Case Law Research is like Cheesecake

Case Law Research is like Cheesecake

This week’s guest blog is written by Cynthia Freitag, a Law Clerk and an active member of the Toronto chapter of the National Self-Represented Litigants Network (NSSN).

As a self-represented litigant (SRL) you are, in fact, your own lawyer. This means you need to learn how a lawyer carries out legal research, what they research, and why they research, in order to represent yourself the best way you can. This means learning about case law.

When lawyers prepare for trial they distill the facts of the issue(s) or problem they are litigating or arguing, and then skillfully research the applicable laws and previous cases which are similar to those facts. Finally, they blend them together to make a presentation to the judge. The opposing party also does the same. Each lawyer or side takes turns talking to the judge and presenting their research. The judge listens to both sides and makes a decision. The decision the judge makes is based on the information the lawyers bring forward and the laws that apply to the situation.

Here is a simple analogy of the legal research process. Imagine you are the owner of a restaurant that is famous for their cheesecakes. You recently found out that a renowned food critic will be visiting your establishment and tasting your cheesecake, evaluating whether it is good, great, or even the greatest cheesecake of all time, and then making a public statement about the cakes to the world.

Naturally you will want to have your very best cheesecakes ready to present upon the critic’s arrival at your restaurant. You can present only one cheesecake for the critic to try, and, not surprisingly, the critic can only write about that one cheesecake. You hope that the critic likes it better than your competition’s cheesecake – or the competing restaurant will be getting all the future business.

The cheesecake you choose to present to the critic is critical. Your restaurant could have the best staff, the most pleasant atmosphere and the perfect location, but it all means absolutely nothing if you did not bring the critic any cheesecake to taste. And of course you have to present the cheesecake – the critic is not going to get up from their table, go to your kitchen and help themselves.

Studying and analyzing case law is just one part of your legal research agenda. There are lawyers who specialize in doing legal research for other lawyers. They are experts in their field and compensated accordingly. These experts are worth every penny – but why?

If you live anywhere in Canada other than Quebec you are part of a common law system.  At its most basic, this means that if a judge makes a decision in a case, this case is now considered case law, and it becomes a precedent.  The Canadian Legal Research And Writing Guide at LegalResearch.org says:

“What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same.  Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.”

Simply put, if the issues and facts were completely identical in case A and case B, then the outcome would be identical as well. Black’s Law Dictionary Pro describes a precedent as: “. . . an example or authority for an identical or similar case. . .”

The SRL’s job is to provide case law that will persuade and convince the judge to rule in the affirmative for the SRL. The opposing party uses the same strategy. Just like the cheesecake analogy, you want to bring the very best case law to the judge. You want the leading case law (from the highest courts – the Court of Appeal for your province or even better, the Supreme Court of Canada) and the most recent case law.

Learning to find case law is one essential part of your legal research. Attend classes, if you can, that will teach you how to find case law.  Use guide books such as the CanLII Primer from the NSRLP (available in both French and English) to learn how to search for case law on CanLII.  To learn more about case law, and how to use it, consult The Canadian Legal Research And Writing Guide at LegalResearch.org. As this resource says:

“Failure to have conducted proper research can have devastating consequences”

When you do not bring supporting case law that the judge can use to make a decision, you are denying the judge a full opportunity to apply past rulings on the same issue.  Just like the cheesecake analogy, if you do not present the critic with your famous cheesecake, they will have nothing to taste and nothing to write about.  You can speak well, dress smartly, organize your argument perfectly, and conduct yourself professionally. But none of this will help you if you do not present supporting case law to the judge.

Reading case law can also give you some insight into how SRLs do well in court. For example, the following was said about a SRL respondent:

In R. v. Fitzpatrick, 2005 NSSC 298 (CanLII), Mr Justice Goodfellow commented as follows on the legal research carried out by a SRL, even though the SRL was not ultimately successful:

“Mr. Fitzpatrick, I must say at the outset, has done a very commendable job with respect to the law and in the manner in which he has organized things.  Often I wish lawyers would be as well organized because being well organized permits me to do what I am doing now and that is to give a decision at this point…”

There is even a line of case law emerging that awards some SRLs costs for the time they have spent conducting legal research for their case. In this case before Justice O’Connell (Burns v. Krebss, 2013 ONCJ 226) the SRL was well prepared, won, and furthermore won costs for his time:

“[16]  . . . The quality of Mr. Burns’ work and documentation was excellent for a self-represented party.  He was well organized and well prepared.  The issue was somewhat complicated and he presented his arguments clearly and concisely. In my view, Mr. Burns should be compensated at the rate fixed by Mr. Justice Pazaratz in the decision of Izyeuk v. Bilousov, 2011 ONSC 7476 (CanLII). In that case, the court set the hourly rate for the self-represented litigant, who was also very well prepared, at $100.00 per hour.”

As always, a terrific starting point for any SRL contemplating the task of legal research is the website of the The National Self Represented Litigants Project where a range of SRL-oriented practical resources (including the Can Lll Primer) are readily available (and free and downloadable).

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Comments (4)

  • SRLinNS Reply

    The cheesecake analogy is interesting. I would add that as a self represented litigant, you are competing against people who make the very best cheesecake every day, all day and are accustomed to the needs of “critics” as well as being able to anticipate the needs of “critics”.

    I am a self represented litigant. Knowing what I know now, having been told I should pursue a law degree, if I were a practicing lawyer, I would discourage litigation.

    In keeping with the cheesecake analogy, I would also add that your cheesecake, although it is considered for “tasting”, it is known to be made by an amateur and you must work 10 times as hard to get 1/10th as far. You must present your cheesecake, but it is far from a blind taste test.

    The ingredients of the cheesecake are the most important, but if you can’t explain the recipe, you will have failed. Part of presenting the best cheesecake is in the explanation of what makes your cheesecake so much better, even if it may hit the “critic’s” “tongue” wrong. Your competition has experience in all of these areas.

    So while you only have one chance to make one cheesecake, it is also very likely to be the only cheesecake you will ever make. Every part of you will be in the cheesecake…this is not true of the competition’s cheesecake.

    No pressure.

    I hope to make the absolute best cheesecake and have it be no question even though it only has to 1 percent better than the competition’s. Then I am getting out of the cheesecake business.

    April 3, 2017 at 6:11 pm
  • Jason Lisburn Reply

    Thanks for a great article. It spurred me into spending the day researching cases like mine and refining my case.

    Key point for me was:
    “lawyers who specialize in doing legal research for other lawyers. … These experts are worth every penny.”

    Will they provide these ‘unbundled’ legal services to SRLs? Seems not in Alberta (onpoint, etc), it’s a club for lawyers only.

    Legal Research is by far the most difficult part of representing yourself. These are the true legal skills I need from a lawyer, especially now that I’ve become accustomed the the court routine and filing the correct forms. The rest is just public speaking and ensuring the points that you need raising don’t get forgotten about.

    What would give me the confidence in the courtroom would be to have a report from a legal research firm who ‘distill the facts of the issue … skillfully research the applicable laws and previous cases which are similar” and give me the legal ammunition I need in Court. List the case, the appropriate paragraphs, why it’s relevant to my case.

    That is the answer to the bulk of the SRL’s problems, it’s what intimidates and confuses and causes the the SRL to lose the battle before it’s started.

    Now the fact that Legal Research firms will work for lawyers and not the general Public seems to me to be highly discriminatory and wholly unfair. Not only might I be up against a professional lawyer, but he might be backed up by a sub contracted specialist I’m not permitted to use; it’s like having a race car team vs a single driver.

    That’s something I think the NSRLP would do well to focus on. Legal Research IS the legal work required by the bulk of SRLs, the rest is bells and whistles as far as I’m concerned, any reasonable person should be able to do it. I’d pay $1000 for a legal researcher to review my case, distill the facts and report against these facts the relevant case law and precedents; take an expert 1/2 a day.

    April 4, 2017 at 1:12 pm
  • Elizabeth Reply

    Take a course on legal research. Cynthia offers a decent basic course. I took it. I also tok one with james Cooper through ILCO. Cynthia can teach you basic legal research using the CANLII primer from the NSRLP website, through skype or vsee. Then, do some of the legwork research yourself. It is easier than you may realise. Just very time consuming because it is a lot of reading. Once you have done some research, on your own take your file to a legal researcher to “dig a little deeper” or help you summarize the information you need or to prepare an analysis for your file and material prep. James Cooper in Toronto does legal research unbundled. He may know of a colleague in your area. There are other lawyers and law students coming onboard who can and will help with this as well. It is better to go in with at least a slice of cheesecake even if it isnt the best…than with absolutely nothing at all. The judge will appreciate the effort you made. If you go in with absolutely no case law / cheesecake…you are pretty much going home with an empty stomach.

    April 5, 2017 at 8:30 am
  • Rob Harvie Reply

    Yes. There are lawyers in Alberta who provide unbundled services – see:

    http://www.albertalegalservices.com

    Also – consider dedicated research businesses – such as:

    http://www.bottomlineresearch.ca

    April 5, 2017 at 8:17 pm

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