IMPORTANCE OF LEGAL RESEARCH METHOD FOR LEGAL PROFESSIONALS·

 INTRODUCTION:
No doubt, mastering legal research is a primary element in achieving success and
growth in the legal profession. Our law school studies do not emphasize legal
research as an essential component in the curriculum and thus students, legal
professionals, legal researchers and the person so concerned are unprepared to
consider the larger picture of law practice - resolving legal problems and the act
of legal research have become increasingly challenging and complicated to the
legal professionals, legal researchers and the students. As we know, that legal
research can either make or break a case. Thus, a legal professional discovers that
learning about the legal research process means learning the tools of legal trade.
Law is the entire body of rules of conduct created by the government and
enforced by the authority of government.
Before we begin with legal research,
an explanation must be made on how the law
relates to our government system. Legal research makes sense when we
understand how particular law books relate to the legal and political institutions
that create law. The Constitution of the Kingdom of Nepal provides that our
government be divided into three branches: such as legislative, executive and the
judiciary. The each of the branches has a particular role in making laws. All the
same, there is a system of check and balances, which illustrates the interplay
among the three branches.
The legislature is composed of the National Assembly, House of Representatives
and the king enacting laws or Statutes. The executive branch, which is headed by
the Prime Minister of the Council of Ministers, is charged with the enforcement of
laws in cooperation with its different agencies. Since the various department and
administrative agencies under Executive body are assigned to implement the laws,
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the said agencies are given with certain powers by virtue of the Statue to issue the
necessary rules and regulation pursuant to the standards so prescribed by the
Statutes. Council of Ministers has also powers to issue administrative and
executive orders. Once enacted, the Constitution, the Judiciary, Attorney General
and Secretary of the Ministry of Law, Justice and Parliamentary Affairs interpret
Statutes and regulations, if it is brought before them. Their interpretations and
opinions are usually contained in decisions or written opinions on specific issue
raised in litigated disputes. The judicial powers rest with the Supreme Court and
in the lower courts as established by law. The lower courts of Nepal are Appellate
Courts, District Courts, Special Courts, tribunals to be constituted from time to
time and the newly created Family Courts and Juvenile Courts.
The Supreme Court is the highest court of the Country and the precedents and
principles laid down by the said Court are binding on all including the Courts.
Thus no doctrine or principle of law laid down by the Court in a decision rendered
en banc or in division may be mo dified or reversed except by the court Sitting en
banc. The Supreme Court also frames and charts rules on pleading, practice and
procedure in all courts.
There are administrative agencies, which belong to the Executive but are
empowered either by the Constitution or Statue to hear and decide certain classes
or categories of cases and thus, exercises quasi-judicial powers. Examples of
quasi-courts created by the Constitution are the Public Service Commission,
Election Commission, Land Reform Officer, Civil Aviation Authority of Nepal
and Commission for Investigation of Abuse of Authority etc.
Their decisions may be appealed in the Court of Appeals and the Supreme Court.
This is a descriptive and analytical research; therefore, this research paper will be
based on a few primary sources and primarily on secondary sources published in
national and international periodicals, books and other sources.
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The first chapter of this research paper briefly discuss about the meaning of legal
research and objectives. The second chapter deals with the aid memories of legal
research and there will be a brief discussion about aid memories of research and
the sources to be followed by the legal professional while carrying out the legal
research. The third chapter deals with the method of finding laws and there will
be discussed about the method of legal research and computer assisted legal
research in keeping view to the different websites created by the agencies so
concerned. The fourth chapter briefly discuss about the memorandum to be
prepared by the legal professionals and finally, the fifth chapter deals with the
conclusion.
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Chapter -1
1. Meaning of legal research:
“Legal research is the field of study concerned with the effective marshaling of
authorities that bears in a question of law” 1
“The systematic investigation of problems and matters concerned with such as
codes, acts etc. is called legal research.”2
“Legal research is an investigation directed to discovery of some fact; careful
study of a subject."3
Keeping in view to the said definitions, we can say here that legal research is an
act that discovers the legal principles relevant to a particular problem and it is the
foundation for good legal advice.
2. Objective of legal research:
As we know that, all research has its objective and this objective is the collection
of authoritative material relevant to problem. These authoritative materials
comprise legislation in force and judicial decisions. Judicial decisions need to be
divided into (a) binding and (b) persuasive authorities. They are binding if they
meet the following conditions:4
· They are decisions of a higher court (or, sometimes, a court of coordinate
status) in the same jurisdiction; and
· There are theoretical and practical difficulties in determining when a decision
is directly relevant.
If either or these conditions is unsatisfied the decision is merely persuasive.
It may be objected that this statement of the basic objective of legal research
places and undue emphasis on litigation and that the vast majority of situations in
which a legal professional is consulted are situations win which no litigation is
1 . Henry Compbell Black, Black's Law Dictionary, P. 846.
2 . S.R. Myneni, Legal Research Methodology, P. 3.
3 . Ramanath P. Aiyer, Concise Law Dictionary , P. 745.
4 . Enid Campbell and Mac Dougall, Legal Materials, P. 157.
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contemplated and in which none occurs. In such circumstances, comprehensive
legal research may involve an inordinate use of the office’s resources. They reply
to this is obvious. Legal research is the foundation for good legal advice. Before
advising a client a legal professional should satisfy himself that, if the necessity
arises, he will be able to persuade a court that there is a legal principle which is
supported by convincing authority and which, properly interpreted, governs the
questions in dispute. Poor legal research may result in advice which, at the least,
is incomplete and inaccurate, and which, at the worst, may be positive wrong.
Quite apart from questions of professional negligence, no responsible lawyer will
want to compromise with mediocrity. If litigation arises unexpectedly, it may be
too late to remedy the miscalculation of the past. All legal advice should be given
on the basis that litigation is an ever-present possibility.
The sheer mass of authoritative materials is the greatest difficulty confronting
some one engage in legal research. If the problem involved is a simple one, which
arises continually in practice, and experienced legal professionals may be able to
select the appropriate statute or case report immediately from his library shelves.
However, this store of built-in knowledge is rapidly exhausted. What is the legal
professional to do when he is faced with an unusual problem and the frightening
array of volumes of legislation and judicial decisions available in any modern law
library?
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Chapter -2
AID MEMORIES OF LEGAL RESEARCH
We can take aid memories of legal research to the sources as follows.
Primary and Secondary Sources:
Primary sources contain the actual law. Constitutions, court decisions, cases,
statutes, treaties and administrative regulations are all examples of primary
sources.
Secondary sources are materials, which comment, explain and annotate on these
primary sources. Usually, they include treaties, legal periodical, articles, legal
encyclopedias, annotations, law dictionaries, commentaries, continuing legal
education publications, opinions of the Attorney General, Secretary of the
Ministry of Law, Justice and Parliamentary Affairs and other agencies.
On the other hand, finding tools are reference publications, which are used to find
out primary and secondary sources. They include digests, indexes to legal
periodicals, indexes to annotations, law dictionaries and citations.
1. Primary Sources: The following sources are considered as primary sources in
the legal research by the legal professionals.
1. Constitutions,
2. Statutes,
3. Treaties,
4. Court decisions, and
5. Administrative regulations.
2. Secondary Sources: The following sources are the secondary sources used in the
legal research by the legal professionals.
1. Treaties,
2. Commentaries,
3. Law review/Legal periodicals,
4. Articles,
5. Continuing legal education publications,
6. Law encyclopedia,
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7. Annotations, and
8. Opinions of the Secretary of Justice.
3. Finding tools: The sources as mentioned above can be found from the finding
tools and the finding tools are as follows.
1. Digests,
2. Indexes.
3. Annotations,
4. Legal citations, and
5. Law dictionaries.
Legal research calls for judgment, creativity and flexibility. There are many
approaches to legal professionals. Each research situation calls for different
strategy and depends on the working familiarity of the legal professionals in the
area of law being researched. The ultimate goal of any legal professional is to find
the primary source materials applicable to the problem as efficiently as possible.
4. Five-step approach to legal research:
Professor Myrana S. Feliciano views that the legal professionals while carrying
the research shall have to follow five-step approaches and these steps will help the
researcher so concerned to gather the essential facts required for the research.5
These steps are as follows.
1. All facts on paper:
This is very simple if we utilize the five "Ws'" and one "H" in gathering the
essential facts of the problem.
· Who did it and to whom?
· What has it done?
· When was it done?
· Where was it done?
· How was it done?
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The research can either do it in outline form first and then resort to the narrative
from later on when the legal professional start doing his memorandum or
pleading. These facts should be concisely stated.
While researching on any legal problem, one must look under the right words in
the indexes. An efficient way to utilize indexes and digest is to use the TAPP rule.
TAPP is an acronym for Things, Actions, Persons, and Places. Using the TAPP
rule, the legal professional can categorize the facts into terms the author or
publisher might have used to index the legal problem. Think of common or
generic words suggestive to the Thing, Act or the Person without which there
would have been no controversy. Sometimes, the legal professional must consider
the relationship of parties to each other or whether they belong to a special class.
For Example:
In Basantapur or Kathmandu Municipality a child eight years of age was playing
in their backyard with a child of the neighbor when a dog owned by the neighbor
bit her. She was treated for multiple lacerated wounds in the hospital and was
administered an anti-rabies vaccine by a doctor. According to the neighbor, the
dog was tame and was merely provoked by the child into biting her. You are
asked to research on this matter. What key words will you research on among the
reference or finding tools?
2. All Issues on Paper:
For legal professionals so concerned with the awarding of judgment, it is easy to
spot issues because the pleadings themselves through the complaint and answer
place the issues before the court especially after the pre-trial procedure. But if it is
merely a problem or a case, it is hard to spot the issues, whether patent or hidden.
This process is the core of the analytical process inherent in legal research. Legal
issues involve questions about how the law relates to the facts of the case.
Accordingly, issues such as jurisdiction and statute of limitations precede other
5 . Myrana S. Feliciano, Methodology in Legal Research, P. 1- 6.
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issues if their legal requirements are not met, the entire lawsuit will be dismissed.
Another guideline to be remembered is that issues dealing with the legal claim or
"because of action" should precede issues dealing with relief or remedy sought
because only a limited range of remedies is available for each of the action.
Thus, in the given example, certain issues may be formulated.
a. Was there any negligence on the part of owner who own the dog?
What are the elements of the negligence?
b. Was there any action on the part of the child, which induced the
dog to bite him?
c. How about the minority of the child? Does it affect the outcome of
the case?
d. What is the liability of the owner of the dog, which bit the child?
e. Did owner see to it that the dog received regular anti-rabies
vaccine?
The legal professional has to arrange the legal issues raised by the facts in the
logical order for research.
5. List of Books to Use:
The best plan is to make a list of books or publications in the order so that it can
be consulted with reference to the case.
6. Gather Authorities:
Before the legal professionals can proceed to it, he/she has to classify the problem as
follow.
· Is it a constitutional problem?
· Is it a statutory problem?
· Is it an administrative law problem?
· Is it a case law problem?
· Is it a procedural law problem?
Once the subject field is ascertained as mentioned above, it is better to list down the
treaties or textbooks that can be consulted to obtain background information.
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After that the legal professional must examine legal indexes and digests to locate
"mandatory primary" authority, which the courts must follow. What are these
mandatory primary authorities? It includes Constitution, Statutes, treaties,
administrative regulations and rulings, courts rules and cases.
If there is no primary authority that addresses the issues, then it is better and look for
"persuasive primary authority." This is primary authority, which is not binding on the
courts such as the opinions of the Attorney General, Secretary of the Ministry of Law,
Justice and Parliamentary Affairs, the interpretations of administrative agencies, and
primary authorities from foreign jurisdiction. Note that in order to utilize foreign
authorities, their law must be similar to legal professional to which he/she belongs.
Another alternative is to locate secondary authorities and other persuasive materials
such as textbooks, commentaries, annotations, surveys, legislative history and
periodical articles that comment or criticize certain statutes or cases
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Chapter -3
MEHODS OF FINDING LAW
1. Main Methods of Finding Law:
Professor Clyde Emery, namely, suggested that there are two methods of finding
materials, which are as follows.6
1. The Short Cut or the "100 Meter Dash:" Method:
The short cut or the "100 Meter Dash" method usually consists of the
following steps:
(a) Exhausting the statutes and their annotations and/or digest on the
point under search;
(b) Reading the cases so found.
As we read each provision or case, ask the following questions: Does that
provision or case bear (favorably on unfavorably) on the point? Mark the material
found with a piece of paper and indicate the pages which the legal professionals
can use and indicate whether it is pro, contra, analogous, or distinguishable the
issue. Leave this marker in the book.
2. The Long or? Marathon" Method:
The long or? Marathon method turns back to the list of books to be used as
Primary sources, secondary source and their finding justice. Each book should be
expanded thoroughly. Whenever there is a listing of cases or statutes, either in the
text or in footnote, the legal professionals has to note or read them.
2. COMPUTER-ASSISTED LEGAL RESEARCH (CALR)
Computer-assisted legal research (CALR) provides for new ways to find and read
he law. It is defined as research that is conducted with the use of computers,
6 . Emery Clyde, A Streamlined Briefing Technique, P. 15-31.
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computer networks and CD-ROMs.7 The word Internet means a computer
network linking over large number of computer networks together that open new
opportunities for legal and non-legal research. When a legal professional goes on
line, this is used to describe one who is using a computer to connect by a modem
to the memory of another computer stored at a remote location.
1. Formulating the Search:
Before going on-line, the legal professionals should have a working knowledge of
the legal issue being researched. The legal professionals has to remember that online
computer research can be expensive because the organization so concerned
will class us or are being charged of computer time. It is also imperative to select
the proper database.
2. Internet Sources:
Examples of Internet sources are as follows:
1. URL LINKS TO MINISTRIES, DEPARTMENTS,
COMMISSIONS ETC
S.N. Name of the Ministry Web Site URL
1 Ministry of Population & Environment www.mope.gov.np
2 Ministry of Forest & Soil Conservation www.biodiv-nepal.gov.np
3 Ministry of Finance
4 Ministry of Industry, Commerce & Supplies www.moics.gov.np
5 Ministry of Culture, Tourism & Civil Aviation www.tourism.gov.np
6 Ministry of Foreign Affairs www.mofa.gov.np
7 Ministry of Local Development www.mld.gov.np
8 Ministry of Home www.moha.gov.np
9 Ministry of Science and Technology www.most.gov.np
10 Ministry of Defense www.rna.mil.np
11 Ministry of Health www.moh.gov.np
12 Ministry of Information & Communication www.moic.gov.np
13 Ministry of Law, Justice & Parliamentary Affairs www.moljpa.gov.np
14 Ministry of Labor & Transport Management www.moltm.gov.np
15 Ministry of Education & Sports www.moe.gov.np
7 . S.Barba and M.A .McCormick, Legal Research, P.P. 206-207.
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S.N. Name of Commission Web Site URL
1 National Planning Commission www.npc.gov.np
2 Election Commission www.election-commission.org.np
3 Supreme Court www.supremecourt.gov.np
4 Commission for The Investigation of Abuse of
Authority
www.akhtiyar.org.np
5 Parliament www.parliament.gov.np (corrected)
S.N. Name of other Institutions Web Site URL
1 Nepal Telecommunication Authority www.nta.gov.np
2 Nepal Rastra Bank www.nrb.org.np
3 Radio Nepal www.catmando.com/radionepal
(Source: Ministry of Science and Technology)
2. Find Law:
www.findlaw.com
Contains U.S. federal and state cases, statutes and rules etc.
3. Website of United Nations
http://www.unsystem.org/
http://www.un.org/aroundworld/map/
http://www.un.org/
http:/www.un.org/documents/
http:/www.un.org/Depts/dhl/resguide/index.html
http:/www.icj.org.
http:/www.un.org/Depts/dhl/resguide/spechr.htm
http:/www.unhchr.ch/women/focus.html
http:/www.unhchr.ch/women/
http:/www.unhchr.ch/women/genderequality.html
http:/www.unhchr.ch/tbs/d…/CERD+General+recom.+25.En?Opendocum
5/30/02
http:/www.unhchr.ch/html/menu2/7b/tm.htm
4. Website of United Nations Relating to Human Rights Bodies:
1. Commission on Human Rights (Country and Thematic Mechanism, Resolutions,
Decisions and Various Documents of the Commission
(http:/www.unhchr.ch/html/menu2/2/chr.htm and
http:/www1umn.edu/humanrts/commission/commission.htm).
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2. Human Rights Committee (Individual Complaints, Decisions, Official Records,
Country Report and General Comments, Decisions, and Views, and Annual
Reports (http:/www.unhchr.ch/html/menu2/6hrc.htm and
http:/www1.umn.edu/humanrts/hrcomittee/hrc-page.html).
3. Committee Against Torture (Individual Complaints, Decisions, Country Report
and Consideration of Reports and Decisions and views
(http:/www.unhchr.ch/html/menu2/6cat.htm and
http:/www.umn.edu/humanrts/cat/cat-page.html).
4. Committee on the Elimination of Discrimination Against Women (Country
Report and Other Documents, Various Documents and CEDAW Committee
(http:/www.unhchr.ch/html/menu2/6/cedw.htm,
http:/www1.umn.edu/humanrts/cedaw/cedaw-page.htm,
http:/www.un.org/womenwatch/daw/cedaw/commit.htm and
http:/www.un.org/womenwatch/daw/cedaw/archive.htm)
5. Committee on Right of Child (Country Reports, Other Documents and Comment
on Country Report) (http:/www.unhchr.ch/html/menu2/6crc.htm and
http:/www1.umn.edu/humanrts/crc/crc-page.htm)
6. Committee on Elimination of Racial Discrimination (Individual Comments,
Selected Decisions, Country Reports, Other Documents, General
Recommendations, Opinions, Country Observations, Decisions and Other
Documents and World Conference Against Racism
(http:/www.unhchr.ch/html/menu2/6/cerd.htm,
http:/www1.umn.edu/humanrts/country/cerd-page.htm and
http:/www.racism.gov.za/)
7. Committee on Economic, Social and Cultural Rights (Various Documents and
Country Report and General Comments, Concluding Observations on Country
Reports and Other Documents) (http:/www.unhchr.ch/html/menu2/6/cescr.htm
and http:/www1.umn.edu/humanrts/esc/esc-page.htm)
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5. Website of Other United Nations Human Rights Documents:
· UN human rights document (http:/www.unhchr.ch/html/otherdoc.htm,
http:/ilis.ilo.org.trib/ilintrtr.html and
http:/ilolex.ilo.ch:1567/public/English/50normes/infleg/iloeng/digestq.htm
6. European Human Rights System:
a. European Courts of Human Rights (http:/www.echr.coe.int
(General information, pending cases, and judgments)
b. European Commission of Human Rights
(http:/www.humanrights.coe.int/)
c. Council of European Case-Law
Collection(http:/hudoc.echr.int/hudoc/)
7. Inter-American Human Rights Systems:
a. Inter-American Commission (annual reports from 1991-1999)
(http:/www.cidh.oas.org/publications.htm)
b. Inter-American Court Jurisprudence
(http:/www.corteidh.or.cr/juris_ing/index.html)
c. Inter-American Court of Human Rights Advisory Opinions and
Contentious Cases
(http:/wwwl.umn.edu/humanrts/cases/commisin.htm)
d. Inter-American Human Rights Database
(http:/www.wcl.American.edu/pub/humright/digest/index/html)
(Source: ASIL Guide to Electronic Resources for International Law)
8. World Law:
http:/beta.austlii.au/links/world
9. Project Dial (Development of the Internet for Asian Law):
http://www.austii.edu.au/dial/ located anywhere on the Internet a search
facility for finding legal resources.
10. ASIL Guide to Electronic Resources for International Law:
www.asil.org/resouce/home.htm
11. CD ROMs Available: Available in the Nepal Bar Association.
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12. Foreign CD's:
· Tiara. Treaties and International Agreements Researchers Achieves.
· USSC+CDROM. Unites States Supreme Court (1953-1997).
· Wilson Disc. Index to foreign periodicals and books.
· CRC Publications. International Committee of the RED Cross.
· REFWORLD. United Nations. WB Product, 1997.
· No Peace Without Justice. United Nations Documents.
· Multilateral Treaties Deposited with the Secretary General:Status as at 31
December 2002.
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Chapter -4
MAKING LEGAL PROFESSIONALS MEMORANDUM
Before proceeding with a formal memorandum, an outline or skeleton
memorandum should be made. This provides series of answers listed in No. 2,
with all the materials found on each question, so that the strength of each
proposition can be measured at a glance. This is usually handy in preparing for a
trial or briefing job for a client.
The formal memorandum of varying degrees of formatting is usually required in
the following:
a. Appellate brief;
b. Brief to be submitted to a trial judge;
c. Memorandum to an opposing, counsel;
d. Memorandum to a "law conscious" client;
e, Proposed contents of a decision.
In making memorandum, the legal professionals have to pay attention to the
grammar, the substantive content, the brevity of arguments and its development,
the preciseness of the words used, and the accuracy and completeness of the
citations.
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Chapter –5
Conclusion
Conclusion:
Legal research plays a very important role in recommending solutions to existing
problems of the society or in solving the already solved problems in better way. It also
helps to discover or invent new legal ideas and technologies for legal professionals. As
we know, that legal research can either make or break a case. Therefore, legal
professionals must carry out on their parts some level of legal research before filing a
lawsuit and giving verdict to it. Failing to pursue research, a case may fail to present its
strength and verdicts may be made in favor of wrong person. Legal research helps
analyze legal professionals about the case effectively and award justices to the genuine
victims.
Practices of legal research do exist in Nepalese legal practices but not in a state that has
been followed the particular legal research method. Research is carried out in a very
limited way. In order to carry out legal research, by the legal professionals, it shall be
required to follow the legal research method as mentioned above efficiently and
effectively by all legal professionals.
In the end legal research method helps to impart just and genuine verdict in favor of true
victims. It enables the legal system to function effectively. To effectively function the
judiciary of a country, legal professionals including legal research have a crucial and very
important role to play.
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Bibliography
1. Anne Burnet et al, ASIL Guide to Electronic Resources for International Law,
2nd revised and expanded edition, American Society of International Law,
Washington D.C: 2002.
2. Emery Clyde, A Streamlined Briefing Technique, 4th edition, Oxford
University Press, Oxford: 1998.
3. Enid and Donald Mac Dougall, Legal Research: Materials and Method, 3rd
impression, the Law Book Company, Sydney, Australia: 1974.
4. Henry Compbell Black, Black’s Law Dictionary, 7th edition, the Publishers
Editorial, USA: 1999.
5. Ministry of Science and Technology, URL Links to Ministries, Departments
and Commissions, Kathmandu: 2002.
6. Myrana S. Feliciano, Methodology in Legal Research, PHILjA, Philippine:
2002.
7. Ramanath P. Aiyer, Concise Law Dictionary, Abridged edition, Law
Publishers, New Delhi: 2001.
8. S. Barbara & M.A. McCornick, Legal Research, 2nd edition, George Allen
and Unwin, London: 1996.