Researching Case Law

• Author: Ted Tjaden
• Pages: 113-132

113

CHA PTER 4

RESEARCHING

C A SE L AW

A. INTRODUCTION

New law students and f‌irst-time legal rese archers 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

decisions of judges and admini strative tribunals, forms what is referre d

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

cedents by which current judges are bound. Unfortu nately, this body of

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

researching c ase law to ensure that all relevant cases have been found

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

sions. One goal of a lawyer or self-represented party in litigation in a

common law system, therefore, is to f‌ind previous court deci sions simi-

lar on the facts and favourable on the result s so that the judge presiding

over the current litigation wil l be obliged to follow the previous cases

and rule in favour of the lawyer or sel f-represented litigant.

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

view 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 discus sed,

along with “noting up” case law, a technique to update or verify your

LEGAL R ESEARCH AND W RITING114

research to ensure t hat the cases you have found have not been over-

ruled on appeal or negatively questioned by subsequent cases.1

B. THE JUDICIAL SYSTEM

There are a lot of similarities b etween 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 can be unduly complex, time consuming, and ex-

pensive. Fortunately, for the purpose of putting legal research 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 process.

Judges are appointed by the state to resolve crimi nal and civil dis -

putes and are given power to enforce laws and punish w rongdoers

through imposing imprisonment and f‌ines enforceable by the state in

crimina l matters or through awarding judgments enforceable by partie s

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

in most modern countries through various means, including appoint-

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

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

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

some commentators that judges, as unelected off‌icials, w ield too much

(political) power in their decision mak ing, deciding matters that are

more properly decided by elected politicians.3

1 Readers need ing specif‌ic informat ion on researching Québec lega l materials

should consult any of the fol lowing resources: Clare M auro, Researching Quebec

Law: Insights for Common Law Pract itioners (Toronto: Carswell, 2015); Denis

LeMay, Dominique Goubau, & M arie-Louise Pelletier, La recherche docu mentaire

en droi t, 6th ed (Montréal: Wilson & L af‌leur, 2008); Dominique Lapierre, “Re-

searchin g Québec Law” in Douglass M acEllven et al, eds, Legal Research Hand-

book, 6th ed (Markh am, ON: LexisNexis Can ada, 2013) ch 10; or the researc h

web pages of the Univer sity of Montreal Law School (www.droit.umontr eal.ca)

and the Universit y of Laval Law School (www.fd.ulaval.ca).

2 WR Lederm an, “The Independence of the Judiciar y” (1956) 34 Canadian Bar

Review 769 ; R v Valente, [1985] 2 SCR 673.

3 See Adam Dodek & L orne Sossin, eds, Judic ial Independence in Conte xt (Toronto:

Irwin L aw, 2010); Paul Rouleau & Linsey Sherma n, “Doucet-Boudreau, Dia-

logue and Judicia l Activism: Tempest in a Teapot?” (2009–2010) 41 Ottawa Law