F. Noting Up Case Law

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 110-111

Page 110

Once a case is published - whether in print or on an electronic database - it is important to realize that two things could happen: (i) the case could be appealed and possibly overturned; and (ii) the case could be used as a precedent or instead criticized in other subsequent court decisions. To speak of whether a case has been reversed or affirmed on appeal is to speak of its judicial history. To speak of how a case has been followed by subsequent courts is to speak of its judicial treatment.

The judicial history of a case is important since, if a case has been overturned on appeal, the lower court decision that has been overturned will be of little or no precedential value and a lawyer relying upon a case that is overturned stands to be greatly embarrassed in court. The judicial treatment of a case is equally important since the number of times a case may have been considered may indicate the strength of the case: if the case you are interested in has been mentioned and considered by a large number of subsequent judges in other cases, it may likely be important. There is also the other possibility, however, that other subsequent courts may now look upon your case with disfavour, due to changes in the law (this is one way in which the common law evolves). Hence, it is extremely important to know the judicial treatment of a particular case (even if the case you are interested in has no judicial treatment, this does not mean your case is unimportant or of questionable precedential value - many relevant cases have no judicial treatment). Learning the judicial treatment of your case is also important since it may lead you to other, more recent relevant cases on the topic of your research. To this extent, noting up for judicial treatment is a way of creating a "chain" of related cases. In this way, it is often possible to see how a particular legal principle has evolved over time through subsequent cases that have considered cases on point. The techniques to note up case law are relatively similar across Canada, the United Kingdom, the United States, and Australia.

Generally, there are several methods for noting up case law:

· Tables of cases judicially considered: Most print publishers of case law reporters have a section in the indexes to their reporters called "Table of Cases Judicially Considered," which is an alphabetical list of cases published in their reporters that have judicial histories or treatment.

· Print citators:...