Researching Case Law

• Author: Ted Tjaden
• Profession: Faculty of Law and Faculty of Information Sciences University of Toronto
• Pages: 80-93

CHAPTER

4

RESEARCHING

CASE

LAW

A.

INTRODUCTION

New

law

students

and

first-time

legal researchers

are

sometimes sur-

prised

by how

much judge-made

law

exists

and how

important

it can be

in

determining legal rights. This judge-made law, made

up of the

deci-

sions

of

judges

and

administrative tribunals,

forms

what

is

referred

to as

the

"common law,"

a

body

of law

that becomes

the

judicial precedents

by

which current judges

are

bound.

Unfortunately,

this body

of law is

not

always well-organized

or

coherent, creating

the

challenge

of

researching case

law to

ensure that

all

relevant cases have been

found

and

have

not

been over-ruled

or

questioned

by

subsequent court deci-

sions.

The

goal

of the

lawyer

or

self-represented party

in

litigation

in a

common

law

system,

therefore,

is to

find

previous court

decisions

simi-

lar

on the

facts

and

favourable

on the

results

so

that

the

judge presently

presiding

over

the

current litigation will

be

obliged

to

follow

the

previ-

ous

cases

and

rule

in

favour

of the

lawyer

or

self-represented litigant.

This chapter will discuss case

law by

first

providing

a

brief

overview

of the

judicial system,

followed

by an

explanation

of the

role

of

"judicial precedent" (also known

as

stare

decisis)

and how

case

law

is

published. Techniques

to

find

relevant cases will then

be

discussed,

along with "noting

up"

case law,

a

technique

to

update

or

verify

your

research

to

ensure

the

cases

you

have

found

have

not

been overruled

on

appeal

or

negatively questioned

by

subsequent

cases.1

80