IMPORTANCE OF LEGAL RESEARCH METHOD FOR LEGAL PROFESSIONALS Narendra Man Shrestha

INTRODUCTION: No doubt, mastering legal research is a primary element in achieving success and growth in the legal profession. Our law school studies do not emphasize legal research as an essential component in the curriculum and thus students, legal professionals, legal researchers and the person so concerned are unprepared to consider the larger picture of law practice - resolving legal problems and the act of legal research have become increasingly challenging and complicated to the legal professionals, legal researchers and the students. As we know, that legal research can either make or break a case. Thus, a legal professional discovers that learning about the legal research process means learning the tools of legal trade. Law is the entire body of rules of conduct created by the government and enforced by the authority of government. Before we begin with legal research, an explanation must be made on how the law relates to our government system. Legal research makes sense when we understand how particular law books relate to the legal and political institutions that create law. The Constitution of the Kingdom of Nepal provides that our government be divided into three branches: such as legislative, executive and the judiciary. The each of the branches has a particular role in making laws. All the same, there is a system of check and balances, which illustrates the interplay among the three branches.

The legislature is composed of the National Assembly, House of Representatives and the king enacting laws or Statutes. The executive branch, which is headed by the Prime Minister of the Council of Ministers, is charged with the enforcement of laws in cooperation with its different agencies. Since the various department and administrative agencies under Executive body are assigned to implement the laws,

The paper is submitted to Kathmandu School of Law by the LL.M Student, Mr. Narendra Man Shrestha

the said agencies are given with certain powers by virtue of the Statue to issue the necessary rules and regulation pursuant to the standards so prescribed by the Statutes. Council of Ministers has also powers to issue administrative and executive orders. Once enacted, the Constitution, the Judiciary, Attorney General and Secretary of the Ministry of Law, Justice and Parliamentary Affairs interpret Statutes and regulations, if it is brought before them. Their interpretations and opinions are usually contained in decisions or written opinions on specific issue raised in litigated disputes. The judicial powers rest with the Supreme Court and in the lower courts as established by law. The lower courts of Nepal are Appellate Courts, District Courts, Special Courts, tribunals to be constituted from time to time and the newly created Family Courts and Juvenile Courts.

The Supreme Court is the highest court of the Country and the precedents and principles laid down by the said Court are binding on all including the Courts. Thus no doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be mo dified or reversed except by the court Sitting en banc. The Supreme Court also frames and charts rules on pleading, practice and procedure in all courts.

There are administrative agencies, which belong to the Executive but are empowered either by the Constitution or Statue to hear and decide certain classes or categories of cases and thus, exercises quasi-judicial powers. Examples of quasi-courts created by the Constitution are the Public Service Commission, Election Commission, Land Reform Officer, Civil Aviation Authority of Nepal and Commission for Investigation of Abuse of Authority etc. Their decisions may be appealed in the Court of Appeals and the Supreme Court. This is a descriptive and analytical research; therefore, this research paper will be based on a few primary sources and primarily on secondary sources published in national and international periodicals, books and other sources.

The first chapter of this research paper briefly discuss about the meaning of legal research and objectives. The second chapter deals with the aid memories of legal research and there will be a brief discussion about aid memories of research and the sources to be followed by the legal professional while carrying out the legal research. The third chapter deals with the method of finding laws and there will be discussed about the method of legal research and computer assisted legal research in keeping view to the different websites created by the agencies so concerned. The fourth chapter briefly discuss about the memorandum to be prepared by the legal professionals and finally, the fifth chapter deals with the conclusion.

Chapter -1 1. Meaning of legal research: Legal research is the field of study concerned with the effective marshaling of authorities that bears in a question of law 1 The systematic investigation of problems and matters concerned with such as codes, acts etc. is called legal research.2 Legal research is an investigation directed to discovery of some fact; careful study of a subject." 3 Keeping in view to the said definitions, we can say here that legal research is an act that discovers the legal principles relevant to a particular problem and it is the foundation for good legal advice. 2. Objective of legal research: As we know that, all research has its objective and this objective is the collection of authoritative material relevant to problem. These authoritative materials comprise legislation in force and judicial decisions. Judicial decisions need to be divided into (a) binding and (b) persuasive authorities. They are binding if they meet the following conditions:4 They are decisions of a higher court (or, sometimes, a court of coordinate status) in the same jurisdiction; and There are theoretical and practical difficulties in determining when a decision is directly relevant. If either or these conditions is unsatisfied the decision is merely persuasive. It may be objected that this statement of the basic objective of legal research places and undue emphasis on litigation and that the vast majority of situations in which a legal professional is consulted are situations win which no litigation is
1 2

. Henry Compbell Black, Black's Law Dictionary, P. 846. . S.R. Myneni, Legal Research Methodology, P. 3. 3 . Ramanath P. Aiyer, Concise Law Dictionary , P. 745. 4 . Enid Campbell and Mac Dougall, Legal Materials, P. 157.

contemplated and in which none occurs. In such circumstances, comprehensive legal research may involve an inordinate use of the offices resources. They reply to this is obvious. Legal research is the foundation for good legal advice. Before advising a client a legal professional should satisfy himself that, if the necessity arises, he will be able to persuade a court that there is a legal principle which is supported by convincing authority and which, properly interpreted, governs the questions in dispute. Poor legal research may result in advice which, at the least, is incomplete and inaccurate, and which, at the worst, may be positive wrong. Quite apart from questions of professional negligence, no responsible lawyer will want to compromise with mediocrity. If litigation arises unexpectedly, it may be too late to remedy the miscalculation of the past. All legal advice should be given on the basis that litigation is an ever-present possibility. The sheer mass of authoritative materials is the greatest difficulty confronting some one engage in legal research. If the problem involved is a simple one, which arises continually in practice, and experienced legal professionals may be able to select the appropriate statute or case report immediately from his library shelves. However, this store of built-in knowledge is rapidly exhausted. What is the legal professional to do when he is faced with an unusual problem and the frightening array of volumes of legislation and judicial decisions available in any modern law library?

Chapter -2 AID MEMORIES OF LEGAL RESEARCH

We can take aid memories of legal research to the sources as follows. Primary and Secondary Sources: Primary sources contain the actual law. Constitutions, court decisions, cases, statutes, treaties and administrative regulations are all examples of primary sources. Secondary sources are materials, which comment, explain and annotate on these primary sources. Usually, they include treaties, legal periodical, articles, legal encyclopedias, annotations, law dictionaries, commentaries, continuing legal education publications, opinions of the Attorney General, Secretary of the Ministry of Law, Justice and Parliamentary Affairs and other agencies. On the other hand, finding tools are reference publications, which are used to find out primary and secondary sources. They include digests, indexes to legal periodicals, indexes to annotations, law dictionaries and citations. 1. Primary Sources: The following sources are considered as primary sources in the legal research by the legal professionals. 1. Constitutions, 2. Statutes, 3. Treaties, 4. Court decisions, and 5. Administrative regulations. 2. Secondary Sources: The following sources are the secondary sources used in the legal research by the legal professionals. 1. Treaties, 2. Commentaries, 3. Law review/Legal periodicals, 4. Articles, 5. Continuing legal education publications, 6. Law encyclopedia,

7. Annotations, and 8. Opinions of the Secretary of Justice. 3. Finding tools: The sources as mentioned above can be found from the finding tools and the finding tools are as follows. 1. Digests, 2. Indexes. 3. Annotations, 4. Legal citations, and 5. Law dictionaries. Legal research calls for judgment, creativity and flexibility. There are many approaches to legal professionals. Each research situation calls for different strategy and depends on the working familiarity of the legal professionals in the area of law being researched. The ultimate goal of any legal professional is to find the primary source materials applicable to the problem as efficiently as possible. 4. Five-step approach to legal research: Professor Myrana S. Feliciano views that the legal professionals while carrying the research shall have to follow five-step approaches and these steps will help the researcher so concerned to gather the essential facts required for the research.5 These steps are as follows.

1.

All facts on paper:

This is very simple if we utilize the five "Ws'" and one "H" in gathering the essential facts of the problem.

Who did it and to whom? What has it done? When was it done? Where was it done? How was it done?

The research can either do it in outline form first and then resort to the narrative from later on when the legal professional start doing his memorandum or pleading. These facts should be concisely stated. While researching on any legal problem, one must look under the right words in the indexes. An efficient way to utilize indexes and digest is to use the TAPP rule. TAPP is an acronym for Things, Actions, Persons, and Places. Using the TAPP rule, the legal professional can categorize the facts into terms the author or publisher might have used to index the legal problem. Think of common or generic words suggestive to the Thing, Act or the Person without which there would have been no controversy. Sometimes, the legal professional must consider the relationship of parties to each other or whether they belong to a special class.

For Example: In Basantapur or Kathmandu Municipality a child eight years of age was playing in their backyard with a child of the neighbor when a dog owned by the neighbor bit her. She was treated for multiple lacerated wounds in the hospital and was administered an anti-rabies vaccine by a doctor. According to the neighbor, the dog was tame and was merely provoked by the child into biting her. You are asked to research on this matter. What key words will you research on among the reference or finding tools?

2. All Issues on Paper: For legal professionals so concerned with the awarding of judgment, it is easy to spot issues because the pleadings themselves through the complaint and answer place the issues before the court especially after the pre-trial procedure. But if it is merely a problem or a case, it is hard to spot the issues, whether patent or hidden. This process is the core of the analytical process inherent in legal research. Legal issues involve questions about how the law relates to the facts of the case. Accordingly, issues such as jurisdiction and statute of limitations precede other
5

. Myrana S. Feliciano, Methodology in Legal Research, P. 1- 6.

issues if their legal requirements are not met, the entire lawsuit will be dismissed. Another guideline to be remembered is that issues dealing with the legal claim or "because of action" should precede issues dealing with relief or remedy sought because only a limited range of remedies is available for each of the action. Thus, in the given example, certain issues may be formulated. a. Was there any negligence on the part of owner who own the dog? What are the elements of the negligence? b. Was there any action on the part of the child, which induced the dog to bite him? c. How about the minority of the child? Does it affect the outcome of the case? d. e. What is the liability of the owner of the dog, which bit the child? Did owner see to it that the dog received regular anti-rabies vaccine?

The legal professional has to arrange the legal issues raised by the facts in the logical order for research.

5.

List of Books to Use: The best plan is to make a list of books or publications in the order so that it can be consulted with reference to the case.

6.

Gather Authorities: Before the legal professionals can proceed to it, he/she has to classify the problem as follow. Is it a constitutional problem? Is it a statutory problem? Is it an administrative law problem? Is it a case law problem? Is it a procedural law problem?

Once the subject field is ascertained as mentioned above, it is better to list down the treaties or textbooks that can be consulted to obtain background information.

After that the legal professional must examine legal indexes and digests to locate "mandatory primary" authority, which the courts must follow. What are these mandatory primary authorities? It includes Constitution, Statutes, treaties,

administrative regulations and rulings, courts rules and cases.

If there is no primary authority that addresses the issues, then it is better and look for "persuasive primary authority." This is primary authority, which is not binding on the courts such as the opinions of the Attorney General, Secretary of the Ministry of Law, Justice and Parliamentary Affairs, the interpretations of administrative agencies, and primary authorities from foreign jurisdiction. Note that in order to utilize foreign authorities, their law must be similar to legal professional to which he/she belongs. Another alternative is to locate secondary authorities and other persuasive materials such as textbooks, commentaries, annotations, surveys, legislative history and periodical articles that comment or criticize certain statutes or cases

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Chapter -3 MEHODS OF FINDING LAW

1.

Main Methods of Finding Law: Professor Clyde Emery, namely, suggested that there are two methods of finding materials, which are as follows.6

1.

The Short Cut or the "100 Meter Dash:" Method: The short cut or the "100 Meter Dash" method usually consists of the following steps: (a) Exhausting the statutes and their annotations and/or digest on the point under search; (b) Reading the cases so found.

As we read each provision or case, ask the following questions: Does that provision or case bear (favorably on unfavorably) on the point? Mark the material found with a piece of paper and indicate the pages which the legal professionals can use and indicate whether it is pro, contra, analogous, or distinguishable the issue. Leave this marker in the book.

2.

The Long or? Marathon" Method:

The long or? Marathon method turns back to the list of books to be used as Primary sources, secondary source and their finding justice. Each book should be expanded thoroughly. Whenever there is a listing of cases or statutes, either in the text or in footnote, the legal professionals has to note or read them.

2.

COMPUTER-ASSISTED LEGAL RESEARCH (CALR) Computer-assisted legal research (CALR) provides for new ways to find and read he law. It is defined as research that is conducted with the use of computers,

. Emery Clyde, A Streamlined Briefing Technique, P. 15-31.

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computer networks and CD-ROMs. 7 The word Internet means a computer network linking over large number of computer networks together that open new opportunities for legal and non-legal research. When a legal professional goes on line, this is used to describe one who is using a computer to connect by a modem to the memory of another computer stored at a remote location.

1.

Formulating the Search: Before going on-line, the legal professionals should have a working knowledge of the legal issue being researched. The legal professionals has to remember that online computer research can be expensive because the organization so concerned will class us or are being charged of computer time. It is also imperative to select the proper database.

2.

Internet Sources: Examples of Internet sources are as follows:

1.
S.N. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

URL LINKS TO M INISTRIES, DEPARTMENTS , COMMISSIONS ETC

Web Site URL www.mope.gov.np www.biodiv-nepal.gov.np

Name of the Ministry Ministry of Population & Environment Ministry of Forest & Soil Conservation Ministry of Finance Ministry of Industry, Commerce & Supplies Ministry of Culture, Tourism & Civil Aviation Ministry of Foreign Affairs Ministry of Local Development Ministry of Home Ministry of Science and Technology Ministry of Defense Ministry of Health Ministry of Information & Communication Ministry of Law, Justice & Parliamentary Affairs Ministry of Labor & Transport Management Ministry of Education & Sports

www.moics.gov.np www.tourism.gov.np www.mofa.gov.np www.mld.gov.np www.moha.gov.np www.most.gov.np www.rna.mil.np www.moh.gov.np www.moic.gov.np www.moljpa.gov.np www.moltm.gov.np www.moe.gov.np

. S.Barba and M.A .McCormick, Legal Research, P.P. 206-207.

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S.N. 1 2 3 4 5 S.N. 1 2 3

Name of Commission National Planning Commission Election Commission Supreme Court Commission for The Investigation of Abuse of Authority Parliament Name of other Institutions Nepal Telecommunication Authority Nepal Rastra Bank Radio Nepal

Web Site URL www.npc.gov.np www.election-commission.org.np www.supremecourt.gov.np www.akhtiyar.org.np www.parliament.gov.np (corrected) Web Site URL www.nta.gov.np www.nrb.org.np www.catmando.com/radionepal

(Source: Ministry of Science and Technology) 2. Find Law: www.findlaw.com Contains U.S. federal and state cases, statutes and rules etc. 3. Website of United Nations http://www.unsystem.org/ http://www.un.org/aroundworld/map/ http://www.un.org/ http:/www.un.org/documents/ http:/www.un.org/Depts/dhl/resguide/index.html http:/www.icj.org. http:/www.un.org/Depts/dhl/resguide/spechr.htm http:/www.unhchr.ch/women/focus.html http:/www.unhchr.ch/women/ http:/www.unhchr.ch/women/genderequality.html http:/www.unhchr.ch/tbs/d/CERD+General+recom.+25.En?Opendocum 5/30/02 http:/www.unhchr.ch/html/menu2/7b/tm.htm 4. Website of United Nations Relating to Human Rights Bodies: 1. Commission on Human Rights (Country and Thematic Mechanism, Resolutions, Decisions and Various Documents of the Commission (http:/www.unhchr.ch/html/menu2/2/chr.htm and http:/www1umn.edu/humanrts/commission/commission.htm).

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2. Human Rights Committee (Individual Complaints, Decisions, Official Records, Country Report and General Comments, Decisions, and Views, and Annual Reports (http:/www.unhchr.ch/html/menu2/6hrc.htm and http:/www1.umn.edu/humanrts/hrcomittee/hrc-page.html). 3. Committee Against Torture (Individual Complaints, Decisions, Country Report and Consideration of Reports and Decisions and views (http:/www.unhchr.ch/html/menu2/6cat.htm and http:/www.umn.edu/humanrts/cat/cat-page.html). 4. Committee on the Elimination of Discrimination Against Women (Country Report and Other Documents, Various Documents and CEDAW Committee (http:/www.unhchr.ch/html/menu2/6/cedw.htm, http:/www1.umn.edu/humanrts/cedaw/cedaw-page.htm, http:/www.un.org/womenwatch/daw/cedaw/commit.htm and http:/www.un.org/womenwatch/daw/cedaw/archive.htm) 5. Committee on Right of Child (Country Reports, Other Documents and Comment on Country Report) (http:/www.unhchr.ch/html/menu2/6crc.htm and http:/www1.umn.edu/humanrts/crc/crc-page.htm) 6. Committee on Elimination of Racial Discrimination (Individual Comments, Selected Decisions, Country Reports, Other Documents, General Recommendations, Opinions, Country Observations, Decisions and Other Documents and World Conference Against Racism (http:/www.unhchr.ch/html/menu2/6/cerd.htm, http:/www1.umn.edu/humanrts/country/cerd-page.htm and http:/www.racism.gov.za/) 7. Committee on Economic, Social and Cultural Rights (Various Documents and Country Report and General Comments, Concluding Observations on Country Reports and Other Documents) (http:/www.unhchr.ch/html/menu2/6/cescr.htm and http:/www1.umn.edu/humanrts/esc/esc-page.htm)

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5.

Website of Other United Nations Human Rights Documents: UN human rights document (http:/www.unhchr.ch/html/otherdoc.htm, http:/ilis.ilo.org.trib/ilintrtr.html and http:/ilolex.ilo.ch:1567/public/English/50normes/infleg/iloeng/digestq.htm 6. European Human Rights System: a. European Courts of Human Rights (http:/www.echr.coe.int (General information, pending cases, and judgments) b. European Commission of Human Rights (http:/www.humanrights.coe.int/) c. Council of European Case-Law Collection(http:/hudoc.echr.int/hudoc/) 7. Inter-American Human Rights Systems: a. Inter-American Commission (annual reports from 1991-1999) (http:/www.cidh.oas.org/publications.htm) b. Inter-American Court Jurisprudence (http:/www.corteidh.or.cr/juris_ing/index.html) c. Inter-American Court of Human Rights Advisory Opinions and Contentious Cases (http:/wwwl.umn.edu/humanrts/cases/commisin.htm) d. Inter-American Human Rights Database (http:/www.wcl.American.edu/pub/humright/digest/index/html) (Source: ASIL Guide to Electronic Resources for International Law)

8.

World Law: http:/beta.austlii.au/links/world

9.

Project Dial (Development of the Internet for Asian Law): http://www.austii.edu.au/dial/ located anywhere on the Internet a search facility for finding legal resources.

10.

ASIL Guide to Electronic Resources for International Law: www.asil.org/resouce/home.htm

11.

CD ROMs Available: Available in the Nepal Bar Association.

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12.

Foreign CD's: Tiara. Treaties and International Agreements Researchers Achieves. USSC+CDROM. Unites States Supreme Court (1953-1997). Wilson Disc. Index to foreign periodicals and books. CRC Publications. International Committee of the RED Cross. REFWORLD. United Nations. WB Product, 1997. No Peace Without Justice. United Nations Documents. Multilateral Treaties Deposited with the Secretary General:Status as at 31 December 2002.

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Chapter -4 MAKING LEGAL PROFESSIONALS MEMORANDUM Before proceeding with a formal memorandum, an outline or skeleton memorandum should be made. This provides series of answers listed in No. 2, with all the materials found on each question, so that the strength of each proposition can be measured at a glance. This is usually handy in preparing for a trial or briefing job for a client. The formal memorandum of varying degrees of formatting is usually required in the following: a. b. c. d. e, Appellate brief; Brief to be submitted to a trial judge; Memorandum to an opposing, counsel; Memorandum to a "law conscious" client; Proposed contents of a decision.

In making memorandum, the legal professionals have to pay attention to the grammar, the substantive content, the brevity of arguments and its development, the preciseness of the words used, and the accuracy and completeness of the citations.

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Chapter 5 Conclusion Conclusion:

Legal research plays a very important role in recommending solutions to existing problems of the society or in solving the already solved problems in better way. It also helps to discover or invent new legal ideas and technologies for legal professionals. As we know, that legal research can either make or break a case. Therefore, legal professionals must carry out on their parts some level of legal research before filing a lawsuit and giving verdict to it. Failing to pursue research, a case may fail to present its strength and verdicts may be made in favor of wrong person. Legal research helps analyze legal professionals about the case effectively and award justices to the genuine victims.

Practices of legal research do exist in Nepalese legal practices but not in a state that has been followed the particular legal research method. Research is carried out in a very limited way. In order to carry out legal research, by the legal professionals, it shall be required to follow the legal research method as mentioned above efficiently and effectively by all legal professionals.

In the end legal research method helps to impart just and genuine verdict in favor of true victims. It enables the legal system to function effectively. To effectively function the judiciary of a country, legal professionals including legal research have a crucial and very important role to play.

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Bibliography 1. Anne Burnet et al, ASIL Guide to Electronic Resources for International Law, 2nd revised and expanded edition, American Society of International Law, Washington D.C: 2002. 2. Emery Clyde, A Streamlined Briefing Technique, 4th edition, Oxford University Press, Oxford: 1998. 3. Enid and Donald Mac Dougall, Legal Research: Materials and Method, 3rd impression, the Law Book Company, Sydney, Australia: 1974. 4. Henry Compbell Black, Blacks Law Dictionary, 7th edition, the Publishers Editorial, USA: 1999. 5. Ministry of Science and Technology, URL Links to Ministries, Departments and Commissions, Kathmandu: 2002. 6. Myrana S. Feliciano, Methodology in Legal Research, PHILjA, Philippine: 2002. 7. Ramanath P. Aiyer, Concise Law Dictionary, Abridged edition, Law Publishers, New Delhi: 2001.

8. S. Barbara & M.A. McCornick, Legal Research, 2nd edition, George Allen
and Unwin, London: 1996.

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