Writing and analysis
Analysis
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 Assess the Cases. One of the best ways to improve your analysis
and your writing is to create a structured outline of the issues by breaking down each
legal issue into its constituent elements. Decide which elements are problematic and
which are straightforward. Use your outline of the issues to structure your writing
and to advance your 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 writing
Start writing early
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.
Use an outliner
Structure 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.
Get feedback
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.
Legal memorandum
A 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.
A legal memorandum is comprised of certain standard elements:
- the heading
- a summary of the relevant facts
- succinct identification of the legal issues
- a discussion of the law relevant to the legal issues, and application of that law to the facts
- a conclusion that is responsive to the legal issues.
Each of these elements is discussed in greater detail below.
The heading
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.
Facts
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.
Issues
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:
| #1 | Is the security enforceable? |
| #2 | Will security documents signed and registered using the debtor's common law name be enforceable against the debtor and the debtor's creditors if the debtor later changes to using his legal name? |
| #3 | Will personal property security documents granted in favour of the Bank, signed and registered in British Columbia using the Debtor's common law name David Black, be enforceable against the Debtor and the Debtor's creditors now that the Debtor has changed to using his legal name David Brown? |
- #1 asks the basic question that needs to be answered. However, when compared to #2 and #3, it is clearly inadequate.
- #2 is a good issue statement. It provides a concise summary of the legal issue, and includes the essential elements. It is less wordy than #3, making it easier to read and understand. However, it is less complete than #3, because it does not incorporate the specific facts of the case.
- #3 is an excellent issue statement. It sets out the precise legal issue to be resolved. Just as each legal case is decided within the confines of the facts of that case, a legal memorandum is intended to address the narrow legal issue raised by a particular 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.
Conclusions
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.
Which format?
There are various ways of dealing with conclusions in a legal memorandum:
| Format 1 | Format 2 | Format 3 | Format 4 |
|---|---|---|---|
| Facts Issues Conclusions Discussion |
Issues Conclusions Facts Discussion |
Facts Issues Brief Answer Discussion Conclusion |
Issues Brief Answer Facts Discussion Conclusion |
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.
Equivocation
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.
Discussion
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.
| I | The first step is to state the legal issue. This can be done in a couple of ways. You can summarize the issue in the form of a topic sentence or question. The most effective style is to use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader briefly what your conclusion is on the issue. The issue can also be referred to in the heading for this part of the Discussion section. |
|---|---|
| R | The second step is to determine the applicable legal rule. This involves a review and analysis of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule explanation. Depending on the nature of the legal rule, you may need to review the history of the rule and consider the policy rationale for the rule. You may find there are different lines of cases, each resulting in a different formulation of the rule. Try to approach this section using rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid lengthy quotations from cases. This section includes analysis of the rule, but does not include application of the rule to your facts. |
| A | The third step is to apply the legal rule to your facts. This involves further analysis and weighing of individual cases, distinguishing cases, making counter-arguments, and considering policy issues. |
| C | The last step is to state your conclusion on the legal issue being discussed. Although you will include an overall conclusion elsewhere in your memorandum, it is also important to reach a conclusion on each legal issue as it is dealt with in turn. |
IRAC need not be applied rigidly. Your decision about how to divide up the legal issues will influence the way that you apply IRAC.
- For example, if you are dealing with cases from a number of different jurisdictions you can structure your discussion separately for each jurisdiction, or cover all jurisdictions when you deal with a particular issue.
- You may want to discuss each sub-issue separately. However, if that would result in repetitive discussion of the same cases in different sections of the memo, it might be better to combine your discussion of some of the sub-issues.
See the Sample Memorandum for an example of the Discussion portion of a legal memorandum.
Legal citation
This 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 legal citation are reviewed below.
Canadian Guide to Uniform Legal Citation
The recently published 7th edition of the Canadian Guide to Uniform Legal Citation recommends some changes to accepted citation practice. The biggest change is elimination of periods. Those unsure about whether to adopt the changes recommended in the 7th edition should review the list in the Guide of law reviews and courts that have adopted the 7th edition. Another suggestion is to review the practice directions and recent decisions from the courts in your jurisdiction to see whether these changes have been adopted.
The citation examples below are based on the 6th edition, and on the practice of the British Columbia courts. For further reading and reaction to the 7th edition, see
- Mireau, "Citation Clarified?" (14 September 2010) online: slaw <www.slaw.ca>
- Tjaden, "McGill Guide - 7th edition - what's different?" (20 August 2010) online: slaw <www.slaw.ca>
- Colledge and Lapointe, "How does a 'uniform' citation guide fail to be uniform? A review of the Canadian Guide to Uniform Legal Citation" (2011) 74 Sask. L. Rev. 275
Reported decisions
To 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.)
| Lougheed Enterprises Ltd. v. Armbruster | (1992) | 63 | B.C.L.R. | (2d) | 316 | (C.A.) |
| [1992] | 2 | W.W.R. | - | 657 | (B.C.C.A.) | |
| style of cause | year | volume | reporter | series | page | court |
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.
| style of cause | This is italicised or underlined. |
| year | Round brackets are used if the reporter series is not organised by year. Square brackets are used if the reporter series is organised by year, such as the Supreme Court Reports, and the Western Weekly Reports. A comma follows round brackets, and precedes square brackets. |
| reporter | Use the abbreviation for the reporter. |
| series | Include the series number for reporters published in series, such as the British Columbia Law Reports and the Dominion Law Reports. |
| page | The page number may be followed by a pinpoint reference to a particular page in the decision. For example, a pinpoint reference to page 320 in the B.C.L.R. citation above would be (1992), 63 B.C.L.R. (2d) 316 at 320 (C.A.). |
| court | If the jurisdiction or court level are apparent from the name of the reporter, you do not need a full reference to the court. The B.C. Court of Appeal requires the citation to indicate if the appellate decision was made in Chambers. For example, 2011 BCCA 19 (Chambers, Levine J.A.). |
Unreported decisions
Sometimes 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.
Electronic judgments
General rules
The following general rules apply:
- In addition to the neutral citation, you must cite to a print reporter if the decision has been reported. In the absence of both, use the citation assigned by the electronic database.
- You should include a reference to the electronic source if you obtained the judgment from an electronic database.
- Pinpoint references should be made to paragraph numbers rather than to page numbers where practicable.
Neutral citation
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:
| Neutral citation | ||||
| style of cause | year | court | number | pinpoint |
| Leith v. Stockdill, | 2000 | BCCA | 263 | at para. 5 |
| Laflamme v. Forrest, | 2000 | BCSC | 617 | at para. 12 |
| Sansalone v. Wawanesa Mutual Insurance Co., | 2000 | SCC | 25 | at para. 18 |
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:
Sharab Developments Ltd. v. Zellers Inc., 1999 BCCA 39, 65 B.C.L.R. (3d) 67
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.
Origin of electronic version
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:
Sharab Developments Ltd. v. Zellers Inc., 1999 BCCA 39, 65 B.C.L.R. (3d) 67 (CanLII)
The most common electronic sources, with abbreviations, are as follows:
| Australian Legal Information Institute | AustLII |
| British and Irish Legal Information Institute | BAILII |
| Canadian Legal Information Institute | CanLII |
| Westlaw Canada | WL Can |
| LexisNexis | Lexis |
| Quicklaw | QL |
| Westlaw | WL |
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:
Lougheed Enterprises Ltd. v. Armbruster, [1992] B.C.J. No. 712 (C.A.) (QL)
B.C. Court of Appeal Practice Directive
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, Westlaw Canada 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:
- You must include the name of the electronic database from which the decision was obtained in your citation.
- A copy from an electronic source may be provided only if the decision published in the reporter series contains numbered paragraphs, and the paragraph numbering is the same in the electronic source as in the reporter series.
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.
Ontario Superior Court of Justice Practice Direction
A Practice Direction issued by the Ontario Superior Court of Justice contains different requirements regarding decisions from electronic databases:
- Copies of judicial decisions obtained from databases dedicated to the publication of judicial decisions, such as QL and CanLII, are acceptable for filing if the copy has paragraph numbering consistent with the paragraph numbering in the decision as released by the court.
- Parties should ensure the decision has not been subsequently amended.
- Parties should provide citations for any paper versions of the decision in addition to the citation of the electronic catabase.
- Parties should provide the date that the decision was obtained from an electronic database, as part of the citation information.
- The neutral citation should also be included.
Treatises and loose-leafs
The standard format for treatises is
Author, Title (Place of publication: Publisher, Year)
The year is the date shown on the copyright page.
This must be modified for loose-leaf publications to show the date of the most recent release in the publication that was consulted. An example is:
S.M. Waddams, The Law of Damages (Toronto: Thomson Reuters, 2011) (loose-leaf updated 2011, release 20)
The 7th edition of the Canadian Guide to Uniform Legal Citation states that the citation should refer to the date on which the loose-leaf was consulted. The method I recommend is different. It is based on the practice followed in recent Supreme Court of Canada judgments.
Journals and seminars
The standard format for journal articles is
Author, "Title of article" (Year) Volume Journal Page
An example is:
Natasha Affolder, “Why study large projects: environmental regulation’s neglected frontier” (2011) 44 U.B.C. L. Rev. 521
Different information needs to be included for seminar papers:
Fisher, "Forest & Range Agreements and the Provincial Crown's Duty to Accommodate", Aboriginal Law Conference 2004 (Vancouver: Continuing Legal Education Society of B.C., June 2004)
Blogs and tweets
The standard format for citing a blog entry is
Author, "title" (date), online: name of website <URL of website>
An example is:
Bill Braithwaite, “Regulators consider policy that would allow poison pills to remain unchallenged” (5 December 2011), online: Canadian Securities Law <http://www.canadiansecuritieslaw.com>
The Modern Language Association has recommended the following format for tweets:
Last Name, First Name (User Name). "The tweet in its entirety." Date, Time. Tweet.
Citation linking software
QL and WL Canada
Some legal publishers have developed citation linking software that enables you to insert links to electronic versions of cases cited in your documents.
Quicklaw's Auto Link and Westlaw Canada's CiteLinkCanada are commercial services for this. The advantages of these services are the broad scope of case law included, and the Word interface. However, each time you link to a document you will incur a "notional charge" for viewing the case.
CanLII
The CanLII hyperlinking tool automatically creates links between citations in a submitted user document and the cited cases and legislation on CanLII. This service is free for up to 1,000 citations per month. It is accessed from the Tools link at the bottom of any page on CanLII.
Unlike the automated citation software available from Westlaw Canada and Quicklaw, the user must submit the document to CanLII in order for the links to be inserted.
The document is uploaded to a Lexum server, and a copy of the document is sent back to the user with the links inserted. The uploaded document is destroyed within 24 hours according to the Lexum privacy policy. The links are built to CanLII's freely available cases and legislation, rather than to proprietary versions on a commercial service.
Other programs
Other useful citation-based programs include:
- LawCite, a free citator for Commonwealth jurisprudence (primarily English and Australian) that locates cases and their judicial consideration
- Jureeka, a Firefox extension that converts legal citations that it recognizes into hyperlinks to a web page for the cited source (note: primarily for US citations but also recognizes federally-based citations from Canada)
- CiteGenie, a Firefox extension that creates Bluebook formatted pinpoint citations from Westlaw and Lexis.
- LII Citation Finder, a program under development by the Legal Information Institute that will scan a highlighted section of a web page looking for a US citations and deliver you to the cited legal resource (at an early stage of development).
For a more detailed discussion, see Whelan, "Automated Bluebook Citation for Lawyers" (26 August 2010) online: Finding Legal Information <fli.canadalawbook.ca>.
References
Citation
Alberta Court of Queen's Bench Practice Note, Electronic Citations of Case Law.
British Columbia Court of Appeal Directive, Citation of Authorities (Civil & Criminal Practice Directive, 19 September 2011) .
Canadian Citation Committee, The Preparation, Citation and Distribution of Canadian Decisions.
Canadian Guide to Uniform Legal Citation, 7th ed. (Toronto: Thomson Carswell, 2010).
Cardiff Index to Legal Abbreviations.
Citing Electronic Information in History Papers.
Colledge and Lapointe, "How does a 'uniform' citation guide fail to be uniform? A review of the Canadian Guide to Uniform Legal Citation" (2011) 74 Saskatchewan Law Review 275.
Columbia Guide to Online Style.
Duhaime's Legal Citations & Abbreviations.
Lexum, "Decision Names" (3 August 2011) online: slaw <www.slaw.ca>.
Martin, Introduction to Basic Legal Citation (US).
New York University School of Law, Guide to Foreign and International Legal Citations.
Mokanov, "Environmentally-friendly Citations" (1 March 2010) online: VoxPopuLII <http://blog.law.cornell.edu/voxpop>.
Ontario Superior Court of Justice, Practice Direction regarding filing of judicial decisions from electronic databases, and regarding citation of all judicial decisions.
Prince, Bieber's Dictionary of Legal Citations (Buffalo, N.Y. : W.S. Hein, 2009).
Queen's University Faculty of Law, Legal Research Materials, Legal Citation (Canada).
Raistrick, Index to Legal Citations and Abbreviations, 3rd ed. (London: Sweet & Maxwell, 2008).
The Bluebook: A Uniform System of Citation, 19th ed. (Cambridge: Harvard Law Review Association, 2010).
University of Chicago Manual of Legal Citation, 20th ed. (University of Chicago Law Review, 2010).
Legal writing and analysis
British Columbia Law Institute, Report on Gender-free Legal Writing.
Butterick, Typography for Lawyers.
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 - Reasoning, Research and Writing, 5th ed. (Toronto: LexisNexis Canada, 2010).
Fodden, "A Typeface Designed for Lawyers" (16 November 2011) online: slaw <www.slaw.ca>.
James & Goncalves, Modern Writing for Lawyers (Vancouver: Continuing Legal Education Society of British Columbia, 1994).
Lebovits, "Cracking the Code to Writing Legal Arguments: From IRAC to CRARC to Combinations in Between" (2010) 82 New York State Bar Association Journal (SSRN).
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, 5th ed. (Toronto: Butterworths, 2003).
McCallum, Synthesis: Legal Reading, Reasoning and Writing in Canada, 2nd ed. (Toronto: CCH Canadian, 2008).
McCormack, Papalopoulos & Cotter, The Practical Guide to Canadian Legal Research, 3rd ed. (Toronto: Thomson Reuters Canada, 2010).
Meehan, Supreme Advocacy.
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).
Simpson, "Persuading Judges in Writing: Tips for Lawyers" (LLRX.com).
Supreme Court Advocacy Institute, papers on written and oral advocacy.
Tjaden, Legal Research and Writing, 3rd ed. (Toronto: Irwin Law, 2010). Companion website: www.legalresearchandwriting.ca
Yogis, Christie and Iosipescu, Legal Writing and Research Manual, 4th ed. (Toronto: Butterworths, 1994).
Grammar and reference tools
British Columbia Law Institute, Report on Gender-free Legal Writing.
Lynch, Guide to Grammar and Style.
Strunk, The Elements of Style.
Tjaden, "Do Not Use 'and/or' in Legal Writing" (27 July 2011) online: slaw <www.slaw.ca>