RESEARCH METHODS NOTES-2021-EBQ

What is Legal Research?

Definition of Legal Research

Legal research has been defined as a process of finding the law that
governs an activity and materials that explain or analyze that law. Legal
research includes various processes ranging from information gathering to
analyzing the facts of a problem and communicating the investigation
results.

Legal research is generally the process of finding an answer to a legal

question or checking for legal precedent that can be cited in a brief or at
trial. Sometimes, legal research can help determine whether a legal issue is
a "case of first impression" that is unregulated or lacks legal precedent.
Virtually every lawsuit, appeal, criminal case, and legal process in general
requires some amount of legal research.

The importance of legal research cannot be overstated.

It‟s the foundation of any case and, many times, it‟s the difference between
winning and losing.
Having a robust legal research methodology not only helps organize a
research process, but it also provides a systematic way to investigate
and ultimately answer the significant questions of a case.
Knowing when to use primary sources, how to find secondary sources, and
the methodological practices to make the data strengthen a case are
critical tools for every attorney.

What is legal research?

Legal research is the process of identifying, organizing, and applying
information that will help support legal arguments.

1|Page
@EBQ
All legal research begins with an analysis of a particular problem (usually as
part of a legal case), the current legal opinions and rulings on that
issue, and ends with the process of seeing how that information
overlaps with the particular matter.
However, legal research is not merely about scouring dusty law
books and online legal databases for relevant facts. These facts need to be
connected to the case, and the argument must be built to highlight how
and why this information matters.
Finally, the data must be structured and written in a way that
highlights the sources and emphasizes how they strengthen the case.

Meaning of Legal Research implies scientific and purposive investigation or

inquiry of a problem or issue of any discipline. Likewise, legal research is a
scientific investigation into a legal issue or problem and the process of
gathering evidence or information for ascertaining an assumption or
verifying some hypotheses. Doing research aims to add new knowledge to
the existing body of knowledge in an area of interest.

Like other research activities, legal research is a systematic and methodical

study directed towards developing new knowledge or verifying existing
knowledge. Legal research is not merely concerned with the technical
knowledge of the law. Rather one of the purposes of legal research is to
find out philosophical or policy arguments in law.

Legal research is an inquiry and investigation made by judges, lawyers, and

legal researchers in the quest for a deeper and fuller understanding of the
true nature of legal problems.

It seeks to expound on various aspects of the legal system, the legislative

and judicial process, and the nature and function of law in society. Legal
research is also concerned with “the understanding and internal coherence
of legal concepts and legal reasoning.

2|Page
@EBQ
Legal research is not a mere description of facts but a purposive
investigation to explain or interpret a legal phenomenon. It goes beyond
description and requires analysis. In this sense, it is a creative process and
involves normative activities. Legal research is diligent, and continued
search is for the more probably accepted answer to a legal question.

Such search involves the choice of hypothesis, the assortment

ascertainment of facts, their classification, and elimination of relevance, the
use of both Inductive and deductive reasoning, and the assertion of a
conclusion. In essence, it involves analysis of facts, ordering of legal
propositions and doctrines, and application of legal reasoning to conclude.

Legal Research essentially seeks to expound the logical coherence of law

concepts and determine and define the terms and presuppositions used in
law.

Legal Research is the process of identifying and retrieving information

necessary to support judicial decision-making. In its broadest sense, legal
research includes each step of a course of action that begins with an
analysis of the facts of a problem and concludes with the application and
communication of the investigation results.

What types of sources are used in legal research?

Legal research essentially involves finding and optimizing (enhancing) two
types of information: legal and non-legal sources.

Legal information is organized into two general categories:

1. Primary Law: Binding law that is codified in statutes, regulations, and

caselaw.
2. Secondary Sources: Not legally binding, this type of information
explains primary law and legal theory; including legal digests,
treatises, journals, etc.

3|Page
@EBQ
These sources are sometimes called “primary and secondary sources,” and
they are grouped as such based on the authority of the information.
Legal, or primary, sources typically center around case law, official
communications from legislative bodies, and any rulings from
administrative agencies. These are considered primary because they come
directly from the source, and as a result contain a high level of authority.
The advantages of primary data are obvious: they tend to be unique and
highly reliable. However, it can take time to research and find primary data
properly.
A non-legal, or secondary, source can come from a variety of bodies
and institutions. These include law journals and reviews, industry
experts, scholars, and people with practical skills or experiences that
will help shed light on the facts of a case. As a result, secondary sources
are often easy to find and can save both time and money. However, the
relevance of this data expires quickly.
Whether an attorney is doing case law research or using non-legal sources,
the intent is the same. Legal research looks at the values behind a law (and
a society), how the law is practically applied in that society, and how it can
be applied to the particular case.

What types of data does legal research provide?

Legal research can yield just about any type of data, depending on the
specifics of the case. This data, for the most part, can be broken down
into two types: qualitative and quantitative data.
With qualitative research: lawyers attempt to gain an understanding of the
reasons and opinions represented by the sources. Specifically, this can
make use of things such as focus groups, individual interviews, and general
observations made by witnesses and experts of a particular field. As a
result, this data is generally subjective and is often used to form theories.

4|Page
@EBQ
Qualitative research: is a scientific method of observation to gather
non-numerical data. This type of research "refers to the meanings,
concepts definitions, characteristics, metaphors, symbols, and
description of things" and not to their "counts or measures". This research
answers why and how a certain phenomenon may occur rather than how
often. Qualitative research approaches

The Ugandan legal system is based on precedent -- that is, decided court
cases -- in conjunction with statutes and common law. Therefore, the
function of legal research typically is to find out how previous courts have
decided cases with similar fact patterns. Most legal research is now
performed online.

Terms to Know

 Opinion: The formal written expression by a court or judge detailing

the reasons and principles of law upon which the case is decided.
 Parallel Citation: A citation reference to the same case printed in two
or more different case reporters.
 Stare Decisis: The doctrine under which courts adhere to precedent
on questions of law in order to insure certainty, consistency, and
stability in the administration of justice.
 Shepardize: To look up a cases citation in Shepard's Citations in order
to check the status of the case, whether it is still considered good law,
parallel citations, or the use of the case in other jurisdictions.
 KeyCite: This is a helpful case citation tool. You can view the history of
a case, statute, administrative decision, or regulation to help
determine whether it is "good law" and to retrieve citing references.

How you may use Legal Research

You may review statutes, case law, and secondary authority before deciding
how to proceed with your case. Since the law is based on precedent,
caselaw with a similar fact pattern can give you an idea of how things may
play out in court.
5|Page
@EBQ
Why does it matter?

The ability to conduct effective legal research is a key skill to acquire so that
you can achieve your aspirations and qualify as a solicitor.

If you can properly use the resources that your law library provides for you
then you will have a much better chance of getting the grades you need
succeed.

It is also a skill you need to develop if you want to be an asset to a law firm.
Legal research is one of the major tasks given to trainee solicitors. The
faster you can do this and the more focussed and accurate your answers
then the more likely you are to be noticed and given more responsibility.

You have to be familiar with and able to use all of the major legal research
databases because each service contains unique content.

Many students think that because they have grown up with the internet
and search tools like Google, then they can research effectively. However,
research has demonstrated that this is not the case. Daniel Bates, the
Freshfields Legal IT Teaching and Development Officer at Cambridge
University published an article in the Legal Information Management
journal in 2013 where he concluded that:

„…although students studying law today have more experience of online

services and searching, and a greater use of technology in their everyday
lives, they are in many ways less equipped and less capable of handling
complex legal research tasks‟ 1

Don‟t forget that finding information is only the first part – you then have
to read, review and evaluate what you find to decide whether to use it to
support your arguments.

What can you do?

1
https://www.aspiringsolicitors.co.uk/advice-and-information/information/academics/value-legal-research-skills-
now-future/Ctrl+Click to follow link
6|Page
@EBQ
Here are a few pointers to ensure success:

 Recognising that you can always improve your legal research skills
puts you ahead of many law students.
 If there is research training on offer – take it and ask questions during
the session to develop your understanding.
 Become competent in using ALL of the major legal research
databases at your disposal.
 Increase your chances of getting good marks by reading and referring
to relevant law reports and journal articles that you have found.
 Learn how to use Halsbury‟s Laws of England and Wales – the ONLY
publication that explains EVERY proposition of English and Welsh law,
whether statutory or common law.
 Learn how to cite your authorities correctly using your university‟s
preferred referencing style e.g. OSCOLA, Harvard.
 If you can‟t find information you need, ask your Law Librarian. They
have the skills and knowledge to point you in the right direction.
 If your institution has a LexisNexis or Westlaw student campus
representative, ask them for help as well.

Dimensions of Legal Research

Legal research has two fundamental dimensions creative and non-

normative.

Legal research is creative because it entraps interpret theories, concepts,

rules concepts, or rules, creates new knowledge, or enriches existing
knowledge.

Legal research is also normative as it aims to set out the norms that apply
in a particular legal system.

7|Page
@EBQ
The normative aspect of legal research implies that; the researcher should
not reproduce the text of the law or describe the legal doctrine for theory;
rather, he or she should state what ought to be done according to the legal
point of view within a particular legal system or how the law to be applied
in a particular context.

Importance of Legal Research

Legal research is also necessary for ascertainment of law on a given topic or

subject, to highlight ambiguities and inbuilt weaknesses of law, and to
critically examine legal provisions, principles, or doctrines to see
consistency, coherence, and stability of law, to make suggestions for reform
of the law.

Legal research is an important element of the modem system of legal

education. Legal education performs several related functions: attaining
theoretical knowledge, practical training, and a general education
contributing to proper legal reasoning, effective communication, and
ethical responsibility. Legal research can facilitate attaining these objectives
by placing law in a broader intellectual context.

Legal research methodology is important for legal researchers in many

ways. Legal research helps one use his acquired knowledge of how the law
works and an understanding of the principles that underlie the operation of
the law and the legal system. A law student should learn about research to
critically analyze information on a variety of legal issues.

Legal research is also important for a lawyer, who should be familiar with
those areas of law in which he claims to have the expertise as a real-life
problem solver. There is no denying that a lawyer should provide
competent representation to a client. Every lawyer requires using
fundamental legal research tools and implementing an effective and
efficient research plan for providing competent representation.

8|Page
@EBQ
In everyday exercise, lawyers have to identify and analyze factual material,
identify the legal context in which factual issues arise, identify legal issues
and apply relevant legal provisions to facts. They have to relate the central
legal and factual issues to each other and identify the legal, factual, and
other issues presented by documents.

Legal research is critically important for initiating legal reform and change
in society. Legal research may be driven by current and proposed
legislation’s social, political, and economic implications. Law must keep
pace with social change. Law has to either respond to social change or
initiate social change.

Because of changing social, moral, political context, many laws may lose
their relevance or seem inadequate to meet society’s needs. Legal research
can help find out the laws which are old and need reforms.

Legal research can initiate a new theory of law change old on your help in
carrying existing theory. The findings of legal research may be helpful to
bring about desired changes in existing laws and legal institutions.

Research methodology is not an end but must fit into the structure of topic
purposes questions and arguments, leading to producing good research.
The whole purpose of any legal inquiry at the practical level should be
arriving at a legally reasoned and sound conclusion of a given factual
situation.

As essential steps of methodology, the legal research analysis of the facts

evaluates what legal concepts may be relevant, finds primary and secondary
sources, synthesizes the relevant principles, and apply them to the research
problem.

Research is an intellectual exercise requiring endurance and patience.

A researcher must have perseverance and a scientific frame of mind.

9|Page
@EBQ
A researcher must be a genuine seeker of truth. He must be alert to
appreciate any change in situation or facts considered in research. He must
have intimate knowledge of his area of research. He must be objective in
his approach. Attaining objectivity remains a great challenge to every
researcher.

The findings should not be influenced by personal prejudices and biases to

attain objectivity in research work. The researcher should examine the
issues at hand dispassionately and must be free from personal emotions
and self-interest. A researcher should be open-minded and self-reflective.
He should also be cautious about claims based on the findings of his
research.

Primary and Secondary Legal Sources

The materials used for legal research are generally divided into two broad
categories: primary sources and secondary sources. Primary legal sources
are the actual law in the form of constitutions, court cases, statutes, and
administrative rules and regulations. Secondary legal sources may restate
the law, but they also discuss, analyze, describe, explain, or critique it as
well. Secondary sources are used to help locate primary sources of law,
define legal words and phrases, or help in legal research. In short, anything
that is more than the actual law is considered a secondary source.
Examples
Primary law consists of sources that state the actual law. These sources
include:
 Constitution
 Statutes (laws enacted by legislatures);]
 Cases (opinions handed down by courts)
 Rules and Regulations
 Treaties

____________________________________________

10 | P a g e
@EBQ
Secondary Law consists of sources that explain, criticize, discuss, or help
locate primary law. Examples of secondary legal sources include:
 Legal dictionaries
 Legal encyclopedias and digests
 Law reviews and journals Legal treaties
 Manuals and guides on how to practice law

Types of Legal Research

Legal research is classified into various types.

One of the traditional classifications is pure and applied research.

While the former implies analysis of theories, the latter is concerned with
testing the theories in the real world. Depending upon the nature of the
research question, the legal research is also classified as descriptive and
exploratory one.

Descriptive research attempts to describe a situation, problem,

phenomenon, or behavior systematically. A description is concerned with
making complicated things understandable and simple.

Exploratory research is undertaken to explore areas about which the

researcher has little or no knowledge. Exploratory research enables the
researcher to formulate problems for more in-depth study, develop
hypotheses, and find the best solution. It involves findings the reason for
things, events and situations, showing why and how they have come to be
what they are.

Another popular distinction is between pure doctrinal research and

non-doctrinal or empirical research.

While the former is theoretical work undertaken primarily to acquire new

knowledge without a specific application, the latter is original work
11 | P a g e
@EBQ
undertaken to acquire new knowledge with a specific practical application
in view. Doctrinal legal research is concerned with the analysis of legal
theories, concepts, rules, and principles.

Most doctrinal legal research is based on the ‘black-letter law’ approach,

which focuses on the knowledge of law found in the legal texts, legal
theories, statutes, and court judgments with ‘little or no reference to the
world outside the law.’

The doctrinal or ‘black-letter’ legal research aims to explain, systemize, and

clarify the law on any particular topic by a distinctive mode of analysis.

In recent times, pure doctrinal legal research has been criticized for its
rigidity, narrower scope, and inflexibility to address diverse contexts m
which legal issues or situations arise and operate.

As a result, empirical or inter-disciplinary legal research emerged as a

distinct type of legal scholarship in the law schools of western countries to
study law in the broader social and political contexts. This empirical and
interdisciplinary legal research employs a range of methods applied in
social science and humanities. According to Epstein and King,

What makes research empirical is that it is based on observations of the

world, in other words, data, which is just a term for facts about the world.
These facts may be historical or contemporary or based on legislation or
case law, the results of interviews or surveys, or the outcomes of secondary
archival research or primary data collection.

Another important classification is between qualitative and quantitative

research.

Qualitative Research for Legal Research

Qualitative research is concerned with explanation, interpretation, and

understanding of phenomena or issues, or things. It is concerned with the

12 | P a g e
@EBQ
subjective assessment of the social or legal problem, situation, and attitude.
It relies primarily on human perception and understanding.

Qualitative research is critical in the behavioral sciences, where the aim is to

discover the underlying motives of human behavior. A qualitative approach
is concerned with the subjective assessment of attitudes, opinions, and
behavior.

According to one author:

Quantitative research offers richly descriptive reports of individual

perceptions, attitudes, beliefs, views, and feelings, the meanings and
interpretations given to events and things, as well as their behavior; displays
how these are put together, more or less coherently and consciously, into
frameworks which make sense of their experiences; and illuminates the
motivations which connect attitudes and behavior, the discontinuities, or even
contradictions, between attitudes and behavior, or how conflicting attitudes
and motivations are resolved in particular choices made.

Qualitative research is related to the analysis of some abstract idea,

doctrine, or theory. In qualitative research, researchers use analytical
techniques and their views on the subject matter in question. It is generally
used to develop new concepts or to reinterpret existing ones.

On the other hand, empirical research relies on experience or observation

alone, often without due regard for system and theory. Qualitative research
verifies the old established principles of laws. It may lead to discovering a
new theory or refinement or interpretation of an existing theory or
principles or legal issues.

Qualitative research involves more explicit judgment or interpretation or

critical evaluation of a problem. As far as legal study is concerned, the
qualitative method is applied to analyze legal propositions or legal theories
or doctrines and explore existing statutory propositions and cases in the
light of propositions or doctrines.
13 | P a g e
@EBQ
Qualitative research of law involves studying general theoretical questions
about the nature of laws and legal systems, the relationship of law to justice
and morality, and problems of application of law in a given society.

The main advantage of the qualitative method is that qualitative analysis

draws on the interpretive skills of the researcher, opens up the possibility of
more than one explanation being valid.

The main criticism of qualitative research is that it is too impressionistic and

subjective. Qualitative findings rely too much on the researcher’s own
subjective assessment of views about what is significant and important.

The qualitative research findings generally tend to be open-ended, which is

difficult to generalize: Many qualitative research works are doctrinal in
nature. Observation, interviewing, case study, examination, analysis are the
most common method of qualitative research.

Quantitative Research for Legal Research

It is based on the measurement of quantity or amount. It consists of the

counting of how frequently things happen. It applies to phenomena that
can be expressed in terms of quantity. It is also known as the statistical
method.

Because, in quantitative research, researchers use an array of statistical

methods and generalizations to determine the meaning of data. It has been
the dominant strategy for conducting socio-legal research. Quantitative
methods often test or verify the existing theories or hypotheses.

Quantitative research also tests many variables through the generation of

primary data. The generalization process from sample to population is an
example of quantitative instead of qualitative research methodology.
Quantitative research involves finding out a solution to a real-life problem
requiring an action or policy decision. Quantitative research can contribute

14 | P a g e
@EBQ
new evidence, can challenge old theories, and may help in conceptual
clarification.

Usually, the quantitative approach involves generating data in quantitative

form, which can be subjected to rigorous quantitative analysis formally and
rigidly. Quantification can make it easier to aggregate, compare and
summarise data.

Data can be collected from questionnaire surveys, fact-finding inquiries,

and interviewing. Data analysis is one of the important components of
quantitative research.

The quantitative method is also sometimes termed an empirical approach

as data are collected for testing the hypothesis or examining the
propositions or true interpretations of findings.

The advantages of the quantitative methods are the following:

First, quantitative data are gathered by various forms of statistical

techniques based on the principles of mathematics and probability. The
analysis appears to be based on objective laws rather than the values of the
researcher.

Second, statistical tests of significance give researchers additional credibility

in terms of the interpretations they make and the confidence they have in
their findings.

Third, the analysis of quantitative data provides a solid foundation for

description and analysis.

Fourth, large volumes of quantitative data can be analyzed relatively

quickly, provided adequate preparation and planning have occurred in
advance.

Finally, tables and charts effectively organize quantitative data and

communicate the findings to others.
15 | P a g e
@EBQ
Objectivity remains the main aspect of quantitative research. Quantitative
legal research is mostly applicable for carrying out non-doctrinal or
empirical, and socio-legal research. The quantitative research method is a
supplement to traditional legal research to investigate the complexities of
the law, legal actors, and legal activities.

16 | P a g e
@EBQ