Legal research involves finding primary sources of law such as relevant legislation, case law and decisions of administrative tribunals, and verifying that the law found is still valid; that is, that it hasn’t been overruled, repealed or otherwise questioned or criticized. The process for verifying primary sources of law is called “noting up,” such as “noting up a case” or “noting up legislation.” Noting up is also a good way to find other cases dealing with similar aspects of the law.
Students often begin their legal research by consulting secondary sources of the law, such as textbooks, journal articles, encyclopedias, and other reference tools. These secondary sources are a great place to start since they provide a broad overview and explanation of the law and include a number or references to primary sources based on the topic being researched. Secondary sources may also be referenced by a student doing legal research; however, its important to remember that secondary sources may have some persuasive value but are not binding on courts. As a result, when presenting your legal research, it is preferable to cite primary sources of law you have found, rather than the secondary sources you used to get there.
When conducting legal research, it is important to remember that both print and online research resources may contain valuable information on your topic. For example, a legal treatise is a textbook publication with all of the law relating to a particular topic summarized. These textbooks are a great, time-saving secondary resource, but are typically only found in print. Older cases are often only found in print as well. Conversely, on-line resources are often more up-to-date than their print equivalents. Thus its important to know when to use one source over the other.
The most typical legal research involves taking a legal problem presented by a client (or professor) and answering the problem by determining, through research, how the courts are most likely to decide the problem. When presenting legal research, we often follow the five-step legal research process known as F-I-L-A-C: Facts, Issue, Law, Analysis, and Conclusion.(1)
Facts: The first part of any legal research writing assignment should begin with a quick overview of the relevant facts that have been posed in the legal question you are trying to answer.
Issue: The second part of any legal research writing assignment should identify, from the facts of the case, the main legal issues to be determined. Legal issues are normally more narrow than the legal problem as a whole, and relate to one set of facts or area of the law that may be disputed. For example, you might be asked to answer a question such as “did our client have reasonable grounds to dismiss the employee?” or “should the Crown charge the defendant with murder or voluntary manslaughter?” The issue should be posed as a question.
Law: The third part of any legal research writing assignment should present all the primary (and perhaps secondary) sources of law which you have found and you believe to be relevant to the legal issue. This should especially include relevant statutes and case law.
Analysis: The fourth section of your assignment should be the application of the law you have found to the facts of the problem. This application of the law to the facts should allow you to answer the question of how the Courts are likely to solve the legal issue at hand. No new law or facts (other than what has been identified in the previous sections) should be introduced here.
Conclusion: The last section of your assignment should be a brief conclusion. Here you should identify how the Courts are going to rule on the issue you have researched and why, by briefly referring to your analysis.
(1) The FILAC method is developed by Maureen Fitzgerald in her book Legal Problem Solving: Reasoning, Research & Writing (5th ed).