[1/2] Legal Research in 3 Simple Steps: Hardcopy Materials

You have just enrolled in law school, or maybe you have been studying for your law degree for some time now. If you are reading this, you are probably required to research for case laws in an internship/mini-pupillage, to prepare for a moot competition, coursework or exam but are unsure as to how to start. Or, even if you do know where to find the materials, you might wonder it is worth going through the hassle of reading through the 2,000 page-long Contract Law: Cases and Materials by Professor Farnsworthton and Arbitration Practice by Joe Bloggie QC. I understand. I’ve been there.

Legal research can appear to be a burdensome, tricky and complicated process, and that is true if you don’t have a specific way to go about it. The purpose of this series is for me to show you my methodology of carrying out legal research in (i) primary sources (aka “hardcopy materials”), and (ii) online legal databases. Hopefully, this will give you an overview of how to conduct legal research effectively whether by adopting my methodology or developing your own in the future.

Before we continue with this post, I should explain the various types of hardcopy materials that you should be aware of irrespective of where you are studying or practising.

TEXTBOOKS

If you’re completely unfamiliar with the area of law you are required to research on, a textbook should be the starting point. I am referring to academic textbooks as opposed to texts and manuals used by legal practitioners.

Not all textbooks are the same: some are meant to give you a summary of the law with minimal references to case laws, whereas others will provide an in-depth analysis of cases, legislation and academic opinions on the other end of the spectrum (and you can almost always tell which category a textbook falls under just by how thick/thin it is). My advice is to always prefer the latter category over the former. Select textbooks that contain both excerpts of judgments of leading cases and detailed commentaries on the developments that have taken place in any given area of law. This would give you a basic knowledge of the general principles and case laws you need to know for a particular topic.

However, textbooks are only useful to the extent that they explain the law to you for the first time and enable you to make an academic analysis of the law. Of course, this is good for university assignments and exams but isn’t very useful in the context of carrying out legal research from a legal practitioner’s point of view unless the law is unclear or heavily criticised.

Now, let’s move on to the more practical and practitioner-friendly sources: practitioners’ texts.

PRACTITIONERS’ TEXTS

If you already have a basic knowledge of the area of law you need to research on and want to research further, or you are required to research for a case in a very specific area of law, then you should resort to what is known as a practitioners’ text. Depending on your jurisdiction, there obviously will be various texts specific to an area of law or practice published by a renowned lawyer who practises in that area. But, whichever jurisdiction you are studying or practising, there are always two most commonly used materials in legal research. I will explain these below.

The Common Law Library Series

The most commonly used texts are what is known as the Common Law Library series published by Sweet & Maxwell. These books are easy to spot. They have a grey background, are often chunky and have the words ‘COMMON LAW LIBRARY’ embossed on the top of their spines within a small black landscape. This series covers core areas of substantive law such as contract, tort and damages. This is what a small collection of the Common Law Library series looks like:

Grey background, chunky, 'COMMON LAW LIBRARY' embossed clearly on the top of the spines

In my experience, texts under this series have never failed to provide a comprehensive statement of the law, in-depth analyses of case laws and explain clearly how the courts have applied these principles; all the way from the general principles down to the most obscure exception to the general rule. The significant downside, however, is that they are exclusively written based on the laws of England and Wales, and there are no corresponding texts that are tailored to any other common law jurisdictions. So, those reading or practising law outside England and Wales should be aware of that there will be divergences across many areas of law when reading these.

Halsbury’s Laws Series

This is an encyclopaedia that covers literally EVERY area of law there is out there. This series contains over 100 volumes, arranged alphabetically by subject areas, to ensure easy access to the relevant area of law. To illustrate what I have just said, here’s a picture of 8 volumes of Halsbury’s Laws of England arranged in ascending order:

Forestry, Fuel and Energy, Gifts, Highways, Hire Purchase... the list goes on alphabetically

The one advantage that this series possesses over the Common Law Library series is that they have corresponding ‘domestic versions’ in many common law jurisdictions and are not confined to English law. For those of you who are reading or practising law outside England and Wales, this series will help you avoid the risk of researching on English laws that do not apply in your jurisdiction and dispense with the need to identify any divergences between the two jurisdictions. India, Singapore, Hong Kong and Malaysia have their own versions of Halsbury’s Law, with the same alphabetical arrangements by subject areas. However, the trade-off for the breadth of coverage of every area of law imaginable by this series is the brevity of its content: the commentaries and analyses of case laws in Halsbury's will never be as detailed as those contained in the Common Law Library series. You will almost always have to conduct further research if you use this series, such as reading more texts and using online legal databases (see Stage 3 below).

Now that I have pointed out the important texts that you should take note of, let’s proceed to the main objective of this post: going about legal research using hardcopy materials.

STEP 1: THE STARTING POINT – KNOW THE GENERAL AREA OF LAW FOR YOUR RESEARCH TOPIC

In order to find what you need to know; you first have to know what to find (where to find is a different issue which I consider to be a separate stage below). This is pretty obvious and straightforward most of the time – defamation falls under the law of torts, for instance. If you are unsure about the general area of law of your research, a simple Google search might do the trick.

Let’s use the following research topic as an example: the voidability of agreements that seek to restrain trade on the basis that it is contrary to public policy. This would narrow the materials I need down to one general area of law and a specific sub-topic within it: (1) the law of contract will be the general area of law, whereas (2) contracts void by reason of public policy will be the specific sub-topic I need to read up on.

STEP 2(i): THE EXPLORATION STAGE – DELVE INTO THE RELEVANT SUB-TOPICS

Now that I know the general area of law, the next step is to proceed to read up on the relevant sub-topic in textbooks and practitioners’ texts. For the purpose of this post, I will just focus on the 2 most frequently used practitioners' texts: The Common Law Library and Halsbury’s Laws of England. Do feel free to ask about textbooks in the comment section below, though. I will try my best to answer them.

There are specific ways for you to navigate through these texts, which I will explain below.

Navigating the Common Law Library series

For each text within this series, it is relatively easy for you to identify the chapter and sub-topic that you want to research on. The titles in each text are structured with chapters on general principles followed by sub-chapters on specific areas.

So, using the sample research topic above, I will take the latest copy of Chitty on Contracts (2018 edition) and look up the 'CONTENTS' section at the front of the book. As I gloss through it, there is a chapter on ‘Illegality and Public Policy’ (No. 16), displaying 8 other sub-topics within this chapter:

From here, I now know that the section I need to read up is contained in one of these 8 sub-topics. Good thing is, texts published the Common Law Library series, including this one, will provide readers with a more detailed overview of the contents discussed in any given chapter at the first page of each separate chapter. Think of these as 'sub-sub-chapters'. They will often pinpoint the relevant sub-topics for your research area. So, as I flip to the first page of Chapter 16 in Chitty, I can see this:

I am now aware that the specific coverage on restraint of trade is contained in Chapter 16(4)(d). Before I proceed to the next step, I will address how to navigate through Halsbury’s Laws.

Navigating Halsbury’s Laws

As Halsbury’s arrange their volumes in ascending alphabetical order by areas of law, your starting point is the area of law of your point of research. This will indicate to you the volume that addresses your area of law.

So, with the same sample research topic, I will take Volume 9(1) of Halsbury’s Laws of England (2004 edition) that deals with Contracts. As I gloss through the Table of Contents at the front of the book that solely deals with Contract, there is a chapter on ‘Void and Illegal Contracts’, displaying 4 other sub-topics:

I now know that the section I need to read up on is contained in one of these 4 chapters. But, as you might have noticed, the sub-topics that deal with Contracts on Restraint of Trade in Chitty is enormously long, whereas restraint of trade isn’t directly addressed in the sub-topics in Halsbury's! Many people will tend to flip the pages of the chapter until they are able to identify the relevant sub-topic, but this method can be a tad bit draggy and maybe even end up a waste of time (especially if you have been looking up the wrong chapter, which has happened to me numerous times). This is where the second part of Stage 2 comes into play: make full use of the index. As I will illustrate below, this can save you a lot of time in your research.

STEP 2(ii): MAKE FULL USE OF THE INDEX

I simply cannot overstate the usefulness of these sections in every legal textbooks out there: they are essentially a treasure trove of keywords that will signpost you to the relevant sub-topic that you need to research on. Words (or phrases) in indexes are always arranged alphabetically and will state the section of the book that deals with that word or phrase.

What I normally do when I am looking for a specific sub-topic in any text entails a three-stage process: (i) note down the relevant chapter from the book, (ii) look up the index and note down the sections where keywords/phrase are addressed in the text, and (iii) compare the relevant chapter and the sections I have gathered from the index. Think of it as an elimination process in legal research using hardcopy materials. If you’re lucky, you might be able to skip the table of contents and go straight to the index to identify the section of the text that deals with your specific research topic. However, this isn’t always the case – hence Step 2(ii) for completeness.

Again, using the sample research topic above, let’s go through the indexes of Chitty and Halsbury’s to identify the relevant sections of each text that deal with restraint of trade.

In Chitty, I have found the phrase 'Restraint of Trade' with an extensive drop-down list from the phrase by glossing through the index alphabetically. Similarly, in Halsbury’s, I have identified a whole section in the index that deals with this sub-topic, with the words ‘public policy, contracts contrary to’ indicated in the drop-down list. These are the results of my search:

'Restraint of Trade' in the index of Chitty

'Restraint of Trade' in the index of Halsbury's

And this, my friend, is mission success. As displayed in these pictures, I know for sure that the required readings for my sample research topic in these texts are contained in paragraph 866 of Halsbury’s and everywhere from paragraph 16-106 - 174 of Chitty. Assuming that the research topic above was specifically in the context of a franchise agreement, I will immediately be aware that paragraph 16-153 of Chitty's addresses this directly on point: by narrowing my readings down this way, I know for sure that I will be reading up on the right sections of these texts and avoid the risk of reading irrelevant materials or missing out relevant sections.

STEP 3: DELVING DEEPER - PROCEED TO ONLINE LEGAL DATABASES FOR FURTHER RESEARCH

Hardcopy sources are often not enough, especially if you are carrying out legal research for actual cases handled by legal practitioners. If so, once you have read up on a particular sub-topic of your research area in any text/texts, you will still have to supplement your legal research further by heading over to online legal databases such as LexisNexis/Lexis® Library and Westlaw to search for additional cases.

(I have written a separate post on how to go about carrying out legal research effectively using these databases here.) The only thing I would like to address in this section is to make full use of the information you have gathered in the first 2 stages above as you progress to the 3rd stage. For example, you might have encountered a leading case on the sub-topic of your research area. Take note of the case name and citation, look it up on Lexis or Westlaw, and browse through its case analysis. It will indicate the list of cases referred to in that leading case, and, the number of times the court has interacted with that case in question (whether by referring, following, distinguishing, overruling or reversing). This way, you can narrow your research even further and save a lot of time in the process.

THE TAKEAWAY

And that's how I carry out legal research when it comes to hardcopy materials. I say, with relief rather than pride, that this methodology was developed upon years of practice and reflection. I now wish to pass on this knowledge to those who need guidance because I'd wished that someone would do the same when I was much younger.

Now, this methodology may not be the best, nor would it suit every law student/lawyers out there. This post isn't meant to achieve any of these. Rather, there is an ultimate takeaway to this: find a research methodology that suits you and stick to it.

Part 2 of this series covers how to carry out legal research on online legal databases. Click here to access Part 2.