New Editions of Three Canadian Legal Research and Writing Guides — a Review

New editions of three Canadian legal research guides are coming out this summer, in time for the 2010/2011 academic year. Each is reviewed individually below, followed by some general comments. The books reviewed are:
Legal Research and Writing, 3rd edition, by Ted Tjaden
Legal Problem Solving – Reasoning, Research & Writing, 5th edition, by Maureen F. Fitzgerald
The Practical Guide to Canadian Legal Research, 3rd edition, by Nancy McCormack, John Papadopoulos, Catherine Cotter

Legal Research and Writing, 3rd edition
by Ted Tjaden
published by Irwin Law, 2010
price: $48.95
ISBN: 978-1-55221-175-2
Companion website: www.legalresearchandwriting.ca

"A sophisticated modern treatment of Canadian legal research and related issues, with a topical bibliography and companion website."

Legal Research and Writing is a thoughtful and sophisticated treatment of a broad range of topics related to legal research. The book is clearly written. The author breaks down various research tasks into steps, and then addresses each step in more detail. He contextualizes individual research tasks by explaining why they are important, and then explains how to carry out the task. Most chapters include additional references for further reading. The author maintains a companion website that contains URLs organized in categories such as CLE Papers, Legislation, Foreign Law, with an explanation of what is available at each link and some suggestions for using these resources. The website is freely available and even those who do not purchase the book will benefit from it.

The focus in Legal Research and Writing is on process rather than how to use individual research tools. However, there is a lot of information and practical advice packed into the step-by-step descriptions of how to carry out various research tasks. Separate chapters are included that contain more detailed information about individual research tools and products. This allows the author to emphasize process in the chapters on case law research and legislative research, rather than getting lost in the details of multiple platforms. There is a topical research bibliography, covering 45 subject areas. It lists Library of Congress subject headings, leading books, topical journals, encyclopedia titles, case digest headings, topical case law reporters, online topical collections or CD-ROMs, and some websites. Researchers should consider reviewing this bibliography when they start their research. It will give them an excellent head-start, and lead them to subject headings that might not otherwise have been considered.

Regarding legislative research, this book takes a practical approach and recognizes electronic research as the preferred platform for researching current legislation. Print resources are recommended for historical legislative research. The 5 step process set out for legislative research starts with determining jurisdiction, which is often not considered at the outset by novice researchers. The book recommends using a current online consolidation as the starting point, and then updating it. When discussing historical legislation, the author notes the dual goals of tracking amendments, and finding previous section and chapter numbers to look for judicial consideration of earlier versions of the statute. It is astonishing how few students realize this is necessary, and I was glad to see it mentioned. The book manages to convey the essentials of legislative research without overwhelming the reader with details. However, some important concepts, such as understanding the distinction between revisions and annual/sessional volumes, are not explained.

The chapter on International and Foreign Legal Research discusses when this type of research is relevant, contains useful tips for conducting this type of research, discusses conflict of laws situations, and contains an extensive bibliography of secondary and primary sources of international law. The chapter closes with resources for researching the laws of foreign countries, and some practical examples where foreign or international research would be required.

The chapter on legal writing briefly addresses how to write case comments, legal memoranda and facta. It provides some pointers – and several references – on drafting agreements and pleadings. The book deals with legal analysis in various ways. The introductory chapter provides an overview of the legal research process. The legislative chapter has a succinct summary of statutory interpretation principles. One of the best portions of the book is the “Putting it all together” chapter. A sample research problem is posed, followed by the steps to analyze and research the problem, and a sample memorandum addressing the problem. The commentary explaining the process emphasizes the iterative nature of legal research, and is reflective of the real research process.

In addition to covering the basics of researching secondary sources, legislation and case law, the book addresses several topics related to legal research. These include copyright issues affecting legal research and writing, recovery of online legal research costs, selecting and acquiring legal resources, knowledge management for lawyers, confidentiality issues and Internet research, and legal research and writing malpractice. The inclusion of these topics makes this book particularly useful for in-house training programs at law firms, and for persons managing legal information in their firms.

In some instances, the author’s enthusiasm for the topic may exceed the reader’s need to know. For example, several pages are devoted in the introductory chapter to whether online research costs are recoverable in taxations and assessments of costs. This is a useful compilation of the jurisprudence on this issue, but its location in the text and the level of detail seem out of place.

A more useful feature to have included in the introductory chapter is the legal research checklist, which is instead buried in a chapter on legal malpractice near the end of the book, and is not listed in the table of contents. Similarly, the short section on Words and Phrases is under the Legal Dictionaries heading, with the result that it does not appear in the table of contents and is given less prominence than this important research tool deserves.

The book includes some information about researching English and American law, but it is placed within the discussion of individual research tools rather than in a separate chapter. For example, the section on encyclopedias includes discussion of English and American legal encyclopedias, and the section on case law includes discussion of the court structure in those jurisdictions. This may serve a pedagogical purpose, for example if the students are studying encyclopedias that week. However, if the reader wants assistance to research English or American law, this piecemeal treatment is problematic.

Legal Research and Writing is very attractively priced, and will appeal to a broad range of readers, from legal information professionals to students. It covers a lot of ground, and additional references point the reader to more information if desired. The companion website will ensure that the extensive URLs are regularly updated and easy to use.

Buy Recommendation:
Who should buy? Lawyers, law librarians, law students

Legal Problem Solving – Reasoning, Research & Writing, 5th edition
by Maureen F. Fitzgerald
published by LexisNexis Canada, 2010
price: $80
ISBN: 978-0-4334-6300-9

“An instructional guide to legal analysis, research and writing that covers the leading Canadian print and electronic resources.”

Legal Problem Solving does what its sub-title proclaims: it tackles not only legal research and writing, but also legal reasoning. It is clearly written and laid out. Each chapter describes learning objectives and contains a self-test. Sample research problems are used throughout to illustrate the skill being taught. Reproduced pages and screen shots from research tools often relate to a sample research problem, which enhances their pedagogical value. Many chapters contain sample exercises that require the student to use the skills and resources covered in the chapter. Detailed information about specific research tools, lists of resources, and research checklists, are contained in appendices. The research checklists summarize the research process for the resources covered in the chapter.

The book starts by describing a process for legal problem solving, comprised of five steps (FILAC). The book is structured around these steps, which comprise analyzing the facts, determining the legal issues, finding the relevant law, analyzing the law and applying it to the facts, and communicating the results of the research. The iterative nature of this process is emphasized from the beginning. Throughout the book, tasks are broken down further, and practical tips are included.

The bulk of the book is devoted to finding the law, and is confined to Canadian law except for the section on periodicals. The legal research sections provide good coverage of the leading print and electronic research tools, and have been updated to include new resources. For example, the secondary sources chapter incorporates wikis, blogs, tools for searching online law firm newsletters, and the Legal Research Network. In the chapter on statutes, LEGISINFO is listed first of the various ways to obtain information about federal bills. The author does a good job of pointing out the coverage limitations of various research tools, such as the limited historical coverage of QuickCite Statutes, and the incomplete regulations in Westlaw Canada. She cautions researchers to check currency information and database contents and warns of the dangers of full text case law research prior to reviewing secondary sources.

Although electronic research tools receive good coverage, the book’s detailed discussion of standard research tools usually starts with describing the print versions, followed by the electronic versions. Given that this is the 5th edition, coverage of electronic tools appears to have been gradually added without fully integrating the content. However, the shift to electronic research is sufficiently established – particularly in areas such as legislative research – that the priority given to print is often misplaced.

What sets this book apart is the emphasis on legal analysis and writing. Introductory chapters address factual analysis and issue determination, using examples. There is a chapter on legal analysis that discusses stare decisis, and reading and synthesizing cases. It is designed to help students summarize legal principles drawn from the authorities, rather than reciting one case after another. It breaks down analysis of case law into determining the relevance of cases based on their facts and precedential value, briefing relevant cases, comparing the analysis and facts in the relevant cases, synthesizing the law derived from cases and legislation, and applying the law to the facts. The chapter also deals with statutory interpretation. Examples are included to illustrate these skills, and a sample legal reasoning exercise is included. The chapter on legal writing breaks down the process into a series of steps, and provides helpful advice on issues such as how many cases to include, how much information to include about each case, and how to organize the discussion of each legal issue. The formats for writing a legal memorandum and an opinion letter are discussed and samples included. A legal writing checklist is included that would assist even experienced writers with reviewing and improving their work product.

The last chapter deals with developing a research plan, taking into consideration factors such as the audience for and purpose of the research, and limitations such as time and cost. Very practical suggestions are included. The appendix contains a detailed checklist that can serve as the template for a research plan. Unfortunately, the portion dealing with finding cases by subject omits searching in full text databases – referring only to commentary and case digests. Similarly, the section on finding statutes by subject omits searching in online legislation collections.

Legal Problem Solving is designed for first year law students. The problem solving emphasis is an excellent way to introduce students to legal reasoning, and help them integrate legal analysis with research and writing skills. The checklists for research and writing will continue to assist students to improve their work product throughout their articling year. This book is less likely to be useful to lawyers in practice as a reference book.

Buy Recommendation:
Who should buy? Law students

The Practical Guide to Canadian Legal Research, 3rd edition
by Nancy McCormack, John Papadopoulos, Catherine Cotter
published by Thomson Reuters Canada, 2010
price: $95
ISBN: 978-0-7798-2361-1

“Extensive information on Canadian legal print and electronic resources, with a topical bibliography and coverage of foreign jurisdictions.”

The previous edition of The Practical Guide was published in
1996. Much has changed in the legal research world since then, with the introduction of Westlaw Canada and CanLII, as well as other research tools. These new resources are covered in The Practical Guide, with many screen shots and URLs. For example, the chapter on Legal Periodicals contains detailed information on searching periodicals indexes and full text articles, and mentions current awareness tools for new articles, such as
Tarlton Law Library Contents Pages from Law Reviews and Other Scholarly Journals and
Washington & Lee Law School Current Law Journal Content. There is a new chapter on Electronic Legal Research that covers commercial and free electronic research tools.

Despite the extensive coverage of electronic research, much of the text retains an emphasis on print research. The description of a research tool usually begins with how to use the print version, and then covers the electronic version. I would have expected a different emphasis at this point in the evolution of legal research tools, particularly in relation to legislative research and noting-up. Despite this, there is a lot of coverage devoted to electronic research, with detailed descriptions of how to use individual research tools.

As in the previous edition, discussion of each type of research tool is structured around what the tool is, when to use it, and how to use it. There is also a research checklist that sets out a general framework for completing a research project. The chapter on legal writing provides guidelines for writing legal essays, case comments and legal memoranda. However, the sample memorandum is more of an information gathering and reporting exercise than an example of legal reasoning.

The strengths of The Practical Guide are the extensive coverage of Canadian research tools, and good introductions to researching Canadian constitutional law, English law, American law, Australia law, New Zealand law, foreign law, and international law. Another very useful feature is the topical bibliography, which lists Canadian books, annotated statutes, journals, newsletters and topical case law reporters for 43 areas of law. The book contains many URLs for free research sites. The book also republishes several charts, including the Canadian court system (levels of court for all Canadian jurisdictions from the 1700’s to date), Regnal years, Nominate reports, US state courts, and US law reporters.

A lengthy chapter is devoted to all of the various components of the Canadian Abridgment. It would have been more useful if these components were discussed separately in the context of their research function. For example, Canadian Case Citations and KeyCite should be covered in the chapter on Noting-up Case Law. Instead, there is detailed coverage of them in the Canadian Abridgment chapter, and coverage of KeyCite again – as well as other citation tools – in the chapter on Noting-up Case Law. This is repeated for each component of the Abridgment. It is a significant flaw in the organizational structure of the book, resulting in many cross-references and some duplication.

Another holdover from the previous edition is the division of case law research between a chapter on law reports, and a chapter on research tools for accessing unreported decisions. The latter chapter focuses primarily on digest services, but also refers readers to the chapter on Electronic Legal Research. In the current state of case law research, question whether it makes sense to separate reported and unreported cases in this way. Perhaps the latter chapter would have been more effective as a chapter on digests. The separation of books and looseleafs also seems artificial, given that many leading treatises are now published in looseleaf form.

The chapters on legislative research contain detailed information for some jurisdictions, including federal legislation, Ontario and British Columbia. I expected more emphasis on the free electronic resources. For example, since e-Laws is an official source for Ontario legislation and is extremely current, a cost-effective “official” approach to updating Ontario statutes would start with finding the statute on e-Laws and noting the currency date. Instead, this shows up as the 4th listed alternative in the section detailing the unofficial method. For British Columbia, the unofficial method refers to the Table of Legislative Changes in QP LegalEze, but does not suggest starting with the current consolidation on QP LegalEze or the freely available
BC Laws. Also, no mention is made of the
Cumulative Regulations Bulletin for British Columbia (available on a free site and with value-added features through QP LegalEze) in the section on updating British Columbia regulations.

This book is the most expensive of the three, costing almost double the price of Legal Research and Writing. It would have to be supplemented with readings on legal reasoning and analysis to be appropriate for a first year legal research and writing course. It is a good reference book for legal research, containing a wealth of information about research tools for Canadian and foreign legal research.

Buy Recommendation:
Who should buy? Law students, lawyers, law librarians

Some thoughts on publication format

Each of these books is full of URLs, many of which will quickly become out-dated. Several of the URLs are extremely long, making it tedious for the user to type them in. Legal Research and Writing is the only one of these books that is accompanied by a website with links to the online resources covered in the book. This type of book could be published electronically as well as in print, to make it easier to access the online resources and to enable updating. Research guides in this fast-paced environment are out-dated before they are even published. For example, as of June 30, 2010 the
BC Legislative Digest and the Canada Legislative Index will cease publication.

None of the books takes full advantage of lay-out techniques that would help the reader through a morass of what is often fairly technical information. Legal Problem Solving is the best in terms of lay-out, followed by Legal Research and Writing. There is a lot of information packed into The Practical Guide, but it is often buried in long paragraphs. Side-bars and tip boxes to emphasize important information would help. Flow charts could also be used more often.

Fortunately, all of the books contain a detailed table of contents and index. These should enable readers to quickly find coverage of a particular topic.

A different perspective on full text searching

It was clear to me after reading these books that I have a different perspective on some aspects of legal research practice and instruction. All of the books emphasized the importance of using narrative secondary sources at the beginning stage of a research project,
with which I wholly agree. However, I disagree with some of these authors that full text case law searches should be left until the end after reviewing a wide range of commentary and finding tools, or – as one book suggested – omitted altogether because many researchers have poor keyword searching abilities. This approach may make sense in initial training exercises, to introduce the student to each of these tools and ensure that they become familiar with them. However, it is not a practical approach for most of the research problems that lawyers encounter on a daily basis. And it will not work well with the Google generation, who expect to type a few words in a box and get the answers. See Lee F. Peoples, “The Death of the Digest and the Pitfalls of Electronic Research: What is the Modern Legal Researcher to Do?”
(2005) 97 Law Library Journal 661 for a detailed discussion on digests and full text research, and students’ attitude regarding their efficacy.

• I agree that it is highly preferable to start with some treatises or other commentary on the topic. However, if the students do conduct full text research before fully canvassing the available commentary and finding tools, there are ways to get them back into secondary sources. For example, on Westlaw Canada, KeyCite lists journal articles and CED entries where the case has been cited. The CED entry is cross-referenced to relevant Abridgment classifications. In addition, the Related Materials tab has links to Abridgment Digests for the case being viewed, which in turn will take the researcher to relevant Abridgment classifications and assist with uncovering cases on the same topic. Legal treatises and encyclopedias contain a table of cases that will direct a researcher with a leading case to the relevant pages in the text. In recognition of the widespread preference of students and lawyers to jump quickly into full text research, these alternate approaches teach them how to inform and further their research by accessing secondary sources using relevant cases they turn up during their initial searches.
• Difficulties with search syntax can be addressed by teaching students how to construct good search queries. A
  standardized search language can be taught that will work effectively on Quicklaw, Westlaw Canada and CanLII. None of these books attempt to address query formulation.
• Natural language searching can produce very good search results. Often users are unaware of this searching option. Quicklaw offers it from the search box on the home page, and Westlaw Canada offers it on each search page. Only one of the books (Legal Problem Solving) makes brief reference to the Westlaw Canada natural language option, and none refer to the Quicklaw natural language option.
• Poor search results can be caused by not ranking the search by relevance. The various ranking options and their significance are not explained. This is particularly a problem on Westlaw Canada, where the default ranking for terms and connectors searches is not relevance, and user preferences must be accessed to change the ranking method.
• The move to including citation frequency information in search results, to bring important cases to the researcher’s attention, is not mentioned. This is currently available on CanLII and Westlaw Canada, and helps to identify leading cases. The major online collections also offer the ability to refine search results in various ways, including by topic, jurisdiction, court level, and date. Properly used, these features make full text case research a very powerful tool that should not be relegated to the last step in the research process.

Free vs. commercial services and cost-effective research

At law school, where access to commercial services is freely available, it makes sense to maximize their use and ensure that students know how to use them well. However, students should be taught cost-effective research skills. This includes how to effectively combine use of free and commercial products, use the “refine” feature to avoid running multiple new searches, and use find by citation. It also includes awareness of free access to commercial products at courthouse libraries. Legal Problem Solving contains the most emphasis on cost-effectiveness as a factor to consider when designing a research strategy. However, it was short on practical suggestions to achieve cost-effective research.

Quicklaw and Westlaw Canada are not completely equivalent services

There is very little comparison in these books of features on Quicklaw and Westlaw Canada, perhaps stemming from a reluctance to favour one over the other. One of the most significant differences in terms of basic content, the incomplete regulations collection on Westlaw Canada, is mentioned in Legal Problem Solving, but not referred to in The Practical Guide or Legal Research and Writing. None of the books mentions that legislation on Westlaw Canada tends to be less current than on Quicklaw (especially for BC, Alberta, Ontario and federal), and is often less current than legislation on CanLII and some free government sites. The books do alert readers to the significant difference in historical coverage between the statute citator on Quicklaw and the statute citator on Westlaw Canada.

Current awareness

Current awareness tools could have been emphasized more. Legal Research and Writing does refer to RSS feeds for blogs, law firm newsletters, and Ontario Court of Appeal decisions, and lists resources for current awareness reading. However, no mention is made of the RSS feeds on CanLII for cases, tribunal decisions, and legislation from all Canadian jurisdictions.

Citation confusion

Citation of Canadian case law is a work in progress, which is evident from the divergent approaches taken in these books. The Practical Guide omits dealing with citation of Canadian cases altogether, except for the citations in the sample research memorandum in the book.

Some courts require the citation to indicate at the end the electronic source of the case. However, the abbreviations used for Quicklaw and Westlaw Canada in the books vary, with Legal Problem Solving using LN/QL and WC, and Legal Research and Writing using QL and Westlaw.

Divergent views are expressed regarding the need to include a full Quicklaw or Westlaw Canada citation in addition to citing to a print reporter or neutral citation, and the need to refer at all to the electronic version if a print reporter is cited. In my view, there is no need to include a full Quicklaw or Westlaw Canada citation for a case that has a neutral citation or that has been reported. It is sufficient, if the case was obtained from an electronic source – whether Quicklaw, Westlaw Canada, CanLII or elsewhere – to include an abbreviated reference to the source in parentheses at the end of the citation. The citation should contain the neutral citation and a print reporter citation, in that order, followed by the abbreviated reference to the electronic source.

Clarification on these issues is welcome, and perhaps it will come when the next edition of the Canadian Guide to Uniform Legal Citation is published. In the meantime, guidance is available in some jurisdictions in a practice direction from the court (for example, see the BC Court of Appeal Practice Directive). Other useful guides are the Canadian Judicial Council’s
Practice Direction on the Use of Neutral Citation for Case Law (2008) and Legal Research Materials: Legal Citation prepared by the William R. Lederman Law Library at Queen’s University.