Legal Research - View from the Bench
Legal Research - Seminar 3 December, 2015.
View from the Bench- Revised. Ontario Lawyers and Paralegal
Background on why Research
Legal problem solving in the adversarial setting is still a method of solving a dispute between parties where each lawyer represents his client’s interest and if they cannot agree ask the Judge to settle. Research should be focussed on what the lawyer can do to present his position to the opposing party to find a resolution, and if not do a trial based on facts and law.
Common Law which we practice in Ontario has evolved over centuries in England and with the complexity in law today we need considerable knowledge to advise the client and to make reasoned decisions to protect the interest of the client. Research is needed when you are drafting pleadings to pin point the cause of action when you are acting for the plaintiff.
Common law adversarial process is still a legal problem solving methodology which is designed to permit each lawyer to present the case to the opponent with a view to finding a settlement if possible and if not asking the Judge at trial for a decision. Procedural rules are designed to go through the steps to make disclosure of facts and to present the law to the opposing side to explain the position of the Plaintiff or the Defendant. Complex Rules of Practice require research as well.
In Ontario the process of going through the various procedural steps to disclose your facts and law have become complicated under the rules of procedure. They are simplified for the Small Claims Court. About 80% of the cases in the Superior Court are settled before the trial. The % of the settled cases is lower in the small claims court because it is cheaper to bring a case to trial and there are more paralegals in the small claims court.
What should one research?
Traditionally research is considered research only for substantive law. My view is that the areas of research should not be limited to only legal research. In dealing with the superior court where the rules of procedure play a more significant role in developing the mindset of settlement there is a need to research procedure on a constant basis and particularly for the younger lawyers. It is not just the rules of practice that are relevant but also their application and understanding how the masters who make decisions on motions will react to the motion.
In the small claims court it is still very important for the paralegals to become familiar in the procedural rules for each file they deal with.
On Substantive law issues my observation from the Bench in the small claims court is that the paralegals need to put more emphasis on the research for causes of action and in defence dealing with the legal argument to oppose the claim of the plaintiff. This is in part because of the fact the training of paralegal is much shorter than that of lawyers but the complexity of substantive law does not change because of the fact that the jurisdiction of this court is limited to $ 25,000.
As a Deputy Judge I have tried cases involving liability of the manufacturer for car manufacturing and also made judgments in respect of professional negligence of lawyers and dentists, and areas of law that are not practiced in daily practice such as trust law.
When a lawyer or a paralegal is drafting a claim it is very important that the substantively law issues are thoroughly researched and presented in the claim itself. I have seen claims where the plaintiff simply catalogues dates and events and lets the judge decide on the cause of action. For a self represented litigant there are many research methods that can be used on the internet to research the law.
Paralegals need to sharpen their understanding of the cause of action so they illustrate their client’s cause of action with clarity. It is very common for the litigants to present their position in general terms defining the cause of action, rather than presenting it precisely so that the Judge can view the evidence from the perspective of the plaintiff and understand the defence from that point of view.
To win your case it is very important to pinpoint your law and evidence with as much precision as possible so that the court can reach the conclusion you want the court to reach.
In the opening of the trial it is particularly important for the lawyer or paralegal to present the case in a few words to give an overview of the cause of action and the evidence that will be presented in support of that cause without going into detail. In many cases I have ended up asking precise questions after the opening to get an overview of the case. Court room presentation is not a skill that is taught in the universities and one reason for only a small proportion of the bar does litigation is because this skill is practiced on the job.
If you are dealing with negligence it is important to remember that the negligence act requires categorization of the items of negligence. Many cases between law of contract and negligence straddle between the two without a neat and dividing line. The law schools teach these two subjects separately but it is very often mixed together in real cases. It is very helpful for the lawyer to analyse the issues and explain them to the judge from his point of view.
Research on Facts
In my view researching the facts of your client is equally important. As lawyers we deal with many different areas of human endeavour and understanding the case from factual point of view requires understanding and should be considered research. For example if you are dealing with a case of manufacturing defect of a car or negligence of a dentist you have to know sufficient amount of understanding of the car or how the crown works to be able to present your position and explain it in lay terms to the judge.
If the subject is very technical such as medicine or manufacturing you can call an expert but that does not preclude the ability of the lawyer from understanding sufficient amount to explain that in plain words to the court.
It is always important to keep in mind that the role of the lawyer or paralegal is to solve a legal problem within the frame of common law adversarial system which requires each lawyer or paralegal to present their point of view to the opposing party and hope to convince them that their position is correct. In achieving a resolution of the problem it is more important to look for a resolution than oppose the opponent for the sake of opposing to gain advantage.
I find that that many younger lawyers and paralegal lose sight of the balance required between your role as an advocate of the plaintiff or defendant and your role as a problem solver to find a resolution. Balancing the two requires not only good research but also good attitude to understand the problem objectively and find a solution.
Sometimes the motivation to sue is not always seeking legal damages but seeking redress with the opponent. This happens more in emotionally charged relationships. When you identify this background to litigation it is important to seek a reasonable settlement. Experienced judges will see through the litigation process and award costs when pursuit of the cause is more emotionally charged than motivated to seek genuine damages.
Settlement conference in any trial gives the opposing party an objective opinion of a judge to see the law and facts from a neutral perspective. It is another opportunity to reflect on the case from the settlement point of view. The lawyers should present their position to the Judge and advise the judge of the areas of agreement and disagreement so judge can give a objective opinion which should be listened to carefully with a view to settlement and not seen as only a procedural step to be overcome.
Understanding the opponent
In the adversarial process it is very important to understand not just your position in law but that of the opponent as counsel and his style and legal position. It takes a few procedural steps to understand the opponent both in law and in style and when you do it is helpful to pin point your position not just in pleadings but also letters with a view to finding a resolution.
Understanding the opponent counsel and his style is not considered research but learning about it can be very important to winning or settling your case. Understanding the style and strategy of the opponent can make all the difference in your case. To minimize the adversarial process it is very helpful to listen to the objective opinion of the judge in a settlement conference. The comments from the judge can help the lawyer and paralegals to view their respective cases with a balanced view. The duty to client and asserting it vigorously results in loss of objectivity in understanding your case.
Practical Research methodology
There are many sources of doing research which are addressed by other speakers, and I will not go into much detail.
Sources of research have improved dramatically in the recent years and it is now possible to do much of the research on line at considerable speed and the volume of research material has also increased significantly.
It is important in my view to pin point the topics of research before you begin the research. With my articling students and younger lawyers, I encourage first writing out a working memorandum including issues of research by formulating the questions that should be researched, and then doing the research.
If you are researching a statute it is very easy now to obtain it from Canlii.ca and bring it in word in your computer and find the words that match your query and assemble it in the materials you gather in your computer. I did a test recently with an articling student with a stop watch and it took about 2 minutes to find the exact answer. Presenting pin pointed statute can give you conservable advantage before the court.
In researching new areas of law it is not necessary to throw out the old manuals because they have in front and back chapter listings and words that you are searching and you can reach your topic on the right pages quickly. After reading the background you can update your search to ensure that that the law or statute is uptodate on government website. You can keep a copy of the case law and statue in your file and give it to the Judge and the opposing counsel at trial which can give you an edge in your court presentation.
Court Room Presentation
Little is written about the court room manners and presentation methods. Each country has its own culture of the court room. Most of it is learnt by experience. Recently I had a lawyer who at a trial I asked if he could approach the bench and I told him that this is an American concept and Canadian court rooms are public courts and private conversations between the judge and two counsel in the middle of a trial is not a Canadian court room method.
You can learn the court room culture from your colleagues and it is helpful to have a mentor who can explain these issues to you. Paralegals and lawyers should find a lawyer mentor and if you cannot find one, you can contact me and we will find you a mentor.