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 in The Legal Writing Handbook. A more general approach to research is set out in The Craft of Research, but 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 secondary 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 one 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 perhaps 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. Remember to update beyond the secondary sources to find the most recent statutory amendments and the very latest cases.
- The legal research process is not necessarily 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.
- There are three major legal databases in Canada: the two subscription databases -- Lexis Advance Quicklaw Plus (Lexis Advance Quicklaw for law students), WestlawNext Canada (Westlaw Edge Canada for law students) -- and the open access CanLII. While they have some overlapping information, they also each contain unique legal information. As a law student, which one you use generally depends on the nature of the question and sometimes which interface and search algorithm you prefer. Once in practice, however, most law firms only have access to one of the paid databases, so it is good to become familiar with both, in addition to CanLII.
- 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. Legal research involves finding a balance between locating 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 by considering synonyms and different ways the same concept might be expressed. Consider if boolean searching will help, such as using truncation (i.e. searching to obtain various endings of the same "word stem") and 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 that 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.
- Finally, 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. 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.
--William Goodman, "Essential Research Tools for Criminal Defense Attorneys"