I

yi3,

i:.

1hf;fl,1rfi1

ij

3TnUflfl*t}
to the

METHODS OF LEGAL RESEARCH

inquiry, if it exists, is usually there to be unearthed. If is not dug up, the research is'a dismal failure.

it

CHAPTER ELEVEN

able. True research is, indeed, a search that is diligent, intelligent and continued. If time is of the essence, he must
know how to zoom toward his object of search swiftly and easily. He must, therefore, employ all the means and resources available at his command, including befriending the librarian, if necessary.

No true researcher gives up easily. No excuses are accept-

METHODS OF LEGAL RESEARCH

specifrc soulce materiBEING AWARE of the existence of unleis they are used and als in law does not mean anything research' tfr"o r." is maximized' This means legal

The general problem, at any rate, is that the researcher does not have all the time in the world. In this day and age, time is a prime commodity one can ill afford to waste. Lawyers, and even judges, have their deadlines to meet. Those who need the research cannot wait forever. Hence, hit-and-miss tactics have no place in any intelligent research. What is required is a scientifrc use of the books. To be able to undertake the legal research with facility, one needs skill and technique.s

RESEARCH I. THE ESSENCE OF LEGAL

a continued repetiOriginally, the term "research" meant thus means a compretion of slarch. Genuine legal research mere aimless' unrecorded' hensive search ,r.J'"-t"u'"th' But unchecked search, so it is s

Skill and technique compose the art of legal research. These qualities, however, cannot form part of the normal equipment of the researcher unless he is thoroughiy at home the tools of his trade. Only then can he with the legal tomes exploit his search time to the hilt.a
Since the basic research approach to a specific problem

will

repeated. It can never, exce sions. Research is diligent,

vary from country to country and depend on the subject under consideration and the published sources available for that jurisdiction, it is impossible to offer one effective model procedure.5

arch is not a

oflife' veritablY coasPect

I

is to emerge from it with The great pitfall in legal rese-arch a product of haphazard or an incomplete or "t'o""oit result' or the precedent material superfrcial i.rve.tig;tio"' ttt" statute
Srd ed 1942' ' tFrederick C Hicks, Materials and Methods of Legal Research'

As a legal tool, how valuable is research in the practice of law and the administration of justice in the Philippines?
sHenry Brandt, How To Find the Lau,3rd ed., 1940, p. 1. aVicente J. Francisco, Legal Researclz (1950), p. 2. ssee also: Price and Bitner, Effectiue Legal Research ( 1953); Moreno, Phitippine Legal Bibliography (3rd 3d., 1966); Bumanglag, Wlrcre and Hout to Find and Apply the Law (1951); Cohen, How to Find the Law, 7th ed., (1976); Kunz, Schcmdemann, Erliner, Downs, The Process of Legal Research ( 1986).

o.23.

rHicks, oP- cit', 30'

354

A GUIDE TO PIIITJPPINE I,EGAL MATERIAIS METHODS

OFLEGALRESEARCH

\E'T

ard to euantify because Pnswer one way or the for legal research is nd source books, and creases in direct proportion On this, we cdn .ry .o_"_ rs in the provinces far from n about the scarcity of law

The "Livin g Law" Approach Step 1: Go to a Law Finder Step 2: Go to the Law Step 3: Supplement it.

*l;r*iX9_":1:flbri.atio.,, Supreme Court, which t u. ,6ii-i'I-i;;;;i !h"T, they are gradually legal tomes depending on

il*i::*::::":",h,"g"u""1-i-r,-iJl,"#'"iil1tfl X,iii,; llf i11;.;X5Xr:1..^1."uJi"tr,",,.iir",;;;;;;::ffi i#:: :ilillT::"^9o,'o*','.:" b;i"; r-.of ia"a rrri," r-^^ .opilTii "j Z,Ii;iii"l
;"p'ff
over more and more

l* lll:f:l{8,,-dthe

philippines, we are happy to say,

Common Methods of Search The Fact Word Method The Topic Method The Case Method The Dictionary Method The Popular Name Method

A.

The "Living Law" Approach

One very clear piece of advice is to be found in the Liuing Law, the guide furnished by LCP/BW or the Lawyers' Cooperative Publishing Company and the Bancroft-Whitney Company, publishers ofthe Total Client Service Library (TCSL), foremost among which is the famous Arz Jur. Ttre advice is to the effect that any legal research activity must have a minimum ofthree steps:

ofthe case. This sometimes misreads the j"ds? into favoring the adverse rrt.gr"t when the equities ofthe case belong to the party r"p."r"rrt"d by th" Jf,o rrra erroneously or wrongfully used legal authorities.

sense of the rear issues

prac

use unn

the lawyers have access to law nal collections, office libraries or dings in general indicate by those who file them. . Some lawyers, however, over_ s by citing many of them -too

Step 1:

;
The most widely used Law Finders (or Search Books, as they are sometimes called) are:
Indexes Tables Digests Citators Cross References Words and Phrases Classifrcation Schemes (or Tables of Contents)
Step 2:
GO TO THE LAW: Go to wher,e your answer-isfound - it may not always be where you thought it would be, but a cross reference will no doubt direct you to the proper place. This !s the book which contains the statement ojlhe law.

T,l::lT"J,:.J_XX$T,::ffi**

il;il

III. RECOMMENDED METHODS OF SEARCH

di-o .+-+^-.-^-+

-^.,

L; ^ ^^ .^-=" ^r^r--r^

^:

-^--t^a:^-

^--

METHODSOFLEGALRESEARCH
A GUIDE TO PHILIPHNE LEGAL MATERTALS

359

B.

Gommon Methods of Search

of books and services are found:

or is deterThe specifrc method of search depends upon being used' It is the search book that -ir"a Uyi'tte search book the search' It prescribes the method' tells you how to co.rdrct Common methods are at least five:

Statutes (Annotated and unannotated)

ffiil*tt

Rulings and Regulations "ative Annotations in ALR and Lawyers'Edition S. RePorts of U. Textbooks
EncycloPedias Restatements and Commentaries Loose Leaf Services Handbooks and Manuals Articles in Periodicals

or in The methods may be used isolatedly' consecutiv^ely given facts, the the combination with one lnother depending on and subsequently on the results' available search books

' 'o ' '

Fact Word Method Topic Method Case Method DictionarY Method Popular Name Method

Step 3:

various intervals. Tlpical supplements are:

Cumulative Pocket Parts Bound SuPPlements Replacement Volumes Later Editions Advance OPinions Legislative Services Slip Laws Loose Leaf Releases

iar with the fact words used in the obviously search book he will consult. The index is constructed i" .".ota.nce with the predilections of the indexer' Ifthe subject ofthe research is a car accident between a instead of using motorcycle crossing a road and speeding truck' the researcher may look iearch, G.i .or."pts as tile words up such fact LIMIT,VEHICLES, like. These suggested terms we exist' Iar search book in mind; hence, they may or may not irr If a person eating in a restaurant had a frshbone stuck for legal authglJy his throat and he *rit. to sue, the search RESTAURANT' FOOD' FISH' ;;y;" through the fact words rime, these terms come to mind BO"IrfE, or FIS--H BONOS. This from a previous personal experience'
I

ullg

uv6uu

The T onic Method - This is also Saoroh i s eo

f-^* |ho ---^-^-+^ Iegal prootem ano lf,s components from the r :-- rI- ^ ^^-+^v+ standpoint of the .Jt"gi subjects he took 1d 1n subjects already mentioned of the eight bar ""r#.t.tiotts previously:

The FiliPino lawYer

*::11*

l.

360

A GUIDE TO PHILIPPINE LEGAI MATERIAI.S

METHODS OF

I.EGALRESEARCH

361

. . . . . . . '

Political and International Law Labor and Social Legislation Civil [,aw Taxation Mercantile Law Criminal Law Remedial Law Legal Ethics and Judicial Ethics

began in 1985 or ten Years;

His four years'stay in college has so programmed his mind to this system of classification that Iong after he becomes a member of the Bar, he instinctivbly approaches a legal problem from this viewpoint. Some search books and frnding-tools have been formatted to make them compatible with his programmed memory.

A historical fact is that Dean Gupit's series on Supreme Court Doctrines, which began in 1975, originated the main classification of the eight bar subjects, subdivided generally into the college of law subjects, although, for precision purposes, some subjects are broken up into more specifrc topics.6 The success ofthis classifrcation is evidenced by the reaction of those who are able to use the digests easily. They simply recall their school days when they search for authorities. This classification, with some modifications, is basically the format of Martinez' Summary of Supreme Court Decisions,

compendium series of Al tions of lhe SuPreme Court R follows the same manner of classifrcation, although its Quick IidexDige.sf classifies the courtmlings under an alphabetically arranged scheme of legal toPics'E If a researcher, for example, wants to know whether a foreign company rnay frle a irrit in Philippine courts, the the reseircher's-programmed mind would probably ^pinpoint i*"" ,.-U"i.rg "ia"r "Corporations," a college of law subject, *t i.r, falls u-nder the general classifrcation of Mercantile or Gupit's Commercial Law, a bar &amination subject' UsingDean Supreme Court Doctrines search would turn to the proceed to the sub-heading " subject, the different items are i t"g; tire frrst words of each item which is usually a topic. Again, if a lawyer wants to know if there have been annotations on suits bY or ag SCRA, he couid consult the ' appendedto the SCRA Quick main classifrcation "Commer

Vol. 17, p. 1041 of SCRA.

ation is

dThe topic classification follows:

in Gupit's

Supreme Court Doclrittes is generally as

and

s,

Consti Local

s and Public Corporations' and

, Administrative Law,

Suffrage

I. CryIL

LAW: Agency, Contracts, Credit Transactions, Damages,

Donations, Family Relations, Land Titles, Leases, ObligaLions, Ownership, Partnerships, Persons, Property, Quasi-Contracts, QuasiDelicts, Sales, Succession and Suretyship. II. MERCA]IIILE ["AW: Banks, Corporations, Customs Laws, Insurance, Negotiable Instruments, Public Utilities, Trademarks, Transportation. III. REMEDIAI LAW: Civil Procedure, Criminal Procedure, Evidence, Special Civil Actions, Special Proceedings. rV. POLIICAI LAW: Administrative Law, Citizenship, Constitutional Law, Elections, Immigration, Municipal Corporations, Public Officers. V. CRIMINAL LAW. VI. L,ABOR: Labor, Agrarian Relations.

vII. V[I.

TAXATION. LEGAL ETHICS: Legal Ethics, Judicial Ethics, Statutoty Construction.

VIII.

LEGAL AI'ID JITDICIAI EIIIICS'

hhose

"re

bY-Products of SCRA'

362

A GUIDE TO PHILIPPINE LEGAI MATERIALS

METHODS OF LEGAL RESEARCH

The tomes of the Philippine Digest, as continued by ths Republic of the Phitippines Digest, were original underta[ings of American lawyers working for Lawy ers' C o-operative "\,rh1ct1 adopted the topic system in t American Jurisprudence. As cation was a mind-boggling structure was used on decisio for which reason, the Philippi Philippines Digest are valuab well a happy blend between t
systems.

started factual researc

such terms.

meanings oflegal or to the mind of the e Problemhinges on

The Case Method.. Usually aftet retfieving a case or two from existinglegal materials, the res the case tors. in the original. H" go"r through titl A legal expert can often remember the titles of landrnqrk cas heir citations. ber e title indexes are nd to those wh under him. Available at present are the title indexes of the Ateneo de Manila Libraries and the Title Indexto Supreme Court Decisions of the U. P. Law Center prepared by Milagros SantosOng. Old indexes are Justice Moreno's Desk Book (1958) qr6 the case indexes of Phitippine Digest and the Republic of the Philippines Digest. SCRA now makes within its volumes a list of cases s1 6 yearly basis. ofaU.S. SupremeCourtcase, Ifthere d through the use ofthe tq61e for instance, ofcases intheLaw. Ed. Digest. The case can be located even rfthe researcher knows onlv the name of one ofthe parties, because il1s table provides direct and reverse titles of every U. S. Suprsmg Court case in alphabetical sequence. Cases reported in the Natiolsl Reporter System of the West Publishing can be located in the appropriate unit of the West Digest system. Needless to state, as shall be discussed, the cases retrieved have to be updated and evaluated. The Dictionary Method,. This is also otherwise known ss the Words and Phrases Method. Sometimes, research may 5"

is a de facto offtcer in the frrst place'

ThebookswhichcanbeusedfortheDictionaryMethod bed likewise in a Previous

B

allentine's Law Law DictionarY'

iction-

know that the index he will consult uses popular names'

C.

ComPuterized Search

A common LEXIS search is for a

likely to appear in cases

particular word or phrase in which the researcher is interested.

364

A GUIDE TO PHILIPPINE I.EGAL MATERIALS

METHODS OF LEGAL RESEARCH

Supposeyou are handlingaproduct liabilitycase involvingpajamas that caught fire. You instruct LE)trs to find cases in which the word "pajamas" appears in proximityto the word.fire" or 1flamma_

ble" or "inflammable." other potentially relevant words may be included such as'bu,r," ",ig!it*," "spark,,,,.flame," etc. LEXIS will then search through the cases electronically and retrieve those that contain your "search words." The cases may be reviewed immediately on the screen. LEXIS can scan only the section ofthe case in which your search words appear.

LEXIS can find specific cases in several ways: (1) by judge; Q)by court;(3) by date (before a given date, after a given aaie, on a given date, or between two given dates); (a) bV words or phrases or combinations of words or phrasos used in the decision; (6) bv counsel (in some libraries); or (7) by section of a statute or regulation.
The researcher may also use combination searches to find, particular circuit court judge between two specific dates, or from a specifrc date to the present. perhaps the
say, the opinions of a

researcher needs to review chief Justice opinions on double jeopardy.

warren Burger's

law, study the judge's previous decisions and opinions, analyze prior tactics of opposing counsel and gain background material on the litigants by reading relevant news stories. All of this information may be obtained through LEXIS. As pictured by LEXIS itself, it can do the following:

If a lawyer wishes to undertake a thorough research for a case he is handling, he would most likely review pertinent case

"1. Locating cases involving specif,rc fact pat_ terns. For example, what are the legal consequences of leaving an ignition key in an unattended boat? LEXIS permits searching for specifrc fact patterns independently of the legal concepts and principles involved. Fact pattern searches are particularly useful in areas of law in which principles are well defrned and cases are decided on nuances offact.
"2. Finding cases involving two or more distinct frelds oflaw. Using hierarchically organized indices is

particularly frustrating when this type of situation is Lncountered. For instance, in researching the tax consequences of a particular kind of contract, do you consider tax the primary issue and the contract secondary, or vice versa? With LEXIS you have the flexibility to combine the ideas without worrying about how an indexer would classify a case which involves legal principles from more than one ipecialty. "3. Locating cases involving specific legal principles, such as res ipsa loquitur an.d mens rea' "4. Identifying opinions written by a particular judge, or in which particular counsel appeared. "5. Locating cases or statutes containing particuIar terms or phrases (e.g., de facto segregation, unconscionable, short swing profrts). "6. Retrieving cases that discuss the language contained in a standard contract. "7. Finding cases that construe particular statutory provisions or contain defrnitions of statutory Ianguage or discuss several statutory provisions' "8. Locating a case when only the name of a party, or docket number, or other limited information is known. "9. Using LEXIS as a citator to locate the most recent cases citing an earlier decision, statute, treaI tise or article. "10. Obtaining the text of a recent opinion lhat is not yet available in the advance sheets. "11. Obtaining the text of a U.S. district court decision that was not included in any case Iaw reporter' "L2. Deterrnining how federal circuit or district
courts have applied subsequent cases.
a

U.S. Supreme Court decision in

"13. Double checking other research. LEXIS can be used to examine the accuracy of previously pre-

366

AGUIDE TO PHILIPPINE LEGAI MATERIALS

METHODS

OFLEGALRESEARCH

pared work or of
counsel."

367

brief submitted by opposing

The foregoing should be enough to illustrate how the computer can facilitate search.
Creating Own Sources and Methods of Search In the ultimate analysis, storage and retrieval problems are personal to the res_earcher. If legal research is a regular activity to him, he will doubtless his own stJe of -"i.rt"i, source materials, small or big depending on his resources, as well as his own ways of sea".ti"j through them. The beginner in law is unconsciously inaugurated into the world of storage the moment he buys lawbooksl"a t"te. ao*r, If he writes all his notes in one lecture notebook, wishes that he should have placed his notes for subjects in separate notebooks. That is his frrst experience at classification and simpry marking the cover of a lecture notebook with the name of irr! u* subject is already establishing a method of retrieval.

current materials that come their way. The files are either called reference materials or research materials or both. For instance, articles of incorporation of specifrc types of corpora_ tions are frled and used as models.

D.

E.

Preparing the Search

Before you even start your adventure into the law books, there are indispensable preparatory steps that you have to take:

7-a

/a
a

Get the Facts Analyze the Facts Form a Preliminary Hypothesis List Access Words Search
Get the Facts.

1.

ofwriting court rulings and blank spaces of their law aluable. That is a crude but very individualized basis.
are fond

diges just c them

F

Law libraries and some lawyers clip the newspaper case ex cards and file them. Sr# p""pi"
one place, and browse eed arises.

trr"o"gi.iiof
own com,ucomPlaint of

among states has been violated.

those who use the

or some time teizedsystems of s public, much less to

'

o,en to the

legalinfo;;il,

them
inline

garbage out. Whatever, their systems should.""rr" of their existence to some extent.

wit

:;HX-:1';
tf," fo.'po""

Law offrces devise their own files of legal information. Aside from their offrce libraries, partners instruct their crerks or librarians, if they have them, to frle for future ,"f"""r."

unclassified. It is up to the lawyer to organize them for legal analysis and search purposes.

problem. T required to determine the relevant facts. That cal. When a client narrates his/her problem, the facts narrated to the lawyer are disorganized and

In the 1983 bar exqminations, the problems in remedihl law were very lengthy. It was obvioui that the examiner included a lot of raw facts that had no relation at all to the

2.

Analyze the Facts.

To aid the researcher in

judicial precedent, he must

his break

statute or ebments.

A GUIDE TO PHILIPPINE LEGAL MATERIALS

MEII{ODSOFLEGALRESEARCH

369

"seamless web." One cannot simply tag a case as just a labor problem, or merely one involving contracts or procedure. There are more sides to a case than meets the eye. Because a legal problem is often multifaceted, no one case can be said to be on "all fours" with another case as to resolve all the issues that may arise in the latter. No two cases are exactly alike in much the same way that no two faces, even those of Siamese twins, are perfectly identical. There are bound to be some variations that

Legal problems are rarely simple. Law,

it is said, is a

the theory is the final formula, thdcourse of action, or the game plan by which the lawyer puisues his objective and hofts to achieve it.

would distinguish one case from the other.

AII this only illustrates the need to analyze a legal problem thoroughly and to leave nothing to chance. As a pathologist would minutely dissect the tissues of a patient, so must the researcher examine in detail the facts of a case, if he is to arrive at a correct perspective for proper search. But the researcher need not do a search of authorities on al! the perceived components of the problem. His search may be confined to just one or two aspects of the case, or he may need just a couple of decided cases to support a principle oflaw he hasjust cited. This brings us to the next preparatory step.

A couple of things, however, must be constantly kept in mind in developing a theory from a hypothesis. First, hypothesis being tentative, the researcher must always keep an open mind, be alert for other possibilities, accept new twists and turns, and be ready to modify, even to discard, the hypothesis if the results of his search do not validate its accuracy or truth. second, he must carefully examine the facts before formulating ihe hypothesis. with the formulated hypothesis as a guideline, the researcher can then begin to gather the pertinent Iaws and
cases.

4.

List

access words.

It should go without saying that as one goes through the process of getting the facts, analyzing the facts, and forming a preliminary hypothesis, possible access words should already
be

as well as the specific search books to be consulted.

listed, having in mind all the prescribed methods of search

3.

Form

preliminary hypoihesis.

A-b,p"q!hesis":san-i4&t-",tl.-e*o:a-q-o-qi-9g!ure-a---rr__q{y offered as a formula or as a proposition based on ifrable data. It is tentative because evidence is not sufficient or is incomplete,ind remains so until validated

by

Th

trut_h tested by authorities.

lhe key.ryo1ds- or the index words t is highly possible that some of the wn may not be found at all in the search books. That is why as many possible access words as the irnagination would permit, should be included in the list to assure a truly comprehensive search.
If in taking down the facts and forming your hl,pothesis, you *oid., then you can always make them as you review your notes before you
have not really thought of making a list of accer.

"o-p.i.a."AftsiinguEea in relation to the facts of the case. The hypothesis, therefore, serves merely as a pointer to guide the researcher in his hunt
for authorities. Viewed from another angle, a hypothesis is seen as the most reasonable formula, explanation, or solution considering the existing and verifrable facts or data.

actually begin the sea_rch. Ifyou have good notes, you can even;udt ,nderline or highlight the words in your notes that you plan touse as access words, which may be fact words or topic words.

Hypothesis must be distinguished from theory, which means a little more than mere hypothesis or conjecture. Theory is a validated hypothesis. It presupposes that there is much more supporting evidence or authority than hypothesis does, and greater likelihood for truth. Hypothesis, if not validated, is either modifred or fiscarded. After proper evaluation,

' 5.

Search.

to Philippine law and jurisprudence l:ut reaches out to the American and Spanish authorities. In recent years though,

T!-e. qct_qql__qeg.fch- begrns with finding-toois or search at some length in th6previous chapter. The Filipino lawyer's search for authority, however, is not confined
b.gqriss.described

370

A GI,,IDE TO PHILIPPINE LEGAL MATERIAIS METHODS OF I,EGAL

RESEARCH

377

knows the high esteem his colleagues place on both Spanish and American authorities, and the great persuasive effect that they have on our courts; so we still look into them. As previously ^ textbooks as his disEussed, the Filipino lawyer,s preference for frrst search
books is undisputed.

there has been a noticeable departure from dependence on them. Recent supreme court decisions show ress reriance on spanish and American authorities. still, the Filipino rawyer

his citation turns out to be wrong, no amount ofjustifrcation can make his citation right.

IV. EVALUATTON

place, he generally has them as part ofhis personal collection from his student days. In the second prace, he is most famiriar

in the first

textbooks, rightly or wrongly, give him an extensive treatment ofthe subject ofhis search.

the end of the books. In the third place, he feels that the

contents even if they may have no index or a defrcient index at

with them and frnds them easy to use through the table of

A.

Evaluation of Law

Finding the pertinent case or statute in a search book is often the end of the search for many lawyers, which is very incorrect. They are content with citing the encyclopedia, the dictionary, the digest or the textbook. some do not even bother to mention the search book and simply cite the case or the statute without bothering to go to any source book of primary authority. In terms of the "Living Law,, approach, ihey go through the initial step oflaw finding only without going to til" law itself. It is nbt an uncommon experience ofresearchers who go to the books of primary authority to discover erroneous, mislead_ ing or imprecise summaries, restatements or digests of court rulings. This is due primarily to the lack of skill ortl" staffers who made them.
There is nothing basically wrong with secondary author_ it consists of a profound exposition or critique of law by an eminent legal scholar or a well reasoned case review by even an unknown writer. But secondary authority should not ordinarily be acceptable.

Law, as we use it here, is the Constitution, the statute, or the administrative regulation with the force of law. It must be subjected to both internal and external evaluations.

ceases, then the law has no more reason for being.

ity; in fact it is highly desirable if

The problem sometimes is not so much laziness or lack of time to go to a book of primary authority as its non- accessibility to the lawyer. Oftenwise, he has to make do with what he has. It may be understandable but it cannot be excusabre in that if

Evaluation of statutory revisions is a combination of both external ev guage ofthe law as subsequent and interpreted to e true inten

372

A GUIDE TO PHILIPPINE LEGAL MATERIALS

ME"TIIODS OF

I,EGALRESEABCH

voting in said appellate court have to conform to B'P'

129.e

Incorporatittg. New case rulings are themselves inserted into the rules, such as those issued in Roy Padilla vs. Court of Appeals, L39999, May 31, tgga, 129 SCRA 558; People vs' Daniel, 86 SCRA 51; People vs. TYaYa, 89 SCRA 274' '\5) Innouating.New concepts are formulated to improve the rules. Example: A person i may be visited not only by counsel as Section 18 of the old Rule 113 but also by under Section 14 of the new Rule 113' '\6) Harmonizing. Rules found conflicting are

\4)

irOne tions unde

secued is,

itY or

court cases.

"(7) Repealizg. Rules considered obsolete or irrelevant are deleted. Example: The provisions in the rules regarding the function of the municipal

apr frled onge

on ted na-

'To be presumed innocent until the contrary is proved beyond reasonable doubt.,

watranted."

Revised rules are furthermore

follows:

to be viewed

eUnder EO 33, amending BP 129, the Intermediate Appellate Court has be

the Court of Appeals once again.

374

A GUIDE TO PHILIPPINE LEGAL MATERIALS

METHODS OF LEGAL RESEARCH

375

"If no change at all is.effected;.or if the change is clearly formal rather than substantial, the court interpretations of old are still valid. If there are substantial changes, then the problem begins. In fact, the diffrculty may even arise in deciding whether a change is merely formal or is actually substantial. Then a deletion will have to be studied carefully as to whether it is only due to redundancy or is a repeal. Substitutions, insertions, or additions, on the otherhand, have to be analyzed to ascertain the rationale therefor. This is clear in some instances, but it rriay not be so in other instances, particularly to the inexperienced. Anyway, the basic precept in legal hermeneutics has always been that the meaning of a rule is to be discovered primarily from the language embodying the rule. Doubts and ambiguities, conflicts and inconsistencies, should be immediately pinpointed so that an attempt to resolve them is as quickly made.,,ro In evaluating statutes, annotations thereof are helpful. They serve an important purpose. They can clarify and explain. Restatembnts alone are already guides to understanding. However, if improperly made, they can confuse, and herein lies the danger of the annotator's imprecise comprehension, or
undeveloped analysis, or careless commentaries.
To convert a positive rule to a negative statement or vice versa should already illumine but the conversions may be erroneous. The reverse implication that is made, may not be the intention ofthe rule makers. On the other hand, personal interpretations or comments on the rules may not have considered controlling case law or other existinglaws or provisions in other parts ofthe rules. This is one pitfall of all annotators. They have to be alert.

or may not merely await new court pronouncements which may affirm the old ru1ings.ll The value of an annotation, therefore, is viewed chiefly fromlts scholarly qualities. The text or treatise where the as annotation o..o-*6ntary is found should also be evaluated, On this matter' Morris *" ftu"" discussed in a previous chapter' L. Cohen had this to saY: "It is often difficult for the researcher to evaluate texts, but the following considerations may aid selection from among the -it-y available: the purpose of the putation ofthe author and f their Previous books; the th of research in this work; otnotes, tables, bibliograthe adequacy of supplementation and presphy, etc.); eni tlmeliness; and how it has been reviewed'"i2

B.

Evaluation of Precedents

1.

Internal Eualuation

The internal evaluation of a case occurs when one examines it as to the meaning the language of the decision conveys, t}re ratio d.ecid.end.i, reconciling, if necessary, pronouncements i" tfr" body of the decision ard its dispositive portion which should prevail in any event. The case is also analyzed in the context of the factuaiconfrguration of the problem at hand. The evaluator must, therefore, consider various factors, such as:

(a)

The court.

follow doctrines es jurisdictions, it is

The Supreme Court, as we have seen, is the only court that can lay down jurisprudence. Decisions of the Court of Appeals' o however, are persu

r
e

Another perilous area lies in recalling past jurisprud.ence. Hence, unless the case law is basic, it is preferable for annotators to be on the safe side, and that is not to mention the old case rulings anymore and to

It may not be applicable anymore.

in decision emanates because some courts are highly respected it involves certain frelds oflaw. so in this jurisdiction also when decisions of quasi-judicial agencies, Iike the Court of Tax Appeals and the National Labor Relations Commission'
rlIbid.
12Moruis

licatiqns, l.

l0Fortunato Gupit, Jr., Rules of Critninal procedure, euezon City, Rex Pub1986 ed,, pB.ix-x.

L. Cohen, Legal

Researclz, Srd

ed, West Publishing Company' St'

Paul Minnesota, p. 294.

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A CUIDE TO PHILIPPINE LEGAI MATRIAI.S

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377

(b)

The ponente.

- Some justices or jirdges have developed a reputation for learning and ability. Judge Learned Hand rr"rr""i"r.h"Jth" U.S. Federal Supreme Court, but his decisions -" iighfv regarded. (c)
The date of the depision.
The date is important because the decision may have been

court to have been betrayed.,,

On the other hand, Mr. Justice Jorge Bocobo of our own Supreme Court declared:
"The existence ofa forceful dissenting opinion and dissenting opinions are often ofthat character

rendered prior to the adoption of a borrowed statute or an amendatory statute.

(d)

The uote on the decision.

_ _

The nature of the vote, whether it is urianimous or by mere majority vote, and so forth, is determinative basically of the value of the case being evaluated.

of equally divided court is not a precedent. An opinion is weak where concurrences in the result abound.
a unanimous court. The opinion of an

In any internal evaluation of a case, it is imporbalt to see the result of the voting. The opinion of the majority of a divided court, with one or two dissents frled, is not as strong as that

Ifthe votingis unanimous, the authority ofthe case carries the full weight of the court. If the decision is merery the result ofamajorityvote, with some dissents, the dissents dlminish the authority depending on the strength of such dissents, which may actually carry the majority vote at some future day. Decisions that are dotted with concurrences in the result do rrot constitute authority if the unqualifred votes of the justices do not reach a majority. However, when there are points
case for those points is not diminished.

dulls the edge ofthe majority decision. It would seem that an opinion whose power is thus impaired, while technically it may be cited as a precedent _ because it is presumed to be the correct view until the contrary is maintained by the court in a subsequent decision _ nevertheless practically leaves the legal question open for further examination in future cases. If the original interpretation is intrinsically sound, it can stand the pressure of additional discussion and in_ quiry in subsequent cases, and instead ofbeing weak_ ened, it will gather greater strength and momentum. But if on the other hand, the original view of the minority bears within itself the puissant urge of reason and the driving impetus of justice, it will eventually, after one or more searching re_examina_

where the court appearc to be unanimous, the authority of the

in the main

decision Justice Bocobo continues to say:

"The stability of judicial decisions, which is

As for the fissenting opinion, its importance shouicl not be minimized. It may become the majority view in a subsequent case. But, for the present, it may be used to draw lines of distinctron. In the elegant language ofMr. ChiefJusti." Ur.gl* in his work , The Su,preme Court of the United, States:

some reverence as a

primitive taboo. On the contrary,

ir&

378

A GUIDE TO PHILIPPINE LEGAI MATERIALS

METHODS OF LEGAL RESEARCH

379

shouid be openly subjected to the most thorough discussion in order to frnd out whether it is sufficiently solid and enduring to be incorporated into the lega1 structure. Without such a rigid and severe test, the rule of law announced by a majority of the court will continue to Ianguish in the penumbra of doubt, whereas the doctrin e af stare decisis can thrive only in the life-giving sunshine of reason and justice, and in the clear atmosphere of widespread concord in the Iegal profession."13

it

External evaluation, on the other hand, is the process of examining the case (1) in the light of its subsequent history as juridical authority, whetherthe courts have affirmed, modifred, diminished, or overruled the doctrine expounded; and (2) in relation to other decisions on the same or similar points. There is a substantial distinction between stare decisis all.d res judicata- Prof. Juan A. Rivera puts it this way:
"Stare decisis applies to settled questions of law and res judicata to settled questions of law or fact between the same litigants. Stare decisis extracts a rule for general guidance for like cases in the future. Res judicalo has nothing to do with precedent and a case subject to the rule of resjudicata may or may not also be a precedent. Stare decisis is applied without respect to the parties, whereas res judicata works as an estoppel between the parties.,,

(e)

The facts of the case.

In looking at the facts of the decision, study the facts well in relation particularly to the rulings made. The facts may be unclear and incomplete. They affect the ruling and determine to a large extent the value of the case. authority, the researcher must frnd a substantial similarity between the controiling facts ofthe authority and those of the problem. At the same time, he must be able to distinguish between dicta and ratio decidendi. The latter governs. The former are merely persuasive.
To be able to use the case as

(fl

The scholarly qualities of the decision.

Decisions without supporting authorities or citations are not generallyheld in high esteem. They pale in comparison with those that have been carefully crafted with the desirable earmarks of contemplative wisdom and show scholarly qualities, reflecting the effort and industry behind the lines, not to mention gems ofjuristic brillance produced by the writer of the decision. The evaluator must be able to discern with an expert eye the point where the elimination of an element in the factual composition changes the legal principle applicable. This is a delicate and complex art that can be acquired afber some experience and with the help of innate ability.

In truth, the relevance of a case to an inquiry depends much upon the researcher. This is where his imagination and creative thinking come into play. He, of course, has to seek the help ofseveral sources, particularly, encyclopedias, treatises or articles, annotations or case notes in various raw reviews. But, in the frnal analysis, what matters is his own personal evaluation of everything that he has read.
We have to distinguish between doctrine established through a long line of cases and a single case which, in the extreme, has not even been followed by the court when the opportunity offered itself. The court is not apt to turn its back on the long line of cases that it has carefully taken pains to establish. It may make branches of the line if the advocate is able to convince the court to create such branches through astute argument, but generaliy the 1ine has to hold.
On the other hand, when a case is ignored, one will have to determine first whether the sub-silencio treatment of the court is deliberate or is only out of the failure of the court to recall the

2.

External eualuation

rsConcurring Opinion of Bocobo, J., in Erefia us. Vera (July 27, 1943, 74 Phil.

METHODSOFLEGALRESEARCH )
LEGAL MATERIALS A GUIDE TO PHILIPPINE

381

:onsciousness of the evaluator'

but it :stablished
:ase,

ecision, A case riticized. b b is not " nay merely distinguish

for some time' Of course' ,mputerizes, this problem may exist a case ruling into account' hether or not the court has taken aynotknow' Still' chances nary someth is not mentioned in the bein re that red bY the court' s not

Backed up with a sound theory, the truth and correctness now of which are validated by authorities, the lawyer can needed confrdently prepare the proper pleadings and the ofaction' evidence to pursue the indicated course

it may be'freely subsequent decisions although At the same time' the court m a pre\lous the case it the d'octrine may be that it is actu st be in the
y overruled' but

VI. PRESENTING THE FRUITS OF LEGAL RESEARCH: LEGAL WRITING without We cannot end this discussion on Legal Research in point the touching on legal writing. No matter how squarely the fruits .." - tt L laws anJ cases picked out and gathered in not palatsolution ofparticular controvet.i"., ifsuch fruits are judge or whoever will act ably presented by the gatherer to the o.t inl problem, all his efforts may be in vain' Legal writing is to be found generally in three areas: (1) Legal opinions and Memoranda; (2) Trial Court Pleadings; is used in ig) ep"p"ff"ie Court Pleadings' The term "pleadings" not include motions' r loore sense- Technically, pleadings do submit memorand.a and briefs.la The frrst kind is what lawyers tothetrialcourt;thethird,beforetheappellatecourt'Decisions not included in the last two penned by frrst group since they would groups but
be covered
be Each one of these three kinds of legal writing may not the treated according to their nature and purposes' This is pru""todiscussthem'butitisnotdiffi.cuittohaveaccesstogood books on them'

in the previous. case

THE LAW V. FINALIZING THE THEORY OF

The search that starts w

conclusions- This means' rn so Iosses in time, effort and moneY' A researcher may be a go

A.

The Process

It has Legal writing involves the communication process' thought, language and symbols; and at least thr"" "o-io.tents: a sender and a receiver' or a writer at least two participants: and a reader.
r{Pleafings are delined as the writt'en allegations of the parties of their re-

tion ofjustice'
--^.^ +^

-ll

+hic ic to tro dead slow in

frnalizing

spectiveclaimsanddef.ensessubmittedtothecourtfortrialandjudgment.Rule6' Cross-claim' Reply' Third-Parby Sec. t. Example", Compianl, ellt*"t, Counterclaim' Rule 6, Sec' 2' /r^mnlaint Forrrf.h-Partv Complaint, etc.

382

A GUIDE TO PHIUPPINE LEGA.L MATERIATS

towrite anything, he must certainlyhave lfat i9 why the .._r""ri"#o".,

ts

METHODSOFLEGALRESEARCH

383

lated to symtols, receiver or the rea

ffi:lH'o"""'i3u'f

Lffi;T?ill#::J TI;.f

;.*

O.o."..

who understood. write like a nonlawyer or a layman to readers see should be imagined also as being nonlawyers or laymen. will turn out to be' how clear the writing Conciseness means expressing a lot in a few words, need-

what he wants

writer is able to convey to the reader

Communic3ti_on is both a skill.and an art. There is magic in a welr-turned prr."r.. nrrilr"#i. involved, it is not art for art's sake' It is art with a runcu;;". fun tional art. There is a message that is to be put across .rri _r.rytimes, as wa.ranted, in the most persuasive r*.ii]e. This means a lot of hard work or industry and taleit'.. *"ri

"

"li?::le

*.r

B.

Efforts in Writing

iE".ri trrintirrlls-.reeie
ttrinr<ins. have n Jin.r

Writing is

l=:t:lt:.writing involves nrng to think' Industry

i".tl o"

*,i,J:Hyrifl "::] Iin court but ear

in

yIfi:.
to

gr"ut diffrcutty. t to think in order to write. It is said that to be a good writer, he observatio n; (2) *id" .";i;;iii.""r*"t. must have: (1) keen writing. This may well be the motto oru"yo.ru iirro";*i;". ,o improve himself in "*' writing, including legai*;;;.

whenit.o*".

iriti.rg They know tt aiii realy

;:;

less or superfluous language having been pruned away' In *fti.rg, foim and substance intertwine. To be concise is to be brief, b"ut brevity does not mean an inflexible use of short words the and simple sentences. The formula may well be found in following piece of advice: l'We must use short words, except when long words are necessary. Simple sentences are to be preferred, except when the complexity of the idea iequires a compound sentence' We must attain that ,rr*.or" of brevity which falls short of the point where overcomprehension obscures meaning'"16 coherence is, in aword, understandability. It calls forlogic and common sense in the composition, proper choice of words' and balance in substance and style' As once remarked: "Clarity is the lawyer's frrst burden; persuasion, his next' But with a clear exposition, persuasion should not be far behind."1?

D.

Persuasion

C.

The Three C,s

the three C,s: clarity, conciseness ,r, "ff;|"Xir",]ngmusthave Clarity in . orten temptedlegal_writing is-a-big problgT, because a lawyer rs ^
to use too

We should not be misled into thinking, however, that persuain sion simply means the use of cold logic' As a rule, arguments cold terms, by themselves, will not be able to convince anybody' some kind of an emotive approach, transcending cold logic, is I often needed. Long ago, Aristotle himself has classifred proof into three kinds: togi"at, emotional, and personal' Logical proof certainly involveslogic or reason, but emotional proof, using the emotions, is far stronger than logical proof' Personal proof is

Thegeneralpurposeoflegalwritingisoftenpersuasion.

*""rrr"s?ie.".,u cr..itvr""ri.i"irrg
ese,,

furnished by the writer himself.

r6Frank E. Cooper, Writing in Law Practice (New York: The Bobbs-Merill Company, Inc., Indianapolis, 1963), p' 4. ' of the Law," The Lawyers'Reuiew' "i'ortrnato Gupit, Jr.; 'The i{uman Side vol- TV- No. 8. .Aueust 31. 1990, p, 56.

err*':1"**ato

Gupit, Jr. *Too Much Legal

Integmted Bar Journal,1976 second

A GLTIDE TO PHILIPPINE LEGAI MATERIALS

METIIODS OF LEGA],

RESEARCH

385

words, calproof, swer the otive connotation at all. If the statement, however, is con.irerted to the sentence: .,The ant faiied to answer the letter" or "The defendant defend_ confessed that he did not answer the letter," emotive ranguage is evident. As for bias words, instead of writing ,,subordila te,,, ,,en._ ployee," or "assistant,,, for cxaniple, if wJ wa,t to i";""t a"_" evil implication, we may,se,,hireling,,,,,stooge,,,,,henJhrnan,, or "crony." We are actually saying thl same thing, but rve are giving more meaning to the word. - Personal proof is heai,y if the writer is a distinguishe. lawyer' People listen to or .lad hirn. rf the lawyer has .ot yet made a name for himself. it does not have any personal p the writing itself, the ideas ii presented. The writing reflects of the writer.

ihoughin may be t Ietter." It

Logical proof ernploys, for instance, the syllogism method of reasoning, including the enthymime'and as a the dilemma.

e e d

as

writing.

no proper paragraphing or no paragraphing at all, w.here the writing has kilometric paragraphs or one long paragraph is found in one page or two. Then, not much will be expected of the

uponus. trVordprocessinghas have justified paragraphing, ing with fantastic fonts and amazing graphics. one need not have the luxury of expensive computer equipment, ho'ever, tc be able to put the writing i' a neat and basically presentabl-: form.

co a an

Vll. GONCLUSTON: PRCFTCIENCY tN LEGAL

RESE*\RCH
be

a . . .
Intelligence Diligence Expet'ience

in legai writing, it may well

prof-rcient in legal research?

one who constantty writes. supreme court deci"sions, fbr instance, are distinctive depen,ling upon the justice who writes them. Supreme Courtjusti."s hrrl thei. ow., pu.rrtiu..iyles" A regular reader of the High Tribunal's decisio.r. k.ro*. trri. ,"ry well.

in

No two people have the same style in writing. A writer has certain patterns and rhy'thms- which are easily distinguishabre

The

A.

lnte!ligence

E.
not

Appeat to the Eye

trn

the end, it needs to be said that the job of a writer does e writer,s responsibili_ ties releasedtothereader. The to the clerk for typing and then forget it. proofreading The writer may have produceJ not reflected properly in the writ presented, they will not look good other endeavor, is indispen.rUt".

B.

Diligence

386

A GUIDE TO PHILIPPINE LEGAI MATERIALS

METTIODS OF LEGAL RESEARCH

cardinal sin. A researcher who fails to undertake an intensive

inquiry proceeds at his own risk.

C.

Experience

the search and index books, even mastering their placements in the library, and perusing them as often as he can. Browsing through a law library is like browsing through a supermarket. It can be highly educational.

But to attain real profrciency, there is no substitute for

experience. Experience not only speeds up the research process because of the skills already obtained, but also gives substantial assurance as to the validity of the conclusion reached.

For one, a lawyer who has researched often enough, aIready possesses a working knowledge of the books. The topic classifrcations are so farniliar to him that he can pick up the relevant materials almost instantly.

As a matter of fact, the lawyer who is just planning to plunge into research, should already prepare himself by personally acquiring books, if possible, and compiling notes and clippings on legal materials. The key to elfrciency is knowing in advance where to frnd the answer, if not the answer itself, before any legal query is even posed.

For another, from constant research work on various subjects, the researcher has already assimilated many legal and jurisprudential principles along the way such that in his appreciation of alegal problem, pertinent principles, which are readily accessible to him, immediately come to mind. In fact, the chances for the more experienced to arrive at a correct solution to a legal problem are far greater, as compared to the less experienced, because he may see meaningin certain facts inthe problem in the light of established principles of which he is aware, which the less experienced would not see at all. It may thus be said perhaps that a highly experienced researcher is a walking tertiary authority himself.
Of course, experience is gained only after spending a good deal ofresearch hours for different legal queries. Teaching law also helps a lot if the teacher prepares his material well. If an opportunity to teach comes by, grab it but be disposed to meet the imposing commitments on a law teacher.

D {

i)

What the future has in store for us, however, in legal bibliography and legal research may already be envisioned with the giant strides in computer and fax technology. Those who know the advances being made are all excited about their developments and wait with bated breath. The revolution has started and all forthe good. Meantime, the lawyerwho does not wish to lag behind, must prepare himself to keep abreast. Let
us all have open arms to welcome these exciting developments.

,
a

c
rt

-$$s-

t {
U

A neophyte can nevertheless hasten and widen his exposure to the freld through self-orientations, exercises, and simulations. The co-author ofthis book advocates and practices in his seminar lectures what he cails "Legaresex" or Legal Research RoIe-PIay Exercises. Seminar participants are assigned play roles, perform legal research exercises, and make self--evaluations of their performance.

u a

;) 6 I :]
I ,l o

The beginner may obtain by himself some sort of an

equivalence for experience by learning as much as he can about