Atty. ECaparas-Legal Research

7/31/2019 Atty. ECaparas-Legal Research

1/48

1

Advanced

Legal ResearchEmmanuel L. Caparas

Chair, Court Technology Department

Philippine Judicial Academy

City of Manila

17 April 2012


2/48

2

If you can raed this, you have a creavite mnid too.

I cdnuolt blveiee that I cluod aulaclty uesdnatnrdwhat I was rdanieg. Bcusae of the phaonmnealpweor of the hmuan mnid, aoccdrnig to arscheearch at Cmabrigde Uinervtisy, it dseno't

mtaetr in what oerdr the ltteres in a word are, theolny iproamtnt tihng is that the frsit and last ltteersbe in the rghit pclae. The rset can be a taotl msesand you can still raed it whotuit a pboerlm. This is

bcuseae the huamn mnid deos not raed erveylteter by istlef, but the word as a wlohe.

Azanmig! And I awlyas tghuhot slpeling wasipmorantt!


3/48

3

Woman without her man is nothing


4/48

4

Woman, without her man, is nothing


5/48

5

Woman, without her, man is nothing


6/48

6


7/48

7

Objectives

To identify various sources of informationused for purposes of legal research

To identify and be able to apply modern orcontemporary research methods


8/48

8

Fundamentalsand Principles


9/48

9

Purpose of Legal Research

to ascertain the legal consequences of

a specific set of facts (i.e., hypothetical,potential or actual)

The key to successful legal research

isgood organizationfollowed byefficient execution.


10/48

10

Facing the Facts (GAIA)

Gathering

A nalyzing

Identifying legal issues raised

A rranging issues in logical order


11/48

11

Gathering Facts

Sources

People

Physical / Tangible Evidence

Books, periodicals, reports

Expert witnesses

Apply 5Wand Happroach

Who What When Where Why How


12/48

12

Analyzing the Facts

Use TARPrule

Thing or subject matter

A ction, cause of (or ground of defense)

Relief sought

Parties, persons, places


13/48

13

Identifying Legal Issues

Results of factual analyses conductedwill bring to the fore the specific legal

matters in issue Legal research process will focus on

and attempt to resolve these matters


14/48

14

Arranging Issues

Organizing issues in a logical order leadsto better management of the research

process Helps increase the effectiveness and

efficiency of the activity


15/48

15

Conducting your research

Find the law

Read the law

Update the law


16/48

16

Research Techniques

Generalized Approach

Search through encyclopedias, treatises,

law reviews, and other secondary sources

Specialized Approach

Search on the basis of particular wordsand phrases

strong point of electronic/digital sources


17/48

17

Research Techniques

Or any of the following

Index/descriptive word method

Statute or case method (known authority)

Analytical method (known topic/table ofcontents)

Definition method


18/48

18

Research Techniques

Classify issues involved

Constitutional, statutory

Case law problem

Specific area of law

Other specifics

e.g., involving a particular person, object,place or phrase


19/48

19

Finding the Law

Sources of law

Primary authority (official sources)

statute law: Constitution, legislative enactments case law: jurisprudence

Secondary authority (unofficial sources)

written expressions of the law that analyze orinterpret the primary sources (consideredpersuasive)

e.g., annotations, law reviews and journals,

proceedings of law conferences


20/48

20

Types of Secondary Sources

Books of search

annotated reports and statutes (e.g., SCRA,PAL, ALR, U.S. Code Annotated)

loose leaf services (e.g., CCH Labor LawReporter, P.H. Tax Reporter)

encyclopedia (e.g., Alvirs Encyclopedia of Law,CJS, Am Jur)


21/48

21

Types of Secondary Sources (cont.)

Books of index

books of definitions (e.g., Morenos Phil LawDictionary, Blacks Law Dictionary, Words andPhrases)

digests (e.g., SCRA Quick-Index, ALR Digest)

citations (e.g., Shepards, Paras, Dizons) form/practice books (e.g., Tanada & Rodrigo,

Guevara Phil Legal Forms)

indexes


22/48

22

Types of Secondary Sources (cont.)

Electronic Databases

Internet-based or on-line information CD ROM and other digital media publications

The Supreme Court e-Library is properly

considered a primary source of all HighCourt decisions and other official judicialissuances appearing therein


23/48

23

Notes on Secondary Sources

They generally refer to commercial publications

or those not officially released by governmentagencies or instrumentalities. In the absence of aprimary source, they may be cited (e.g., SCRA).

In this new age of information technology,

electronic sources have become quite popular.This is due to the ready availability of hugevolumes of data in compact form, as well as therelative ease with which research is conducted.


24/48

24

Notes on Secondary Sources (cont.)

In the case of newspaper publications, there is

room to argue that they may be consideredprimary sources. Basis for this is E.O. No. 200,s. 1987 that prescribes publication in the OfficialGazette(OG) or two newspapers of general

circulation before a law can take effect. In theevent of conflict between the two versions, thatappearing in the OGholds.


25/48


26/48

26

Research of Statute Law

Where to find them

Philippine Constitution (also proceedings)

Natl Library, SC e-Library, history books,private publications

Statutes proper (also debates)

Senate/House Journal and Records, OG,SC e-Library, private publications


27/48

27

Research of Statute Law

Where to find them (cont.)

Treaties and other international agreements

DFA Treaty Series, OG, UP Phil Treaty Series,private publications

Administrative rules and regulations

Natl Administrative Register, OG, SC e-Library,private publications


28/48

28

Research of Case Law

Case law divided into:

Conventional decisions

by regularly or specially constituted courts

Subordinate decisions

by administrative and legislative tribunals


29/48

29

Research of Case Law

Case law consists of:

Supreme Court decisions

Phil Rep, SCRA, SC e-Library, privatepublications

Court of Appeals Decisions

Decisions of Special Courts Sandiganbayan, CTA

Decisions of Admin Agencies, Commissionsand Boards


30/48

30

Reading the Law

Internal Evaluation

Dicta

Similarity between factual situation and problemsearched

External Evaluation

Subsequent events

Critical comments

found in surveys, legal periodicals, treatises,annotations, and the like


31/48

31

Updating the Law

Shepards Citations

Paras/ Dizons Citations

RP Digest citator volume Computer-assisted research

BASIC LEGAL RESEARCH METHOD


32/48

32

Broad Legal Research Topic

BASIC LEGAL RESEARCH METHOD

CLASSIFICATION

ConstitutionalAdministrative

CivilCriminal

Commercial

ProceduralSubstantive

FOCUS BY USING LEGAL INDEXES

BACKGROUND RESOURCES

Legal EncyclopediaALR

Law Summaries / Digests /Restatements

TextbooksLegal Periodicals

Treaties / MonographsForm Books

CONSTI / STATUTORY LAW

ConstitutionTreatiesCourt Rules

StatutesAdm. RegulationsOrdinances

AnnotationsCitatorsWords & Phrases

RELEVANT CASES

CITATORS DIGESTS

COMPUTERS

OR


33/48

33

Helpful Tips

The ultimate goal in legal research is to findmandatoryprimary authorities bearing on thelegal issues at hand. If these are non-existent or

scarce, the next priority is to locate persuasiveprimary authorities. Should this still fail, relevantsecondary authorities are the next resort.

When a search is focused on primary sources,statutesshould be the first priority. Reason: theycan control other types of primary sources (exceptconstitutional provisions).


34/48

34

Helpful Tips

Summaries (e.g., case headnotes and digests,statutory annotations, etc.) are not necessarilyaccurate or authoritative statements of the law.

While they may be helpful as guides, they cannever stand in place of the primary authoritiesthemselves. There is no substitute for readingthe law in its complete, if not originalform.

Titles of sub-topics used in case digests, as wellas indexes in secondary reference sources (e.g.,legal encyclopedias), do not classify legal subjectmatter with scientific precision.


35/48

35

Helpful Tips

When searching thru a secondary source,start by reading the table of contents, prefaceor other introductory remarks (e.g., ScopeNotes or Scope Analysis). These sectionsexplain the coverageof the reference workand may help determine at the outset its

relevance or usefulness to the research.


36/48

36

Helpful Tips

Always begin legal research by surveying thelatest source material, gradually moving on toearlier material, in order to maximize time. In

the process, make sure to indicate the date ofeach research to facilitate future searches onthe same subject matter.

Make it a habit to look for authorities thatsupport all proferred arguments and positions inrespect of the contentious legal issue/s at hand.


37/48

37

ElectronicLegal Research


38/48

38

Electronic Legal Research

Contemporary Approaches

Manual methods

Computer-aided or digital tools

CD-ROM or DVD

Internet-based

Handheld devices


39/48

39


A Matter of Methodology

Traditional methods: manual search

books and other sources and materials inhard copy

Electronic methods: computer-aided search

CD-ROM / DVD

Internet-based

others (e.g., handheld devices)


40/48

40


In this new age of ICT, electronic researchmethods have become quite popular. Thisis due mainly to the quick availabilityofvoluminous datain compactand readilyaccessibleform, as well as the relativeeasewith which research is conducted.


41/48

41


Main Advantages

More comprehensive search options and

coverage

Quick results

Work efficiency

Mobility


42/48

42


A few notes in general

Non-traditional research conventions

search by any word/character or series of words/characters (including dates and proper names)

Hyper-linked materials

Massive information in compact flexible media

Ease of access and utility

Relatively lower costs

publishing, delivery, storage, updating andmaintenance


43/48

43


Web / Internet / Online Sources

Ready access to massive amounts of

information whether legal, law-related or unrelated

Information at your fingertips

literally, anytime and anywhere


44/48

44


Helpful Tips

First priority: original sources of information

Absent the original, look for sources andmaterial that are:

authentic or authorized (not pirated)

professionally produced or published

at the very least, demonstrably reliable


45/48

45


CD-ROM and DVD

SC e-Library

Laws and Resolutions, 1992-2007 (Houseof Representatives)

Justitia et Lex(PHILJA)

Lex Libris, etc. (CD Asia)

Accesslaw e-Library (Agoo)


46/48

46


Websites

Judiciary Portal (www.judiciary.gov.ph)

SC and CA, SB & CTA SC e-Library

PHILJA Digital Library

Private Sites (Free)

Chan Robles Virtual Law Library(www.chanrobles.com)

Arellano Law Foundation

(www.lawphil.net)


47/48

47


Websites

Private Sites (Commercial Subscription)

CD Technologies Asia, Inc.(www.cdasiaonline.com)

Lexis-Nexis

(www.lexisnexis.com)

Westlaw (www.westlaw.com)

Other Free Sites

public sector entities

private domains


48/48

48

Samples

Atty. ECaparas-Legal Research

Documents

Transcript of Atty. ECaparas-Legal Research