In-class exercisesWork in groups of 2: Exercise 1Work
individually: Exercise 2 (to hand in)
FAQs about the library?-how many books to borrow? For how long?
How to renew?-Search the catalogue define what the catalogue
includes; focus on the Reserve section only
Law Society of Upper Canada, in its Rules of Professional
Conduct (Adopted by Convocation on June 22, 2000), Rule 2:
Relationship to Clients (Rules and commentaries on client-related
issues such as lawyer competence, conflicts of interest and
confidentiality), defined a competent lawyer as:a lawyer who has
and applies relevant skills, attributes, and values in a manner
appropriate to each matter undertaken on behalf of a client
including: .
(c) implementing, as each matter requires, the chosen course of
action through the application of appropriate skills, including:
legal research, (ii) analysis, (iii) application of the law to the
relevant facts, (iv) writing and drafting, (v) negotiation, (vi)
alternative dispute resolution (vii) advocacy, and (viii)
problem-solving ability;
For example: Gibb v. Jiwan[1996] O.J. No. 1370 (Sup. Ct. of
Justice Gen. Div.)
Source: Christina Kunz et al.,The Process of Legal Research, 6th
ed., (New York: Aspen Publishers, 2004) at 6.Correct: leading to
the law that governs your clients situation and applied or will
apply as of the time of that situationComprehensive: addressing the
various issues raised by the clients situation and incorporating an
appropriate range of pertinent authorities;Credible: featuring
authority that carries weight because of its nature and
qualityCost-effective: yielding results that justify the efforts
devoted to research, in light of the clients situation and
available research options1. Lougheed Enterprises Ltd. v.
Armbruster http://legalresearch.org/docs/armbruster.htmlJudges
Removal Apprehension of bias Panel of appellate court suggesting
alternative route of appeal at preliminary hearing Whether
apprehension of bias arising justified removal of panel. This was
an application to dismiss a panel of judges hearing an appealThe
application was dismissed. Because of counsel's apparent failure to
point to the applicable law, the course followed by the panel was
appropriate.The duty to bring relevant law to the attention of the
court is founded upon the proposition that counsel has an
obligation to the court to assist in duly administering the law, as
well as a duty to his client and that, in some circumstances, the
former duty may override the latter.
2. World Wide Treasure Adventures Inc. v. Trivia Games Inc.
http://legalresearch.org/docs/trivia.htmlcounsel applied for an
injunction [A court order that prohibits a party from doing
something (restrictive injunction) or compels them to do something
(mandatory injunction)] without first understanding or researching
the applicable law. Gibbs J. ruled that counsel had been negligent
in the performance of his duty, and awarded solicitor-client costs
against counsel personally. The amount of the taxed bill of costs
was significant. A solicitor is not required to know all the law
applicable to the performance of a particular legal service, in the
sense that he must carry it around with him as part of his working
knowledge, without the need of further research, but he must have a
sufficient knowledge of the fundamental issues or principles of law
applicable to the particular work he has undertaken to enable him
to perceive the need to ascertain the law on relevant points
3. Gibb v. Jiwan http://legalresearch.org/docs/gibb.htmlThe case
involved a dispute over priority to claims against land registered
under the Ontario Land Titles Act. After deciding the point of law,
Mr. Justice Ferguson commented extensively on the failure of
counsel to conduct adequate research, noting the professional
obligation of counsel: to be competent to keep abreast of
developments in their own area of practice to give their clients
advice based on an adequate consideration of the applicable law to
inform the court of relevant material authorities regardless of
whether they support or contradict the position counsel is
advocating.
23 I was uncomfortable that counsel could find no case law on
point.Following the hearing I looked in the text, Anger and
Honsberger Real Property, which was in the law association library
in the Newmarket courthouse where the Application was heard.The
text summarized the law [See Note 21 below] exactly as I have found
it to be in these reasons (although of the cases I have cited in
these reasons the authors cited onlyRe Dominion Lumber and
Jellett). I wrote to counsel drawing their attention to the passage
in Anger and Honsberger and asked for written submissions.He
ordered both counsel to deliver a copy of his reasons to their
clients.Ask classif a civil law jurisdiction, what rules? The civil
code then commentary and lastly, case law.
Consult Part 6 of the Canadian Guide to Uniform Legal Citation
for a thorough listing of secondary sources]
Univ of NSW: Primary SourcesThese sources consist of
authoritative statements of law made by law-making bodies and
include:Legislation: Acts or Statutes of Parliament. Subordinate
Legislation: Rules, Regulations, By-Laws. These are made by
individuals or bodies to which Parliament has delegated authority.
Law reports: published reports of decisions or judgments of courts
or tribunals. SecondarySecondary sources of legal information
perform one of two functions:assist in locating relevant primary
sources of law. Include current awareness and digest services such
as Australian Current Law. assist in the interpretation of relevant
primary sources. Include sources such as journal articles,
textbooks and encyclopedias.
To many law students, legal research presents a challenge
because it differs in manyways from the research they may have
conducted as undergraduates. It is essential toestablish a clear
understanding of the goals of research in the legal context, and of
thevarious types of legal materials and their interrelationships.An
initial step in developing legal research expertise is to develop
an awareness of thetypes of materials that constitute "the law,"
and of the relationships between thesematerials. In the process of
researching a legal issue, it may be necessary to consultstatutes
(legislative enactments), cases (opinions of the judiciary), and/or
regulatorymaterials (administrative agency regulations and
decisions). All these types of materialsare considered "primary
sources." A major challenge for a novice researcher is to gain a
perspective on how such sources may apply to a particular subject
matter and how they relate to each other. It is often necessary to
consult multiple sources and use different techniques for each type
of source. Furthermore, for a given problem relevant materials may
exist on any or all of the federal, provincial or municipal
levels.A major area in which legal research differs from research a
student may previously haveconducted is in the need for
comprehensiveness in primary authority research. Whenpresented with
a legal issue, the researcher must endeavor to locate any
potentiallyrelevant authority which would be binding in the
applicable jurisdiction. Most importantfor the beginning researcher
to appreciate is that cases or statutory provisions which seemnot
to favor a client's position cannot simply be ignored and other
authorities relied uponinstead. Rather, these sources must be
discovered, thoroughly analyzed, and distinguishedif
possible.Because law is organic, the legal researcher must also
learn to appreciate the need toupdate and verify every source upon
which (s)he intends to rely in developing a legalargument. For
example, the precedential value of cases is frequently affected
bysubsequent judicial analysis or by the actions of legislatures.
Likewise, it is not unusualfor statutes to be repealed or amended
by the legislative body; statutes may also beapplied and
interpreted by case law. The researcher must update carefully in
order toaccurately assess the significance of any authority.Another
matter which often challenges beginning legal researchers, is the
need toanalogize. For many of the problems you may be asked to
research, no precisely onpoint - meaning factually identical -
authority exists. Judges decide disputes beforethem, and lawyers
build arguments, based on a reasoning process which analogizes that
arule of law applied to one set of facts should logically be
applied to another set of factualcircumstances. Thus it is rarely
sufficient to look for authorities that deal with facts tooclosely
resembling those which you have been presented.
Source: Notes from Thurgood Marshall Law Library Guide to Legal
Research
2006-2007http://www.law.umaryland.edu/marshall/researchguides/TMLLguide/chapter1.pdfThink
pair sharePaper: -for legislation & case law, official version
to bring to court, to citeAdvantages: -sometimes item may only
exist in print! So no choice, really.-easy to browse reduces eye
strain-easier to approach a print source (just a book) compared to
a huge database of information
Disadvantages: -Can be cumbersome, can take a long time, not
always available (s.o. took it out; its too fragile)
Electronic:Advantages-can be fast if you know what youre looking
for! Readily available if you have an Internet connection-material
can be updated easily online-no space limitations usually-full-text
searching can search for the occurrence of a particular term or
phrase within a case or a statute (this would be tedious to do in a
print resource!)-easy to note up update cases quickly and
accurately-can be accessed by multiple users unlike a single copy
of a volume of a print case law reporter
Disadvantages: -can be pricey per search/per document fees-can
be difficult to use a lot of information, interface not always
intuitive/user-friendly-tiresome to read documents online usually
have to print them4. If a phrase is commonly used or has
alternative meanings it becomes unsearchable in an unstructured
online legal research database. E.g. the term trust occurs in
estate planning and tax contexts as well as in property law.
Therefore, choose a manual tool with an index to narrow the search
or to select a book that deals with the subject area of interest.
OR use a highly structured search narrow to a particular field
(e.g. case summaries, editorial comments, annotations), use a
specific classification in the Abridgment (will be discussed next
week)
5. Books and other secondary materials are more useful if you
need to get a grounding in the subject (treatises, manuals,
textbooks secondary material to be discussed in more detail in a
few weeks time). (bring an example)
6. Use indexes in textbooks, tables of cases to look for
relevant legislation. If you have specific citations to
legislation, can go to online searching.(bring an example)7. Online
searching is advantageous since computers index every significant
word of a document.8. Person, product, corporation, or other entity
remember to search for nicknames, middle names, middle initials,
other variations of the name; take name changes into account; may
need to add another search term if the word is uncommon but not
unique, e.g. Prelude and Honda car not musical items!9.If youre
coming up empty with your online search go to print sources. Could
be that you had a typo, were searching the wrong jurisdiction, in
the wrong subset of a database, wrong type of material. Can return
to online searching once you have improved on your search terms.10.
Material to further explain a point of law or to add persuasive
support to an argument, consult secondary sources.Easier to browse
print material broad conceptsSome secondary sources only available
in print could be the most useful ones(bring an example bring an
annotated code)
11. Experts could be your colleagues, T.A., prof, a librarian,
upper-year student; cross-references in texts (numerous footnotes
in texts, annotations, etc.)Based on the first letter of each of
the steps; as described by Maureen Fitzgerald in Legal Problem
Solving: Reasoning, Research and Writing, 3d ed. (Toronto:
Butterworths, 2004) at 2-4.
A similar legal research model:Analyze the facts and formulate a
preliminary statement of issues.This is a continuous process. Be
prepared to re-frame the issue(s) as your research
progresses.Familiarize yourself with the court structure of the
jurisdiction.It may be necessary to do background research to
determine whether provincial or federal law applies.Conduct
background research to get an overview of the subject area,
identify issues and terms, and get clues to primary sources.Learn
the types of authority involved, i.e. whether the issues are
governed by case law, statutory law, administrative law or a
combination. You may need to learn some of the black letter law to
gain a context for your research. Secondary sources can be useful
for this purpose.Search for legal authority using appropriate
methods of updating.There are many different techniques for finding
primary authorities. For any given research project, some will work
better than others. Using a variety of tools will ensure
comprehensive research and compensate for difficulties that one may
encounter in using particular sources. Always look for pocket parts
and other supplements when using print sources. Note the dates of
coverage in all electronic sources consulted.Read and evaluate
primary authorities.Never overlook the importance of reading cases
and other authorities as you go along. Do not substitute reading of
the headnotes, synopses or interpretations in secondary sources for
your own thoughtful reading of the authorities you find. Look for
holdings of cases, not just broad statements of the law.Make sure
cases are still good law and you have the current version of
statutes.Time can often be saved by using case validation tools
(citators) as soon as you read a case and determine that it is
relevant to your issue. Make sure you have checked all available
supplements if using print sources. Look up statutes in electronic
form to check for recent amendments.Refine analysis and formulate
conclusion.Returning to secondary sources near the end of a
research project can be helpful. These sources can be easier to
understand after you have read some of the primary authorities.
Brian Dickson Law Library binder: only covers law reports and
statutes, NOT journals
About the Cardiff Index to Legal AbbreviationsLegal
abbreviations can be a puzzle to both new students and experienced
professionals. This web-based service allows you to search for the
meaning of abbreviations for English language legal publications,
from the British Isles, the Commonwealth and the United States,
including those covering international and comparative law. A wide
selection of major foreign language law publications is also
included. Publications from over 295 jurisdictions are featured in
the Index. The database mainly covers law reports and law
periodicals, but some legislative publications and major textbooks
are also included.
