The Guide to Prepare Foolproof Legal Research Efficiently (Part 2)

Recap

Dear aspiring young lawyers, pupils, law graduates and the passionately curious public,

In Part 1, I demonstrated step by step on how to prepare for type A: knowledge-based research. Now in Part 2 of this series, I will discuss how to prepare for Type B research - litigation-based research.

What is type B research?

As defined earlier, it is the type of research which will be used in your litigation. How well you do it will directly improve the odds of winning a case.

In such research, you will identify cases or precedents which you will then cite in your written submission. Unlike Type A, the cases you find will be referred, considered or even followed by the presiding Judge, therefore can be a decisive factor.

However, in comparison, it is trickier to identify compatible cases that fit perfectly into your submission, complementing it and adding force to your argument.

Typical Workflow

To help you a bird eye's view, this is the typical workflow which involves Type B research.

1. Your boss shares his or her views the direction and overall strategy to submit a case.
2. Your boss instructs you to identify precedents which can support that direction.
3. You search for suitable precedents.
4. If you are successful, you then present to your boss your findings and show how it would help to advance his or her argument.
5. If you are not, then go back to step 1 to restrategize or decide whether to proceed without any precedents. (Repeat)

Let's see how the workflow is like by using the same case study in Part 1.

Here it is:

Boss: "Desmond, we want to claim for exemplary damages, I know we don't fit into any of these 3 categories in Rookes v Barnard but on the facts, the Defendant misused its power in an unconscionable way and blatantly disregarded our client's rights"

"See if there are cases where the Courts use a more liberal approach without following the stringent limitations in Rookes v Barnard. Find factual cases where exemplary damages were given to deter a wrongdoing"

What transpired was that my boss explained his view and his strategy (point 1) and he wanted me to look for precedents which support his view (point 2) to affirm its viability.

Bonus Tip: Be a self-starter! Initiate step 1 yourself and suggest your view of your boss (make sure it is good!)

This will show that you are a pro-active employee who constantly thinks about the case and actively looking for a new angle to win a case for the firm.

Important Principles

Coming back to point 3 of the workflow, you may ask:

"What makes a good, suitable, case-winning precedent? How do I identify them?"

Fortunately, all strong precedent candidates for Type B research will usually have the following criteria:

1. The facts must be substantially similar.
2. The decision given must be in favour of your direction (subject to rare exceptions).
3. Ideally, it must have a resonating passage(s) which can further your argument.
4. Whenever possible, it should fulfil all the 5 criteria of Type A research.

As you can clearly tell, the above shows the reason why Type B research is inherently more difficult than Type A and therefore, requires more time and skills to succeed.

I will explain briefly on each point of the above.

The facts must be substantially similar:

According to the doctrine of stare decisis (meaning "Let the decision stand"), Courts must follow its previous decisions of similar facts. They are treated as persuasive or binding.

Failing to meet this criterion will cause your precedent to be distinguished. In other words, the Court will take the view that it is irrelevant and not applicable.

The decision given must be in favour of your direction:

To convince the Court that the factual scenario of the precedent is similar to your current case is not enough. You have to show the Court that under a similar circumstance, it is right and proper to give the desired decision, which is the one you are advocating for.

The worst thing you can do is to present a case which is factually similar but the decision was given in favour of your opponent. In that case, you are submitting for your opponent.

Ideally, it must have a resonating passage(s) which can further your argument:

Here's the most interesting part, although it is not mandatory, it is most effective to have a passage which you can cite that complements your oral and written submission.

Reason being, rather than your own words, the Judge is more likely to buy your submission if he or she "hears" or "reads" it directly from the words of another Judge.

Such a passage will be considered as trustworthy and will be a powerful weapon to persuade. It will get your message across effectively.

Below is the example of my draft submission. (I had to use a generic submission to avoid disclosing confidential information of my firm).

As such, this is how a resonating passage looks like when it is cited in the Written Submissions. Therefore, here's a tip for you:

Tip: Let the precedent speaks for itself on your behalf in your favour.

And last but not least,

Whenever possible, it should fulfil all the 5 criteria of Type A research:

Read Part 1 to understand what makes a good authority. We will not focus on that here.

So, now knowing the principles, it boils down to the question:

How can I find such precedents? And efficiently?

Here are my recommended steps:

Step 1: Have an end goal in mind

To have a fruitful search, you must first have a case theory (which is most likely provided by your boss). Then, you need to visualise that end goal. Consider asking yourself the following questions:

• How will that passage look like?
• What is likely to be said by Judge if he or she wants to convey such a point?

Once you do that, you only need to apply some faith in your boss's direction and possibly some creativity.

To illustrate, let's reverse engineer the submission above.

Step 2: Understand the Instructions

To start that off, I will usually break down my boss's verbal instructions into clear actionable tasks, like the following:

• Instruction #1: Identify cases which show that the Courts do not follow the categories in Rookes v Barnard strictly in deciding for the award of exemplary damages.
• Instruction #2: Identify cases which show that the Courts awarded exemplary damages on a case to case basis, to deter wrongdoing, without applying the limitations of Rookes v Barnard.

Instructions should always start with a verb so that it is action-oriented.

Step 3: Identify the Main Keywords

This step may seem like a no-brainer but refrain from underestimating the importance of doing it properly. Don't just hit the search bar straight away. If you want to be efficient, resist that temptation.

What I will suggest is to take a step back and curate a battle plan.

Have a legal pad or a Word document ready. Now with that blank sheet of paper, think!

What would be the main keywords if you want to get that particular end goal in mind? To see how it is done step by step, keep reading.

Having a plan will give you a better clarity and chance of success.

The following is what I may write on my legal pad.

Instruction #1

Keywords: Exemplary damages, Rookes v Barnard, (do not) follow

Instruction #2

Keywords: Exemplary damages, deter, wrongdoing.

Step 4: Prioritize The Keywords

The problem with having keywords without assigned importance is that you will often feel lost in your case search, especially when there are too many cases to read.

To obtain more clarity and achieve efficiency, I recommend that you give the keywords hierarchy.

The way I do it is to group them into two groups:

1. Common Denominator Keywords ("CD").
2. Common Grounds Keywords ("CG").

CDs are keywords which must exist in your judgment. They are irreplaceable as the judgment won't make sense without them.

CGs are keywords which may exist in your judgment. They will be helpful in advancing your arguments but they are replaceable.

Instruction #1

Keywords (CD): Exemplary damages, Rookes v Barnard

Keywords (CG): (do not) follow

Explanation:

You cannot find a case which shows the departure from Rookes v Barnard in awarding exemplary damages without having the words of "Rookes v Barnard" and "exemplary damages" themselves. Therefore, they are the CDs.

However, the word "follow" can be replaced by other words. The same point can be shown/made with or without it. Hence, it is a CG.

Instruction #2

Keywords (CD): Exemplary damages

Keywords (CG): deter, wrongdoing.

Explanation: Again the word "exemplary damages" is indispensable.

However, the word "deter" and "wrongdoing" are replaceable. The same point can be made with other words like "prevent", "vindicate" etc. Hence, they are the CGs.

Step 5: Identify The Synonyms Of The Keywords

Keeping step 1 "Have an end goal" in mind, note that it is possible that the Judge may say the same thing differently (catch the nuances!). I will now underline the new keyword additions into my existing note.

Instruction #1

Keywords (CD): Exemplary damages = punitive damages, Rookes v Barnard

Keywords (CG): (do not) follow = adhere = adopt = apply = strict = confine

Instruction #2

Keywords (CD): Exemplary damages = punitive damages

Keywords (CG): deter = prevent = vindicate = punish = set an example = teach a lesson, wrongdoing = wrongful = wrong = unconscionable = obnoxious = abuse/misuse = disregard one's rights = fail in duty = (blatant) breach, [conduct = act = commission]

Explanation:

A precedent with the passage,

"Therefore, exemplary damages are awarded on the basis to prevent the same wrongful conduct in the future" would make an equally excellent point for my submissions as,

"Therefore, the Court views that exemplary damages should be awarded to vindicate Defendant for its obnoxious behaviour / unconscionable conduct so that such case will be set as an example in the future"

Hence the above.

Bonus Tip: Where necessary, consider the antonyms.

Instruction #1

Keywords (CD): Exemplary damages = punitive damages, Rookes v Barnard

Keywords (CG): (do not) follow: = adhere = adopt = apply = strict = confine x depart x free x liberal

Instruction #2

Keywords (CD): Exemplary damages = punitive damages

Keywords (CG): deter = prevent = vindicate = punish = wrongdoing = wrongful = wrong = unconscionable = abuse = disregard one's rights = fail in duty = breach [conduct = act = commission]

The reason is this, the negative of antonyms could also be the synonyms you look for.

Consider this: "Not bad" means the same as "good". It is common that the Judge will convey his or her thoughts in a negative expression. I will now underline the antonyms.

Step 6: Search! (test and tweak)

Now try searching with different combination of keywords.

You won't necessarily get all synonyms and antonyms at the outset. It is normal to get more ideas as you wade through the results. In that case, always add the new keywords on the go.

It is faster to take aim and shoot for cases with targeted keywords than to search suitable precedent like searching for a needle in the haystack.

It is indeed a big pain to read through every single case. You may already lose your motivation after reading the first 10 cases.

As above, you see can there are 210 cases to read if I decide to use a generic search ("Exemplary damages" and "Rookes v Barnard"). However, with the focused keyword strategy as above, you only have to do a keywords check and read a selective few.

Judge whether a case is suitable by the snapshot of the relevant part of the judgment.

For the example below, when I searched for ("Exemplary Damages" and "Rookes v Barnard" and "follow!") it took me less than 5 minutes go through 20 pages to identify any suitable precedent.

If you are as lucky as me, you will get the desired result on your second try ("Exemplary Damages" and "Rookes v Barnard" and "adhere!") as below.

Jackpot!

RE: Boolean language

There is no prescribed way to use Boolean language but always go back and let Step 1 "Have An End Goal in Mind" guide you. Visualise how the judgment would sound like.

Example of the usage: I know for a fact if I am looking for a case which says that Malaysian Court is not following Rookes v Barnard, the word "not following" or "depart" should not be far away from "Rookes v Barnard".

Therefore, I may experiment "Rookes v Barnard w/p depart" (w/p tells the search engine that you only want results where "Rookes v Barnard" and "depart" are within the same paragraph).

This technique is an added sophistication. I may use it sometimes or I may not, depending on where there is as need for that, or is it better to keep things simple.

RE: Wildcards

To demonstrate how wildcards can be used: For instance, if I want to narrow down my search results to all cases which talk about the departure of Malaysian Courts from English law approach of Rookes v Barnard, then it is possible that the Judge may express it as "departure" or "departing" or "departed" and not just "depart".

Therefore, if I do not use the wildcard "!", I may miss out the results where for example, the Judge says "The authorities have shown the departure of Malaysian Courts from the stringent limitations of Rookes v Barnard", or the Judge may say "Our courts had long departe from the technical limitations of Rookes v Barnard".

To cast a n1et which catches all the cases above, place an exclamation mark behind the word (i.e. depart!). This will tell the search engine that you want results which contain the word "depart", "departs", "departed", "departing", "departure" in any possible permutation.

Disclaimer: This article does not suggest that reading through all the 210 cases one by one, is a less ideal method. One may be commended for their diligence and thoroughness. Apply discretion to my methods so that it may best assist you.

A speed reader may find reading all 210 cases a tolerable endeavour, or one may have the time to do and another not. In other instance of legal research, you may get around 2000 results, therefore, a greater need to have a strategy.

Conclusion

I hope the tips above will help you to strategize how to use your keywords in order to have a more fruitful search in your upcoming litigation research. Have a plan and you will find yourself with better clarity and direction.

Thanks for reading.

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