Legal Research
ð Investigation for
information necessary to support legal decision making
The Need for Legal Research
ð It is a matter of
professional responsibility in providing a competent representation to a
client. Competent representation includes legal knowledge, skills,
thoroughness, and preparation necessary for representation.
ð Since the laws are
changing constantly, laws are repealed and new ones are implemented, a lawyer
should research such changes to avoid malicious prosecution and to prepare proper
and related jurisprudence in line of representing a client.
ð It is important that a
lawyer should have an efficient and effective research plan not only for
competent representation but also in upholding legal profession.
Sources of Legal Research
ð Printed
ð Electronic
Sources of Law
ð Primary Sources
Recorded laws and
rules which will be enforced by the State
Ä Codes and Statutes
passed by the legislature (Civil Code, RPC)
Ä Regulations and
rulings of administrative agencies (Administrative Laws – Memorandum, Circulars,
EO)
Ä Judicial Decisions of
appellate courts (CA and SC, jurisprudence)
Ä Official Gazette
ð Secondary Materials
Not primary authority
yet persuasive. Discussed or analyzes legal doctrine.
Ä Treatises – Those law books, which in connected
literary form, discuss, criticize, restate or attempt to bring about the change
in ideas concerning law as a tool or concerning one or more propositions of law
Ä Commentaries – are books which in logical order attempt
to deal in a broad way with the whole law of jurisprudence. (Menresa)
Ä
Academic Journals (IBP journals and
Lawyers Review)
ð Finding Tools
Materials that needed
to locate laws and regulations
Ä Digest (SCRA quick
index digest)
Ä Annotations
Ä Phuljuris and Lex
Lebris
Systematic Approach to Legal Research (IFRU)
1.
Identify and analyze
the significant facts (TARP)
T – Things or subject matter
Is it a claim or a violation of contract
A – Cause of Action or group defense
What is the violation? Breach of
contract or a criminal violation?
R – Relief sought
Civil action for damages? Centiorari,
mandamus?
P – Persons or parties involved
Relationship of parties, lessor or a
lessee, spouses, relatives?
2.
Formulate the legal
issue to be researched
The goal is to
classify or categorize the problem into general, and increasingly specific,
subject areas and to begin to hypothesize legal issues.
Begin the consultation
to secondary sources of law. Written legal issues should be written in a
comprehensive outline.
3.
Research the issues
presented
Start to organize and
plan. Research statutes or sources to be use. It should be systematic,
methodical, and organized.
4.
Update
Update yourself since
laws changes constantly. Some of the laws maybe modified or repealed already
used and interpretations to such laws may have been modified. It is important
to avoid the questioning or legal competency and avoid malicious prosecution
Case
Briefing
It is a digest or condensation of a reported
case. It is concise or brief. Facts however should be complete. When a statutes
are cited, it should be copied in verbatim specially in quoted key words.
1.
Facts
Describe the events
between the parties leading to the litigation and tell how the case came before
the court that is now deciding it. The facts should be related to the issue.
2.
Issue(s)
It is the question
that the court must decide to resolve the dispute between the parties. To find
the issues, first, the rule of law that governs the dispute should be
identified.
3.
Ruling
It is the decision of
the court on the question or issue. It is sometimes referred to as the holding.
It is supported by courts reasoning on explaining of the decision. It should
contain both substantial and procedural requirements.
Legal
Citations
J Chinese Names – Co Kim Chan (whole name)
J Muslim Names – Saddam Hussen (whole name)
J Compound Names – Buenviahe-vds. De Morales; Legarda-Leviste
J Criminal Crimes – People v.
J Government – Republic v. (annulment of titles,
marriages)
–
Government v. (taxes)
J Municipality – Municipality of Baguio
J Public Officer – Angara
v. (even if in the exercise of their function)
J Special Proceedings – In Re Garcia (connecting entry in birth
certificate, adaption, changing name, petition for naturalization)
– Ex Parte Garcia (presenting case w/o
representative)
Citing Cases from:
J Official Gazette
Volume Page Number
G.R. 12345, Jan. 1, 2009, 53, O.G., 123,
(Jan, 2009)
General Register Date of Promulgation month & year of promulgation
J Advance Decision (not yet published in O.G.)
G.R. 12345, Jan. 1, 2009
J Court of Appeals
Decision
People v. De la Cruz , C.A.
J Court of Appeals
Advance Decision
Court
of Appeals General Register (C.A.
People v.
J Textbooks
“quotation from the
book” volume, family name of the author - title of the book, pg #
J Treaty
US
and RP, July 4, 1946, 42 O.G., July 1946
Parts of the Case
1.
Title
– it shows the name of
the parties and G.R. #
– Caption – undigested
names of the parties involve
2.
Syllabus or Headnote
– a syllabus to a
reported case or the summary of the
points decided. Which is placed at the head or beginning of the report.
– same, same, same
(not in advance decisions)
3.
Statement of facts out of which the controversy arose
– from where the facts came from
(defendants, petitioner or lower court)
4.
Abstract of briefs of Counsels
5.
Opinion of the Court
– this part is where the statement of
decision of the court is
6.
The decision or the determination of the rights of
parties
– foregoing, wherefore finds the ff…
–
dispositive portion of the case
7.
Dissenting opinion
– only parts 5 & 6 will be used
Purpose of Publishing Judicial Decision
ð To ensure certainty
and stability of the law and to make possible for the advocate and the judge to
know the law. It is the surest method on detecting a fallacy and uncover an
error which might pass unnoticed if the decision of the case is not published
and make public.
 |
Law Report
ð They are books in
which decision of the courts are published. They are prepared and published
primarily for the benefit of the legal profession. It provides a means of
finding out what have been decided for the courts. The only test of
authenticity applicable to all law reports is whether the court will allow to
be cited as authority the reported judgment which they contain. In the Supreme
Court, each publication is entrusted to a court reporter appointed by the
court. The decision is first published in advanced sheets and then at the
Official Gazette at regular intervals.
Court Records
ð Transcriptions of
court proceeding. It is the official source for tracing the progress of the
case from its inceptions to its conclusion. It is not published.
Case Law
ð Comes from the
judicial authorities of the state
Textboook
ð The writers
undertaking to deduce from adjudications and fundamentals and present logical
system of the legal principles related to the subject written, and such book
should contain original matter principally, yet many and property, thus in many
instances, contains numerous quotations.
Parts of a Textbook
1.
Title Page
Contains the title of
the book, author, place of publication, publisher, and date of publication
2.
Copyright Date
The date when the
copyright was secured
3.
Preface
The purpose of the
author in writing the book
4.
Table of Contents
Exhibiting the logical
structure of the book
5.
Table of Cases Cited
Indicates the page
number of the cases cited in the book
6.
Body of Work
7.
Appendices / Bibliography
Sources of the
information used in the book
8.
Alphabetical Indexes
The topic discussed
with the corresponding page in the book
Treatises
ð Those law books, which
in connected literary form, discuss, criticize, restate or attempt to bring
about the change in ideas concerning law as a tool or concerning one or more
propositions of law
Kinds of
Treatises
1.
Legal Monograph
ð One which discusses a
single subject or branch of law attempting to cover the branch in all of its
phases (Caparas – People)
ð Make use of all the
parts of the textbook
2.
Commentaries
ð Are books which in
logical order attempt to deal in a broad way the whole law of jurisdiction.
(Menresa).
ð This is seldom used by
law students.
ð For argumentation
purposes
3.
Law Dictionaries
ð It is composed of law
terms, words or phrases with their definitions. They are books arranged
alphabetically and defined words which constitute the terminologies of the law
as a special branch of knowledge or common words which have been defined in the
process of law making, judicial interpretation and administration of laws.
ð Body is an index by
itself
4.
Law Encyclopedia
ð It is a collection of
comprehensive articles which attempt to cover the following:
a.
The
entire body of the law.
b.
All
the subjects and titles of the law as developed in a part only of the
authorities.
c.
A
simple title of the law in all its aspects as developed in all the available
authorities.
5.
Serial
ð It refers to any
publication appearing in a series or succession of number parts and intended to
be continued indefinitely.
Ex: annual reports,
yearbooks, period, journals
6.
Legal Periodicals
ð Are issued in number
parts at state intervals and they contain matter on a variety on legal topics,
distributed in the same way as in the case of periodical into contributed
articles editorial material, book reviews, and others.
Search Books
ð They are books which
neither contain the law nor statement or explanation of the law, but which are
designed to aid the lawyers in finding the law.
Treaty
ð An agreement or
contract between two (2) or more nation or sovereigns enter into by the agents appointed
for that purpose and duly sanctioned by the supreme powers of the respective
parties – 52 American Jurisprudence 806-807
Executive Agreement / Bilateral Agreement
ð Agreement between two
(2) or more executive or sovereigns which has the power of a treaty even
without the concurrence of two-thirds (⅔) of the members of the Senate.
ð Can be signed by the
representatives (see treaty definition)
ð Binding to sovereign
states
Statutes
ð Written expression of
the will of the legislative branch of the government rendered authentic by
certain prescribed forms and solemnities.
ð Not all statutes are
law
Code
ð Complete system of
positive law scientifically arranged and promulgated by legislative authority.
Administrative Rule
ð The department head
shall have power to promulgate whenever he may see fit to do so, or rules,
regulations, orders, circulars, memorandum, and other instructions, not
contrary to law, necessary to regulate the proper working and harmonious and
efficient administration of each and all offices and dependencies in his
government and for street enforcement and proper execution of the laws relative
to matters under the jurisdiction of said department.
Duty of Secretary of Justice
ð He is the legal
advisor of the government and the issues legal opinions on a given question.
ð The important opinions
are published in the lawyers journals
ð Will his opinion have
barring – YES!
Administrative Orders
ð A violation of a
regulation prescribed by an executive officer of the government in conformity
with and based upon a statute authorizing such regulation, constitutes an
offense and renders the offender liable to punishment in accordance with the
provisions of law (US Po Lay & People v.
Chan Hen).
ð To be effective:
Ä Promulgation of an
executive officer of the government
Ä Must not be contrary
to the laws or the Constitution (Art.7(3) Civil Code)
Ä Must be published
(Art.2 Civil Code)
Rule of “Stare
Decesis” et no quieta movere
ð To stand by precedence
and not to disturb settled points expresses the policy of the courts and the
principles in which rest the authority of judicial decisions as present in
subsequent litigation. When a point has been once settled by decision, it forms
a precedent which is so afterward to be departed from or likely overruled or
set aside, even though it may seem archaic. When a court has once laid down a
principle of law as applicable to a certain stated facts it will adhere to that
principle and apply it to all future cases where the facts are substantially
the same.
ð What the Supreme Court
had ruled on a law must be repeated to case where the facts are substantially
the same.
How to Define Words
1.
Using
the provisions of the law
2.
Using
the decisions of the Supreme Court
3.
Black’s
Law Dictionary
Repositories of the Supreme Court (Permanent Records)
1.
Advance Sheet
ð Is the mimeograph from
a promulgated Supreme Court decision duly signed by all the justices
participating in the quotation including copies of dissenting opinions.
ð Official report of a
decision
Ä To determine if it is
official, it bears the seal of the Clerk of Court and certified by the Court
Reporter.
Ä Justices can still change his/her mind before the court
clerk certified the report.
2.
Official Gazette
ð Official publication
of the Government of the Republic of the Philippines
Ä Exemption: RA 8293
(January 1, 1998) – intellectual Property Office / Code
Ø All matters concerning
intellectual property and the likes are already officially published by the IPO
Gazette
3.
The Philippine Reports
ð Decision of the
Supreme Court started to be published on August 8, 1901 printed by the Bureau
of Printing (now the Government Printing Office)
Dictum
ð It is an opinion
expressed by a court but which not being necessarily involved in the case lacks
the force of adjudication.
ð Can be cited
Obiter Dictum
ð A remark or opinion
uttered without any purpose
Obiter Dicta
ð Remarks or opinion of
superior courts (Supreme Court and Court of Appeals) have great persuasive
influence on all courts bu the rule is they have no binding force
Dicta Propria
ð Personal or individual
dicta, the private opinion of a judge who delivers the opinion not necessary
concurred in by the whole court and not essential to the disposition at the
case at bar.
Ratio Decidendi
ð Is the underlying
principle, the legal reason which caused the case decided as it was decided and
the concrete point decided in the case is limited strictly to the facts
presented.
Ä Its Parts
Ø The ground decision or
the point in case which determines judgment
Ø The principle
established by the case
No comments:
Post a Comment