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Legal Research Is An Essential Lawyering Skill: History
Legal Research Is An Essential Lawyering Skill: History
History[edit]
In 1835, David Hoffman said that the legal bibliography of France and Germany, especially in the
separate treatises on various branches of the law, was, by that date, "extensive, exact and learned".
He also said that in England "in jurisprudence (beyond a naked catalogue) we have scarce another
name than Bridgman".[3]
Marvin's Legal Bibliography was the first publication of its kind to originate from the United States of
America.[4]
In 1988, Bookman's Yearbook said that legal bibliography was in a "sorry state".[5]
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 thats 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.
Perhaps the strongest criticism of counsels 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.
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.
Statutory Law is the term used to define written laws, usually enacted by a legislative
body. Statutory laws vary from regulatory or administrative laws that are passed by executive
agencies, and common law, or the law created by prior court decisions.