All Our Research Tips
Look to the Commonwealth
Over at Slaw yesterday I posted about JADE – a web service for locating decision from Australia that is aimed at law firm users. Today’s Tip is about when you would look to foreign decisions.
In The Comprehensive Guide to Legal Research, Writing & Analysis by Moira McCarney, Ruth Kuras and Annette Demers (Emond Montgomery, 2013), the writers remind us:
…not all legal disputes can be resolved by Canada’s domestic legal system. Foreign domestic law becomes relevant in many situations, including:
- acquiring, disposing, or bequeathing real or personal property located in a foreign jurisdiction
- incorporating in, trading with, or conducting business in a foreign jurisdiction
- banking or investing in a foreign jurisdiction
- suing or enforcing a judgment against another’s property located in a foreign jurisdiction
- resolving family issues such as child custody of and access to minor children where one parent resides in a foreign jurisdiction
The authors go on to say:
Canadian courts use the law of a foreign jurisdiction to interpret domestic law that is not yet settled. Although legislation and judicial decisions from foreign jurisdictions are not binding on Canadian courts, domestic law from Commonwealth countries such as the United Kingdom and Australia, and from common-law jurisdictions such as the United States, may be used to inform Canadian courts of the development of the law in countries with domestic legal systems that are similar to that of Canada.
There you have it.
The legal research process has some basic rules. I have often articulated the analysis part of the legal research process as this:
- Your job is to answer a question
- Filter your analysis through the potential avenues of Tort, Contract, Equity, Unjust enrichment
- Make sure you look at the “bad for your client” materials and include them
- If you can’t find anything on point, make an analogy
Today’s Tip is about analogies.
How do you make an analogy? Brainstorm (alone or with a team), use a thesaurus to spark ideas, think about your past work (at the heart of it, isn’t this issue a bit like…), ask yourself what the opposite of your client’s desired outcome is and frame your research from that perspective, get creative with your legal reasoning.
Analogy is an important tool for legal reasoning. As Professor Lloyd Weinreb states in his text, Legal Reason, The Use of Analogy in Legal Argument (Cambridge University Press, 2004):
There is something distinctive about legal reasoning, which is its reliance on analogy. Leaving more precise definition for later, an analogical argument can be described as reasoning by example: finding the solution to a problem by reference to another similar problem and its solution.
Fast, Convenient and Mobile
Yesterday at Slaw I posted about some legal research apps. Today I want to tell you how I use my iPad for mobile research. For me, it is about two things. Being prepared and carrying convenience.
I download things that I know I will likely need and I don’t carry paper, or a laptop. What kind of things do I mean?
- I have a current copy of the Rules of Court in PDF in iBooks sorted into a “legislation” folder [note that it is UP TO ME to make sure this is current]
- I also have a PDF copy of the topic of whatever it is that I am ‘going’ out to talk about
- for me this is survey data, reports, minutes, memos, or presentations and their notes
- if I was a lawyer if might be a searchable PDF copy of an affidavit of records with bookmarks on the key elements that I want to address in a Questioning; it might be a document with hyperlinks to web sources of material if Internet access was assured; it might be multiple drafts of an agreement
- I have my Irwin Law eBook of Ted Tjaden’s
- I have my CCH Rapid Finder
- a bunch of Ukulele music
Just in case, I have a Quicklaw App, the WiseLII app, and quick links in my iPad browser to LexisNexis Quicklaw, WestlawNext Canada, CanLII, the Alberta Queen’s Printer public website, Justice Canada Laws, LegisINFO and the Legislative Assembly of Alberta sites.
Perhaps my mobile habits relate to the fact that I also have access to my desktop from my iPad (and phone) thanks to the cleverness and capability of the fine Information Technology folks that I am lucky to work with. There is also a special security feature in the form of a mobile device management tool that would allow a remote scrub of my device if lost or stolen and an extraction of the work related material in the (unlikely) event that I part ways with my employer.
What legal research do you DO with your mobile device?
Check Out Your Public Library
There are about 2300 public libraries in Canada. This doesn’t include a count of libraries with multiple branches. The bottom line is that most Canadians will have access to information that they need from a public library near them.
Today’s Tip is to make use of those wonderful resources. Books like the Handbook of Fixed Income Securities by Frank J. Fabozzi (Toronto: McGraw-Hill, 2012) or The Master Painters Institute Approved Products List 2012, which reveals the architectural painting specification manual, may never be items that you would purchase. They will absolutely be available through a public library*.
If something you need isn’t in your local public library, I can guarantee that public librarians will use their networks to help track down a source.
*Sample titles were acquired doing a search of the EdmontonPublic Library catalogues Reference shelf title additions limited by the date rage 2012 and newer.
Watch Your Email
Jack Newton posted an excellent email tip on Slaw way back in February 2013. He suggested creating an email rule that moved email with the word “unsubscribe” to a Robots folder so that it skipped your inbox and let you concentrate on the most important of your email and no the automated messages (newsletters, alerts from Twitter, etc). I have been using this tip with glee since his posting to filter my inbox and only check my Robots folder once per day.
Thanks (and I say that with a bit of snark) to CASL, I am now delaying reading messages that are not ‘automated’ since some businesses have an ‘unsubscribe’ process outlined in all of their email footers.
I am keeping my ‘Robots’ rule and adding exceptions for the email domains of email that this is happening with. Today’s Tip: attend to your email and watch your rules – adjust as necessary.
Look for Webinar Opportunities
An event reminder by the Canadian Association of Law Libraries about the Substantive Law Webinar Series gets a Hat Tip for providing Today’s Research Tip. The Tip is to seek out opportunities to learn things via webinar. Plenty of associations and organizations, including some law firms, are offering webinars on useful topics that will make legal research in a new or unfamiliar area a little bit easier.
CALL is offering:
Substantive Law Webinar Series
The Webinar Committee is pleased to offer a series of substantive law webinars delivered by Ted Tjaden. Ted delivered a webinar on Civil Procedure in March, 2014, and due to the level of interest, the Committee has paired up with Ted to offer the following subjects over 2014 and 2015. Tort Law – October 30, 2014 from 1:00pm-2:30pm Contract Law – December 9, 2014 from 1:00pm-2:30pm Constitutional Law – February 12, 2015 from 1:00pm-2:30pm Real/Personal Property Law – April 21, 2015 from 1:00pm-2:30pm Criminal Law – June 18, 2015 from 1:00pm-2:30pm
Ted Tjaden, a long-time member of CALL/ACBD and the 2010 recipient of the Denis Marshall Memorial Award for Excellence in Law Librarianship, is the national litigation precedents lawyer in Gowlings’ Toronto office. Ted works closely with the firm’s national precedents team and litigation lawyers to organize and annotate the firm’s litigation research and precedents for use by the firm’s advocacy professionals. Ted has extensive experience as a litigator and knowledge management lawyer and is called to the bar in both British Columbia and Ontario. In addition to being the author of Legal Research and Writing, 3rd ed (Toronto: Irwin Law, 2010) and The Law of Independent Legal Advice, 2nd ed (Toronto: Carswell, 2013), he is a regular speaker at conferences on issues of knowledge management, technology and the effective organization of litigation documents.
CALL/ACBD Member: $40 + $5.20 HST = $45.20/webinar Non-member: $60 + $7.80 HST = $67.80/webinar
*A 20% discount will be applied to registrations for the entire series (5 webinars). Please contact firstname.lastname@example.org to register for all 5 webinars.
Not Quite Finished
My carpenter partner likes to say, “A House is a work in progress”. I agree. Just because you have a yellow kitchen this year doesn’t mean that you can’t decide to paint it purple next year. Work In Progress, or WIP is frequently used in law firms to designate things that are not yet to the point where we ask a client to pay for them. Thinking about WIP and executing your work to the valued level when you are acting on client files is good business.
Beware of holding things as WIP for non-billable work. Items like checklists, documents you think will be a good precedent “someday”, and process or procedure notes are valuabe at the 80% complete stage and much better than using nothing.
We are so used to risk-proofing, error-proofing, and doing our best to be perfect on the client side of our work that we like to hold ourselves to that standard for everything. I am NOT advocating that you don’t do your best work. Today’s Tip is that you consider your research tools as perpetual work in progress and don’t let that stop you from using or sharing them.
Imagine if CanLII didn’t push decisions up to their site unless they checked for missing decisions. Seems silly right?
Hat tip to Jospeh Juran for adding the Pareto Principle to management lingo. Don’t wait.
Check Your Process
I just attended a lunch session with a Court of Appeal Justice on the topic of legal research. You might think, why would an experienced legal researcher and law librarian spend a lunch hour listening to a topic that she knows? I have two very good reasons, the basis of today’s tip, for attending presentations and seminars on areas within your realm of experience.
- When you hear from others that your own process is very similar to theirs, it validates your process. It also may question your assumptions about your process if someone else’s best method differs from your own. Questions are good – they make us think.
- There is always something to learn. Even if it is simply a different perspective on a tool or resource, every one of us carries a bias about resources – our favourites and our last choices – great legal researchers don’t let those biases lead to habits.
In the case of today’s event, it was inside my firm. As a law librarian, it is particularly important to attend sessions where the type of information being shared is training that your department ‘owns’. It also provided an opportunity for a follow-up note to attendees with links and pointers to our easiest location of sources that were mentioned. There is value in validation.
Happy National Punctuation Day
September 24 is National Punctuation Day in the U.S. Though this isn’t a statutory (or highly celebrated) holiday in Canada, the fact that there are people in the world who care about and critique punctuation delights me.
In all seriousness, punctuation is a problem in a searcher’s world. Time writer Katy Steinmetz shares some details about how punctuation is evolving and John Davis had some interesting things to say in a 2009 Slaw post. I also confess that I have this Apostrophes page on grammarbook.com as a favourite.
Today’s Tip: if your search term might be more relevant with punctuation, consider truncating your search with a word stemming character. And asterisk or an exclamation mark are commonly used for truncation.
One place I do not use a lot of punctuation is on Twitter. The short format requires abbreviation, incomplete sentence structure and creativity to share a whole idea in a puny text box. Check out tomorrow’s #CALLFuture Twitter chat starting at 1 PM Eastern. Perhaps there is a reason that law librarians didn’t hold this event on National Punctuation Day!
Tell the Story in Pictures
After all these years of reading cases there are still times when I get to the end and think, “Who won?”. This is especially true when parties are numerous and placeholders are used rather than names in a judgment. A lengthy decision with references to plaintiff, defendant, appellant, respondent, and co-defendant rather than Smith or Jones can be difficult visualize in context. It is also confusing when mutiple points of law are under consideration parties have mixed success.
Today’s tip: chart the outcome of a decision so you have a visual reference.
Create a graph, chart or picture that shows which parties were successful on which points of law. I usually have parties across the top of a grid with issues down the left side. Within each point of law, I either use a checkmark to indicate success or I leave the box blank.
There are many ways to create a visual reference that is helpful in legal research analysis. Do you have a method to share? Comments are welcome!