Justice and Legal Research: Using “Good Law”

It is vital to determine the law on a specific topic or issue, as it uncovers ambiguities and intrinsic flaws in legislation.

Perennial questions have been raised in the research paper “Situation Analysis of Pacific Legal Aid Systems” (2020) by Dr Carolyn Graydon, which analysed the legal aid program in use in the Pacific and attempted to identify some best practices in place and suggest how legal aid coverage can be improved by making it cost-effective and efficient. 

Her findings based on a survey revealed that more than half of Pacific nations under the research have dedicated legal aid law establishing legal aid services but shows grave concern that “legal aid services are in short supply…. Large portions of Pacific populations have limited or no access to legal aid” where women are most disadvantaged concerning their access to legal aid and indicated concern for short of diverse legal aid models at “grassroots engagement, connection and outreach capacity and responsiveness to common kinds of local disputes” (Graydon, 2020).

It becomes pivotal that Pacific islanders enjoy the right to access justice and understand legal research concepts, its procedure and significance, to understand the legal methodology of working on their case before and during the consultation with a legal expert. The process, methods and significance of legal research are discerned in this opinion article. 

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What is Legal Research?

In simple terms, it refers to identifying, locating and retrieving the laws (including regulations, statutes and court opinions) that imply the particular case and finding evidence to support a legal issue or decision. The research should concentrate on relevant jurisdiction to find the answers to a legal task or question. It is a “scientific and purposive investigation or inquiry of a problem or issue of any discipline” (https://www.iedunote.com/legal-research).

The objective is to gain new legal knowledge and validate current legal knowledge/phenomenon to apply legal reasoning to help judicial decision-making. It is about ‘systematic finding and ascertaining law’ on the given topic. 

Jacobstein and Mersky (2002) defined legal research as “the process of identifying and retrieving information necessary to support legal decision making”. Legal research begins with gathering and understanding the case’s crucial facts, then determining the legal problem, identifying the possible legal solutions, exploring the legal information, then making legal analysis, writing and after that.  Although legal research can be carried out by anyone who wants to discern the law and its implication, professionals who carry it include legislators, lawyers, judges, legal academicians, research bureaus, paralegals and legal advisors. 

Methodology of Legal Research

After collecting the facts and understanding the legal issue, it is implied to the legal argument. Therefore, a lawyer tries to find the primary sources to support the idea that is binding law in form, so they research the statutes, case law, regulations and Constitutions. The binding and mandatory authority of the primary sources makes it highly significant.

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They also use secondary sources with no legal binding or persuasive authority that help supplement the primary law and legal theory, including treatises, journals, law reviews, legal articles, legal encyclopedias, practice guides, commentaries, and legal digests and so on. This source material helps to analyse, summarize or comment on any given law (Thomas Reuter https://legal.thomsonreuters.com/en/insights/articles/basics-of-legal-research-steps-to-follow).

On many occasions, non-legal sources are also investigated to identify the supporting information. 

It is recommended to use “good law” that has not been overruled or reversed. Thus, many lawyers use KeyCite, a citator on Westlaw that will indicate that the statute or regulations have a negative history, to determine whether it is good law. Similarly, Shepard’s citation is used to check whether the status of the case is still considered a “good law”, if there are any parallel citations, or if the case has been used in other jurisdictions.

Shepard’s validation is a crucial step of legal research after referring to primary and secondary authority that helps identify whether the case has been reaffirmed, overturned, questioned or has precedent. Using the primary sources has a binding value that is authoritative, precedential, controlling and possesses binding authority. Usually, lawyers begin with secondary sources, move to primary and then shepardize the legal research. The lawyers show perseverance, patience, and fortitude to record, update and verify any law before using it. 

Conclusion: Significance of Legal Research

Competent legal research is about finding the best possible outcome within the shortest time with the lowest cost. It is highly essential to update the knowledge. It is vital to determine the law on a specific topic or issue, as it uncovers ambiguities and intrinsic flaws in legislation and critically analyses legal provisions to decide whether or not they are consistent and coherent. Legal research aids the application of one’s formerly acquired law knowledge and the legal principles of functioning. Comprehensive Legal knowledge, competence, diligence, and preparation are required to examine factual and legal concerns.

Legal research is valuable to bring about social change and reform, as it is based on current and proposed legislation. The laws keep on changing with the need of society. Laws that are obsolete and need revision might be discovered via legal research to support ‘just social order’. This process assists in making reforms in the current laws and making suitable changes by the legal institutions. Legal research helps discover, clarify, advance, compare and authenticate legal issues (William Elegbe and Ojomo, 2013). 

In a similar vein, legal research “ascertain the law on the subject, highlight its ambiguities and inbuilt weaknesses of law; to critically examine legal provisions, principles, or doctrines with a view to see consistency, coherence, and stability of law and its underlying policy, to undertake a social audit of law with a view to highlighting its pre-legislative “forces” and post-legislative “impact,” and to make suggestions for improvements in, and development of the law” (Vibhute and Aynalem, 2009).

Thus, legal research becomes pivotal for a legal institution to serve the nation better by providing the best legal advice. 

Dr Sakul Kundra; Picture Source: Supplied
Dr Sakul Kundra; Picture Source: Supplied

Author: Dr Sakul Kundra is an Associate Dean (Research) and Assistant Professor at the College of Humanities and Education, at Fiji National University. The views expressed are his own and not of his employer. Email dr.sakulkundra@gmail.com
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