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Review and assess the case law

Weigh the cases

At this stage, follow up on the case references you have gleaned from your review of secondary sources.

Read the cases and assess the weight a court would give a case based on

  • whether the case is binding or persuasive
  • the level and jurisdiction of the court
  • the closeness of the facts to your case
  • the closeness of the legal issues to your case
  • the soundness of the reasoning in the case
  • whether the court considered pertinent case law in reaching its decision
  • the age of the case.

Note up any case that seems important following this analysis, and reassess the case in light of how it has been interpreted in subsequent decisions. Start with the case you think a court would give the most weight to, and work your way down. You may find what you need before you reach the end of your list.

Analyse the cases

org_chrtIt is unusual for a legal rule to be stated consistently throughout a line of cases. You may find that a chart or table comparing the factors and reasoning in each relevant case will help you evaluate the cases you have found, and synthesize the reasoning and rules in them. This type of approach, although time-consuming, will help you tremendously in analyzing the cases.

There are several organizational ways to think about the cases:

  • the role each case has played in the historical development of the legal rule
  • the factual situation in each case
  • separate aspects of the legal rule that arise in each case
  • the precedential value of each case.

Edwards, Legal Writing: Process, Analysis and Organization (Boston: Little, Brown, 1996) at 115-116.

Read the cases critically

It is important to read the cases critically and closely. Some techniques for doing this include:

  • “noticing what the court said about the rule”
  • “noticing how the court applied the rule”
  • “noticing how the court did not apply the rule”
  • “noticing the facts the court emphasized”
  • “reading what leading commentators have said about the case”
  • “noticing the policy considerations the court described.”

Edwards, Legal Writing: Process, Analysis and Organization (Boston: Little, Brown, 1996) at 41.

Consider whether the reasoning employed in the case is

  • Rule-based: the court reached an answer by establishing and applying a rule of law.
  • Analogical: a case with similar facts should govern.
  • Policy-based: the court reached the answer on the basis that this result will be best for society at large.
  • Narrative: the case tells a story that calls forth this result.
  • A combination of these forms of legal reasoning.

Edwards, Legal Writing: Process, Analysis and Organization (Boston: Little, Brown, 1996) at 5-6.

These techniques will help you gain a deeper understanding of individual cases, and help you to formulate a rule based on conflicting and inconsistent cases. These techniques will also help you find ways to attack unfavourable cases.

Close reading techniques

book_qIf you are developing a thesis topic, and need to read the cases even more deeply, the following close reading techniques from Fajans and Falk, “Against the Tyranny of Paraphrase: Talking Back to Texts” (1993) 78 Cornell Law Review 163 at 190-201, will help you:

  • keep a reading journal, in which you record your subjective reactions, associations, evaluations, interpretations and questions regarding the cases you read
  • apply a different perspective to the issues in the case, such as the perspectives of critical legal studies, feminist jurisprudence, law and economics, or law and literature
  • read for “jurisprudential and interpretive posture”: how did the court itself read the law
    • take two different judgments on the same issue and compare the reasoning
  • read for context
    • look to the context within the case itself, such as lower court decisions, and arguments of counsel
    • look to the context outside the case, obtained from news sources, social sciences literature, government documents, and other information sources
  • read the judgment as a rhetorical document seeking to persuade the reader: challenge the “belief that the language of judicial opinions is a neutral medium for the expression of disembodied reason”
    • study word choice
    • study use of precedent
    • analyse larger rhetorical design
  • read for omission
    • look for what is left out, disregarded, or considered unimportant
    • consider whether the gaps can be filled in without altering the conclusion

The role of narrative within judicial decisions is becoming more important in analyzing these decisions. Linda Edwards, in “Convergence of Analogical and Dialectic Imagination” (1996) 20Legal Studies Forum 7, suggests that case analysis should include consideration of what is the story being told, the prototypical narrative underlying the text:

  • are there competing cultural narratives
  • compare conflicting decisions on a similar point of law and identify the stories being told
  • consider the tension between narrative reasoning and rule-based reasoning
    • did the judge decide the case based on the story or outcome that most appealed to the judge, without regard for the governing rule of law, or did the judge use narrative reasoning (sometimes in the form of analogical reasoning) to further shape the rule of law.

These techniques will help you develop your own perspective on the cases, rather than simply paraphrasing them.

References

Edwards, Legal Writing: Process, Analysis, and Organization (Boston: Little, Brown and Company, 1996).

Ehrcke, “Stare Decisis” (1995) 53 The Advocate 847.

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).

Kwaw, The Guide to Legal Analysis, Legal Methodology and Legal Writing (Toronto: Emond Montgomery Publications Ltd., 1992).

Lubetsky and Krane, “Appealing Outcomes: A Study of the Overturn Rate of Canada’s Appellate Courts” (2009) 47 Osgoode Hall Law Journal 131.

McCallum, Synthesis: Legal Reading, Reasoning and Writing in Canada, 3rd ed. (Toronto: CCH Canadian Ltd., 2012).

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.