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Wednesday, June 29th, 2016 technology  research  practice

A Research Tip

  • Research & Writing

Today’s tip is to double check the way you are noting up decisions. Taking a few extra minutes to cross check your results will really strengthen your research!

When we’re noting up a decision, typically we want to know if a) the decision has been appealed (i.e. history), and b) if subsequent decisions have discussed it (i.e. citing references). The most effective way to do this is to enter the decision citation into the note up field on Westlaw or LexisNexis Quicklaw. There are two nuances to this process that I want to highlight to ensure you always get the most comprehensive note up results.

  1. Use both LexisNexis Quicklaw and Westlaw to note up the same citation. While we rarely see one of these sources miss a subsequent appeal of a decision, it’s common that the citing references will differ slightly. This isn’t a deal breaker on every occasion but there’s nothing worse than missing a key citing reference because you didn’t take the extra 5 minutes to cross check your note up.
    Also worth noting is that occasionally either QL or WL will have a slightly deeper case history for a decision. For example, noting up the Supreme Court of Canada decision Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 on QL reveals a case history dating back to 2003. However, the same note up on WL shows the litigation commencing  much later in 2011. A close reading of that 2011 decision on WL would have indicated to the reader that indeed prior litigation did exist. However, if the researcher takes the WL note up at face value, without cross checking against a second source, an incomplete picture of the litigation would emerge.
  2. If you’re doing a deep dive on a case or topic, note up each subsequent decision in a case history separately. QL & WL will (quite properly) only show you the citing references for a trial decision when you note up that trial decision. If you note up a subsequent appeal decision, you will only be shown citing references for that appeal decision, not citing references for the prior trial decision.
    In the same vein, but possibly for different reasons, QL & WL may show you different case histories depending on whether you note up the trial decision or a subsequent appeal decision. For example, noting up the Tsilhqot’in Supreme Court of Canada decision (2014 SCC 44) on QL reveals a concise case history of a 2007 trial decision and a 2012 appeal decision. However, if you also note up either of the 2007 or 2012 decisions on QL, you will see an extensive case history including 30+ procedural decisions dating back to 1999!

Have you ever come across quirks or discrepancies when you note up cases? Chime in with a comment below to share your experience!

[Today’s tip echoes the sentiments in Shaunna Mireau’s excellent tip from 2013 where she also recommended using two sources when noting up. Thank you Shaunna!]

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