This month, we will consider how you can go about conducting your own legal research and the approach taken by some lawyers for this common legal task.
Where to research the law
There are two main categories of materials you can consider when researching a legal question:
1. Primary sources of the law
2. Secondary sources
In England and Wales, primary sources of law can be found in Acts of Parliament, Statutory Instruments and case law. Usually when a lawyer is carrying out research of primary law, the starting point is to consider any Acts which apply. One way to look at an Act of Parliament is that it provides a broad statement of what the law is. Because Acts of Parliament deal with the law in broad strokes, they are often supplemented with additional regulations that are usually created by Statutory Instruments.
Both Acts and regulations can form the backbone of any research task, and fortunately, access to most of them is freely available. All Acts from 1988 to the present day are available through the government website www.legislation.gov.uk. Most pre 1988 Acts are also available on this site, but in some cases, these will only be copies of the original published versions or revised versions if the originals are not available. Similarly, all Statutory Instruments since 1987 are published on the website, along with a selection of Statutory Instruments from 1948-1986 and other pre-1948 Statutory Rules and Orders.
Case law is another important primary source of law, and here a legal researcher’s job can become a bit more challenging. Case law is usually very focused on a legal problem or issue. The case reports themselves might be published in a multitude of places (both on and off-line), and sometimes the only way to access a case may be a paid subscription to a legal publisher. In addition, the novice legal researcher also has to deal with an added layer of challenge when trying to confirm whether a decision is up to date and a binding or persuasive precedent.
Some of these challenges have been addressed because of the work done by the not-for-profit charity the British and Irish Legal Information Institute (BAILII). The BAILII legal database promotes access to justice and the rule of law and contains many of the key case transcripts on-line and free of charge. The site also contains a useful guide on how a case law reference should appear (called a case citation). The official system for citing cases in the United Kingdom was introduced in 2001; when quoting a case, you must state the name of the case, the year, the court it appeared in and the case number.
Other challenges in finding the correct case law can be solved by using secondary sources, which include textbooks, case digests, newspaper articles and online resources such as legal practitioners’ reports – essentially any source other than statute and case law. Often, these resources are vital in getting research started as they can help give some background information about a problem or assist you in finding an answer in broad terms. The disadvantage of using a secondary source is that you have to question who created it and how reliable the source is, and note that a secondary source cannot be used directly to settle a disputed point of law (no matter how reliable the source is).
How to research the law
Now that we have considered different sources of law, we will briefly review one approach that can be taken when researching a legal problem. The “FILAC” method is based on an approach described by the author of Legal Problem Solving, Maureen Fitzgerald. This approach consists of the following five steps:
1. Facts – Identify the relevant facts
2. Issues – Identify the relevant issues (this is normally the client’s legal question)
3. Law – Find the relevant law (using secondary sources to get a broad overview and primary sources once you have narrowed down the relevant law)
4. Analysis – Apply the relevant law to the facts. This is an analysis to decide how a judge might apply the law to the facts.
5. Communication – Report on the problem researched in a clear, accurate and concise way.
Legal research is a vital skill for anyone studying or practicing in the law. It is not always straightforward and can be frustrating, particularly at the start of a problem. By taking a logical approach such as the FILAC method, you can often find the solution to a problem and report it in a lawyerly fashion.