By Catherine Best, research lawyer at Boughton Law Corporation and author of the Best Guide to Canadian Legal Research at http://legalresearch.org.

Legal research is an essential lawyering skill

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.
• 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.
• In many areas there are conflicting decisions, or no binding authority. You must then research the law of other jurisdictions, and apply creative analysis to the existing case law or create an argument based on first principles.

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.

Standard of legal research required

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] 2 S.C.R. 147, 31 D.L.R. (4th) 481 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.

Complexity of modern legal research

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.
• There has been a dramatic increase in the volume of case law and statutory material.
• Secondary sources have grown exponentially.
• 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 guides available (see Canadian legal research guides) to assist lawyers in finding the appropriate resources for conducting their research. If you are looking for detailed bibliographic information on research sources, these resources can help you. The emphasis in this website is on research strategy and methodology.

This article was first published in the Best Guide to Canadian Legal Research (http://legalresearch.org)and is republished with permission of the author.