UNIT 8: DOING THE LEGAL RESEARCH

Contents

8.0. Aims and Objectives

8.1. Introduction
8.2. Researching the Issues Formulated
8.2.1. Finding the Law
8.2.2. Reading the Law
8.2.3. Updating the Law
8.3. How to Take Effective Notes
8.4. When to Stop the Research
8.5. Summary
8.6. Answers Key to Check Your Progress Exercises
8.7. Model Examination Questions
8.8. Selected References

8.0. AIMS AND OBJECTIVES

This unit, being the direct continuation of unit seven, introduces the students with cardinal
steps that must be used in the actual process of doing the legal research. Therefore, this unit
aims at enlightening students regarding finding the law, reading the law and updating the law.
It also aims at discussing briefly how to take effective notes and indications when to stop the
legal research. Hence, having studied this unit students are expected to understand:
- that once issues to be researched are clear to a legal researcher, the next step to be
resorted to is finding the law.
- after the legal researcher has found the law, he should read the law as critically as
possible in order to determine whether the law found is applicable to the research
problem and whether that law is still applicable (i.e., whether it is up to date).
- that in order to avoid arriving at a conclusion on the basis of an invalid law, the
researcher should update his laws even after he has conducted an external evaluation
of the law.

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8.1. INTRODUCTION

As the name legal research itself shows, we are going to solve our problems using the law.
Therefore, in order to use the law as an instrument of problem solving, we have to find it first.
Once we have found it, we have to read the law as thoroughly as possible so as to determine
whether that law is pertinent to our problem and it is still valid law (operative law).

In order to equip students with the above understanding, this unit is divided into the following
sections each dealing with different aspects of the unit. The first section, being divided into
sub-sections, addresses such important steps as finding the law, reading the law and updating
the law while the second and third sections deal with effective note-taking and when to stop
the legal research respectively.

8.2. RESEARCHING THE ISSUES FORMULATED

Under the previous discussions, you have been exposed to important steps that are helpful in
the process of doing your legal research. Now, you are familiar with such steps as
identifying/gathering your facts, analyzing your facts, identifying/formulating/ legal issues.
Once you have identified and formulated your issues, the next thing that must come to the
fore is doing the actual legal research. Doing the actual legal research involves such cardinal
steps as finding the law, reading the law, and updating the law. When issues to be researched
are clear to you, obviously the next step is finding the relevant law that may be used to solve
your legal problem. Once you have discovered the law, which is pertinent to your issues, then
you must read the law. Having read the law and addressed the issues you have identified, you
have to make sure that the law that you have employed in your research is still operative and
up-to-date. This is the step of updating.

The following subsections will deal with the steps we have already mentioned one by one.

8.2.1. Finding the Law

In finding the law, you must initially distinguish primary sources or authorities from
secondary sources or authorities. Regarding the distinction between primary authority and
secondary authority, please consult the explanations made under 6.4 of our previous
discussion (unit six).

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In finding the law, your ultimate goal is to locate mandatory primary authorities bearing on
your legal problem. If these are non-existent or scarce, your next priority is to find any
relevant persuasive primary authorities. Finally, if all these are non-existent, you might rely
on relevant secondary authorities.

There are some generally accepted approaches of finding the law. these are
(a) Descriptive word or fact word approach
(b) Known authority approach
(c) Known topic approach

(a) Descriptive Word or Fact Word Approach

The descriptive word or fact word approach is the most commonly used method of finding the
law in the developed legal systems such as the U.S.A. You should use this method first unless
you already know the citation of a given law constitutional provision, proclamation,
administrative regulation or ministerial directive relevant to your problem. The descriptive
word method has the advantage of allowing you to begin your legal research even if you
know little or nothing about legal rules or theories.

If you have followed the process of gathering, organizing and analyzing your facts outlined
under the previous unit of our course, the descriptive word approach should follow naturally.
The idea here is to use the "5W and "H" (Regarding this, look at 7.3.1 (a) of your course)
technique to gather all the relevant facts of your problem, and then to build on those facts by
thinking of words (called "descriptive words" or "fact words") that describe the important
factual aspects of your research problem and that can be organized under categories of
characteristics common to all research problems. The categories are the ones we discussed
under 7.2.2 above.

(b) The Known Authority Approach

Occasionally, you may start your research already knowing the citation of at least one legal
authority, constitutional provision, proclamation, administrative regulations, ministerial
directives – that may apply to your problem. Perhaps, you may get the citation from someone
else, or you may discover it in your preliminary background reading.

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(c) Known Topic Approach
In the common law countries such as the U.S.A and U.K legal problems can be solved both
by statutory law and case-law. In the civil law countries such as ours all areas of the law, we
can say, are governed by laws passed by the law maker or by a delegated law-maker. Some
laws comprehensively treat a particular topic(s). Examples in Ethiopia include, the civil code,
the criminal code, the commercial code the civil procedure code, the maritime code and the
criminal procedure code.

If you feel confident that your research problem is governed by one of the above laws or other
regulations and proclamations, and you know from experience where the relevant laws are
located, you can directly go to the appropriate law. This procedure, therefore, effectively
bypasses the other two approaches discussed under 'a' and 'b' above.

8.2.2. Reading the Law

Having found the law, your next step is to read it. Although this may seem rather mechanical,
reading the law consists of more than merely passing printed words in front of your eyes. You
need to decide what significance to attach to what you read. All laws are not equal in status
and significance. Some law will be better for you than other law, and the real thing that you
must understand is to evaluate properly what the 'right' law is and whether it helps or hurts
your case. This evaluation lies at the heart of lawyer's work, and is crucial to the development
of any legal argument.

Once you have found your law, you must evaluate its usefulness to you. This analysis
involves two steps: internal evaluation and external evaluation.

(a) Internal Evaluation

An internal evaluation involves reading the particular legal authority you have found and
determining whether it applies to the fact situation in your research problem. The process
consists of two overlapping elements: first an analysis of the facts of the authority to
determine how similar they are to the facts of the research problem; and second, a
determination of the authority's intended legal significance and impact with respect to the
research problem. In short internal evaluation is assessing a particular law as whether it is
relevant to our problem on which we are doing the research.

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(b) External Evaluation
If your internal evaluation (discussed under 'a' above) reveals that a legal authority your
research has uncovered applies to your problem, you will then need to conduct an external
evaluation of that authority. This evaluation requires you determine the current status (i.e.,
validity) of the authority.

For statutes and administrative regulations, this process includes determining whether the
legislative or administrative agency has repealed or amended the statute or regulation. For
instance, in the U.S.A, one may occasionally come across laws invalidated by courts because
of unconstitutionality in his research. But these laws may be still in books as the declaration
of unconstitutionality does not remove the laws physically from the books. Similarly, in
Ethiopia laws may be invalidated on the basis of unconstitutionality both at the state levels
and federal level. Therefore, to avoid relying on an invalid law, you must always conduct an
external evaluation of statutes and regulations.

8.2.3. Updating the Law

Analytically, the final step in doing legal research is updating the law. This step involves
making sure the legal rules you have determined apply to your problem are still valid laws.
One of the worst blunders you can commit is to draw your legal conclusions or present your
legal arguments or theory based on your research findings, then learn –too-late that you
should have discovered a subtle but significant change in the applicable law that occurred a
week earlier. Because outdated law is worse than no law at all, your legal research must
include careful attention to updating the legal authorities that govern your problem.

8.3. HOW TO TAKE EFFECTIVE NOTES

If you follow the methodology described in the preceding sections and sub-sections for
finding, reading and updating the law, you will do your legal research as quickly, efficiently
and thoroughly as possible. You will seriously undermine your efforts, however, if you lack a
well-organized, concise technique for taking notes on your research findings.

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While researching a given problem, you may examine dozens or scores of sources and spend
a considerable amount of time. Even if you are lucky enough to complete your research
without interruption, you cannot remember everything you read. Therefore, working without
notes will almost always mean having to backtrack and duplicate your earlier, unrecorded
efforts.

Effective note-taking is the only way to avoid such duplication of effort. Moreover, even if
you are not personally averse to duplicated effort, as a practical matter, you will rarely have
time for it. Consequently, although note taking itself consumes sometime, in the end it saves
enormously more time than it requires.

Beyond saving time, there are two other reasons for careful note-taking. First, the purpose of
doing legal research is always to reach conclusions about the legal implications of your
particular sets of facts; so, you can, for example, plan a course of conduct or frame a legal
argument. If you do not create a clear record of your research findings, your conclusions will
be based on a faulty foundation i.e., mere memory. Your research efforts will be largely
wasted. Second, taking notes helps ensure that you focus sharply on the particular legal
authority you are reading and that you think carefully about its meaning.

8.4. WHEN TO STOP THE LEGAL RESEARCH

By following the approaches outlined in our previous discussions i.e., - organizing your
problem and then finding, reading and updating the law, you will do your legal research with
maximum efficiency and effectiveness. The techniques covered so far will help you avoid
false starts, unnecessary duplicated efforts and other time-consuming pitfalls.

While you should, naturally, seek speed and efficiency, it is also essential that you do your
legal research thoroughly. The techniques explained so far will help you to achieve that goal,
too, by organizing and directing your research in logical, coherent and comprehensive
manner. Eventually, as a researcher you come to ask, "Is it time to stop?" There is never an
easy or automatic answer to this question. Keeping the following consideration in mind,
however, can help you decide whether you have probably completed your research.

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You cannot safely cut corners in legal research. You should explore each line of inquiry that
appears relevant to your research problems especially when you are a beginner. The best
policy must be continuing researching if you have doubts whether you would benefit from
further research. Finally, even if you have continued researching, if you do not encounter any
new thing, in other words, if you feel that you are going in circles, you can probably safely
conclude that you have found everything worthwhile to your research problem. You will have
a feeling of certainty, of confidence, that your research is complete. Then you will probably
stop your legal research.

Check Your Progress Exercise

1. The 'reading the law' step of doing a legal research involves evaluation of the
law. What do you understand by evaluation? What are the two types of evaluation?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
2. Why is evaluation (both internal and external) of the law necessary?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
3. When are you going to stop your legal research?
…………………………………………………………………………………………………
…………………………………………………………………………………………………

8.5. SUMMARY

Until it comes to the end, a legal research is a continuous process. Fact identification or
gathering is followed by analyzing same the latter being followed by formulating legal issues.
After a legal researcher has formulated the legal issues, the next thing that he must do is
finding the law using different techniques of finding. Then he must proceed to reading the
law. Reading the law is important because it is at this juncture that the researcher is in a
position to evaluate the law both internally and externally. Internal evaluation is necessary to
determine whether the law being read is relevant to address the issues identified. External
evaluation serves, as litmus paper to determine whether the law identified is still operative.

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A legal researcher should also accord careful attention to effective note taking as this avoids
duplication of efforts and contributes a lot to the quality of our legal research. The question of
when to stop the research is not an easy question. In spite of this, the researcher may stop
when he is certain that he has addressed all issues that must be addressed and when he does
not have doubt to stop researching.

8.6 ANSWERS KEY TO CHECK YOUR PROGRESS EXERCISES

1. Once a legal researcher has found the law that he deems is appropriate for his legal
research, and then he will embark on reading the law. Reading involves evaluation of the
law. Evaluation refers to assessment of the law whether it is valuable or not for our
research. There are two types of evaluation of the law. These are external and internal
evaluation.
2. Refer Section 8.2.2.
3. Refer Section 8.4.

8.7. MODEL EXAMINATION QUESTIONS

1. Why is note-taking important for a legal researcher?

2. What is the difference between internal evaluation and external evaluation of the law?
Which must be done first? Why?

8.8. SELECTED REFERENCES

1. Cohen, Morris and Olson, Legal Research (5th ed., Kent C., St. Paul, Minn. West
Publishing Co., 1992).
2. Jacobstein, J. Myron, Fundamentals of Legal Research (6th ed., Westbury, New York,
the Foundation Press, Inc. 1994).
3. Kunz, Christina L., The Process of Legal Research (4th ed., New York, Little Brown
and Company, 1996)
4. Statsky, William P., Legal Research and Writing (4th ed., New York, West Publishing
Company, 1993)
5. Wren, Stopher G., The Legal Research Manual (2nd ed., 1986)

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