Legal Research Tips
Before Canlii, Leis Nexis, Quicklaw, Westlaw, and the list of endless sellers an resellers of legal research platforms, we had books. These books contained statutes, case law, texts on substantive law subjects and some practical. We now seem to pick our platform or website of choice and search some key terms and try to make sense out of it all.
In the old days, you have various reporting services. Most of those services are still around today although they all have some form of online version. Before we get to the online version lets look at a lost art that was primarily practiced in the days of just books. That practice is Shepardizing a case.Reading the Wikipedia reference will help you understand it better.
Shepardizing a case was the process of verifying your authorities by checking other sources to see if the case was followed, distinguished or relied upon by other courts. This was an absolute necessity for 1Ls (First Year Law Students. It made perfect sense. When everyone was checking physical texts to do research, you never knew what else was out there without spending hours doing research.
The process was started by Frank Shepard in 1873. Lists would be published called the Shepard’s Citation Service. In it you could find authorities (cases) from different jurisdictions which would be binding or persuasive. In 1999, Lexis Nexis offered it’s online version of the Shepard’s Citation Service.
Argue the Other Side
In addition to Shepardizing the case, one of the lost arts we see daily, either by not knowing, not being taught in school, or never being in the role as advocate, is the strategy of “Argue the Other Side”.
When researching issues, don’t just find cases which support your position, find cases which support the other side. Put yourself in the other sides’s shoes and take the argument away from them. Ask yourself what you would do if you acted for the other side. If you can understand the issues the other side will raise, then you’ll be better equipped to argue the issue more effectively. Imagine in your submissions, you say something like “My friend will likely argue X. X is correct in some cases but not this one because…” You’ve neutralized the argument. Don’t forget that legal research is part of preparation and being prepared for an adversarial party is a big part of it.
Another mistake is people reading only cases.There is this thought that in Law School you’ll read a bunch of cases and synthesize them. This is true but you’ll be reading a lot of text on doctrines and concepts before you start narrowing things with specific interpretations.
So… Pick up a text book. Learn on a deeper level what the actus reus is. Understand what mens rea is and then learn the different levels of mens rea. Make a list of the mens rea words. Read about the circumstance element of an offence. It’s often the one part misunderstood. What are the 2 stages in causation? Better yet… What is causation and how does one prove it?
The basics are often overlooked and people research issues without a solid foundation. It is the equivalent by learning to read by memorizing words. Learn the alphabet first. Sound out the letters, learn how to pronounce them. Use deductive reasoning to understand a word in context. Doing this will enable you to research better. In fact by developing a solid base to start with, your research time will be reduced substantially because you can parse your cases faster.
Things in Context
Another thing we see is cases not used in context. An example would be in the context of 11(b) cases. You see people say Morin is 8-10 months so anything over 10 months should be stayed. This actually isn’t the case and in Morin, the Supreme Court of Canada tried to refine the case of Azkov.
If you’re one of those people who just looks at time, then please begin developing the process for arguing an 11(b). 8-10 months was NOT ALL they said. Start with the total time. Look at at who caused what portion of delay. Who gets faulted or who can rely on which portions of time. Remember that a stay is a draconian remedy and it’s important to balance the stay with section 1 of the Canadian Charter of Rights and Freedoms.
Context is so important. Black and white is rare in our profession so if you’re playing in the grey, be sure of what you can be.
Look for Relevant Cases
They say there is no stupid question. While that may be true, the question may tip off how much you don’t know.
As an example, I was asked (by several people and on different occasions) for case law on a specific speed measuring device. I replied that what they REALLY wanted were cases outlining the evidentiary burden on devices broadly and then more narrowly some cases which followed which dealt with speeding infractions. So by getting the legal point based on evidentiary facts, they would have authorities which supported the position they were taking.
Sometimes the case you are relying on doesn’t have a lot to do with the case you’re trying. Once I relied on a piece of Over 80 caselaw on a G2 Alcohol above zero charge. The prosecutor argued “Well this is an Over 80 case but here’s were trying a G2 alcohol above zero offence. How is this case even remotely relevant?” What seemed to escape the prosecutor at the time was that the issue in the case was a method for proving alcohol in the bloodstream.
So from a subject standpoint, pay careful attention to what contextual issue a case stands for and not whether the charges match. If the issue was identification, would we care whether the charges were different in the case we were trying and the case we were relying on? Probably not unless there was some connection.
Connections is my word for relevance. Something misunderstood. If something is relevant, then it has a connection to whatever the issue is. When we object to something being relevant we are saying that there is no probative connection with anything.
When doing legal research, make sure you’re connecting the dots and can establish how a case is connected to what you’re position is.
The internet has made legal research easier. It will be near impossible to teach a legal research lesson in one blog post but if you’re looking to improve your research chops, then search issues as key terms. For example, if you’re looking for 11(b) cases on a speeding ticket that took 14 months, then search Unreasonable delay speeding 14 months and variations of it.
Use Google and Google Scholar in addition to your own legal research database. Talk to others who have argued them and ask what cases each side used. Review the cases you find and cross reference the authorities to narrow some of the issues.
Lastly, ask a rep from whoever sells you your service for a free demo. Lexis and Westlaw will come show you HOW to find what you’re looking for. This a resource most people forego. Don’t. Let the pros show you how to find the needle in the haystack.
Every court has some form of subscription option. Use it. Visit the OCJ, SJC, OCA and SCC regularly. Subscribe to weekly digests of the cases that get released. Take some time every week to read them and stay current.
The last piece of advice I have is think of the big picture. I have seen this only in paralegals. Not once in a lawyer. This is a difficult thing to say, considering my audience is primarily paralegals but it has to be said. SHARE YOUR CASELAW! It is embarrassing to see people clinging to caselaw like it’s a trade secret. In order for the profession to benefit, we need to help each other. We will all go further by getting better helping each other up then by climbing up by pulling others down.
To those who do this, be ashamed of yourself. You’re no better for knowing a case you refuse to share. How does the profession benefit from this? It doesn’t.
By sharing cases, you’ll be saving people research time, developing good faith, and becoming a pillar to the community. They say a kind act which expects a reward isn’t a kind act at all. So do it for the good of the profession. Karma will reward you in one way or another.
Ok. Small fib. That wasn’t the last piece of advice. One more. READ THE O.R.s. Yes read the Ontario Reports EVERY week. It publishes the newest and most up to date cases. Even if they don’t apply to what you’re practising, look at how they analyze. What formula was followed, etc. You’d be amazed at how many cases I keep in my holster from the O.R.s.