Introduction
We all encounter research in our daily lives as it may often involve a host of routine and mundane tasks. Booking a bus journey, choosing a university course, trying to find the perfect meal – these are all examples of research in everyday life. In the technical sense, research entails the systematic investigation geared towards increasing the human knowledge and a process of identifying and investigating a phenomenon with a view to acquiring an insight into it or finding an apt solution therefore.
In the legal realm, research in its broadest sense, includes every 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 results of the investigation. It encapsulates the whole process of going to court with respect to a given case, starting from when an advocate is briefed by the client, through to when the cause of action is identified, to the preparation of your client’s case, up to when judgment is finally delivered in the case. Legal research is integral to the practice of law since it is impossible for any lawyer to know every law and court case off hand. Therefore, it is imperative that a lawyer, judge and even legal student know how to conduct effective legal research to succeed in whatever legal quest he/she embarks upon.
Etymologically the term research is derived from a French word ‘recherche’ meaning to search. Legal research is the process of identifying and retrieving the law-related information necessary to support legal decision-making. According to the Black’s Law Dictionary the term legal research refers to the finding and assembling of authorities that bear on a question of law.
Categories of Legal Research
Legal research may be categorized as encompassing:
Doctrinal research — Research which provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between rules, explain areas of difficulty and, perhaps, predicts future developments.
Reform-oriented research — Research which intensively evaluates the adequacy of existing rules and which recommends changes to any rules found wanting.
Theoretical research — Research which fosters a more complete understanding of the conceptual bases of legal principles and of the combined effects of a range of rules and procedures that touch on a particular area of activity.
Fundamental research — Research designed to secure a deeper understanding of law as a social phenomenon, including research on the historical, philosophical, linguistic, economic, social or political implications of law.
Legal Research Process
Legal research is as much an art as it is a science. At times, it benefits from serendipity almost as much as from strategy. There are numerous ways to approach a legal problem or question. Methods vary according to the nature of the problem and depend on the researcher’s subject expertise and research skills. Whatever the method chosen to address a given problem, however, the researcher should be open to using creative approaches and exploring new theories and areas of law in addition to using proven strategies throughout the research process.
Approaches to Legal Research
The problem-based research methodology is commonly used by legal practitioners and students. This approach is directed to solving a specific legal problem and normally includes the following steps:
Assembling relevant facts,
Identifying the legal issues,
Analysing the issues with a view to searching for the law,
Reading background material (including legal dictionaries, legal encyclopedias, textbooks, law reform and policy papers, loose leaf services, journal articles),
Locating primary material (including legislation, delegated legislation and case law,
Synthesising all the issues in context,
Coming to a tentative conclusion.
The core research methodology used by the practitioner is also used by the judicial officers in adjudicating disputes. However, the degree of complexity evidenced in a judge’s decision demonstrates another level of research work. The judge, in determining a case and handing down a decision between opposing parties in the court, is writing not only for the parties and their counsel, but also for a more general audience. The judge’s decision needs to be justified and fully explained. The theoretical stance of the judge towards the judicial role, and the approach the judge brings to the reasoning in the case arguably also affects the formulation of the decision.
In relation to academic research, the research methodology is not always predicated on a specific legal problem or directed to locating one answer or conclusion. Academic researchers choose both the topic and the breadth and depth of investigation. The method is similar to that being used by the practitioner or the judge, except that the academic researcher is not constrained by the imperative to find a concrete answer for a client.
Equally widely used is the technique is process of analogical reasoning. In contrast to deductive reasoning, which entails reasoning from a general rule to a specific case, analogy involves a process of reasoning from one specific case to another specific case. In certain situations it is unclear whether a particular factual situation falls within the ambit of a rule, it can often be helpful to examine apparently similar cases which have previously come before the courts. If, upon examination, the facts of these cases are found to be sufficiently similar to the facts of the material case then it can be concluded that the facts of the material case should be treated by the courts in the same way. An example of this technique is the operation of the common law doctrine of precedent.
A third technique involves the use of inductive reasoning which can be described as the reasoning from specific cases to a general rule. It is especially useful when a particular factual situation does not appear to be addressed directly by a legal rule at all and it therefore becomes necessary to ‘fill the gap’ in the law. As with inductive reasoning in the sciences a general proposition can sometimes be derived from a number of specific instances. In the case of legal reasoning this involves the recognition of a new general rule which emerges from a number of earlier authorities which are then regarded simply as particular instances of the new rule. Donoghue v Stevenson (1932) AC 562 is the best-known example of this technique.
IDENTIFICATION OF RESOURCE MATERIALS
Integral to legal research is the ability to find and process research literature from a variety of sources effectively and effectively. This calls for the exercise of good judgment in obtaining and evaluating sources. The material should satisfy the following criteria; relevance, recency, reliability, authority, coverage and accuracy.
Types of Sources
There are three different types of sources: Primary, Secondary, and Tertiary. When doing legal research you will be using mostly primary and secondary sources.
Primary Sources
A primary source is original material on which other research can be based. In the context of legal research a primary source reproduces the actual text of the law. Primary sources include constitution, statutes (national and county), international law, case law, executive orders, proclamations, regulations and rules.
Secondary Sources
Secondary sources are materials that describe, discuss, interpret, analyse, evaluate and summarise primary sources. Secondary sources play an important role in research. They provide background information in case one is unfamiliar with an area of law. Secondary sources of law include law review articles, treatises, restatements, hornbooks, practice manuals, legal encyclopedias, legal textbooks and legal summaries.
Tertiary Sources
The final type of legal research material is the finding tool. These research aids would never be cited in a court brief, law review article or legal memorandum, but are, nonetheless, critical to anyone updating or searching for primary and secondary sources. Kenya Law Report is an example of a finding and indexing tool for Kenyan case law.
Each type of source described above has a distinctive place in the hierarchy of legal authority. An authority may be mandatory or persuasive. Indeed, while courts and other decision makers are often open to guidance from a wide range of sources, only primary authority can be mandatory in application (which means that the court decision, statute, or regulation must be followed). However, some primary authority is only persuasive. Persuasive authority is that which the court or other decision maker may consider but is not obligated to follow.
ANALYSIS
Analysis entails the breaking down of information into its component parts and identifying the relationship of each part to the whole. It focuses on the ‘how’ and ‘why’ of an issue or topic. Analysis encompasses;
breaking down information into its component parts and identifying the relationship of each part to the whole
seeing patterns in the information
identifying the component aspects of a topic
recognizing and explaining relationships
comparing and contrasting aspects of topics
recognizing implicit meanings (e.g. assumptions, values)
recognizing the structure of a text or of information
devising categories
Cue words: analyse, separate, order, explain, connect, classify, arrange, divide, compare, select, explain, infer, and contrast.
Legal analysis encompasses the identification of relevant issues and the application of legal rules and/or applicable policies to a given set of relevant facts with the aim of determining a legal question or problem. Types of legal analysis include;
Rule-based analysis reaches an answer by establishing and applying a rule of law.
Reasoning by analogy/ precedent analysis reaches an answer by showing direct similarities between the governing casa law and the client’s fact. When reasoning by analogy you draw parallels between your factual situation and cases that have already been decided.
Textual analysis reaches an answer by focusing on the exact language of the law.
Policy based reasoning reaches the answer by analysing which outcome would be the best for the society.
Traditional reasoning reaches an answer by telling a story that calls forth that result. For example the application of customary law which reflects the customs and traditions of the community.
Critical Thinking
Broadly, critical thinking is the art of analysing and evaluating thinking with the view to improving it. The process requires recognition of assumptions that one holds influencing the way they think and engage with the world. Once identified and brought forth to the surface, the assumptions are evaluated against a range of different criteria such as practicality, ethics, bias and logic. If the assumption cannot withstand scrutiny, it is should be discarded and one should re-evaluate their position.
In the legal context, critical thinking has both immanent and extrinsic qualities. That is, it can be pursued both within the teaching of legal doctrines and from a position of external evaluation. An immanent analysis recognizes that the accuracy and validity of the assumption in law is inherent in critical analysis of legal reasoning itself. A common inquiry here is whether we accept that there is an underlying corpus juris of legal principle waiting to be uncovered through legal techniques, or whether morality, politics and personal choice play a larger part in legal reasoning. An immanent approach to evaluating assumptions in law requires understanding the orthodoxy of legal reasoning and analysis, and also being able to assess the validity of the assumptions on which it is based and understanding different methods of legal interpretation. It may also involve instruction in legal critique, the practical workings of the law and advocacy for law reform.
Another strategy for unpacking assumptions is achieved through introducing a range of extrinsic perspectives on the law and legal processes. An example includes thinking about law as a social, cultural, economic, historical, and political phenomenon. These perspectives on the law require an introduction to core critiques of law as a social and political phenomenon, such as feminist critiques, legal realism and critical legal studies, critical race theory, and postmodern theories of law. There is thinking about law in society - as a mechanism for justice through democracy and human rights, or as a means of oppression, through protecting vested interests and entrenching class privilege. All these perspectives assist in developing the ability to analyse and critique substantive rules and legal processes, and engaging in processes of law reform and policy formation.
Lawyers should generate and evaluate options and also understand those options. Critical thinking is also about looking for similar situations as in looking at precedents and how similar issues are decided. It is imperative to have objective criteria and always question the credibility and authenticity of information while avoiding group think.
INTERPRETATION
Legal interpretation is the process or activity of using legal materials to ascertain what the law is, or, more precisely, to ascertain legal obligations, powers, rights, privileges, and so on. For example, lawyers and judges interpret statutes, regulations, contracts, and wills to determine what legal obligations there are.
Primary Rules of Interpretation
Literal Rule
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
Golden Rule
The golden rule construe a statute or a legal material by departing from the literal meaning of the words if to do would avoid consequences which are absurd.
Teleological Interpretation
It looks to the purpose or overall scheme of the legal material.
Mischief Rule
The mischief rule attempts to determine mischief or defect that the statute in question seeks to remedy and adopt the interpretation that would effectively implement the remedy.
Legal Argument
An argument is a statement or set of statements used in order to persuade people about a particular opinion.
Types of legal arguments include;
Text argument which focuses on the text of the Constitution, statute and regulations as opposed to judicial opinion.
Legislative history and drafter’s intent argument which argues that the text of a rule means what its drafter’s meant.
Precedent argument where the text of a rule means what the courts in their precedents have decided it means.
Tradition argument where the rules have a meaning that is the traditional way members of the society have acted in the past.
Policy argument where the meaning of the rule should conform to the underlying values and interests that the rule is designed to serve.
The Writing Process
Having conducted legal research one needs to communicate your solution to the client, supervisor, or judge. Much of this communication occurs in writing. Attorneys in law firms, government offices, and public interest organizations write office memoranda, client letters, court briefs, contracts, leases, wills, and many other documents. Lawyers working in the legislature draft bills and analyze proposed legislation. Judges and their law clerks write court opinions. Becoming a successful lawyer means becoming a professional writer.
Just as legal research is a process, legal writing is a process. Your writing will improve when you pay attention to the process of how you write, rather than focusing just on the final written product.
Words are the dominant tool of trade for lawyers. Nothing of consequence can be done without use of words. The most important skill that marks out a good lawyer is the ability to communicate. Good choice of words + Good piecing together = Effective communication. There is no difference between spoken word skills and written word skills; only the context changes. Different words may be used in writing than in speech. Sentence structure may change.
Qualities of Good Writing
Making choices
Everything in final version must be there because you intend it to be.
Nothing should be in it by accident.
What you end up with should be exactly what you want.
Every word used should be there because you have chosen to use it and not any other.
Sentences and paragraphs should be composed as you have designed them.
You can only write well by making choices.
Never simply write down the first thing that comes to mind without critical examination.
Clarity
Good writing = Total clarity.
Meaning should spring instantly from the words.
The purpose of writing is to clarify that which would otherwise be unclear, for example, a legal opinion.
Clarity of expression cannot be achieved without clarity of thought.
If you are not clear in your mind what you want to say, you will not be any better in your writing.
Don’t write anything without first carefully thinking about it.
All writing must be planned and thought through.
Logical structure
Clarity not only depends on choice of words and word order but also on the structure of what is being written.
The whole piece of writing needs to be composed in a clear and coherent manner. This means the structure should be logical.
Whatever one wants to say can be broken into smaller pieces of content.
You cannot make a point without explaining it.
You cannot write an opinion without giving reasons for it. The process needs to be logical.
Therefore, the reasons you give must lead to the conclusion you express.
The reasoning process is a series of small links in a logical chain. Each link must be placed in the right order and connected correctly to the other links.
This involves logical thought, logical explanation and logical structure to what is written.
Writing that has this structure is easy to read, is clear and compelling in its persuasiveness.
Spelling
Good writing should be free from spelling errors.
Spelling errors make you look unprofessional.
Take all reasonable steps to eliminate them.
Of professional importance is to spell names correctly.
Grammar
Writing should be free from grammatical errors.
The rules of grammar dictate word form, word order and sentence structure.
Therefore, verbs must be in correct tense, adverbs in the correct place and sentences properly composed.
If this is not the case, the writing will be obscure.
Writing cannot be clear if it is not grammatical.
Punctuation
Good writing must be properly punctuated.
Punctuation is crucial to the meaning of a legal document.
Take care to use full stops, commas, semicolons and colons properly and in the right places.
The sense of a sentence can be destroyed by a comma in the wrong place or lack of one where it is needed.
A full stop in the wrong place can spoil the connection between two linked thoughts and result in a sentence with no main verb.
Do not open a bracket and then fail to close it.
Take care of punctuation when drafting.
The choice of punctuation marks is just as important to drafting as is choice of words.
Precision
Everything written should say what the writer intends.
Do not express your thoughts in a vague or generalized way.
Words chosen must be chosen for the precise meaning.
Non-ambiguity
Words may be used which mean precisely what we intend, but which are capable of having another meaning if looked at in a different context. In legal writing, be aware of all the different contexts from which your words may be seen.
Conciseness
Good writing is concise. It should be succinct and straight to the point.
Avoid repetition, long windedness or digression.
Leave out that which is unnecessary or obstructs flow of meaning.
A good piece of writing should not be a word longer than it needs to. Beware of trying to be too concise.
If what you are writing becomes a mere summary, that will not do. Clarity is more important than brevity.
Ideas are at times more concisely expressed in 20 words than in 10.
Completeness
This is the quality that must be balanced with conciseness.
Writing must express the writer’s ideas completely. If it only partially expresses those ideas, it is incomplete. If it does not express the writer’s ideas fully – step by step – it is incomplete.
Where to draw the line between completeness and conciseness is a matter of fine judgment.
Always be aware of the balance that has to be achieved between the two in a good piece of writing.
Elegance
A good piece must be well written.
Elegant writing comes with practice.
Avoid clumsy phrases, tortuous constructions and jarring words.
Elegance has to do with flow and rhythm.
Shorter Sentences
Long sentences make legal writing hard to understand.
They cause the author to distort the logical order of the information he is trying to convey.
They strain a reader’s memory.
The remedy is, for example, instead of using one long sentence containing five thoughts; use five sentences, each containing one thought.
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