LEGAL RESEARCH METHODOLOGY OCTOBER 2007

1. LEGAL RESEARCH METHODOLOGYOCTOBER 2007

2. WHAT WE WILL COVER TODAY • Legal Research Methodology • Incorporating Manual and Digital Sources into a Legal Research Plan • Taking Research Instructions – Some Suggestions

3. WHAT WE WILL NOT COVER TODAY • Actual Mechanics of Accessing and Searching Various Digital Sources • Formulating Search Terms • Search Engine Protocols and Syntax • Details of Coverage of Every Available Internet Site • Mechanics of Compiling a Legislative History • Principles of Statutory Interpretation

4. ELEMENTS OF RESEARCH PLAN TO DETERMINE IN ADVANCE • Time Frame • Cost Factors • Limits on jurisdictions and sources to research • Method of recording results • Format of response • How and when research will be updated

5. BASIC RESEARCH METHODOLOGY • Make sure you have a good grasp of the facts. • Identify the issues and generate key words. • Consider whether you need additional information in order to properly identify the issues and generate key words. • Consider the form of response required and the constraints imposed by your instructions. • Develop a research plan that takes into account these constraints and that identifies the sources you will consult.

6. BASIC RESEARCH METHODOLOGY (CONT’D) • Canvass the relevant authorities. • Re-examine your statement of issues and the sources you initially included in your plan in light of what you have learned through your research. Restate the issues and revise your key words if necessary, and explore research paths excluded by your previous formulation of the issues.

7. BASIC RESEARCH METHODOLOGY (CONT’D) • Record the results of your research as you proceed. Record the search terms you used when conducting electronic research. • Present the results of your research in the form requested. • Update your research if time has elapsed between research and writing or if after you have presented your research, time elapses before it can be used (i.e., in argument at end of trial).

8. FILAC APPROACH • Facts – analyze the facts. • Issues – determine the legal issues. • Law – find the relevant law. • Analysis – analyze the law and apply it to the facts. • Communication – communicate the results of the research.

9. IDENTIFYING ISSUES AND FORMULATING KEY WORDS The TAPP Approach: Things, Act or Activity, Persons and Place

10. SOURCES – Where to Start and Where to Go Next A. Starting with Secondary Sources • Secondary Sources (Topics, Key Words) Leads to • Statutes and Regulations Then (b) Case Law considering Statutes and Regulations through Noting Up

11. SOURCES – Where to Start and Where to Go Next (cont’d) • Secondary Sources (Topics, Key Words) Leads to • Case Law Then (b) Further Cases through Noting Up

12. SOURCES – Where to Start and Where to Go Next (cont’d) B. Starting with a Leading Case • Leading Case Go to • Secondary Sources (i.e., case comments) Leads to • Further Cases Identified in Secondary Sources Then (c) Further Cases through Noting Up

13. SOURCES – Where to Start and Where to Go Next (cont’d) C. Starting with a Statutory Provision • Statutory Provision Go to • Cases Considering Statutory Provision through Noting Up • Statutory Provision Go to • Equivalent Statutory Provisions and Cases from other jurisdictions through Secondary Sources.

14. SECONDARY SOURCES • Textbooks • Journal Articles • Encyclopaedias (e.g., CED) • Digest Services (e.g., the Canadian Abridgement) • Continuing Legal Education Publications • Government white papers and law reform commission material

15. SECONDARY SOURCES (cont’d) • Practice manuals and annotations • Words & Phrases collections and dictionaries

16. REMEMBER… • Consult the Table of Contents and the Index • Use a thesaurus to broaden the topics and keywords you are looking for.

17. MAKING SURE YOU HAVE A CURRENT VERSION OF THE STATUTORY PROVISION Best Sources • QP Legaleze (most current) • Quicklaw (may be 2 weeks behind) Looseleaf RSBC – may be significantly out-of-date (same with CD-Rom) • Can use B.C. Legislative Digest to update manually • Follow up by checking Legislative Assembly website

18. NOTING UP A STATUTORY PROVISION Sources • Canadian Statute Citations • On-line (Using Boolean connectors) First Step • Track back statutory provision to its inception as section number and wording may have changed over time

19. TRACKING THE HISTORY OF A PROVISION R.S.B.C. 1996 • Consult historical table R.S.B.C. 1979 and earlier • History is noted right under the section

20. THINGS TO KEEP IN MIND • Name of statute may have changed • Provision may have migrated to or from a different statute

21. STATUTORY INTERPRETATION Sources to Consult • 2 Canadian Textbooks: • Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Butterworths: Toronto, 2002) • Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed. (Carswell: Scarborough, 2000) • Legislative history (looking at bills, Hansard and committee reports and minutes) • Words and Phrases sources and dictionaries

22. SECONDARY SOURCES IN ELECTRONIC FORM • The Canadian Abridgement, C.E.D. and other materials on WestlaweCARSWELL • Law Journals on the Internet • Law Journals and some text books on Quicklaw, Lexis·Nexis and Westlaw

23. WHY WE SHOULDN’T RUSH TO DISPOSE OF ALL THE LAW BOOKS • Most textbooks only available in hard-copy • Reading texts on-line is annoying • Search engines and search protocols vs. a good index and human ingenuity • Coverage of electronic sources—incomplete and uncertain • Data entry issues • Speed—A computer is not always faster • Simply cannot replicate the methodology of flipping through the index, table of contents and sections of a hard-copy source

24. QUESTIONS YOU MUST ASK BEFORE YOU USE AN ELECTRONIC SOURCE • Currency—How regularly is it updated? • Coverage—Do you know the content of the database you are searching? • Search engine protocol and syntax—Don’t assume that the search protocol and syntax you learned for one on-line source can be used for any other electronic source. Regrettably, each source has a subtly different search syntax.

25. WHEN IN THE SEARCH PROCESS SHOULD ONE GO TO ELECTRONIC SOURCES? • When searching for a particular term, phrase or paragraph that is not a legal term of art. • When looking for cases or statutes dealing with a particular fact or thing, as opposed to a legal concept. • When the legal concept spans several areas of law and, therefore, is not easily accessible through traditional indices.

26. WHEN IN THE SEARCH PROCESS SHOULD ONE GO TO ELECTRONIC SOURCES? (cont’d) • When searching for cases involving a particular party, expert witness, counsel or judge. • To check completeness of manual research when the results of that research are disappointing.

27. WHEN IN THE SEARCH PROCESS SHOULD ONE GO TO ELECTRONIC SOURCES? (cont’d) • To search for cases using a complex search string that includes a number of legal concepts, and/or specific facts or things. • When you have the name of a case or article that is available at minimal cost on the Internet.

28. WHEN IN THE SEARCH PROCESS SHOULD ONE GO TO ELECTRONIC SOURCES? (cont’d) • To note up cases or statutes when manual sources are not available (or as a double check of manual noting-up). • To access foreign sources that are not readily available in our library or at the courthouse.

29. TAKING RESEARCHINSTRUCTIONS • Make sure you obtain a sufficient factual background—research in a vacuum is rarely of any use. • Where possible, have the lawyer identify the issues as they see them for the first go around, but do not limit yourself to the issues articulated by the assigning lawyer. • Get specific instructions in terms of elements #1 through #6 of the research plan (time frame, format of response, etc.).

30. TAKING RESEARCHINSTRUCTIONS (cont’d) • Discuss possible sources, legal concepts and key words with the lawyer—if they are specialists in the area, they will often have better ideas than the researcher. • Make sure you understand the breadth and scope of the research you are undertaking. Does the lawyer want you to look into U.S. or other foreign law? Does the lawyer want you to use electronic sources that have significant costs attached to them?

31. TAKING RESEARCHINSTRUCTIONS (cont’d) • Make sure you have at least one more meeting with the person who gave you the assignment before you produce a final product. Revisit the issues, what has been found, sources canvassed, possible changes in direction, issues, key words. • If you hit a wall and are not finding what you think they are looking for, meet sooner rather than later.

32. I CAN’T FINDANYTHING ON POINT… • Focussed too narrowly on subject area or given facts without thinking laterally. • Didn’t spend enough time with the secondary sources, or formulating issues and key words. • Didn’t revisit issues and reformulate key words after initial research.

33. I CAN’T FINDANYTHING ON POINT… • Used electronic sources too early. • Didn’t employ available electronic sources. • Need to look to other jurisdictions.

34. PRESENTING YOUR RESULTS • Format • Style • Grammar and Punctuation • Citation of Authorities • Making the product useful in the future Consider audience and purpose

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