29 July 2021 12:20 PM GMT
Legal research and writing in my opinion are the backbone of a good lawyer. Here, writing would mean communication. Communication can be in written, oral and nowadays, even in video form. Hence, as legal practitioners it is crucial that we are thorough on the basics of legal research and legal writing, or as one would say, communication. Communication Is Not What You Convey; Rather...
Legal research and writing in my opinion are the backbone of a good lawyer. Here, writing would mean communication. Communication can be in written, oral and nowadays, even in video form. Hence, as legal practitioners it is crucial that we are thorough on the basics of legal research and legal writing, or as one would say, communication.
Clear, unambiguous and simple communication is vital to every aspect of legal practice. For instance, if a senior associate requires certain questions of law to be researched upon, it is essential that he provides clear and specific instructions and research questions to his researcher. It is advisable to have the research mandate clearly written down and agreed upon by the senior and the researcher in order to avoid any miscommunication.
All communication must be such that it is easily understood by everybody- from the Doorman to the Chairman. At this juncture, I am reminded of an anecdote about the famous French emperor Napoleon. After every battle he won, Napoleon would personally draft a treaty to be signed by him and the losing side. However, before executing the treaty, he would read out its content to his doorman and ask the doorman to explain his understanding of the treaty. Only if the doorman could explain clearly to Napoleon what he could understand from the treaty, would Napoleon give it to the losing side to sign.
As equally important as communication or legal writing, is legal research. The word research immediately brings to mind popular legal databases such as SCC Online, Manupatra, LexisNexis and so on. Researchers straight away get onto these research platforms and databases to kick-start the research process. In my opinion, this must not be the first step, but rather the last step of the research process.
Research means to revisit – to re-search. While working on any case, I would expect my junior or researcher, as the case may be, to first arrange the facts and events in a chronological order. This goes a long way in facilitating understanding of the factual matrix of the case. The second step would be to dissect every event and fact by stepping into the shoes of both, the client and the other side. This process allows for multiple meanings and perspectives to emerge, which then forms the basis for your research.
Additionally, researchers must also approach the case from social, administrative and other points of view, depending on the specific facts of each case. This process enables the researcher to foresee how the opposite party or the judge would interpret the case. This gives the researcher greater clarity on what propositions of law he/she will have to explore further. .I would also advice all researchers to resort to the "Blacks Law Dictionary" and the "Ramaiyah Law Lexicon" to obtain a basic understanding of legal concepts and theories, before diving into deeper research.
Once the researcher has ascertained the various propositions of law (both favourable and unfavourable), he/she can focus on case law and citation research pertaining to each proposition. After narrowing down the most recent and relevant case laws, the researcher must then summaries the ratio decidendi of each case into four-five simple and definite sentences.
I would like you to picture the entire process of research to be divided into three parts, namely:
-Writing / communicating research findings
I would like you to also visualize the entire research and writing process as a manufacturing process - where research is the raw material, analysis is the processing and the communication is the result, with findings being the finished product.
High quality raw material with average quality of processing would still give you an above average product. Similarly, raw material of average quality with excellent processing can also give you a decent finished product. I am using this analogy to impress upon you the importance of good quality research, analysis and communication of the research findings.
To become an effective and efficient researcher, one must be an ardent reader as well. Such readings must not be limited to statutes and judgments concerning his or her area of practice but must also include government policies or developments in sectors where his/her clients operate.
I would also emphasize on the importance of inter-disciplinary research i.e. to interpret research propositions from the angle of other areas of law. For example, the terms of a commercial contract maybe interpreted by commercial courts in a manner that is different from how employment contracts are interpreted by labour courts, or interpretations of licensing contracts by the IP courts and so on. You will be surprised to find that many a times; this brings up favourable interpretations and breakthroughs for your case.
Once the research and detailed analysis of that research is complete, the researcher must then present his research findings in a way that is appealing to the reader or the decision maker. For this purpose, it is key that he/she attempts to understand the likes, dislikes, ideologies etc of the decision maker ie, the judge in litigation or the counter party in a negotiation. This helps the researcher mold his/her research findings in a manner that appeals to the decision maker at an intellectual as well as emotional level.
When presenting the research findings, an intellectual researcher will place multiple possibilities / solutions before the decision maker and then move on to present logical / obvious short comings in all presented solutions except for the one the researcher desires for the decision maker to accept. .A good researcher must also be a versatile story teller i.e. he or she should be able to expertly interweave the relevant facts, legal provisions and favourable interpretations into a fabric which would appeal to the decision maker.
To conclude, I would say that judges, lawyers and teachers are given the task of understanding and applying the manifold laws properly and of also guiding the legislators in framing new laws. The need and importance of legal research and writing, therefore, cannot be overemphasized, particularly in a democratic society like ours that is committed to achieving socio-economic justice for its people.
The author is Kalyan Jhabakh, Partner, Surana & Surana. Veiws are personal.