By Mary-Rose Russell, an extract from Legal Research in New Zealand
Components of the legal research process
The legal research process comprises a number of discrete steps, each of which calls upon skills which law students are expected to acquire, whether or not they are taught them as part of the law curriculum.
Step 1: Problem statement starting the process
The beginning point is the legal problem to be addressed or the research question to be answered. In most undergraduate assessment, you are presented with a hypothetical problem or given a topic from which the research question is to be discerned in Step 2.
Skills required for Step 1 are cognitive or thinking skills, especially knowledge and understanding.
Step 2: Initial analysis
The analysis required in Step 2 is the most important part of the process. This is principally the thinking stage, and is undertaken well before you put fingers onto your electronic device. Astonishingly, this is also the part of the process that is either ignored or rushed through perfunctorily. The more effort you put into this analysis stage, the better and easier the remaining research process will be. Success here means almost 40 per cent of your work is done. A conceptual framework for dealing with the analysis step is provided later in this chapter, but, briefly, its components are:
- Identifying the topic of your research. What is the research all about? For example, is it trespass to property, parliamentary sovereignty or another topic?
- Looking at the facts.
- Identifying areas of law. Law does not function in silos, and generally there are several areas of law which may be relevant to your topic. Understanding the ambit of your legal research is important to ensure you consider everything relevant.
- Identifying the key legal issues. This is part of the normal legal method.
- Framing your topic as a question to be answered.
- Identifying legal contexts. Is your topic the subject of a law-reform project? Has there been recent case law you know about on the topic?
- Identifying relevant extra-legal contexts. For research papers, you should always consider the broader societal context of your topic. There may be highly relevant policy, economic or environmental considerations, or government strategies which may influence the development of the law.
- Identifying key words or phrases.
- Identifying possible resources. What primary or secondary sources do you already know about which will be useful for you? What resources has your lecturer supplied?
- Identifying the starting point of your research.
Each one of these components requires a substantial thinking investment. You are essentially creating a store of information which will guide and assist you in Step 3. Some of this information acts as an insurance policy, so if you experience mental or practical roadblocks in Step 3, you have provided yourself with alternative pathways for circumnavigating them.
Skills required for Step 2 are the cognitive skills of knowledge and understanding.
Step 3: Retrieval of information
This is the familiar stage for most students, where they expect the research process to begin. It comprises the finding or researching stage and the retrieval and use of both primary and secondary source material. This is the main point where all the thinking invested in Step 2 really pays dividends. If you have seriously thought about all the facets of the initial analysis, then you should be able to proceed through Step 3 with relative efficiency.
There is one trap which you may encounter in Step 3, and this is the lure of the Eureka Syndrome, named after the phrase uttered by Archimedes, the Ancient Greek mathematician. Eureka may be translated as “I have found it”, and it occurs when your searching reveals one great resource, generally a journal article, which seemingly provides everything you need to answer your research question. There is a powerful temptation to stop your research at this point and to move straight to writing your paper. Take a minute and consider the word “research”. It comprises two syllables: re and search. This means you need to continue with your searching, as it is rare that just one source is sufficient, and you run the risk that the one source is, in fact, incomplete or inaccurate or poorly reasoned.
Skills required for Step 3 are psychomotor skills for the use of libraries, databases and websites and cognitive skills.
Step 4: Evaluation of information found
At each point in the researching phase, you need to evaluate the information you have found. Keep referring back to your research question. Is the information found relevant? Does it help you answer the question? Does it reveal new issues to be examined? Does the information you have found fit in with other sources you have found? The researching and evaluating stages are highly circular. This evaluation step comprises two levels; the evaluation of each source found is a type of micro-evaluation, as each source is considered individually. However, you also have to look at the totality of what you have found. Taking all your sources together, you need to ask yourself more questions. Have I found enough information to answer my research question? Is my research complete? Have I addressed all aspects? Do I need to pay closer attention to some of the contextual issues?
Once you are satisfied with the information found, there is another action that you must complete. The one distinguishing factor about legal research undertaken in both law school and legal practice is that it must be updated. You can never leave your research where your find it; legislation must be updated and cases must be checked against citators.
Skills required for Step 4 are the higher-order cognitive skills of analysing and evaluating and psychomotor skills for updating materials.
Step 5: Synthesis of research
Once you decide you are done with the searching and evaluating steps of the process, you must now synthesize the information found with your research. How does your argument fit together? Is it logical? Are you, in fact, answering the research question?
Skills required for Step 5 are the higher-order thinking skill of creating and psychomotor skills for organising your material for writing.
Step 6: Communication
This is the last step in the legal research process: the writing up of the research in drafts, with your last draft conforming to referencing and citation standards.
Skills required for Step 6 are higher-order cognitive skills and psychomotor skills for writing the research paper and using citation and style conventions correctly.
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