Importance of Legal Research
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.
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:
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:
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,  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:
He ordered both counsel to deliver a copy of his reasons to their clients.
In Central & Eastern Trust Co. v. Rafuse,  2 S.C.R. 147, 31 D.L.R. (4th) 481 at 524, the Supreme Court of Canada ruled that:
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.
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.