The Guide to Prepare Foolproof Legal Research Efficiently (Part 1)

Introduction

We live in a wonderful time.

Lawyers in the past would never have such privilege.

15 years ago, when lawyers wanted to get case law authorities which support their submissions, they had to skim through volumes of law journal and law digest.

Page after page, they have to squint at the tiny print, put undivided focus on the material, just in case they missed out any crucial information.

In those days, it is relatively tedious to conduct a legal research.

Finding a needle in a haystack, then, is not an understatement for such pursuit.

We do not live in those times, today, we have access to tens of thousands of cases at our disposal, all stored in our legal database.

The access to an immeasurable wealth of knowledge is within a few clicks. The only thing that comes in between you and your end goal, is your computer legal research skills.

That said, legal research is a valuable skill to master, especially for young lawyers who want to add great value to the seniors and be indispensable.

In this article, I am going to share a few tips which can help you in becoming a more efficient researcher.

Type of research

Today, the tips I am about to share would apply to lawyers who are looking case law authorities.

In this type of research, you are aiming to get case law authorities that would strengthen your arguments in your case.

Sample exercise:

Senior: "Our client wants to claim for exemplary damages. The problem is, our client doesn't into one of the 3 categories provided in House of Lords case of Rookes v Barnard.

I am of the view that there is a blatant misuse of power and exemplary damages should be given to deter future wrongdoing"

"Could you do search to find out whether there cases a more liberal approach is used, without following the stringent limitations in Rookes v Barnard, to support a claim exemplary damages"

As it can be seen from the conversation above, your senior needed your help to identify case law authorities that would help your client to win a claim for exemplary damages.

Therefore, the results or non-results of your research will become the deciding factor between winning and losing the claim.

Such research would require deep knowledge of how the legal database works as the authorities you seek to rely must be substantially similar in the relevant issues in your present case.

The facts have to be compatible. Knowing the law is not good enough. You need to present authorities which are very similar to your case so that it can fit perfectly into your submission as persuasive authorities.

Step 1: Know What You Are Looking For

If you want to have a fruitful search, you must know what you are looking for. Your goal is to identify the most authoritative and persuasive cases and present it as a summary to your senior.

There are 5 timeless criteria for a good authority:

1. It is recent
2. It is instructive
3. It is frequently followed
4. It is not overruled
5. It is from the highest possible Court

Step 2: Search for Keywords

What you would do next is to search for the right keywords.

But to demonstrate how it is done.

Let's follow the sample exercise above and search for in your legal database (i.e. Advance Lexis).

Alright, if you did that, you find that there are 1068 results for "exemplary damages". These are 1068 results touched on exemplary damages but the majority of them will not discuss the law of exemplary damages.

The great thing about Advance Lexis today is that you get to see how many times the keywords are used and where these keywords are placed in the judgment.

Step 3: Know What to Avoid

For the picture above, this is wherein the whole judgment, the judge only mentioned "exemplary damages" once. These cases cannot be instructive. Avoid them.

In the contrary, in the above screenshot, there are good chances that the above case will discuss "exemplary damages" at length. Consider reading such cases, it will be instructive.

Step 4: Read From The Highest Court

By default, Advance Lexis will sort the results by "Relevance". Most people will proceed reading thereon. But from my experience, if you want to be more efficient and faster, you can try these few tricks below.

To save time, you should read from "Malaysia Federal Court" and equivalent first, Court of Appeal then lastly High Court. It is counterproductive to read from an instructive case from the High Court when there is a Federal Court case which explains it better.

Therefore, always start reading with the highest court. In this case --- Malaysia Federal Court.

Then sort by "Relevance". If you did what I did, you will discover that there are only 3 out of 49 Federal Court cases that are instructive and recent.

Step 5: Read Widely

Read at least 15 cases from the apex courts. This is because the view of the apex courts is always the subordinate court's view.

Tip: Don't stop at the "prized case"

For most people, when they caught their "prized case", they would stop there and present the case. It is not wrong but if you want to do better, continue reading 10-15 cases that fulfill the 5 criteria above.

By reading more cases, you will have more holistic understanding of the law.

Step 6: Do the Due Diligence on Your Authorities

Last but not least, do check whether your authorities are good law. Occasionally, the authorities you found may be overruled.

There are a few telltale signs which could suggest your authorities are overruled:

1. There are negative, cautionary treatment signs beside the case name
2. The law is new and not yet settled.

Now coming back to the topic, let's say you want to check the status of the following Court of Appeal case:

• Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal?[2018] 1 MLJ 784

Here's how you do it.

For reported cases, go to the CaseAnalysis page, and click on "Cases referring to this case"

You will then see a list as shown above. These are the cases that referred to Sambaga Valli (supra).

However, you don't have to read all the listed cases, especially the cases from courts subordinate to Court of Appeal.

From the list above, you should only read:

• Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors?[2019] 3 MLJ 510
• Tradewinds Properties Sdn Bhd v Zulhkiple bin A Bakar & Ors?[2019] 1 MLJ 421

This is because in order to find out whether Sambaga Valli (supra) is still good law, you should only read the judgments from the peer court or the superior court that come after the decision of Sambaga Valli in 2018 (i.e. Court of Appeal and Federal Court) because only these cases have the potential to overrule the said case.

Bonus Tip: A precedent can only be overruled by the peer court or the superior court.

While reading these cases, Ctrl + F for "Sambaga". This will allow you to skip to the relevant part that discussed Sambaga (supra).

As you can see from the screenshot above, Taz Logistics (supra) discussed and affirmed Sambaga Valli. So far so good.

Now, let's see what the next case Tradewinds (supra) says about Sambaga Valli.

As you can see, the case above also affirmed Sambaga.

As both cases did not speak against Sambaga. Thus, this makes it safe to rely on Sambaga as an authority. It is a good law.

Conclusion

By following the above steps, you should know what are the basic principles of conducting a foolproof legal research and the more methodical way to find answers.

Thank you for reading.

Do you have any questions?

What were the issues you encountered before in your legal research?

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