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Steps in Legal Research

INTRODUCTION

In this final chapter, the steps involved in actually researching and writing a legal memorandum on a particular issue are considered in some detail. This chapter assumes a familiarity with the tools of legal research which are outlined in preceding chapters.

It is important to know the purpose for which the research is required. For example, the research may be required for a legal memorandum which analyzes the relevant legal principles and applies those to the particular fact situation. Research and legal analysis are integral to each other and are developed simultaneously. Knowing that you must write a legal memorandum frames the amount and type of legal research and analysis required.

Develop An Outline

To focus both the research and the analysis, it is a good idea to develop a detailed written outline of how you plan to analyze the legal issues presented by the fact situation. The written outline is a work in progress. As you begin to research and analyze the relevant materials, you need to rework the outline. The outline will indicate where the analysis is strong (no further research is required) and where the analysis is weak (further research is required). The Legal Research Starting Points in this chapter is one approach to researching and analyzing a legal memorandum. The format for the memorandum is suggested by Laurel Currie Oates, Anne Enquist, and Kelly Kunsch, The Legal Writing Handbook (Aspen Publishers, 2002). A more general approach to research is set out in Wayne C. Booth, Gregory C. Colomb, and Joseph M. Williams, The Craft of Research (Chicago: The University of Chicago Press, 1995). These are not the only approaches. There are many ways to develop an outline and there are many different formats for a legal memorandum. The key is to continue to develop an outline concurrently with the research and the analysis in order to focus the work. By the end of the research and analysis process, you will have a fully developed outline of your legal argument from which the memorandum may be written.

The legal solution to a problem (provided there is one) is determinable by the law as expressed in statutes and cases. The most efficient way to research these is often to use print and electronic sources, which include journal articles, textbooks, and encyclopedias, in order to identify relevant statutes and cases.

There is no magic to good legal research. There is no one way to do it effectively. The key is simply being knowledgeable enough about the sources so that that one can use them to retrieve the relevant law efficiently and effectively.   Determining what is "relevant" case law comes with practice. One cannot always retrieve every case on point, but must attempt at the very least to retrieve the leading and precedent setting cases.

This chapter outlines the kind of research strategies that may be employed when researching and analyzing a legal problem, and describes which sources to consult and in what order. It provides a framework and a checklist to guide basic legal research.

When researching, it is important to remember the following:

  • As a general rule, try to use Canadian sources first. If that is not possible, note the jurisdictions covered by the secondary source you are using and remember that, although persuasive, it may not be an accurate reflection of the law in your jurisdiction.
  • Currency in legal research is fundamental. Note the date of the source you are consulting and update the law since that date. Many secondary sources have current supplements to facilitate finding the latest information. Remember to update beyond the secondary sources to find the most recent statutory amendments and the very latest cases. Full text case law databases are the most current sources.
  • The legal research process is not an orderly process. Exactly which sources are consulted and in what order depends on the researcher's knowledge of the subject area, and the particular area of law covered by the fact situation.
  • Full text internet products are becoming more common for particular subject areas. These integrate legislation, full text case law, and secondary source commentary in one searchable product. They may be browsed via a Table of Contents. Alternatively, one may zero in on specific information by performing searches using Custom Templates or search screens.
  • When using print materials, indexes and digests it may prove difficult to ascertain the appropriate subject headings or classifications to use. Related material can be located under more than one subject heading and between publishers there can be little consistency as to what headings or terms are used for the topic. Consult both indexes and tables of contents in print materials.
  • There are several competing online legal research systems (such as LexisNexis Quicklaw and Westlaw Canada). Which one you use generally depends on the nature of the question or on which interface you prefer. Once in practice, however, the system you use will depend largely on the cost of searching.
  • When using the internet, remember that "one search is not research" ("A Search is Not Research" (1992) 12 Password [West Publishing] 4 (no. 5, May 1992)). Research means just that--re-search and re-search. To increase your chance of success, you should use a combination of different search tools and strategies each time you approach a legal research problem. There is no such thing as "one perfect search." Online legal research involves finding a balance between recalling every relevant case and precisely tuning your search to exclude all irrelevant cases. Begin your research by finding a core of relevant cases, and expand from there. Spend time planning your search before going online, to include alternate words and truncation (i.e. searching to obtain various endings of the same "word stem"), and to use appropriate connectors. Do a series of searches, and search in more than one database. Cross-check your results by narrowing or broadening the search and by searching both by fact as well as by legal concept.
  • It is good practice after consulting a particular secondary source to analyze and apply the information to the particular fact situation presented. You should be able to identify the issues, have relevant statute and case law references, and begin to organize your analysis of the problem. By doing this at each stage of your research, and before the next research step, you will save research time, identify those issues which need more research, and be able to identify what the next logical research source will be. For example, after consulting an initial secondary source you might want to make sure a particular statute has not been amended, or you might want to "note up" your references prior to continuing with a subject search.
  • Secondary sources are vital but don't forget primary sources. As the following writer emphasizes, legal analysis must be based on your reading of the relevant statutes and cases:

    Read the statutes and the cases! No digest, treatise, or case synopsis service can be a foolproof legal research tool. More often than not, the resources described in a digest, book, or article only provide the analytical framework for a substantive or procedural issue. Without a complete review of the cases, and thorough updating for more recent cases and statutes, a lawyer may find in the courtroom that incomplete research will snatch defeat from the jaws of victory. (W. Goodman, "Essential Research Tools for Criminal Defense Attorneys" (1981) 1 Legal Ref. Serv. Q. 5).

  • Cross-check your research. Do not rely exclusively on one or two sources. For example, if you do an online search using keywords based on facts, cross-check the results by scanning relevant printed law report indexes to make sure important issues and cases have not been missed.
  • Remember to leave enough time. Secondary sources are meant to be used to define legal issues, to gain an understanding of the law and to find relevant citations. It is extremely important to leave enough time to analyze the primary materials in relation to the facts, and to write up your results in a clear and concise manner.

Stage #1: Framing the Legal Issues and Identifying the Keywords

PREPARE A RESEARCH PLAN

Brainstorming

Before beginning research, you need to spend time "brainstorming" the problem.

Read the facts, ascertain the subject matter, and note preliminary issues to be researched. Under what jurisdiction does a the problem fall? Is the question governed by federal or provincial law? Is the problem governed by legislation (statutes or regulations) or by common law (case law)? Doth both apply?

State the issue in general and narrow terms. Think of synonyms or alternative words for both the facts and legal concepts. The legal concept refers to cause of action; defence raised, relief or remedy sought, and procedure involved. The legal concept and key facts are integrated into a statement of the legal issue. There may be several legal issues raised by the problem. If you are unfamiliar with the area of law, it may be difficult to initially know what the issues are. In this case, you may have to begin your research using some key facts from the problem. Key facts are those that will determine the application of the legal issues. You may need to do some background reading in textbooks or encyclopedias (See Stage #2).

Prepare a Preliminary Issue Statement

The first step in preparing an outline of research and analysis is to prepare a preliminary issue statement. What is it that you have been asked to determine? Although you will constantly refine this statement as you develop your research and analysis, the preliminary statement will focus your initial research.

Often the facts may be characterized in a number of different ways. At this stage, it is important not to state the issues too narrowly or in only one way. If one can persuade the judge to conceptualize or characterize the facts as a specific type of legal issue, then precedent will provide the desired outcome. A narrow issue statement will only result in a narrow list of similar cases. Try to think of alternate ways to conceptualize the issues. For example, the issues in Winnipeg Child and Family Services (Northwest Area) v. DFG, [1997] 3 SCR 925 were conceptualized differently by the judges hearing the case: definition of mental disorder under the Mental Health Act; parens patriae; whether an unborn child is a legal person; whether a mother has a duty of care to protect an unborn child. Focusing on only one of these ways to conceptualize the facts would be inadequate.

To get your preliminary statement of issues started, it is useful to create one comprehensive list of everything you think needs to be included. Having done that, you can then start to revise the list into a more logical order. How will the court logically organize the issues? Are there preliminary questions the court will consider first? What will the court need to decide second, third, and so on?

It may be impossible to identify all the issues in your Preliminary Issue Statement. All the issues may only be determined after an extensive research and analysis process. Your issues statement will be constantly revised as you develop your research and analysis.

Developing a List of Search Terms

To help identify the issues and key facts, the following two methods are suggested. This can be used to prepare a list of search terms with which to begin research.

(i) The TAPP rule (Lawyers Co-op):

1. T Thing or Object involved.

2. A Action or Activity that has created the problem.

3. P Persons involved (type or class of persons).

4. P Place where occurred.

(ii) List Words Describing (West Publishing)

1. The Parties Involved.

2. The Places where the facts arose and the objects and things involved.

3. The Acts or omissions that gave rise to the legal action or issue.

4. The Defense to the action or issue.

5. The Relief sought.

Stage #2 - Initial Research: Where to Begin?

1.  Start with a good book on the topic.
2.  Find a relevant article.
3.  Consult a general encyclopedia like the Canadian Encyclopedic Digest (CED).
4.  Browse a subscription database.

Introduction

Sometimes all you know are the facts of your legal problem. You have no idea what the legal issue is, and you may not even know what the legal subject or topic is. When doing initial research, you are trying to conduct a broad overview of the relevant sources in order to come to an understanding of the issues and to note key cases and statutes.

1. Start with a good book on the topic

Browsing through relevant legal texts is still the best starting point. This will logically set out the issues, provide an analytical framework, and discuss legislation and leading cases.

Try to find a Canadian text that analyzes your topic. Recent editions of "core" legal texts are located in the Reserve Collection which is open for browsing. Check for loose-leaf services and annotated codes which consolidate relevant legislation and may provide commentary or recent case law. You should always do a search of the library catalogue at this stage.

2. Find a relevant article

Finding an article written specifically on your topic is a convenient short cut to legal research. This research step involves searching both:

  • indexes to law review and journal articles and
  • full text databases of law review and journal articles.
  •  

(1) Indexes to Law Review Articles

Comprehensive Canadian research requires consultation of one of the Canadian indexes. The Index to Legal Periodicals and LegalTrac only have selective coverage of Canadian law journal articles but should definitely be consulted if you want to expand your research beyond Canadian material.

Journal Indexes Coverage Print Version Internet Version
Index to Canadian Legal Literature Canadian journals & books Print in Reference

LexisNexis Quicklaw

Westlaw Canada

Index to Legal Periodicals

and

Index to Legal Periodicals Fulltext

US journals + selected Commonwealth journals  

WilsonWeb [1982-]
WilsonWeb [to 1981]

 

LegalTrac
(Legal Resource Index)
US journals + legal newspapers & newsletters + selected Commonwealth journals   LegalTrac [1980-]
Index to Foreign Legal Periodicals Jurisdictions outside the US & Commonwealth Print to 1998 in Storage Ovid[1985-]

(2) Full Text Law Review Articles

In addition to indexes of law review articles, the commercial online database vendors (LexisNexis Quicklaw and Westlaw Canada) provide the full text of law reviews online.

When searching full text articles, use various search strategies to limit the number of irrelevant hits:

  • use proximity connectors (i.e. asking for your words to be in the same paragraph or within so many words of each other )
  • limit the search to just the title field

Although there is duplication between LexisNexis Quicklaw and Westlaw Canada law review databases, search both of them since the overlap is not 100%, and you will quite likely pull up additional articles.

The internet does contain some full text law reviews, but generally coverage is very incomplete.

3. Consult a general encyclopedia like the Canadian Encyclopedic Digest (CED) or Halsbury's Laws of Canada

If you need a very general overview, or if you cannot find any discussion of your topic in a textbook, try using the current edition of the CED or Halsbury's Laws of Canada. These provide brief overviews of most areas of law, including some areas where there is not much else written (e.g. actions against the Crown, cemetaries, aviation law, etc.). They give broad, general treatment but will identify the issues and refer to leading cases and statutes.

The CED is available in print (in the Reference section) or on Westlaw Canada. Halsbury's Laws of Canada is available in print (in the Reference section) or on LexisNexis Quicklaw.

4. Browse a Legal Database

Check whether there is an electronic source for the particular subject you are researching. Electronic products often integrate commentary from textbooks, legislation, and case law. Using the Table of Contents or indexes provided by the various sources, one can browse and find commentary with direct links to legislation and cases. Lederman Law Library provides a list of current electronic subscriptions organized by topic and jurisdiction. Westlaw Canada and LexisNexis Quicklaw also contain sources for various areas of law.

Stage #3: Preliminary Integration of Research and Analysis

Flesh Out The Preliminary Statement of Issues

As you begin your initial research, add information to your preliminary statement of issues. Note the governing legal principles under each issue and list the leading case and statutory references. Note opposing arguments under each issue. Write down the complete legal citations for these cases and statutes. Add any new issues identified by your research. In what order do the issues need to be proven?

Analyze the Leading Cases and Relevant Statutory References

Having found key material, you need to analyze it. Read and brief the leading cases. Make a preliminary application to the facts of your problem. Note the major authority and relevant facts of your problem under each issue. Note any dissenting judgments or disagreements among the cases. What cases are binding? Can they be distinguished from your fact situation? What cases are persuasive? Note other key cases cited in the leading cases.

For any statutory references, you need to update the references to make sure they are still good law. You need to analyze the statute, breaking it apart and identifying its different parts. The next step is to research any ambiguous interpretation of the statutory section. Look for statutory definitions.

Revise the Statement of Issues

Do a preliminary legal analysis of the problem. Which issues seem fairly well settled, given the law and your facts, and can be discussed briefly without any further research? Which seem more uncertain either in light of the law or your facts? Where does the weight of authority lie? Note the strengths and weaknesses of the argument on both sides of the issue, and list in terms of likelihood of success. Can you apply any of the cases directly to your facts? Can you distinguish any of the cases on the facts? Which cases are binding and which are merely persuasive? What are the possible defences? What are the possible remedies? Do you need to find more analogous cases? Do you need to make any policy arguments? Note any areas in your analysis that need further research.

Identify Next Research Steps

Now you are ready to continue with your research. The point is not to gather all possible cases on point, just those which will add to your analysis. This is especially important before using digests and indexes to law reports. By this point in your research, you already have a good idea of the issues, you just need to refine the analysis.

  • Using the case digests, find analogous cases:
    • Know what information you need, and select cases that appear to contain that information. Are the facts close enough to those in your case that you (or the other side) can use the case to argue by analogy, comparing or contrasting the facts in the analogous case with the facts in your case? Are the arguments that the parties made ones that either you or the other side in the present case might also use?
    • Select decisions from higher courts over decisions from lower courts.
    • Select recent decisions over older decisions.
    • Select cases that are more factually analogous over cases that are less factually analogous.
    • Select cases in which the court has found that the disputed element was met AND cases where it was not met.
  • Find any cases that have interpreted or applied the statute.
  • Note-up any statutory references (amendments, regulations, new bills, coming into force dates).
  • Identify the key cases to note-up (case history, cases judicially considered).
  • List the weak or ambiguous points under each issue that need further research in the full text judgment databases.

Stage #4: Intensive Case Research and Analysis

By this point in your research you will have:

  • researched books, loose-leaf services, articles, encyclopedias and electronic sources.
  • discovered and analyzed the leading cases and relevant statutory sections.
  • revised your outline to incorporate the results of your analysis so far.

The next step is to flesh out the case law. Performing a "quick and dirty" search in the case law digests will provide a handful of relevant cases with similar facts or issues. By reading the full text of these, one obtains a good sense of the law on the particular legal issue. There may, however, be no cases directly on point. In that case, you may need to find analogous cases.

The next step is to verify that the cases you are relying on are still good law. As well, you might need to find other cases that flesh out or explain a particular point in your analysis. Searching full text case law databases allows you to zero in on narrow points.

1. Find relevant cases to read using case digests

Searching case digests allows you to start case law research from a wide perspective.

  • It is easier to search through large volumes of case law with digests.
  • Most digests use a comprehensive classification scheme to make it easier to retrieve similar cases.
    • The Canadian Abridgment uses a comprehensive classification scheme
    • Canada Law Book uses its classification scheme in the All Canada Weekly Summaries and the Weekly Criminal Bulletin (as well as in its law reports)
  • Use field or segment restrictions to the keywords and court/jurisdiction fields to zero in on relevant digests.

There are two types of digests:

  • Comprehensive:  Cover all Canadian cases from the beginning
    • Canadian Abridgment in electronic format in Westlaw Canada or print in the Reference section
    • Canadian Case Summaries (Dominion Report Service) on LexisNexis Quicklaw
    • Canada
  • Current Awareness
    • All Canada Weekly Summaries (from 1976) or Weekly Criminal Bulletin (from 1977) on LexisNexis Quicklaw or in Print
    • Lawyers Weekly digests on LexisNexis Quicklaw or in Print

Once you determine relevant digests:

  • retrieve the full text of the case and read it; and
  • note-up the case, checking for case history and cases considered.

2.  Case History & Cases Judicially Considered

You will come across citations to leading cases from your initial research. It is crucial to make sure (1) that the case is still good law, (2) that it has not been reversed on appeal, and (3) that it has or has not been considered in other cases.

Sources for Case History & Cases Judicially Considered

There are several competing electronic systems for case history and case treatment information. These tend to provide coverage of recent cases. For comprehensive coverage, especially when noting up older cases, also use the print tools.

1. LexisNexis Quicklaw 
(a) QuickCite
QuickCite - Under "Find a Document," select "Note up with Quickcite" and enter the case name or citation
The QuickCite record for a case from within a case law database is accessed by clicking "Note up with QuickCite" link at top of screen
(b) Search in Full Text Case Law Database
Go to the "Court Cases" or "Tribunal Cases" tab and search the name and/or citation of the case in the "search terms" box. This will retrieve all mentions of your cases in other cases.

 

2. Westlaw Canada
(a) Keycite
Under "Find/Keycite a Document," chooce "keycite" and type in the name or citation of your case.
The Keycite record for a case within a case law database is accessed by clicking on "Citing References" on the lefthand side of the screen
(b) Field Search in Full Text Case Law Database
Go into the "Cases" search template and search the name and/or citation of the case in the "search terms" box. This will retrieve all mentions of your cases in other cases.

 

3. Subscription databases
Subscription databases on particular subjects (e.g. Tax, Criminal, Family, Employment) provide integrated access to statutes, regulations, law reports, and commentary.

 

4. Print
Canadian Abridgment's Canadian Case Citations (most comprehensive source)
Individual law report indexes
Loose-leaf services on particular subjects

3.  Searching Full Text Law Reports

At this point, you should have a good idea of the issues. Refine your search by checking the law report and full text databases. The full text databases enable you to focus your research on narrow points that are still unclear. In addition, most full text databases are current and will indicate any recent cases that need to be incorporated into your analysis. There may be topical law report(s) published in the area of your legal research problem. If so, browse the report series indexes to double check for issues and leading cases.

As mentioned earlier, there are several competing electronic research systems from which to choose. Normally you would choose only one system to search. You may or may not need to search the databases that are the equivalent of the printed law reports. However, you should always search a current full text database as a final update for your research.

Searching full text law reports involves a different search technique from searching digests.  Your search should be focused on the narrow issues. By this point in your research, you already know the leading cases and the statutory sections. You would not repeat the general search statement from a digest search. On a full text judgment database you would use specific keywords linked with proximity connectors (e.g. within the same paragraph or within so many words). In addition, you may use field restrictions (e.g. within a certain jurisdiction, within a date range).

LexisNexis Quicklaw The Canadian Case Summaries (CCS) digest is linked to full text.  The full text jurisdictional or topical databases provide comprehensive, current coverage free of duplication.  The QuickCite citator is the best source for case history and cases considered. 
Westlaw Canada The Cases database allows you to narrow your search by elements such as jurisdiction, court, and date range. You can note up your case by clicking on the "History" and "Citing References" tabs to the left of the case.

Stage #5 :  Statute/Regulation Research

Step 5 is to check for any statutes or regulations, as well as cases which have considered these statutes or regulations. Depending on the nature of the problem being researched, you may have been made aware of relevant statutes early on in the research process. If so, this research may already have been undertaken.

Statutes and regulations are primary sources of law. No research can be complete without searching for relevant statutory authority in your jurisdiction.

The process involves finding and updating legislation; checking coming into force and status of bills information; and checking for and updating regulations. There are several alternate electronic sources and numerous print tools for use in legislative updating. See the chapters on Legislation and Finding Federal and Ontario Statutes in the manual for further information.

Stage #6:  Synthesize the Arguments & Prepare a Detailed Outline

Revise Statement of Issues

Based on your most recent research, revise the statement of issues. Analyze your new cases and indicate how the arguments apply to the fact situation.

Synthesize the Arguments

Having analyzed all the case and statute references, consider how they all fit together. When read as a whole, what do the cases and statutes say? What principles can be inferred that connect the cases you are using?

How does your argument fit together? Is it logically organized, such that you discuss certain issues that logically precede subsequent issues? What are the weaknesses in your argument? Can you distinguish any of the leading cases (eg., on the facts; not binding in your jurisdiction; if binding, can it be restricted to a narrow ratio; can you use obiter dicta or strong dissents; are other cases more persuasive?). Have you correctly incorporated any statutes or regulations? Can this authority be interpreted differently or rendered not applicable on the facts?

Prepare A Detailed Outline for Your Written Analysis

By now your statement of issues is quite detailed and contains the leading cases, statutory references, and analogous cases. Think ahead to your written analysis. It will help you determine whether you have done enough research, or whether there are still points needing further research (e.g. additional supporting authority). When doing a legal memorandum, you are producing a clear and concise analysis of each legal issue and how those legal principles are applied to the specific facts of the problem.

The legal memorandum has a traditional format for the analysis, something like:

  • For each Issue, a Statement of the General Rule and the List of Elements (i.e., conditions) Required to Satisfy the Rule
    • Description of First Element
    • Description of Second Element
    • Etc.

This may need to be expanded (depending on the issue) to include:

  • Policy arguments (interests that are balanced; factors considered in balancing these interests)
  • Law in other jurisdictions (if this is a novel issue)
    • List of different rules adopted in other jurisdictions
    • Statement regarding which rule the majority of the courts have adopted
    • Reasons courts have given for adopting a particular rule
  • Critical evaluation of each rule and prediction about which rule the court would adopt
  • Application of the rule to facts

You need to transform your detailed statement of issues into a detailed outline of your analysis in the format required by the legal memorandum.

Format for Legal Memorandum

The following is one format (there are many other formats) for a legal memoradum:

  1. The Heading
  2. The Statement of Facts
  3. The Question Presented
    1. Determining the Number of Issues and the Order in Which They Should Be Presented
    2. Writing the Question Presented
      1. Statement of the Legal Question the court is being asked to decide
      2. Includes
        1. The applicable law
        2. The legally significant facts
  4. The Brief Answer
  5. The Discussion Section
  6. The Conclusion

The discussion section:

  1. Identifies applicable law
  2. Determines whether the application of law to facts is likely to be in dispute
  3. If the application is in dispute, looks at analogous cases to determine how like cases have been decided.
  4. Determines what arguments each side is likely to make
  5. Predicts the outcome: Given the law, analogous cases, and arguments, how is the court likely to decide the case?

The discussion section has a clear and concise analysis of each legal issue and how it can be applied to the facts.

  • Conclusion
  • In a final paragraph you need to summarize your analysis. Given your conclusion on each issue, how is the case likely to be resolved?

Identify Next Research Steps

  • Research any missing points identified by the detailed outline of your written analysis.
  • Cross Check Your Research in Other Sources
  • Cross-check your research by quickly browsing in other sources (e.g. printed indexes to law reports) to make sure leading cases or issues have not been missed.
  • This need not take a long time as you are already familiar with the cases and legislation.
  • Do not rely exclusively on a search for cases with the same "facts". There may be relevant cases on the same issue, but with a different set of facts.

Stage #7: Final Writing

Using your detailed outline of your legal analysis of the fact situation, draft the final legal memorandum.

Common Problems To Avoid

  • do not use excessive quotations; use your own words
  • show how you reached your conclusions
  • connect the sections
  • use the precise legal terminology

Prepare Drafts

  • prepare to write a first draft, second draft, and final version
  • revise for content and organization
    • did you include all the information required?
    • is the information accurate?
    • is it logically organized (compare with your detailed outline of the analysis)
  • edit
    • are sentences, paragraphs, and sections logically connected?
    • is the writing clear and concise, using simple sentences?
    • check grammar, punctuation, spelling
    • check citations

Last Updated: 25 November 2010