Today we’re joined by our partner The Institute of Legal Secretaries and PAs to discuss how you can perform legal research as a secretary, and the approach taken by some lawyers for this common legal task.
Where to research the law
If you need to research a legal question (very likely in your line of work), there are two main categories of materials you can use:
- Primary sources of the law
- Secondary sources
In England and Wales, primary sources of law can be found in Acts of Parliament, Statutory Instruments and case law. Typically, when a lawyer is conducting research of primary law, the starting point is to identify any Acts that apply. One way to look at an Act of Parliament is that it provides a broad statement of what the law is. Because Acts of Parliament deal with the law in broad strokes, they are often supplemented with additional regulations that are usually created by Statutory Instruments..
Acts and regulations together can form the backbone of any research task, and fortunately, access to most of them is freely available. All Acts from 1988 to the present day are available through the government website. However in some cases, these will only be copies of the original versions or revised versions. Similarly, all Statutory Instruments since 1987 are published on the website, along with a selection of Statutory Instruments from 1948-1986 and other pre- 1948 Statutory Rules and Orders.
Case law is another important primary source of law. This is where a legal researcher’s job can prove more challenging, however. Case law is typically focused on a legal problem or issue. The case reports themselves could be published in a variety of places, both offline and online. You might only be able to access a case by paid subscription to a legal publisher too. A beginner legal researcher also has to deal with additional obstacles when trying to confirm whether a decision is up to date and a binding or persuasive precedent.
Some of these challenges have been addressed because of the work done by the not-for-profit charity the British and Irish Legal Information Institute (BAILII). The BAILII legal database promotes access to justice and the rule of law contains many of the key case transcripts for free online. The site also includes a useful guide on how a case law reference should appear, which is known as a case citation. The official system for citing cases in the United Kingdom was introduced in 2001; when quoting a case, you must state the name of the case, the year, the court it appeared in and also the case number.
Other challenges regarding finding case law can be solved using secondary sources, like textbooks, case digests, newspaper articles and online resources such as legal practitioners’ reports – basically any other source than statute and case law. The resources can be vital when beginning your research to provide some background information about a problem or assist in finding an answer in broad terms. The disadvantages however, to using secondary sources is that you have to question who created in and its credibility. It’s also worth noting that a secondary source cannot be used directly to settle a disputed point of law, regardless of the source’s reliability.
Researching the law
Now that we have discussed the different sources of law available to you, we will review one approach that can be used when researching a legal problem. The “FILAC” method is based on an approach described by the author of Legal Problem Solving, Maureen Fitzgerald. There are five steps to this approach:
- Facts: Identify the relevant facts
- Issues: Identify the relevant issues (usually the client’s legal question)
- Law: Find the relevant law (using secondary sources for a broad overview and primary sources once you have narrowed down the relevant law)
- Analysis: Apply the relevant law to the facts. This is an analysis to decide how a judge might apply the law to the facts
- Communication: Report on the problem researched clearly and accurately
Legal research is a vital skill for anyone studying or practising in the law. It can be frustrating and take time to solve a problem, particularly at the beginning. But if you use a logical approach like the FILAC approach, you can eventually identify a solution to a problem. The key is to persevere and always check your sources.