UNIT 6
docx
keyboard_arrow_up
School
University of Pretoria *
*We aren’t endorsed by this school
Course
RPK 210
Subject
Law
Date
Nov 24, 2024
Type
docx
Pages
13
Uploaded by ElderPartridge3544
UNIT 6:
RESEARCH SKILLS
Legal research is essential for lawyers.
A good lawyer knows how to find and apply the law effectively
Recent technological advancements have revolutionized legal research, making it more efficient and accessible.
Online databases, search engines, and digital resources have replaced traditional methods of research, reducing the need for physical library visits and manual document searches.
Legal research is essential for lawyers to provide effective legal services.
It involves obtaining and analyzing legal information to address specific legal issues.
Legal research is vital for informed legal decision-making.
Each stage of legal research may overlap and influence the others.
The Fourth Industrial Revolution has introduced electronic transactions and paperless court operations.
LEGAL RESEARCH
STARTS WITH
WITH FACT ANALYSIS
& ENDS WITH
APPLYING RESEARCH FINDINGS TO SPECIFIC CASES
INTRODUCTION: LEGAL
RESEARCH
It is an essential part of analysing legal cases
The process of identifying & retrieving information to support legal LEGAL RESEARCH
Involves applying legal principles to specific facts.
MAIN STAGES OF LEGAL RESEARCH
Legal research in a litigation context involves a multi-stage process, with each stage playing a crucial role in building a comprehensive understanding of the case and arriving at a legal solution.
The process consists of four main stages:
Ä
Importantly, these stages are not strictly linear or separate from each other. Ä
They are interconnected and often require revisiting prior stages as new information or legal insights emerge during the research process. Ä
The process of legal research is dynamic and iterative, emphasizing the importance of a holistic approach to problem-solving.
Stage
Description
(1)
Fact Analysis
Focuses on identifying and understanding the relevant facts of the
case Fact analysis is fundamental to legal research as it forms the basis
for all subsequent steps Essential for grasping the specifics of the situation, enabling effective application of the law.
(2)
Legal Analysis
Involves categorizing the legal issue within an appropriate legal framework or category
Aims to understand the specific area of law the case falls under. Identifies the legal principles that may apply to the case.
(3)
Legal Research
Begins after categorizing the legal issue. Involves finding relevant legal principles, statutes, regulations, case law, and precedents related to the case. Includes searching for legal sources to support or argue the client's position effectively.
(4)
Application of Legal Principles
The final stage where identified legal principles are applied to the specific circumstances of the case. Requires legal practitioners to analyze how the law should be applied in practice. Crucial for building persuasive arguments, defences, or strategies based on the legal framework.
CLASSIFICATION OF THE PRO
BLEM: LEGAL ANALYSIS
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
The starting point in this process is categorizing the relevant relationship involved in the case.
Law exists to regulate relationships between individuals.
The underlying relationships serve as a basis for identifying the broad area of law that should be applied to a given set of facts.
Legal practitioners must adapt to the often messy & unpredictable nature of real-world legal problems presented by clients.
Effective fact analysis, legal categorization, & research skills are essential for attorneys to provide meaningful assistance and navigate the complexities of legal practice.
Categorizing Legal Problems
The process of transitioning from a jumble of facts & documents to categorizing legal problems is explained.
This involves identifying the relevant area of law that applies to a given factual situation.
IDENTIFYING THE RELEVANT AREA OF LAW
Field of Law
Relationship
Special Field of Law
Remedies
The Law of Contract
Parties & Contracts
Sale, Lease, Loan, Services, Supply, Insurance
Performance, Damages
The Law of Delict
Unlawful Acts & Loss
Damage to property, Injury, MVA claims
Interdict, Damages
Family Law
Family Relationships & Ancestry
Husband & wife, Children, Succession
Divorce, Custody, Inheritance, etc.
Labour Law
Employer & Employee Relationship
Payment, Reinstatement,
Damages
Enrichment
Unjust Transfer of Money or Property
Various enrichment actions
Payment, Restitution
Law of Property
Adverse Claims to Property
Movable property, Immovable property, IP
Delivery, Damages, Interdict
The Law of Contract
Joint Ventures or Partnerships
Partnership
Contractual remedies, Dissolution
Company Law
Shareholders, Directors, or Officers
Companies Act remedies
Various remedies
The Law of Agency
Principal & Agent Relationship
Mandate, brokers, agents
Contractual remedies
Maritime Law
Maritime Adventures
Carriage of goods, Marine insurance, Admiralty
Contractual & delictual remedies, Action in rem
Law of Negotiable Instruments
Negotiable Instruments
Cheques, Letters of credit, Banking
Contractual & special remedies
Legal Research Application
Description
Identifying Options and Advising Clients
Using research to guide clients in decision-making
Drafting Pleadings and Applications
Incorporating research findings into legal documents
Preparing for Trial
Utilizing research to prepare evidence, assess admissibility, and develop trial strategies
Conducting Trial Processes
Applying research during trial, including opening statements, examination-in-chief, cross-
examination, and closing arguments
Handling Motion Court Matters
Employing research in addressing motion court issues
Reviews and Appeals
Utilizing legal research when pursuing reviews and appeals of legal decisions
APPLYING THE LAW TO THE
FACTS
A COLLECTION OF
RESOURCES
LAW LIBRARIES
Type of Library
Contents and Access
Magistrates' Court Libraries
- South African Law Reports, textbooks, journals
- Access by permission only
Bar and Attorneys' Associations
Libraries
- Provincial Gazettes, Government Gazettes
- Access to online sources
High Court Libraries
- Extensive resources including foreign law
materials, old authorities, theses, and more
- Access restricted
Supreme Court of Appeal and
Constitutional Court Libraries
- Extremely extensive resources
- Access requires permission
University Law School Libraries
- Varying collection sizes
- Access to theses
- Practitioner access upon request
IMPACT OF IT ON LEGAL RESEARCH:
Information Technology has transformed legal research, making it more efficient and accessible.
Libraries have adopted IT with computer terminals, regular updates, and digital access.
Lawyers can now download research materials onto computer disks or USB devices, eliminating the need to borrow or copy physical texts.
IT changes have also occurred in lawyers' offices and chambers.
ONLINE RESOURCES
Resource
Content and Updates
South African Legal
Information Institute
(SAFLII)
- Free access to judgments from various courts
- Updated daily
LegalNet
- Access to All South African Reports, South
African Law Reports, and more
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
- Updated weekly
LexisNexis
- Online access to various law reports, textbooks,
loose-leaf services, journals, and legislation
University of Pretoria
- Offers free access to legislation
Digitized Voet's
Commentary of the
Pandects
- Available online
TEN ESSENTIAL RESOURCES FOR LITIGATION PRACTITIONERS:
1.
The South African Law of Evidence by Zeffertt (LexisNexis)
2.
Civil Procedure in the Superior Courts by Harms (LexisNexis)
3.
Amler's Precedents of Pleadings by Harms (LexisNexis)
4.
Dictionary of Legal Words and Phrases by Claassens (LexisNexis)
5.
The Law of Contract in South Africa by Christie (LexisNexis)
6.
Law of Delict by Neethling, Potgieter & Visser (LexisNexis)
7.
Road Accident Fund Practitioner's Guide by Klopper (LexisNexis)
8.
Criminal Procedure by Kruger (LexisNexis)
9.
Family Law Service by Schäfer (LexisNexis)
10.High Court Motion Procedure: A Practical Guide by Neukircher, Fourie & Haupt (LexisNexis)
Treat books, libraries and librarians with the utmost respect
Respect the copyright of the author.
PROTOCOL
Use the standard method of citation for every authority.
Acknowledge your sources.
Do not refer to or rely on an authority you have not read; if necessary qualify the reference to such
an authority by adding 'as quoted by' and then give the citation of the work in which you found the reference
Do not follow authorities blindly; submit them to careful analysis. Be ready with a prepared answer when you cite an authority and the judge asks: 'But is that decision right?'
Always refer to the latest edition of an authority.
Return books you have borrowed from a colleague as soon as possible.
Counsel has the duty to bring authorities which are against them to the notice of the judge, even if their opponent does not.
You are entitled to distinguish adverse authorities on the facts when making submissions to a court
, but when giving advice to a client, counsel has to form an objective view.
Do not misquote any authority.
Counsel is entitled to distinguish an authority (case law) by arguing that it is wrong, that it is not bi
nding, or that, even if it were correct at the time of the judgment, it is no longer applicable or correct.
Legal research is aimed at efficiently locating & understanding the relevant laws applicable to a client's case. ETHICS
LEGAL RESEARCH: USING THE
LIBRARY
The ultimate goal is to provide clients with informed advice about their rights and obligations and to enable legal practitioners to advocate for their clients effectively.
Typically, legal research involves the following phases:
PHASES
DESCRIPTION
Completing the Fact Investigation
and Preliminary Legal Analysis
Before diving into legal research, it is essential to thoroughly understand the facts of the case and conduct a preliminary analysis of the legal issues involved. This initial analysis helps in narrowing down the focus of the research.
Organizing the Research
Once the legal issues are identified, the research process should be organized. This involves setting a
clear research plan, determining which areas of law need to be explored, and establishing a structured approach
Identifying the Sources
Legal research relies on various sources, including statutes, regulations, case law, legal textbooks, and
academic articles. Identifying the most relevant and
authoritative sources is a crucial step in the research process
Recording the Results of the
Research
As research progresses, it is important to record the
findings systematically. This may involve summarizing key legal principles, citing relevant cases, and documenting the sources consulted.
Making a Permanent Note or Record
of the Research
To ensure the research is accessible and usable in the future, legal practitioners often create a permanent record. This can take the form of a research memo, a legal brief, or detailed notes that can be referenced when needed.
Applying (or Using) the Research
Material
Finally, the research material is applied to the specific legal issues at hand. This may involve drafting legal documents, providing legal advice to clients, or presenting arguments in court based on the researched principles
IDENTIFYING THE RELEVANT AREA OF LAW
collecting comprehensive information
understanding the client's objectives
identifying the problem
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help
FACT INVESTIGATION:
Before initiating legal research, it is crucial to gather & analyze all relevant facts related to the case.
This step ensures a clear understanding of the situation and helps in focusing the subsequent research efforts.
Questions to consider during fact investigation include:
Ä
What is the exact nature of the problem?
Ä
What are the available options or courses of action?
Ä
What does the client aim to achieve in this situation?
PRELIMINARY LEGAL ANALYSIS
:
This stage involves a preliminary assessment of the legal issues involved in the case.
It aims to identify the relevant areas of law and provides an initial classification of the legal problem.
Preliminary legal analysis helps pinpoint the relevant legal areas and initial classification of the legal problem, ensuring that subsequent research is directed toward addressing the specific legal issues at hand.
ORGANISING THE RESEARCH
Once you have determined the specific area of law relevant to your case, you'll embark on the research process, either by visiting the library, utilizing internet resources
The key considerations and questions that guide the research process:
Question or Issue to be Researched
Define precisely what question or issue you need to address through your research. This question should align with the legal aspects of the case you're handling.
Correct Identification of the Area of Law
Verify that you have correctly identified the area of law involved in the case. Ensure that you are researching within the appropriate legal framework.
Scope of Research
Determine whether there is a single question or issue at hand, or if you need to broaden your research to account for potential variations in the facts presented by your client. Consider whether a
more comprehensive investigation is necessary.
Depth of Research
Assess how deeply you need to delve into your research. Are you conducting research at a superficial "textbook depth," which might be sufficient for providing preliminary advice to your client?
Or do you need to go to the extreme of "original sources depth," which is typically required for complex cases that may eventually go to a higher court, such as the Supreme Court of Appeal or Constitutional Court?
IDENTIFYING THE SOURCES
Stage of Research
Explanation
Start with General
Sources
Begin with broad sources like Lawsa, The Noter-up, Amler's Precedents, and Words and Phrases.
Identify Specific
Sources
Move to specific sources like statutes, decided cases, textbooks, law journals, theses, and Roman-Dutch authorities.
Narrow Down the
Research
Focus on finding relevant statutory provisions or decided cases. Explore related areas or analogous cases if necessary.
Check Currency
Ensure that all sources used in the research are current and up-to-
date, considering amendments, explanations, and changes.
Go to Foreign Sources
for Comparison
For higher court cases, perform comparative research, using a similar
approach as with South African law.
RECORDING THE RESULTS
To effectively record the results of your legal research, follow this summary of Victor Tunkel's recommendations:
Maintain both a notebook and a storage file
for your research. The notebook should allow for easy page addition and rearrangement, while the storage file is for copies of materials.
Create a list of the issues or questions
you need to research before delving into library sources. Dedicate a separate sheet for each issue and add more as new questions arise during your research.
Document the date
, location, and time of each research session. This information can be essential for accounting purposes or when billing clients.For each stage of your research, note the source you consulted, including its precise citation and location (e.g., Johnson v Rand Daily Mail 1928 AD 190, found in Amler 158 in my own library).
Summarize the main points
made in each relevant authority, focusing on the key takeaways (e.g., "sufficient if substantially true in every material part").
Include a brief note on your initial assessment
of the value and relevance of each authority, even those you ultimately reject (e.g., "in point," "against," "obiter," "distinguished in...").
Organize your research materials
logically to facilitate easy access and retrieval.
Safeguard your research materials
by filing and keeping them. You may require them in the future or find them useful for other cases, even years later.
MAKING A PERMANENT RECORD
By following these steps, it will ensure that your legal research remains well-documented and readily retrievable, which is crucial for future reference and legal proceedings.
(1)
If necessary, dictate or type a note summarizing the main points of your research.
(2)
File and retain these notes for future reference.
(3)
The outcomes of your research are often documented in various forms, such as opinions, written memoranda, or heads of argument.
(4)
Maintain copies of these documents in your research materials file.
(5)
Establish and maintain an organized index to easily locate your research materials.
(6)
Consistently update the index using computer software, ensuring you have a systematic and accessible record of your work.
Your preview ends here
Eager to read complete document? Join bartleby learn and gain access to the full version
- Access to all documents
- Unlimited textbook solutions
- 24/7 expert homework help