Best Guide to
Canadian Legal Research
Copyright © 1995-2008
Catherine P. Best
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Best Guide to
Canadian Legal Research
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Analysis
There are specific rules of legal reasoning and techniques that will help you evaluate the cases you find, and work with those cases to formulate a legal argument. These rules and techniques are explained in Stare Decisis and Techniques of Legal Reasoning and Legal Argument by Paul Perell.
General suggestions for writingStart writing early
Use an outlinerStructure and clarity are important elements of good legal writing. They will be easier to achieve if you write with an outliner. An outliner will help you organize your research into issues and sub-issues, and create a working draft. The outliner will also provide flexibility as you edit your draft. Word has a built-in outlining tool that you can activate by turning on the Outline View of your document.
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Legal memorandaA legal memorandum is a highly structured type of writing that follows certain conventions. The structure and conventions are discussed below, and a sample memorandum is included. Because each legal problem is distinct, no two memoranda will be organised in precisely the same way. Do not slavishly follow the sample memorandum. Rather, focus on learning about the general structure and components of this form of writing, and apply them to your research assignment in the most effective way for your particular problem. ElementsA legal memorandum is comprised of certain standard elements:
Each of these elements is discussed in greater detail below.
The heading should identify the author and recipient of the memorandum, and include the date, client identification, and subject matter. See the Sample Memorandum for an example of a typical heading.
The Facts portion should list the relevant facts on which you have relied in researching and preparing the memorandum. If you have made assumptions, indicate this. State the facts objectively and clearly. Usually, the order is chronological. Use definitions to standardize terminology for persons and things that will be referred to frequently in the memorandum. This prevents clutter and inconsistent references to the same thing. The Facts portion can either precede or follow the Issues and Conclusions portions of the memorandum. Various formats are listed below. If the Issues and Conclusions will not make sense without reference to the Facts, then put the Facts first. Alternatively, if the Facts portion of the memorandum is quite lengthy, your reader may want to see the Issues and Conclusions first. See the Sample Memorandum for an example of the Facts portion of a legal memorandum.
The Issues portion of the memorandum is crucial. You must succinctly identify the correct legal issues, within the context of the facts of your case. Include legal elements that are essential to resolution of the issues. The more narrow and descriptive your issue statement is, the more effective it will be. Compare these three issue statements, derived from the sample memorandum research problem:
If there is more than one issue to be addressed, list the issues in the order in which you will be discussing them in the memorandum. See the Sample Memorandum for an example of the Issues portion of a legal memorandum.
When preparing a legal memorandum, remember that your reader does not want to be kept in suspense. A crisp, clear, responsive answer must be provided as near the beginning of your memorandum as possible. See the Sample Memorandum for an example of the Conclusions portion of a legal memorandum.
There are various ways of dealing with conclusions in a legal memorandum:
Format 1 is the simplest approach, and is the format used in the sample memorandum. In this format, the Conclusions section follows immediately after the Issues section. Alternatively, Formats 3 and 4 include a Brief Answer immediately after the Issues section, and a longer Conclusion section at the end of the memorandum. Most legal writing books advise that Formats 3 or 4 be adopted. However, students often have difficulty keeping their Brief Answer sufficiently brief, and usually end up repeating its contents verbatim in the Conclusion section. Also, an extremely short Brief Answer (such as Yes or No) does not provide your reader with enough information to understand why you reached that conclusion. If your research problem requires a lengthy conclusion, you may want to follow one of the Brief Answer formats. That way, you can provide a short answer near the beginning of the memorandum, and provide a more detailed conclusion at the end. If your Brief Answer and your Conclusion are likely to be identical, use Format 1.
One of the hardest parts of writing a legal memorandum is to reach a defensible conclusion when the law is uncertain generally, or as it applies to your facts. Since the purpose of the memorandum is to answer the legal question posed, you cannot simply say that the law is unclear and leave it at that. In some circumstances there may be a practical solution that enables you to avoid confronting the uncertainty in the law. The sample memorandum provides an example of this. However, usually you have to make a decision about what a court would likely do if faced with your fact situation. Try to avoid using equivocal language in your memorandum. This is particularly important in the Conclusion section. The Discussion portion of the memorandum should also be reviewed for equivocal language. Sentences that begin with the phrase "It would appear that" or "It seems that" should alert you to equivocation. By all means indicate where the law is unclear. But also state what you think is the better view or probable outcome.
The Discussion section is the heart of the memorandum. It provides the venue for explaining and analysing the law, and applying it to your facts. The Discussion section should be broken down into a separate part for each discrete legal issue covered in the memorandum. The discussion of each issue should include an introduction, an explanation of the applicable legal rule, an application of the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation for this is known as IRAC.
IRAC need not be applied rigidly. Your decision about how to divide up the legal issues will influence the way that you apply IRAC.
See the Sample Memorandum for an example of the Discussion portion of a legal memorandum.
Legal CitationThis site does not cover legal citation in detail. A number of references are listed below that provide extensive information about citation. Citation of Canadian statutes is covered within the Statutory Research section of this site. However, some general rules about Canadian case citation are reviewed below. Reported decisionsTo facilitate this review, one Canadian case is used as an example: Lougheed Enterprises Ltd. v. Armbruster, [1992] 2 W.W.R. 657, 63 B.C.L.R. (2d) 316 (C.A.).
This table shows the case with citations to two different reporters, broken down into the various elements that comprise a traditional legal citation. Some of these elements are reviewed in more detail below.
Unreported decisionsSometimes you must cite to a case that is not reported in print and is also unavailable electronically. Assuming the example case is unreported and was decided prior to the introduction of neutral citation, then following the rules established by the British Columbia Court of Appeal, the correct citation would be Lougheed Enterprises Ltd. v. Armbruster (31 January 1992), Vancouver CA012380 (B.C.C.A.). If a decision has been assigned a neutral citation, then instead of using the unreported citation format you should cite the case using the neutral citation. The British Columbia Supreme Court has decided to treat decisions published electronically as reported judgments, and requires counsel citing judgments not published electronically or in print to provide a copy to opposing counsel.
Electronic judgments
The following general rules apply:
Vendor-neutral citation has been adopted in several jurisdictions. It reduces some of the confusion related to electronic citation. If a British Columbia decision has been assigned a neutral citation, cite the case using the neutral citation standard adopted by the British Columbia Supreme Court and Court of Appeal. The same rule applies for decisions of the Supreme Court of Canada. The neutral citation can be used on its own until the judgment is reported. After that date, both the neutral citation and the reporter citation should appear. The neutral citation should come first, followed by a parallel citation to the reporter series. Examples of neutral citations are as follows:
Other than the comma separating the style of cause from the citation, there is no punctuation in the neutral citation form. When the neutral citation is used it is unnecessary to include the court in parentheses at the end of the citation, because the neutral citation will always identify both the level and jurisdiction of the court. An example of a neutral citation with a parallel citation to a reporter series is:
For more information, see the Neutral Citation Standard for Case Law prepared by the Canadian Citation Committee, and implemented by the courts in several Canadian jurisdictions.
The citation to an electronic version of a judgment should include a reference to the electronic database from which the judgment was obtained. For example, if the judgment referred to above was reproduced from CanLII, the citation would be as follows:
The most common electronic sources, with abbreviations, are as follows:
Several of these electronic sources have their own citation system. If there is no neutral citation for the decision and it has not been reported, then use the citation assigned by the electronic source. An example is:
The British Columbia Court of Appeal Practice Directive permits you to use a copy of the case obtained from an electronic source, such as Quicklaw, WestlaweCARSWELL or CanLII, in your book of authorities. However, the Directive requires that if the decision has been reported you must provide the citation for a reported version of the decision. A recent amendment to the B.C. Court of Appeal Directive adds two more requirements:
The effect of this last requirement is to preclude the use of copies from electronic sources for any decisions before the relevant court adopted paragraph numbering. This varies considerably depending on the court. For example, the B.C. Court of Appeal was using paragraph numbering in its judgments as early as 1993. The B.C. Supreme Court and the Supreme Court of Canada did not use numbered paragraphs until 1995. The Ontario Court of Appeal did not introduce numbered paragraphs in its judgments until May 1997.
References
CitationAlberta Court of Queen's Bench Practice Note, Electronic Citations of Case Law. British Columbia Court of Appeal Directive #1, Citation of Authorities. British Columbia Supreme Court, Notice re Neutral Citation. Canadian Citation Committee, Canadian Guide to the Uniform Preparation of Judgments. Canadian Citation Committee on a Neutral Citation Standard for Canadian Case Law. Canadian Guide to Uniform Legal Citation, 6th ed. (Toronto: Thomson Carswell, 2006). Citing Electronic Information in History Papers. Columbia Guide to Online Style Martin, Introduction to Basic Legal Citation. (US) New York University School of Law, Guide to Foreign and International Legal Citations Prince, Bieber's Dictionary of Legal Citations (Buffalo, N.Y. : W.S. Hein, 1997). Proceedings of The Official Version, the 1997 National Summit to solve the Problems of Authenticating, Preserving and Citing Legal Information in Digital Form, Toronto, November 20-22, 1997. (219 pages, published by the Canadian Association of Law Libraries/Association canadienne des bibliotheques de droit). Queen's University Faculty of Law, Legal Research Materials, Legal Citation (Canada). Silversmith, Universal Citation: The Fullest Possible Dissemination of Judgments. The Bluebook: A Uniform System of Citation, 16th ed. (Cambridge: Harvard Law Review Association, 1997).
Legal Writing and AnalysisBritish Columbia Law Institute, Report on Gender-free Legal Writing. Castel & Latchman, The Practical Guide to Canadian Legal Research, 2nd ed. (Toronto: Carswell, 1996). Dernbach, Singleton et al, A practical guide to Legal Writing & Legal Method, 2nd ed. (Littleton, Colorado: Fred B. Rothman & Co., 1994). Dick, Legal Drafting in Plain Language, 3rd ed. (Toronto: Carswell, 1995). Dworsky, The Little Book on Legal Writing, 2nd ed. (Littleton, Colorado: Fred B. Rothman & Co., 1992). Edwards, Legal Writing: Process, Analysis, and Organization (Boston: Little, Brown and Company, 1996). Fajans and Falk, Scholarly Writing for Law Students (West Publishing Co., 1995). Fitzgerald, Legal Problem Solving (Toronto: Butterworths, 1996). James & Goncalves, Modern Writing for Lawyers (Vancouver: Continuing Legal Education Society of British Columbia, 1994). Kwaw, The Guide to Legal Analysis, Legal Methodology and Legal Writing (Toronto: Emond Montgomery Publications Ltd., 1992). Laskin, "Forget the Wind Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". LeClercq, Guide to Legal Writing Style (Boston: Little, Brown and Company, 1995). MacEllven, Legal Research Handbook, 4th ed. (Toronto: Butterworths, 1998). Neumann, Legal Reasoning and Legal Writing, 2nd ed. (Boston: Little, Brown and Company, 1994). Oates, Enquist et al, The Legal Writing Handbook (Boston: Little, Brown and Company, 1993). Perell, "Stare decisis and techniques of legal reasoning and argument" (1987) 2:2,3 Legal Research Update 11-21. Perspectives: Teaching Legal Research and Writing (West Thomson). Yogis, Christie and Iosipescu, Legal Writing and Research Manual, 4th ed. (Toronto: Butterworths, 1994).
Grammar and Reference ToolsBritish Columbia Law Institute, Report on Gender-free Legal Writing. Lynch, Guide to Grammar and Style. Strunk, The Elements of Style. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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You need to
analyze the law throughout the process of information gathering and writing. Some
techniques to help you with analysis and synthesis are discussed in 
It is
often not until you sit down to write that you are forced to think clearly about the legal
issues. Start to write earlier rather than later during the research process, and use your
writing to advance your analysis. You will know once you begin to write which areas
require careful thought, and which are straightforward. You will find the gaps in your
research, and notice the inconsistencies between the cases. You may decide that you
approached the subject in the wrong way, and recharacterize the legal issues.
It is
worthwhile giving an early draft of your work to whomever is supervising your research to
ensure you are on-track. Although research can be a solitary undertaking, it is always
more effective when others contribute their knowledge and experience. The dialectic
process prevents the researcher from proceeding on a narrow path and missing other ways to
characterize the issues.