Legal Research – General Tips
Noting Up Cases
.In this video we will discuss how to note up a case
Noting up means verifying that a particular case is still relevant and has not been reversed on appeal or overruled or criticized by subsequent cases.
Noting up ensures that a case is still good law for your legal argument. So, the process of noting up may bolster or weaken your argument.
Noting up is also beneficial because it also facilitates the discovery of more recent cases dealing with similar facts, that you can use in your legal argument
In this video, we will learn how to note-up cases using CanLII, but you can also use Westlaw or Lexis. The example case we are using in this video is Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, in which the SCC denied the right to assisted suicide
Please pause the video here and pull up the Rodriguez case on CanLII so you can follow along on your own screen.
The first step in the noting up process is to validate the case history. To do this, you will use a database to determine that the particular case has not been overruled or reversed on appeal by a higher court.
Pause this video and try it on your own, has rodriguez v British Columbia SCC been overruled or reversed?
This is a SCC case, so we know that it hasn’t be overruled or reversed.
However, looking at the history tab on canlii, we can confirm that this case is an appeal of a BCCA case.
The second step is to analyze the judicial consideration of the particular case. To do this, you will review all cases that have mentioned, followed, overruled, or discussed the particular case to ensure the law has not developed in a way that weakens the persuasiveness of the particular case and to discover additional cases you can use in your argument
Looking at the treatment tab of the Rodriguez case, we can see that there are a lot of cases that have cited it. This is a lot of cases, so we can limit our noting up to certain cases.
*multiple choice question here* What criteria could you limit noting up by?
Discussion
Jurisdiction
Time frame
Court level
Keyword search
All of the above
Noting up can be limited by any of the above criteria, whatever is relevant to your set of facts or legal argument
In this case, we will limit our noting up to cases that have discussed Rodriguez as opposed to just cited Rodriguez, as these cases are more likely to be primary authority and relevant to our legal argument.
CanLII is indicating by the number of jalapeños next to this case that Carter v Canada SCC discusses Rodriguez extensively, so this is a good place to start.
When we read the Carter case, we can see that the SCC found that the laws prohibiting a physician’s assistance in terminating life infringed a person’s s. 7 rights and the infringement is not justified under s. 1. Thus, Carter overturned Rodriguez, and we have learned that Rodriguez is no longer a good authority on assisted suicide.
You will continue this process for the rest of the cases
The third step is to follow the chain of cases you are noting up to ensure the cases that you have found whilst noting up are also good law.
In our example, we would note up Carter to ensure it is good law, first by looking at the case history then by looking at the judicial consideration of the case.
At this point, you may be wondering how you will know when to stop noting up. Generally, you will know you are done when you keep coming across the same material and nothing relevant or new is turning up. It may be helpful to keep a log of the cases you reviewed in order to be able to refer back to.
You will also know you’re done when you have identified case law that is relevant and applicable to your legal argument and you have ensured it is still good law.
To help with this, you can limit your noting up by the aforementioned criteria.
To produce a comprehensive set of results it is recommended to search across citators in each CanLII, Lexis, and Westlaw because they have different coverage and produce different results.
CanLII, Lexis, and Westlaw each provide different tools to indicate whether the case is still good law including variations on ways to sort and filter results.
This is efficient and a good starting point but always check treatment for yourself
For more information about Quicklaw and Westlaw’s tools, please follow the links below
Lexis – Quickcite –
https://www.lexisnexis.ca/pdf/products/lexis-advance-quicklaw/Note-Up-with-QuickCITE.pdf
Westlaw – Keyciting – https://www.westlawcanada.com/dynamicdata/attacheddocs/lawsource/hidden/keycitecanadaflags.pdf
What are Secondary Sources and Why are they the First Step in Legal Research?
Welcome to part 1 of two videos introducing you to secondary sources of law. In this video, we will be discussing what secondary sources of law are and why they are the first step in the legal research process. Look out for part 2 in which we discuss how to find secondary sources of law and go through a few examples of secondary sources. Thanks for listening.
We will first review what secondary sources are. Please pause the video here and answer the following multiple-choice question. What are secondary sources?
A. Case law
B. Legislation
C. Legal commentary
D. All of the above
The correct answer is C. Secondary sources are legal materials that are not from the courts or the legislature. So, secondary sources are legal commentary written by experts that summarize, discuss, explain, interpret, and critique primary sources – that is, case law and legislation. Examples include legal dictionaries, legal encyclopedias, legal textbooks, annotated acts, and law journal articles.
Secondary sources are a vital preliminary tool in the legal research process because they help you understand the law, locate key cases and statutes, and frame legal issues.
Different secondary sources will be helpful in different situations, depending on what you are researching and where you’re at in your research process.
Legal dictionaries are a good place to start if your research issue includes specific legal jargon, and to see how courts have defined words and phrases.
Legal encyclopedias and textbooks are a good place to start your research if you want to get more comfortable with the legal terms and the issues at play in your topic, as they provide a general overview of a subject. Tip – often the footnotes will indicate leading cases or relevant sections of the legislation, this can be a huge timesaver for you!
Finally, law journal articles are helpful if you are researching a specialized topic or a topic that changes rapidly, as journals are published more frequently than other secondary sources.
Secondary sources are incredibly useful finding tools, and can be used alongside primary sources to add support and credibility to legal arguments. However, secondary sources are not cited as binding authority, unlike primary sources.
Finding Secondary Sources
Welcome to part 2 of our introduction to secondary sources. In this video, we’ll discuss how to find secondary sources, looking at examples of legal dictionaries, encyclopedias, textbooks, and law journal articles.
Legal dictionaries can help you understand the legal language and terms of art present in your legal issue.
Two of the most popular Canadian legal dictionaries are the Dictionary of Canadian Law by Dukelow and Barron’s Canadian Law Dictionary by Yogis, both of which are available at the Priestly Law Library. As well, Black’s Law Dictionary is also commonly cited, although this is an American publication.
Books of Words and Phrases are often used in legal research. They provide definitions of words and phrases that have been considered and defined by courts and other adjudicative bodies.
Barron’s Canadian law dictionary can be accessed through Lexis. From the homepage, we will click on dictionaries from the category secondary materials. Here you can see that we can choose from a few different options including Canadian legal words and phrases. We will click on Barron’s Canadian law dictionary. From there, you can either search for your word using the index as demonstrated, or you can enter search terms in the search bar.
Both Lexis and Westlaw include searchable books of words and phrases. On the next slide, we will demonstrate how to search for judicial definitions of the phrase gross negligence using Westlaw. From the Westlaw homepage, we will scroll down and click words and phrases. From there, you can search for judicial definitions of a particular word or phrase. In the search bar, we will enter gross negligence in quotation marks because it is a phrase. To refine the search to leading definitions, we will set the Supreme Court of Canada as the jurisdiction. Now we can click on the gross negligence result here and it will give us all SCC cases that define gross negligence across all areas of law.
Legal textbooks can be found in the Diana M Priestly law library or online through the UVic Library website. On the next slide we will explore the UVic Law Library’s A-Z subject list: key legal treatises and textbooks, which is where the UVic Law Librarians have put there recommendations of leading Canadian titles within each area of law to help you get started in your research.
Please pause this video and use the law library’s guide to answer the following question: what is a key title you could use to research the law of defamation? We will first determine the legal subject area. Defamation is part of tort law, so we will scroll down and click on the tort tab on the left. From there, we will look at the defamation section. Any one of these three textbooks is a useful secondary source to begin your research. To note, all titles listed are available at the UVic Law Library and two of them are available as ebooks.
The two Canadian legal encyclopedias are the Canadian Encyclopedic Digest or the CED, and Halsbury’s Laws of Canada. The CED can be accessed through Westlaw and Halsbury’s Laws of Canada can be accessed through Lexis. To note, you can search these encyclopedias either through the index or by keyword search. On the next slide, we will explore how to use the CED using the index.
Please pause the video here are use the CED index to answer the following question: how can a teacher in BC sue for wrongful dismissal? To answer this, we will go into the CED index, click wrongful dismissal western, scroll down to 2.12 which is the subheading teachers under the general heading of who may sue for wrongful dismissal. From there we can see that section 47 states that BC teachers have a statutory right of appeal to a board of reference where their contract has been terminated.
There are many online databases you can use to find law journal articles including the UVic Library website, Lexis, Westlaw, Heinonline or Google Scholar. For a comprehensive search it is recommended to use more than one database. To note, the library search and Google Scholar are broad interdisciplinary databases. You can narrow your search by searching within a specific legal discipline database such as Heinonline. You can find additional legal databases on the UVic Law Library website.
The best way to find annotated acts is to use the UVic Library search function and include “annotated” or “annotation” and the name of the statute in your search terms. On the next slide, we will do a practice question to help you get comfortable with using the UVic Library website to find annotated acts.
Please pause the video here and try to find an annotated version of the BC Labour Relations Code using the UVic Library search. To do so, I will type Labour Relations Code Annotated into the search bar. The second result here is for the annotated BC Labour Relations Code, so this is exactly what we are looking for.
For more research help, please check out our other videos or email us at lawref@uvic.ca
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