All Our Research Tips
Search Strategy – Cast Your Net Wide
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]
Using a Canned Search to Find Definitions
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.
Words That Don’t Mean What You Think They Do
Next: confusing pairs, part 1
–Neil Guthrie (@guthrieneil)
Save Time: Start With Secondary Sources
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!
This checklist, which was inspired by LegalResearch.org’s more exhaustive version, can also be downloaded as a Word doc here. You are welcome to edit it and repurpose it.
- Canadian Encyclopedic Digest (CED) on Westlaw or in print
- Halsbury’s Laws of Canada on LexisNexis Quicklaw or in print
- Leading texts
- Check your library’s catalogue, which will include both print books and ebooks
- Suggested textbooks from CanLII’s LegalResearch.org
- Suggested textbooks from Legaltree.ca. Use the topics down the left side of the page to navigate.
- “Selected Secondary Sources” from the back pages of each Halsbury’s volume
- Research guides from other law libraries. Bora Laskin Law Library currently offers the strongest lists of suggested texts.
- “Selective Topical Bibliography” from The Practical Guide to Canadian Legal Research by Nancy McCormack. This starts on page 503 of the 2015 ed.
- Journals and seminar papers, which may be useful when encyclopedias and leading texts are outdated or don’t provide enough detail about your jurisdiction or topic.
- Local CLE resources, such as BC’s CLE Online course materials
- Journals on HeinOnline
- Journals on Westlaw
- Journals on LexisNexis Quicklaw
- Articles found via Google Scholar
- Local specialized indexes, such as Courthouse Libraries BC’s BC Legal Literature Index
- Memorandums and factums on the same topic
- Your organization’s internal knowledge management database
- Prior advice from the same legal file
- Documents from colleagues who have worked in the area before
- Wikis, blogs, and newsletters
— Bronwyn Guiton (@BronwynMaye)
The Importance of Editing and Proof-Reading
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.
- sleep on it – you will spot things the next morning that were not apparent the night before, especially if the midnight oil was burning (typos, spelling and grammar errors, stylistic things)
- get a second opinion – this will help with correctness, readability, errors you just aren’t seeing because you’re too familiar with your text (even after sleeping on it)
- translate – is it in plain English that a businessperson would understand or Latinate, jargon-ridden legalese? if it’s in the latter, you need to change that
- watch for repetition – is there a way to avoid using the same word or phrase excessively, but without making it look as though you are straining to find alternatives?
- check the flow – do the paragraphs or sections follow each other logically, with nice transitions? or do you need some headings to impose order?
- visual appeal – can you break up the text? (shorter paragraphs, headings, bullet points, graphics)
- wield the axe – remember Blaise Pascal’s famous line: ‘I would have made this shorter, but did not have the time’ (or as the kids now say, ‘TL; DR’)
- paranoia check – have you said anything about a client, or about an issue that a client might object to? had the piece vetted for correctness? checked names, titles, facts, quotations and citations (if any)?
- print it off – proof-reading is more effective from a hard copy than on the screen
- read it aloud – this will reveal incoherencies, overly long sentences, convoluted phrasing and clunky style in a way that reading silently to yourself will not
- read it backwards – an old proof-reading technique; effective because it counteracts your brain’s tendency to make your eyes gloss over errors
- don’t rely on spell-check – it misses things and makes silent corrections (tortuous appears in a million legal documents where tortious was intended; form for from is another frequently missed error)*
- make sure you proof-read everything – including the title, headings and author information (errors can occur where you don’t think to look for them, and it’s embarrassing to have an obvious mistake in the first things people look at (like your name))
- sleep on it again
- run it by a second pair of eyes for final review
Next time: words that don’t mean what you think they do
–Neil Guthrie (@guthrieneil)
Don’t Forget the Interpretation Act
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”.
Your Queries Answered
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
–Neil Guthrie (@guthrieneil)
Deep Links to Paragraphs in CanLII Judgments
A short tip today to remind you that you can deep link to a specific paragraph for most judgments on CanLII. This is helpful when you want to bring a colleague’s attention to specific paragraphs in a judgment.
Each decision on CanLII has a permanent URL, which will look like this:
To create a link directly to paragraph 21 of this decision, just add #par21 after this permanent URL. The link to paragraph 21 of the decision would look like this:
I often use this when I’m sending a list of relevant case law to a colleague and want them to be able to dive into the most relevant excerpts, as opposed to flipping back and forth to my email to double check which paragraph I mentioned. For example, if I wanted to share some recent judicial consideration of section 8 of the federal Interest Act, I might send them the following linked list.
- Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18 at paras 21–23.
- Hornstein v. Orbach, 2016 ONSC 1458 at paras 37–41.
- P.A.R.C.E.L. Inc. v. Acquaviva, 2015 ONCA 331 at paras 39–97.
My thanks to Frédéric Pelletier, of Lexum, who wrote about this on the CanLII blog back in 2011. He included a caveat to his post, which I will reproduce below:
Please note that many older decisions do not have numbered paragraphs and so this tip will not work [for them]. Also, since this feature is the result of automated processing, there will always remain a small proportion of decisions which numbered paragraphs can’t be properly tagged.
— Bronwyn Guiton (@BronwynMaye)
By this, I don’t mean where partners spend their week-ends. Instead, I have horrors like these in mind:
aforementioned [or (shudder) its bastard progeny, ‘above-referenced’]
As Richard Wydick puts it, these words ‘give writing a legal smell, but they carry little or no legal substance. When they are used in writing addressed to non-lawyers, they baffle and annoy. When used in other legal writing, they give a false sense of precision and sometimes obscure a dangerous gap in analysis’ (Plain English for Lawyers, 5th ed (2005), 58).
Avoid that bad legal smell and don’t use words like these in your client piece – and think about ways to avoid them in legal drafting too.
Next time: your queries answered
–Neil Guthrie (@guthrieneil)
Keep a List of Frequently Asked Questions
Certain questions come up time and time again. You can save time by keeping a list of the most frequently asked questions and their answers; each time one of the questions on the list gets asked you can just cut and paste the answer.
FAQs can also work as a knowledge management tool. Although you may answer certain questions frequently, other staff members may not. One solution is to have these questions and answers saved centrally so they are accessible to all library staff.
To get even more bang for your buck, put these questions and answers on your intranet or website so your end users can easily find them. For example, Courthouse Libraries BC has a list of Asked and Answered questions on its website; based on a list that was originally developed as a private tool for Courthouse Library staff.