Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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.
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 WestlawNext 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.
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).
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.
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.
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.
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 )
Although there is duplication between LexisNexis Quicklaw and WestlawNext 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 WestlawNext Canada. Halsbury's
Laws of Canada is available in print (in the Reference section) or on Lexis Advance Quicklaw.
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.
o 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?
o Select decisions from higher courts over decisions from lower courts.
o Select cases that are more factually analogous over cases that are less factually
analogous.
o Select cases in which the court has found that the disputed element was met
AND cases where it was not met.
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:
discovered and analyzed the leading cases and relevant statutory sections.
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.
Use field or segment restrictions to the keywords and court/jurisdiction fields to zero in
on relevant digests.
Current Awareness
o All Canada Weekly Summaries (from 1976) or Weekly Criminal Bulletin (from
1977) on LexisNexis Quicklaw or in Print
retrieve the full text of the case and read it; and
note-up the case, checking for case history and cases 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. See the chapter on Noting Up
a Case for more information.
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).
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, Finding Federal and Ontario Statutes, and Regulations in the manual for
further information.
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?
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
o 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)
o Statement regarding which rule the majority of the courts have adopted
Critical evaluation of each rule and prediction about which rule the court would adopt
You need to transform your detailed statement of issues into a detailed outline of your
analysis in the format required by the legal memorandum.
1. The Heading
1. Determining the Number of Issues and the Order in Which They Should Be
Presented
2. Includes
6. The Conclusion
3. If the application is in dispute, looks at analogous cases to determine how like cases
have been decided.
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?
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.
edit
o check citations
Source: http://guides.library.queensu.ca/legal-research-manual/step-seven-final-writing