied those forms of enacted law, as
well as other case law that is relevant to your fact situation.

Do not limit your search to cases that support your position. A competent researcher
will anticipate both sides of an argument and identify the cases that indicate contrary
conclusions.

Treatises and commentaries on the codes and statutes cite cases that interpret the
statues they discuss. As to computer assisted legal research, both Philjuris and Lex Libris can
be searched for cases that have cited the statute.

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 decisions, 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.

d. Refine the Search. After you have identified, read, and organized the primary sources, go to
secondary sources to refine the search and expand your argument. If the problem involves a
statue, 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.

IV. Update

Law changes constantly. Our Congress passes new statues and modify old ones. Our Supreme
Court either refines the law or reaffirms the law or even change the interpretation of the law. Consult
the Philjuris or Lex Libris to determine whether the authorities have been interpreted or altered in any
way, or whether new cases, statutes or regulations have been published.