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The ability to conduct legal research is essential for lawyers, regardless of area or
type of practice. The most basic step in legal research is to find the leading case
governing the issues in question. As most researchers know, this is far more difficult
than it sounds.
 | Often the issues are not correctly identified, or some issues are missed altogether.
Issue identification is crucial for effective research. |
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| The law is constantly changing. Recent decisions of the Supreme Court of Canada clearly
show the fluidity of legal doctrine. Even where there is a recent decision of the Supreme
Court of Canada, split decisions of the court make it difficult to determine how the next
case will be decided. |
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 Finding the
law is an important part of legal research, but the ability to analyze what you have found
and reach a conclusion or formulate an argument based on it is just as essential. Kunz and
Schmedemann expressed this view in The Process of Legal Research (Boston: Little,
Brown and Company, 1989) at pages 6-7:
As a beginning researcher, one of the bigger mistakes you can make is to envision legal
research as a bibliographic checklist of sources to consult. Clearly you need to be
familiar with the various sources and their location in the library, but that's not all.
You also need to formulate research strategies that tell which source, of several sources,
you should consult. And your strategy should incorporate flexibility. Successful
researchers continually re-evaluate their research methodology and consider alternative
research approaches as they find that various sources or research approaches are helpful
or fruitless. Even more important, you also need to learn how to advance your analysis of
a law-related problem by means of your research. Even the most diligent researcher, armed
with the latest technology, will not arrive at a successful result if he or she approaches
legal research as a mechanical process devoid of analysis. Thus, legal research is really
just a portion of legal problem-solving.
 Our courts
have set the standards they expect of counsel appearing before them. In Lougheed Enterprises Ltd v. Armbruster
(1992), 63 B.C.L.R. (2d) 316 (C.A.) the court held that counsel has a duty to be aware of
all cases on point decided within the judicial hierarchy of British Columbia, and
to refer the court to any on which the case might turn. The court noted that "on
point" does not mean cases whose resemblance to the case at bar is in the facts. It
means cases which decide the same point of law. You may think you can justify not
referring to a binding decision because it is distinguishable on its facts. However, such
a determination is for the court to make: not counsel.
The court in Lougheed v. Armbruster
held that:
| Counsel cannot discharge his duty by not bothering to determine whether there is a
relevant authority. Ignorance is no excuse. |
| The duty to the court does not go as far as the duty to one's client to be persuasive,
which often requires counsel to produce authorities outside the hierarchy of British
Columbia. |
| Counsel are not expected to search out unreported cases, although if counsel knows of an
unreported case on point, he must bring it to the court's attention. |
This ruling on unreported cases is in the context of counsel's duty to the
court. The duty to one's client to be persuasive arguably goes beyond this and
requires counsel to include these cases within her research. Given the coverage
of recent unreported cases in the Canadian
Abridgment Case Digests and
the BC Decisions series, and their ready
availability in full text on both commercial and free
Internet sites, counsel has an obligation to her client to review this
body of law. Even if
you are not familiar with the most recent unreported cases, the judge or counsel on the
other side probably will be.
 Failure to
have conducted proper research can have devastating consequences. In World Wide Treasure Adventures Inc. v. Trivia Games Inc.
(1987), 16 B.C.L.R. 135 (S.C.), counsel applied for an injunction without first
understanding or researching the applicable law. Gibbs J. ruled that counsel had been
negligent in the performance of his duty, and awarded solicitor-client costs against
counsel personally. The amount of the taxed bill of costs was significant.
 Perhaps the
strongest criticism of counsel's failure to conduct research was levelled in Gibb v. Jiwan, [1996] O.J. No. 1370
[Q.L.] (Ont. Gen. Div.) by Ferguson J. The case involved a dispute over priority to claims
against land registered under the Ontario Land Titles Act. After deciding the point
of law, Mr. Justice Ferguson commented extensively on the failure of counsel to conduct
adequate research, noting the professional obligation of counsel:
| to be competent |
| to keep abreast of developments in their own area of practice |
| to give their clients advice based on an adequate consideration of the applicable law |
| to inform the court of relevant material authorities regardless of whether they support
or contradict the position counsel is advocating. |
He ordered both counsel to deliver a copy of his reasons to their clients.
In Central & Eastern Trust Co. v. Rafuse (1986), 31 D.L.R. (4th) 481
(S.C.C.) at 524, the Supreme Court of Canada ruled that:
A solicitor is not required to know all the law applicable to the performance of a
particular legal service in the sense that he must carry it around with him as part of his
"working knowledge", without the need of further research, but he must have a
sufficient knowledge of the fundamental issues or principles of law applicable to the
particular work he has undertaken to enable him to perceive the need to ascertain the law
on relevant points ... "and to discover those additional rules of law which, although
not commonly known, may readily be found by standard research techniques".
 A litigator who
has not conducted sufficient research thus faces the possibility of being sued by his
client, and also of censure by the court through an award of costs. For a solicitor,
failure to understand the law or conduct the research necessary to gain an understanding
of it, will result in personal liability to the client.
Although we have more tools for conducting legal research than our predecessors, the
research task has become harder rather than easier. There are more bases to cover.
|  Computer research has
introduced the need to be completely current, and to develop new skill sets.
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| There has been a dramatic increase in the volume of case law and statutory material. |
| Secondary sources have grown
exponentially. |
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 The law of
other jurisdictions must often be researched. |
The days when counsel could be reasonably sure they knew the law without having to look
it up has long passed.
In order to cover this large volume of material, you need to conduct efficient and
effective legal research. The key to this is developing a research strategy, and following
good research methodology. The more familiar you are with the resources available, the
faster you can develop your strategy, and the more effective it will be.
 There are several
texts available (see Canadian References) to assist lawyers in
finding the appropriate resources for conducting their research. If you are looking for
detailed bibliographic information on research sources, these texts can help you. The
emphasis in this website is on research strategy and methodology.
Best,
Everything old is new again: the proliferation of case law and whether there is
a remedy.
Fischer, "Bareheaded and Barefaced Counsel: Courts React to Unprofessionalism in
Lawyers' Papers" (1997) 31 Suffolk University Law Review 1.
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