Legal Research for Lawyers and Lawyers-to-be

“God forbid that a lawyer should know all the laws. But God forbid that a lawyer should not know where to find the law. A good lawyer must know where to find the law and how best to apply it”
Lord Denning (Master of Rolls)

The above quote by Lord Denning – one of the outstanding Judges of the last century underlines the kingly position that legal research holds in the success or otherwise of the job of a lawyer or lawyer-to-be.  When legal problems present themselves, there would be need for legal research in order to resolve the issue one way or the other. Since laws are expressed in statutory documents, case laws, and textbooks, the most efficient strategy is to research the print and electronic sources. The skill of legal research is one of the barometers with which the competence of a lawyer is gauged. However, no lawyer knows it all, let alone a lawyer-to-be. Thus, it is not a crime if a lawyer does not know an aspect of the law. But if a lawyer does not know where to find the law/legal materials or the tools to invoke in finding them, then his ‘lawyering’ skills would surely be in doubt and that could deal a big blow to his career. Therefore, it is necessary to have a good knowledge of the tools in legal research. This will make for effective and efficient legal research and practice.

The chapter aims at demonstrating to us how to use legal research (finding case laws, legislation, books) to address research problems. It will suggest effective strategies that could be employed in finding cases, legislation, journal articles, and books. It will also explain what to do with the materials so found.

1. Effective Strategies in Legal Research

  • Create a flexible research strategy and methodology – these will tell you the sources to consult
  • Be sure to know the primary legislation and subsidiary ones to your research problem
  • This is because some legislation bow to others when being interpreted in the Courts (especially in the event of a conflict in their provisions)
  • Read and reflect on the facts of your research problem
  • Ensure that you have understood the preliminary issues that need to be researched
  • Then prepare a preliminary statement issues. Dwell on the primary issues of your research
  • Your preliminary issues are the list of every essential thing in your research. Some of these are the specific issues that the court will determine first
  • Frame the legal issues from the facts of the case
  • Make a comprehensive list of all the legal concepts and issues from the facts. This means that you should make a note of the following, among others:
    • the cause of action
    • defense raised
    • relief (s) or remedy being sought
    • the Court that has the competent jurisdiction
    • the source of law that is applicable (case law or legislation)
    • the type of legislation that is applicable – that is, federal or provincial legislation
    • the parties/persons, objects, or things that are involved
    • preliminary and substantive procedures involved, etc.
  • Do not make a wild-goose chase during your research
  • In order to avoid this, identify the relevant keywords from the facts and legal concepts of your research problem
  •  Make a list of those keywords and alternative words of the issues. They will help you to narrow your search and save you a lot of time
  • Determine what (acts or omissions) gave rise to the research problem or subject matter?
  • Have a good law dictionary. Black’s Law Dictionary is preferable. This will define some strange terminologies to you
  • Know how to use library catalog system. This tells you the location of a work, author, title, call number, the subject matter, etc.

 

2. Start with a good book

  • Most legal issues or concepts have books that are deemed as leading authorities or bibles on those concepts
  • Therefore, start with a good book on the legal concept that you are researching
  • Get the book from a library catalogue. For instance, if you are researching on a problem that borders on a Constitutional question in Canada, the current edition of Peter Hogg’s Constitutional Law of Canada is the flagship book on that.
  • The book will also cite relevant articles, case laws, and even other books that speak on your research problem
  • Consult legal encyclopedias like the Canadian Encyclopedic Digest (“CED”) and Halsbury’s Laws of Canada. The CED gives you a current summary of the law on a particular topic and makes references to relevant primary sources. The CED is accessible electronically on WestlawNextCanada
  • Narrow down your search by subject area

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3. Finding the Case Laws (Law Reports) – LexisNexis Quicklaw

Here, we will use LexisNexis Quicklaw basically on the ground that it is one of the full text databases or resources. Full text databases are current and they have a way of suggesting recent case laws that could be helpful to your research.

  • Do your searches by using relevant legal concepts or some phrases in the facts of your legal research problem
  • Narrow your search to the specific issues
  • Use specific keywords with appropriate connectors
  • Include alternate words and truncations
  • Go to LexisNexis Quicklaw home page, under the “Find a Document” window; enter the name of the case or citation in the column “Find a case by name/citation
  • If you don’t know the full names of the parties of the case, enter any of the names of the parties at the “Note up with QuickCite” column

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  • Alternatively, go to the “Court Cases” or “Tribunal Cases” tab, under the “search” box, enter the name of any of the parties to the case or any term that captures the legal issues that were determined in the case
  •  For instance, if you want to get the full text of the case: Trinity Western University et al. v. The Law Society of Upper Canada; Attorney General of Canada et al –  one of the main issues that came up for determination here was the provision of legal education and subsequent admission to the Bar. Thus, it will suffice just to enter the phrase/ term/word “legal education” or “Trinity Western” in the search box.

 

4. How to find Canadian Legislation online

  • The Justice Laws’ website is a good and comprehensive tool in finding Canadian federal legislation and regulations
  • It is available at http://laws.justice.gc.ca/eng/
  • This website provides you with the online resources of current consolidated Acts and regulations of Canada. The consolidations are generally updated every two weeks.

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5. How to proceed after you have found your Research Materials

  • Read the cases and legislation that you found
  • Due to the doctrine of stare decisis, ensure that the case was decided in the same legal system or jurisdiction with the one that you are researching
  • Check from the hierarchy of the Court that gave the judgment if the relevant case laws found are binding or persuasive
  • Sift out the leading and comparatively recent cases and exclude irrelevant cases
  • Read and analyze the leading cases that you found
  • Confirm if there is a dissenting judgment on the case laws
  • Confirm if the case laws that you found are directly applicable to the facts of your own research problem
  • If not, note the facts of your own research problem that is relevant to the cases that you found
  • Find out if the cases could be distinguished in any respect from your research problem
  • In the light of extant statutes and decided cases, confirm if there are points of law or facts that seem well settled vis-à-vis your research problem
  • If there is none, be sure to know what has been the attitude of Courts toward such issues
  • This will be able to suggest to you where the weight of authority lies
  • Ensure that the case laws that you found are still good law – that means that it has not been set aside on appeal
  • Ensure that the legislation has not been repealed by the legislature
  • Sometimes, how your research has evolved so far will require you to include policy arguments when writing your final results
  • In that case, you need to exhume the history, underlying purpose, and spirit of the relevant laws
  • Remember that most cases have analogous case (s)
  • You can use the analogous cases to do a comparison and contrast of your research problem or question
  • Case law Digests and indexes of law reports are good resources for this kind of comparison
  • Canadian Abridgment is one of the comprehensive digests. It covers all Canadian cases. It is accessible at http://www.carswell.com/products/the-canadian-abridgment/
  • Do not read case digests or synopsis at the early part of your research
  • This is because they do not provide sufficient information of the cases
  • Keep track of your preliminary and substantive searches so as to avoid doing one thing twice

Thus, document your search/research results. Take short notes about the location of the material, call number, authors, etc.

6. Putting your Arguments or Findings Together

  • Analyze the case laws that you found and how the facts relate to your research problem
  • Determine the principles of law that connects the case laws found
  • Note the strengths and weaknesses of your legal issue

7. Writing Final your Results/Memorandum

  • This is the result of your research. Here, you are required to produce a clear and concise analysis of each legal issue and principle. Thus, you need to demonstrate how those issues and principles apply to your research problem
  • Be thorough. Ensure that no relevant case has been omitted in the course of your searches
  • Make a clear statement of the position of the law based on the case laws, statutes, textbooks, etc
  • Make a critical evaluation of each relevant principle of law and predict which principle or rule the Court would follow
  • Apply the principle or rule to the facts of your research problem
  •  Highlight the arguments each of the parties are likely to canvass
  • Make a prediction of how the Court is likely to decide the issue. That is, what would be the likely outcome of the case
  • Demonstrate how you arrived at your findings, predictions, conclusions
  • Connect the relevant legislation with case laws and facts of your research problem
  • Use the correct and precise legal terminology

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Once you have read this chapter, you should be able to:

  1. Know the strategies to adopt in searching and finding case laws, legislation, and books
  2. How to construct your keywords, phrases and connectors
  3. How to proceed with the legal materials found
  4. What to include in your final results

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