Memorandums and factums
A legal memorandum on the issue you are researching can be a very useful resource, although you must evaluate it as you would any other resource. It is best to use it as a starting point rather than regarding it as the answer.
- How current is the research?
- Who wrote the memorandum? Do you have confidence in their research and analysis?
- Does the memorandum cover the law of your jurisdiction?
- Are the facts on which the analysis is based similar enough to your situation?
- Was the memorandum prepared quickly, or is it a thorough review of the law on the point? Given the cost of legal services, sometimes a researcher is asked to conduct research within a very limited time-frame.
Many law firms keep collections of legal research, to avoid researching the same issues over and over. If such a collection is available to you, look there for relevant documents early in your research process.
WestlawNext Canada publishes a growing collection of Canadian legal memorandums. This collection is searched in the WestlawNext Canada federated search, and the memorandums identified as most relevant will appear in your search results. In addition, the memorandums are referenced in KeyCite results. To view the full memorandum, you must incur a substantial pay-per-view charge. However, LawSource subscribers can view the memorandum summary and the list of authorities cited in the memorandum, without any pay-per-view charge. This can be a useful starting point for your research.
Litigation documents filed in court proceedings can be an extremely useful research source. A factum may contain detailed submissions on the point of law you are researching. A pleading in a case involving similar issues, particularly those in an emerging area of law, can assist you greatly.
Keep in mind that these are advocacy documents and only tell one side of the story. It is a good idea to review both the appellants’ and respondents’ factums to get a fuller picture. Interveners’ factums are also an excellent research resource, but are written from a particular perspective.
These types of documents can be obtained from various sources:
- The Supreme Court of Canada has published appellants’ and respondents’ factums since 2009, and in April 2013 the court began to publish interveners’ factums. Locate a case in the SCC Case Information database, and use the Factums link to obtain factums filed with the court in that case.
- Litigator, published by WestlawNext Canada, provides access to court filings including pleadings, briefs, and factums. Full access to Litigator requires a separate subscription. However, individual court filings are available to WestlawNext Canada subscribers on a pay-per-view basis.
- Some courts provide on-line access to documents filed with the court. In British Columbia, Court Services Online provides access to court filings, including pleadings and written submissions. Payment is either pay-per-view, or by subscription. This service is considerably less expensive than Litigator.