“How do you remember all of that?” is a common question made by people to those in the legal industry. The answer is: we don’t! Lawyers are trained to take an issue and break it down into parts. We then research those parts through various sources and present that research in various documents and arguments. This article will outline some key sources we use for that legal research.
Statute is the black-letter law written by provincial legislature or Parliament. It is the base point from which your legal research should begin. Statute provides the words which will be interpreted by the judiciary once a case reaches trial. It can outline legal tests, requirements, exclusions, and many other facets to the issue at hand. It is not up for debate: take your legal issue to the relevant statute before moving onto the other sources.
A case is a written recording of a dispute between dueling parties that attempts to outline the issues, disagreements, events, and actions of those parties. It also states the final decision by the judiciary and its (usually) its reasoning for doing so. This is the other most important source of your legal research.
Case law is paramount to determine how your case will be received at trial. Canada, alongside every other common law jurisdiction, follows the principle of stare decisis. This principle requires that litigation is determined in accordance with past decisions. This ensures consistency in the decisions of the judiciary. Understanding what principles guide the judiciary is key to understanding what points and issues should be focused on and which should be discarded.
Case law also fills in the holes that naturally arise from wording within a statute. This can create tests and doctrines which are not found if one were to simply read legislation. As an example, in the case of Canada v Grenier a claimant wished to challenge an administration decision through an action for damages instead judicial review. To make a decision, the courts examined several statutes that intersected including the Federal Courts Act and the Crown Liability and Proceedings Act. The Supreme Court denied Grenier his claim and decided he must use judicial review for his grievance, in doing so creating the Grenier principle. Coming back to our discussion on case law, this principle would be invisible unless one were to sufficiently research precedent. Principles such as the one arising from Grenier therefore demand intensive case-law research.
Academic commentary can provide alternative perspectives into topics that may seem largely predetermined. The thoughts and theories of leading academics seeps into culture through authorities relying on their expertise. Use academic journals to bolster your knowledge on the subject and its underlying principles.
Ask a professional! Getting first-hand knowledge from an interview can really contextualize an issue.
And there you have it! Some of the key sources lawyers and law students use to draft legal research. To see results of legal research, check out our samples page or request a demo for yourself by reaching out on our contact page.