Research

Research SCANNER Normal JOJO 3 16 2002-01-15T05:29:00Z 2002-01-15T05:30:00Z 2 914 5210 SC 43 10 6398 9.2720 110

JUDICIAL RESEARCH

I. INTRODUCTION

The purpose of legal research is to ascertain the legal consequences of a specific set of actual or potential facts. It is always the facts of any given situation that suggest – indeed dictate – the issues of law that should be the subject of research.

The key to successful legal research is organization. As with any simple task, one needs a 'game plan' that helps accomplish and complete the job as quickly, efficiently and thoroughly as possible. For legal research, the best 'game plan' is to break down the process into basic steps.

II. CONDUCTING LEGAL RESEARCH

1. Critical Fact-Related Steps That Must Precede Research In Law Books

1.1 Gathering the facts;

1.2 Analyzing the facts;

1.3 Identifying the legal issues raised by the facts; and

1.4 Arranging the legal issues in a logical order for research.

1.1 Gathering the facts

People – clients, witnesses, victims to an event

Tangible Evidence – contract, weapon, etc.

Books, periodicals and reports

Expert witness, if any

In gathering facts from various sources in a particular case, use the '5 W and 1 H' technique:

Who did it and to whom?

What was done?

When was it done?

Where was it done?

Why was it done?

How was it done?

1.2 Analyzing the facts – the TARP rule:

T THING or SUBJECT MATTER in controversy –

Property? Will? Automobile? Contract?

A CAUSE OF ACTION or GROUND OF DEFENSE

Breach of contract? Negligence? Torts? Estopel? Impossibility of performance?

R RELIEF SOUGHT

Civil suit for damages? Injunctive or declaratory relief? Abatement of nuisances? Rescission of contract?

P PARTIES, PERSONS, PLACES

Do they fit within a group or class – Infancy or incapacity?

Relationship between parties – husband & wife?

Employer employee? Attorney & client? doctor & patient?

Landlord and tenant?

Commercial activities or professional activities -

Insurance? Banking? medicine? Shipping?

1.3 Identifying the Legal Issues

Combining summaries of analysis would determine the specific legal problem.

These issues are questions that the legal research process will attempt to answer.

1.4 Organizing the Legal Issues In a Logical Order.

This will increase the efficiency and effectiveness of your research.

1.5 Doing Legal Research

1.5.1 Finding the Law

1.5.2 Reading the Law

1.5.3 Updating the Law

2. Law Finding Techniques

2.1 Approaches

2.1.1 Specialized approach

2.1.2 Words and phrases or definition approach

2.1.3 Generalized approach through

2.1.3.1 encyclopedias

2.1.3.2 treatises/textbooks

2.1.3.3 law reviews

2.1.3.4 other secondary legal sources

2.1.4 Or Utilizing One of Four Methods

2.1.4.1 Index/Descriptive word or fact word approach

2.1.4.2 Known authority/statute or case method

2.1.4.3 Known topic/table or contents or analytical method

2.1.4.4 Definition method

3. Classifying The Issues Involved In The Problem

Is it a constitutional law problem? Statutory? Administrative law? Case law problem?

4. Finding The Law

4.1 Sources of Law

4.1.1 Primary Materials

These consist of the law itself, as expressed in the provisions of the Constitution, statutes, courts decisions, etc. They are mandatory authorities and are cited first. Materials are classified into:

4.1.1.1 Statute law

4.1.1.2 Case law

4.1.2 Secondary Materials

All other written expressions of the law which interpret or analyze primary authorities are secondary sources and are considered persuasive materials. Other secondary sources include legal periodical articles in the Philippine Law Gazette, National Law Review, Ateneo Law Journal, Far Eastern Law Review, Philippine Law Review, San Beda Law Journal, other bar publications, and proceedings of law conferences.

4.1.2.1 Books of Search

a) Annotated Reports/Statutes with annotations as secondary authority

� Supreme Court Reports Annotated (SCRA)

Consult the Index to SCRA Annotations, Volumes 1 – 287 (1961-1998 ) published by the U.P. Institute of Judicial Administration or the SCRA annotations on individual subject fields which are published separately by the Central Law Book Co.

� Philippine Annotated Laws (PAL)

� American Law Reports (ALR)

� U.S. Code Annotated (USCA)

� U.S. Code Service (USCS)

b) Loose-leaf Services

� U.S. Law Week

� Publications of the Commerce Clearing House and Prentice Hall deal on labor law, taxation, etc.

c) Encyclopedias

� Corpus Juris Secundum (CJS)

� American Jurisprudence (Am. Jur.)

4.1.2.2 Books of Index

a) Books of Definitions

� Moreno, Philippine Law Dictionary

� Sibal, Philippine Legal Encyclopedia

� Black's Law Dictionary

� Ballentine's Law Dictionary

� Bouvier's Law Dictionary

� Stroud's Judicial Dictionary of Words and Phrases. (4 th ed., 1974). 5 v.

� Words and Phrases. 45 v.

Consult digests under the term 'words and phrases'

b) Digests

� Martinez, Summary of Supreme Court Rulings

� Philippine Digest/Republic of the Philippine Digest

� SCRA Quick Index Digests

� Case Digests of Supreme Court Decisions published by the Supreme Court.

� American Digest System (topic, case and descriptive approach) Decennial Digests up to the 10 th Decennial Digests, 1986 – 1996 are published every 10 years, with the current volume entitled General Digests in three to four volumes per year

� ALR Digest, 1 st to 4 th series

c) Citations

� Dizon's Philippine Citations (1937)

� Paras, Philippine Citations

� Shepard's Citations to various U.S. federal, state reports and particular National Reporter Series.

d) Form-books/practice books

� Ta�ada & Rodrigo, Philippine Legal Forms

� Guevara, Philippine Legal Forms, Annotated

� Fisher's Philippine Business and Legal Forms

� Sia, Legal Forms in English and Filipino

� Martin, Handbook of Legal in Judicial Forms

� Pe�a, Legal Forms in Real Estate Conveyancing

� American Jurisprudence Legal Forms Annotated, 1953 – 1963

� 14 v. in 15. 2 nd edition, 1971 – 1974. 22 v. in 20

� American Jurisprudence Pleadings and Practice Forms

� Rabkin & Johnson, Current Legal Forms, with Tax Analysis. 12 v. in 22.

e) Indexes

� Magsino's Compendium of Philippine Jurisprudence; Supreme Court Decisions form 1945-1980

� Supreme Court Library Service, Subject Index to the Official Gazette (1945-1985. 2 v. (1993)

f) Tables

� National Reporter Blue Book

4.1.2.3 Opinions of Legal Experts

4.1.2.4 Other State & Foreign Sources

� Example: U.S. jurisprudence in Constitutional Law