Legal Research and Thesis Writing Chapter 1 Notes (JD 113)

CHAPTER I- Introduction to Legal Research Legal research  – the process of finding the laws, rules, and regulations that govern activities in human society. - the investigation for information necessary to support legal decision making. *purpose: to ascertain legal consequences of a specific set of actual or potential facts. Key: organization Sources of legal research Constitution, statutes, court decisions,  printed: administrative rules, scholarly commentaries  electronic: computerized, computer databases Characteristics of legal materials Characteristics *legal authority –any published source of law setting forth legal rules, legal doctrine, or legal reasoning that can be used as bases for legal decisions. **authority – types of legal information and the degree of  persuasiveness of legal information

materials; materials which are not primary authorities but annontate, discuss or analyze legal doctrines and are considered secondary authorities: treatises, commentaries, legal encyclopedias, law reviews of law schools, looseleaf services, hornbooks, casebooks, etc. *Restatements of the Law  –series of important commentaries on American Law which attempt to organize and articulate the rules of American common law *Looseleaf Services  –frequently supplemented research tools which focus on specific subject areas and contain primary legal sources, finding aids and secondary materials *Legal Encyclopedias  – mutli-volume sets describing systematically the entire body of law wherein expository statements on principles of law are alphabetically and topically arranged.

Sources of Law (3 Broad Categories of Legal Literature) 1.Primary 1. Primary Sources –recorded laws and rules enforced by the State; recorded authoritative statements of legal rules by governmental institutions to be enforce by the State

*Hornbooks  –popular reference to a series of  treatises, each of which reviews a certain field of la in summary textual form as opposed to a casebook which is a teaching tool and includes many reprints of court opinions

1. First primary sources: product of legislative actions, codes, statutes decisions 2. Second primary sources: judicial decisions *judicial system  – a hierarchy of courts: trial courts (RTC, MTC, MCTC), intermediate appellate court (CA), court of last resort (Supreme Court) 3. Third primary sources: administrative law (regulations and decisions of government agencies)

*Practice Manuals  – provide good understanding of  the procedural and substantive law as well as “hands on” instruction necessary to file and prosecute case

*Mandatory authority – authority that a given court is bound to follow: constitutional provisions, statutes, international conventions and treaties,  judicial decisions, administrative rules and regulations, ordinance and court rules.

*Annotations  – explanations or commentaries or extensive notes based on the issues within an opinion of a court usually appended after a reprinted case in a compilation.

*Persuasive authority  –law or reasoning which a given court may, but is not bound to follow: opinions of the secretary of justice and administrative agencies, foreign judicial opinions which have a significant effect upon Phil.  jurisprudence. 2.Secondary 2. Secondary Materials  –publications which are not primary in authority but which discuss or analyze legal doctrines/ problems and provide research references to both primary sources and other secondary

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*Form-Books  – aids in drafting legal documents and include sample instruments which are standard guides for an atty

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statutory  –brief history of the law and facts of  cases interpreting statutes passed by the legislature which are usually found in codes and compilations and cites research references to secondary materials textual  –expository essays of varying lengths on significant legal cases with the essays

3.Finding 3. Finding Tools  –search materials that locate legal/ primary sources: SCRA Quick Index-Digest, PHILJURIS, LEX LIBRIS, search books, indexes, digests, law dictionaries, tables, citators etc.

Notes: Legal Research and Thesis Writing| by Maria Carmela Rojo Caupayan

*Digests  –reprint headnotes summarizing points of  law from court decisions in a subject classification; indexes to reported cases providing brief, unconnected statements of court holdings on point of law which are arranged by subject. *Law dictionaries  –collect definitions of legal terms in alphabetical order with citations to sources either from a statute, decision or text *Citators  – research aids which provide notational information on the statues of a particular case law or the current status of a statute. **Shepardize  –process of checking the status of  cases or statutes in the Shepard’s citations. *Indexes  –alphabetical lists of important words and concepts covered in a book, a set of books or research sources that assists the researcher in locating the primary or secondary sources. *Directories  –lead to information about lawyers, law firms, law schools, law libraries, courts or administrative agencies. *Tables  –alphabetical listings of case names or statutes with references to the law reports or publications where the cases or laws can be located; gives the comparative/ parallel citations to official and unofficial case reports or compilation by statutes *Annotations –summarize cases on particular topics

*Other sources: opinions of legal experts, other state and foreign sources CHAPTER II – Legal Research Process Four Basic Steps (Systematic Approach) 1. Identify and analyze the significant facts *Factual analysis (TARP Rule)  – first step in formulating the legal issues to be researched. -Thing or subject matter -Cause of action or ground of defense -Relief or object sought -Persons or parties involved, places *Sources of information - People - Tangible evidence - Books, periodicals and reports - Expert witnesses

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2. Formulate the legal issues to be researched 3. Research the issues presented a) Organize and plan b) Identify, read, and update all relevant constitutional provisions, statutes, and administrative regulations *statutory compilations, computer-assisted legal research. c) Identify, read, and update all relevant case law d) Refine the search 4. Update Approaches in Searching for Authority 1. Law finding techniques *Descriptive word/ Index or fact method *Table of contents, Topic or analytic method *Known authority, Statute or case method *Definition method 2. Sources to obtain background information: code commentaries, treatises, legal periodical articles wherein one can elicit background information on a specific statute CHAPTER III- Fundamental Research Skill: Case Briefing and Synthesis of Cases Case Briefing Case Brief   –a student’s digest or condensation of a reported case. Components: *Facts  – relevant, describe the events between the parties leading to the litigation and tell how the case came before the court that is now deciding it. *Issue(s)  – the question that the court must decide to resolve the dispute between the parties in the case before it; a question that combines the rule of the law with the material facts of the case (facts that raise the dispute) *Ruling – court’s decision on the issue.

*** *** *** Treaties  – pacts between two or more sovereign nations a) bilateral agreement, b) multilateral agreement Statutes proper  –term to designate legislation enacted by national legislatures in the ordinary course of law-making Administrative regulation  –a subsidiary law designed to explain or carry out the details of statutes that govern an administrative agency.

Notes: Legal Research and Thesis Writing| by Maria Carmela Rojo Caupayan

rule  – any agency statement of general applicability that implements or interprets a law, fixes and describes the procedures in, or practice requirements of, an agency, including its regulations; including memoranda or statements concerning the internal administration or management of an agency not affecting the rights of, or procedure available to the public.

Sources: 1.Legal Research by Rufus B. Rodriguez 2.The Law Library: Revisiting Traditional Legal Research Methods by Myrna S. Feliciano

agency  –any department, bureau, office, commission, authority, or officer of the National Government authorized by law or executive order to make rules, issue licenses, grant rights or privileges, occupation or business, and officials in the exercise of disciplinary power as provided by law Court rules  –govern the pleading, practice and procedure before all courts in the Philippines. 5 Major Parts dealing with civil actions: special proceedings, criminal procedure, evidence, and legal ethics Case law –court opinions. 2 categories: (a) conventional decisions  –enforce all rulings rendered by regularly or specially constituted courts of justice (b) subordinate decisions  –include all rulings made by administrative and legislative tribunals case reports  –chronological compilations of court decisions (in volume) court decisions: *Supreme Court Decisions *Court of Appeals Decisions *Sandiganbayan Decisions 2 forms of state court decisions: *official reports  – issued under the auspices of the courts themselves as authoritative text of their decisions *unofficial reports – issued by commercial publishers Digests: *General digests  – contain the most recent summaries every month *Decennial digests  – contain summaries covering 10-year periods *Century digests  –contain summaries for cases written from 1658 – 1896

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Notes: Legal Research and Thesis Writing| by Maria Carmela Rojo Caupayan