Legal Research in Civil Litigation

The Importance of Effective Legal Research

What is the importance of legal research? From advising a client to drafting pleadings, and from negotiating a settlement to representing your clients in court, the quality of your legal research ultimately determines the accuracy of your advice and the overall strength of the entire case. Research is much, much more than simply spotting a statutory provision or finding a leading authority; practitioners must carefully analyse the interaction between statutory provisions, procedural rules, judicial precedent, and the precise facts of the dispute.

Poor legal research can have severe consequences. Ignoring a statutory defence, relying on an overruled authority, applying an obsolete procedural process, or missing the boat on identifying a limitation issue can totally torpedo what might otherwise be a successful claim or defence. As such, you should view legal research as a systematic and iterative process occurring over the entire course of litigation, and not as a one-off exercise performed shortly before writing pleadings.

Identifying the Legal Issues

The starting point of every legal research exercise is identifying the precise legal issues arising from the factual background.

This stage requires practitioners to distinguish between factual questions and legal questions.

Whilst clients often describe what has happened, it is the solicitor's responsibility to identify the legal consequences flowing from those facts.

As a case in point, an unresolved invoice dispute might threaten to be nothing more than debt collection. A more detailed review might uncover further problems to do with construction, misrepresentation or lack of implied term, limitation, agency and applicable law or equitable relief. Likewise, an action in rem also can embrace issues of rights and interests including trust, proprietary estoppel, easement or adverse possession in the context of a property dispute.

Accordingly, practitioners should first identify:

• the potential causes of action;
• the relevant legal issues requiring determination;
• possible statutory or contractual defences;
• procedural considerations; and
• the remedies available to the client.

Only after the legal issues have been properly defined should detailed legal research commence. Failure to identify the correct legal questions at the outset frequently results in unnecessary research, overlooked authorities and inaccurate legal advice.

References (OSCOLA)

1. Civil Procedure Rules 1998, r 1.1 (The Overriding Objective).
2. Civil Procedure Rules 1998.
3. Civil Procedure Rules 1998, Practice Direction – Pre-Action Conduct and Protocols.
4. Civil Procedure Rules 1998, Practice Direction 7A (How to Start Proceedings).
5. Civil Procedure Rules 1998, Practice Direction 32 (Evidence).
6. Civil Procedure Rules 1998, Practice Direction 35 (Experts and Assessors).
7. Civil Procedure Rules 1998, Practice Direction 57AD (Disclosure in the Business and Property Courts).
8. The White Book (Sweet & Maxwell, current edition).
9. Rupert Jackson, Review of Civil Litigation Costs: Final Report (TSO 2009).
10. Lord Woolf, Access to Justice: Final Report (HMSO 1996).