Researching Case Law

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 94-112

94

CHAP TER 4

RESEARCHING

CASE LAW

A. INTRODUCTION

New law students and f‌irst-time legal rese archers are sometimes sur-

prised b y how much judge-made law exist s and how important it ca n

be in determining legal rights. This judge-made law, made up of the

decisions of judges and admin istrative tribunals, forms wh at is referred

to as the “common law,” a body of law th at becomes the judicial pre-

cedents by which current judges are bound. Unfort unately, this body of

law is not always well-organized or coherent, creating the challenge of

researching ca se law to ensure that al l relevant cases have been found

and have not been overruled or questioned by subsequent court deci-

sions. One of the goals of a lawyer or self-represented pa rty in litigation

in a common law system, therefore, is to f‌ind previous court decisions

similar on the fact s and favourable on the results so that the judge

presently presiding over the current litigation will be obliged to follow

the previous cases a nd rule in favour of the lawyer or self-represented

litigant.

This chapter will discuss case law by f‌irst providing a brief over-

view of the judicial system, followed by an ex planat ion 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 ing Case Law 95

research to ensure t he cases you have found have not been overruled

on appeal or negatively questioned by subsequent cases.1

B. THE JUDICIAL SYSTEM

There are a lot of similarities bet ween the judicial systems in most com-

mon law countries, including but not limited to Can ada, England, the

United States, and Australi a. Central to these systems is the r ule of law,

an idea that all persons are governed by a known set of rules and pro-

cedures that include agreed upon methods for part ies to resolve their

disputes. In reality, litigating disputes in the judicial systems of most

modern countries ca n be unduly complex, time-consuming, and ex-

pensive. Fortunately, for the purpose of putting legal re search in con-

text, it is generally suff‌icient to have only a broad underst anding of how

the judicial system operates, a n understanding that can be simplif‌ied to

explain how legal rese arch relates to the judicial proce ss.

Judges are appointed by the state to resolve criminal and civil d is-

putes and are given power to enforce laws and punish wrongdoers

through imposing impri sonment and f‌ines enforceable by the state in

crimi nal matters or t hrough awarding jud gments enforceable by p arties

to the dispute in civil m atters. The independence of judges is ensured

in most modern countries t hrough various means, includ ing appoint-

ment procedures, security of tenure, high salaries, and institutional in-

dependence of the courts.2 An important issue in recent years in the

legal literature has been the topic of judicial activism, a notion held by

some commentators that judges, as unelected off‌icials, wield too much

(political) power in their decision making, deciding m atters that are

more properly decided by elected politicians.3

1 Reade rs needing specif‌ic infor mation on researchin g Québec legal materi-

als should consult a ny of the following resources: D enis LeMay, Dominique

Goubau, & Marie-Lou ise Pelletier, La recherche documen taire en droit, 6th ed.

(Montreal: Wil son & Laf‌leur, 2008); Denis LeMay, “Resea rching Québec Law”

in Douglass T. MacEll ven et al., eds., Legal Research Handbook, 5th ed. (To-

ronto: Butterworth s, 2003), c. 12; or the res earch web pages of the Universit y of

Montreal La w School (www.droit.umontreal.ca) and the Univer sity of Laval Law

School (www.fd.ulaval.ca).

2 W.R. Lederma n, “The Independence of the Judiciary” (1956) 34 Can. Bar R ev.

769; R. v. Valente, [1985] 2 S.C.R. 673.

3 Ian Gre ene, “Democracy, Judicial Independence, and Jud icial Selection for

Federally Appointe d Judges” (2008) 58 U.N.B.L.J. 105; Beverley McLac hlin,

“Judicial Accounta bility” (2008) 1 Journal of Parlia mentary and Political La w

293; Edward Bayda, “Judici al Activism” (2007) 70 Sask. L. Rev. 225; Sanjeev