More words you may be mixing up.
Next time: problematic pasts.
All Our Research Tips
Administrator’s note: thanks to Natalie Wing, Law Librarian at Yukon Public Law Library, for this guest tip!
WARNING: this post may contain disturbing content for those with deep anti-marking-up-of-library-book sensitivities.
Back in ye olden days, law clerks and law librarians used to write in the margins of case reporters, literally “noting up” the pages with citations for subsequent appellate decisions. Indeed, it would seem that librarians both sanctioned and participated in the marking up of library books, but of course only for very specific purposes, and conceivably only with the tidiest of (and most tidily placed) writing. Here is an example of an old noted up reporter from the Sir James Dunn Law Library (Halifax, NS), found and shared by reference librarian Nikki Tanner:
References to the practice of “noting up” can be traced back to at least the 19th century, when The Law Times provided practitioners with “Notes for Noting Up”, and when proposals for legal textbook volumes included plans to bind in blank leaves specifically for noting up so that the textbooks could contain the latest law:
A MEMBER has suggested that the first text-book of the Society should be one which shall comprise the entire Practice of Law [….]
It is further proposed that the volumes should be bound with blank leaves for noting up, and that in any digest of the Society a figure should refer to the page in the text-book in which the case or statute digested ought to be noted, so that the volumes should always keep pace with the existing law until a new edition is rendered necessary by the number of references (Verulam Society, (1844) 3 The Law Times 275).
This post was the result of a question asked of the broader Canadian Association of Law Libraries community. Many thanks in particular to Lynne McNeill, Nikki Tanner, and Katie Albright for knowing such things in the first place, and for sharing their knowledge.
Good keyword searching practice varies from database to database, depending on how the data is structured and how the search engine works. But there are some principles that apply to most situations.
For legal research, whenever you have at least a basic understanding of the legal concepts involved, it is usually best to start out casting your net wide, and refine or expand as you go. The goal, for this strategy, is to create a search that will include ALL relevant documents and as few irrelevant ones as possible.
The following process involves an imagined scenario in which I am searching for case law on drug trafficking and entrapment. But hopefully the process is generic enough that it can apply to a variety of situations.
Step 1: Brainstorm for keywords
Think of (1) all the key facts associated with your legal problem, and (2) any legal concept that may apply. So if I am dealing with a drug trafficking case, the list of keywords might include: undercover, police, bar, drugs, suspicious, ask, request, solicit, cocaine, powder, trafficking, guilty, entrapment, dealing, selling, narcotics, controlled substances.
Step 2: Identify key concepts, group keywords
Group your list of terms into two or more key concepts. There will usually be one or more legal concepts, and one or more concepts that describe a particular factual scenario. Try to think of every possible variant (synonym) for each concept.
For example, if I want to use the entrapment defence on a drug trafficking charge, I might employ one factual concept and two legal ones:
Concept 1: drugs, controlled substances, narcotics, cocaine
Concept 2: trafficking, dealing, selling, pushing
Concept 3: entrapment
Step 3: Create search query
This is the stage where you can look at your keywords more critically, and perhaps eliminate some of them. For example, if the search engine is likely to use terminology drawn from the relevant federal statutes, then you can eliminate synonyms for “trafficking” – as this is the official name of the charge, and is certain to be used in any case on point. By eliminating synonyms, you decrease the likelihood of netting bad hits (e.g. that use a word like “dealing” in an unrelated context).
Separate synonyms using the OR operator and separate concepts (groups of synonymous terms) with the AND operator. Remember to review the search syntax (sometimes under the heading “searching tips”) for whatever database you are using. For example, is the AND operator the word “AND” or an ampersand (&) or the default (no operator). Bearing that in mind, our first search may look something like this:
(drugs OR “controlled substances” OR narcotics) AND trafficking AND entrap!
Step 4: Execute search and analyze results
Regardless of how many or how few hits you get on the first try, it is critical to analyze the results. How many hits are there? If too few, may need to drop a concept, or add some synonyms to existing concepts. If there are too many hits, you may need to add a concept, or drop some synonyms.
How are the results arranged? Relevancy? By date? Or by court level or number of cites? Can you change the order? If you cannot rank by relevancy, then take extra care to keep the number of results manageable, because the best ones might be at the bottom of the list. If you sort rank by date, consider applying a date filter to the initial search (if that is an option).
Look at a few hits – are they relevant? In the best, most relevant, results, check for key terms in the document that you may not have included in the search query. If you see a lot of poor results, check to see how and where your search terms appear in the document. Any terms that are producing poor results should be removed or modified. In some cases, consider adding a “proximity” operator, to search for two terms in the same sentence, or separated by less than a certain number of characters.
Step 5: Reformulate search
No search will net perfect results, no matter how well you refine it. On the other hand, you will rarely get optimal results on the first try. Generally, you can expect somewhere between 3 and 10 iterations to achieve a manageable set of relevant documents. But your research on this database, whatever database it may be, is still not done.
Step 6: Work Laterally
As I said, it is rare that any single keyword search will net 100% of relevant results. So now you need to read your results (the cases), and make note of references to other cases that did not come up in your search results. Then read those, and make note of further authorities. Also, for highly relevant cases, make sure to note them up, track down any citing references, and then look for citing references backward and forward in those (if they are on point), and so on.
I think of mediated searching, using a search engine or classification system, as “vertical” (think drilling down), and searching using cross-references from other relevant documents as horizontal or “lateral.” Some research tasks call for predominantly one strategy or the other, so a good researcher will know when and how to employ either strategies, or the two in combination.
Step 7: Stop
Know when to stop. You are finished your research when you either (1) stop seeing citations to unknown cases commenting on your topic (in other words you’ve seen them all, or very close to it), or (2) see repeated references to a small number of higher court authorities on which you can rely.
[This tip by Ken Fox originally appeared on the Law Society of Saskatchewan Library’s Legal Sourcery Blog]
A frequently asked question is “what does this word mean in a legal context?” In my last SLAW tip, I talked about using legislation to find definitions, in particular interpretation acts. However, legislation cannot define every term used, so if you can’t find your term in the legislation, you may want to check if it has been judicially defined. There are a number of books of words and phrases listing judicial definitions (and truly it is a wonder what has been defined), but, as with legislation, these books cannot be exhaustive.
If you can’t find your term in either legislation or books of words and phrases, you will have to search the case law. I use the following canned search to find definitions:
TERM /3 (define OR mean OR interpret)
For example, if you want to find out if the word “martini” has ever been defined by the courts, use this search on CanLII with the word “martini” substituted for TERM.
Since CANLII automatically expands search terms, you don’t have to use wildcards to find all the variants of your search terms (e.g. mean, means, meaning). However, if you are using this search in one of the paid databases, you will have to add the database’s truncation symbol (e.g. defin! OR mean! OR interpret!).
Thank you to Bronwyn Guiton for suggesting this as a SLAW tip.
Here’s a tip I always mention when I’m introducing students to the legal research process: you will save time if you start by consulting the leading secondary sources on your topic, rather than going straight to the legislation or case law.
Ludmila B. Herbst, Q.C., wrote the following about the importance of starting with secondary sources in her 2006 CLE BC course paper “Effective Legal Research”:
A vast array of material is available in which authors (both learned and not so learned) have assembled and synthesized the case law and statutory materials applicable to particular issues. Make use of these where possible. Both the commentary and the footnotes may direct you to applicable case law, legislation and other secondary sources and may suggest analogous areas of law to research. In addition, secondary sources set out principles on which your answer may ultimately need to be based if primary authority cannot be located.
But where to start when you’re unfamiliar with the the leading texts? CanLII’s LegalResearch.org (formerly Cathie Best’s The Best Guide to Canadian Legal Research) advises researchers to start with a library catalogue:
As you gain experience, you will become familiar with the leading texts in various areas. If you do not know of a good text on the subject you are researching, the traditional approach is to conduct a keyword search in the library catalogue.
Not all library catalogues will cover all topics though, and if you’re just starting out it’s difficult to know which source is considered to be the most authoritative on a given topic. Fortunately, LegalResearch.org has gone through the work of creating lists of suggested leading texts. And if you need to dig a little deeper into your topic, use the checklist below to ensure you haven’t missed a thing!
You’ve drafted a client piece – now what?
Heed the words of Samuel Johnson: ‘What is written without effort is generally read without pleasure.’
In other words, go back and edit; your text could always use some polishing.
Here are some specific tips.
Next time: words that don’t mean what you think they do
Although most acts have a definitions section, usually at the beginning of the act, it is logistically impossible for an act to define all the words and terms it uses. If you are trying to find the meaning of a term that isn’t defined in an act, check that jurisdiction’s Interpretation Act. Definitions of terms that are used by multiple acts are quite often found in this act. For example, terms defined in the federal Interpretation Act include “herein”, “holiday” and “oath”. You will find Interpretation Acts in federal and all provincial legislation.
Interpretation acts are also useful when it comes to statutory interpretation. For example section 11 of the federal Interpretation Act distinguishes between the meaning of “shall” and the meaning of “may”.
Since you asked…
Baffled on Bay Street wonders: What’s with ‘Esquire’? Does it have some special meaning in law?
In mediaeval England, an esquire was one rank above a gentleman and one below a knight; hence the variant ‘squire’ for a trainee knight.
While the precise class of chaps eligible to be an esquire is a matter of intense historical controversy, it seems that you had to be the younger son of a nobleman, the son or grandson of a knight, or an office-holder (possibly including a barrister-at-law). By the 18th century, ‘Esquire’ came to be used as a polite substitute for ‘Mister’ on an envelope (and the older use of ‘Gent.’ after a name faded away). This usage persists in the UK and more traditional parts of the Commonwealth.
Americans used to use ‘Esquire’ in the same way, but by about (your humble scribe is guessing here) the 1940s, it was replaced by just plain ‘Mister’ on envelopes, except in diplomatic and legal circles (conservative, those). By about the 1970s, only lawyers were using it. As a result, ‘Esquire’ came to be viewed as synonymous with ‘attorney’ – and second-wave feminists who entered the legal profession wanted to be able to use it, like their male peers. To someone in the UK today, however, ‘Susan Jones, Esq.’ looks as bizarre as ‘Ms Neil Guthrie’ would.
Confused in Calgary writes: Can I begin a sentence with ‘And’ or ‘But’?
Contrary to what Mrs Snelgrove told you in grade 7, yes. But do it sparingly, for effect.
You can also start a sentence with ‘Because’, in constructions like this: ‘Because I forgot to set my alarm, I was late for the client meeting at 8.30.’
Exasperated in Edmonton enquires: How many spaces after the period at the end of a sentence? One or two?
Exasperated, you’ve got time on your hands if you’re fussing about this!
In the days of the Smith-Corona manual typewriter, two spaces were de rigueur. In the digital age, one seems to be the norm.
Troubled in Toronto asks: What’s the difference between ‘farther’ and ‘further’¸ and ‘less’ and ‘fewer’?
Less and fewer are straightforward (although frequently confused). Use less for things you can measure (money, time, substances), fewer for things you can count (people, objects).
Example: There are fewer people around in the summer, so there are fewer cars downtown and less traffic.
NEVER say less people.
The precise difference between farther and further is elusive, and the two words can be (and are) used more or less interchangeably. The consensus among language mavens is that farther is best used for actual distances, further where distance is conceptual or not part of the equation at all.
Examples: Edmonton is farther from Toronto than Calgary BUT Don’t go any further – I’ve had enough of your silliness.
And as for Vexed in Vancouver: I sometimes see in e-mails that that someone is going to ‘revert’ to me. What’s up with this?
This expression appears to have originated in business and legal circles in India in the 1970s, spreading from there to the UK and Australia. It’s a bit weird, because revert normally means to return to an original shape or form (The werewolf reverted to human form once the full moon had passed).
Your humble scribe would avoid the word in business correspondence (unless you mean it in the werewolf sense), and just say reply or answer (get back to you is a bit colloquial, methinks). Revert just seems fancy for the sake of being fancy, which is never desirable.
Next: the importance of editing and proof-reading