R&W-KATIE PLG 155(1) - Secondary Sources & Legal Memo - PDF

Issue Spotting, Developing a Legal Research Plan, and Writing a Legal Memorandum PLG 155(1) Review From Last Week Case briefing activity – any questions? Case law citation Locating cases online using CanLII Noting-up cases and statutes on CanLII Reminder: case brief assignment due tonight b...

Issue Spotting, Developing a Legal Research Plan, and Writing a Legal Memorandum PLG 155(1) Review From Last Week Case briefing activity – any questions? Case law citation Locating cases online using CanLII Noting-up cases and statutes on CanLII Reminder: case brief assignment due tonight by 11:59 pm Today’s Agenda Part I: Statutes and regulations assignment take-up Part II: Issue spotting and forming a legal research plan Part III: Secondary sources Part IV: Writing a legal memorandum Part V: Midterm review Today’s Objectives By the end of today’s class, you will be able to: Pull issues out of a fact pattern (issue spot) and learn how a legal research plan is made Understand how secondary sources are used Learn the basics of writing a legal  PART I: STATUTES & REGULATIONS ASSIGNMENT  PART II: ISSUE SPOTTING AND DEVELOPING A LEGAL RESEARCH Issue Spotting Issue spotting refers to the skill of identifying legal issues present in a given situation Your textbook recommends using four steps to analyze a situation: 1.Identify, on a preliminary basis, the issues arising from the facts 2.Formulate those issues 3.Consider whether there are any hidden issues (issues that are not immediately obvious) 4.Identify the need for further information 1. Identifying Issues When you are identifying the issues on a preliminary basis, focus on the following things: What the client is seeking What the relevant facts are What the relevant area of law is What the objective of your research is 2. Formulating the Issues Write down the issues you identified, starting with the word “whether” For example: Whether a person who is not a parent of a child may apply for custody of that child Whether the limitation period for medical malpractice begins to run from the date of the medical procedure Whether a landlord can evict a tenant who has a dog when the lease contains a no-pet provision 3. Hidden Issues To assess whether there may be other hidden issues in your fact situation, consider the following questions: 1. Are there any special procedural requirements? For example: is there a limitation period that may expire shortly? 2. Who are the parties involved? For example: are they natural persons, corporations, adults, minors, spouses, mentally 4. Further Research You may realize you need more information before you can do your research For example: you may need more facts to decide whether a cause of action has arisen, or you may need to know the legal status of all parties involved in the problem Finding the Law After you have identified the issues, you must determine what law applies You should be able to make an educated guess about the area of law involved by looking at the fact situation For example: criminal law, tort, contract law, family law, or real estate After you make your educated guess, you can consult some secondary sources to help steer Finding the Law Before you begin your research, it is helpful to have a plan to keep you focused Once you have identified your issues and the areas of law that you need to familiarize yourself with, it is useful to compile a checklist The checklist will change depending on the issue you are researching Remember that the research process is not always linear – you might encounter something you didn’t consider before and have to go back Legal Research Checklist 1. Secondary sources Encyclopedia? Annotated statute? Textbook? Dictionary? Loose-leaf publication? 2. Primary law - legislation Statutes? (federal and/or provincial) Regulations? (federal and/or provincial) Bylaws? (municipal) 3. Primary law – cases Leading cases that set out the law (from the SCC or a court of appeal) Cases that closely resemble your fact pattern and have the same or similar issues Note-up cases to see how they have been considered Legal Research Checklist As you are reviewing your research findings, take note of information that seems relevant or interesting For example: take down the citation for a relevant case and a short description of what is useful about it Keep a list of sources you have looked through For example: the name of the source you consulted and its currency information Legal Research Checklist After consulting your secondary sources, you can start compiling information in your legislation and case law sections Example: Primary law - legislation Cannabis Act (federal); Cannabis Control Act (Ontario) Cannabis Regulations (federal); Non-Application of Act to Certain Cannabis and Cannabis Products (Ontario); General (Ontario) A By-Law to Prohibit Smoking in the City of Windsor Legal Research Checklist When you get to case law research, it is even more important to stay organized Keep track of the searches you run Identify leading cases that set out the applicable law Also search for cases that are similar to the facts and issues of the legal problem you are researching Do not disregard cases that are not helpful to your client’s position – when writing a memorandum, Issue Spotting Exercise The client, a Canadian charity called the World United Fund, has come to your firm with a problem. It recently ran a $1 million campaign to get donations to build a school in a poor country. Mrs. Euphemia Welsher promised to give $100,000. When the Fund had the entire $1 million in hand except for Mrs. Welsher’s donation, it publicly declared the campaign successfully ended and hired an architect to draw up the plans for the school. Mrs. Welsher then told the Fund that she intends to give the money to a home for cats in New York where she lives (except for two months in the summer when she resides in Canada). The client  PART III: SECONDARY SOURCES Using Secondary Sources Secondary sources are a great first place to look when you are trying to learn about a new area of law Some sources to help you get started: Legal encyclopedias (Halsbury’s Laws of Canada or the Canadian Encyclopedic Digest) Annotated statutes Textbooks Loose-leaf services (texts that are updated on a continuing basis) Journal articles Dictionaries Using Secondary Sources Secondary sources will lead you to: Statutes, regulations, and/or bylaws Case law that governs the issue(s) you are researching *Remember that secondary sources are not the law – they discuss and interpret primary law Once you find statutes, regulations, or bylaws, you will need to make sure they are updated You will need to determine whether there has been any case law interpreting or even striking down provisions of the statutes and regulations you are relying on Halsbury’s Laws of Canada Source: University of Ottawa Halsbury’s Laws of Canada Halsbury’s focus is Canada-wide and its volumes are broken down into titles focusing on specific areas of law Each Halsbury’s title will contain a table of statutes, table of statutory instruments, and table of cases These tables are lists of all statutes, regulations, and cases referenced in the title When you are using the print version of Halsbury’s and you don’t know what you are looking for, consult the Companion Guide and Consolidated Index to look up key terms This will direct you to certain titles and specific paragraph numbers Halsbury’s Laws of Canada The currency date of an encyclopedia will be clearly stated (usually at the very beginning of the title) Halsbury’s volumes are updated regularly so they stay relatively current The updates are released in the form of supplements It is important to read the supplements to know about any important developments (changes to the law, an error that is being clarified, etc.) In print, the supplement will be a separate volume (typically shelved at the end of all the volumes) Annotated Statutes An annotated code can tell you a lot about a particular statute These texts are usually published every year so they are current Depending on the book, you could see interpretations of particular provisions, explanations, and analysis You could also see references to cases that have interpreted Loose-Leaf Services A loose-leaf publication is a printed book that has regular updates throughout the year The updates contain new pages that will be incorporated into the loose-leaf volume so it stays current These loose-leaves are found on a wide variety of legal topic areas Textbooks and Dictionaries Don’t underestimate the value of textbooks and dictionaries Make sure you select a current textbook, not one from 15 years ago (or a very old edition) Black’s Law Dictionary is available on Westlaw; Barron’s Canadian Law Dictionary is available on Quicklaw  PART IV: INTRODUCTION TO WRITING A LEGAL Your Legal Memorandum Assignment Is due on November 5 at 11:59 pm Must be done individually Is designed to be an objective piece of legal writing where you report the results and conclusions of your research Must use in-text citations, not footnotes Refresher: Principles of Good Legal Writing We discussed three important principles of good legal writing during week 1: plain language, point-first, and the active voice As we enter the memo writing phase of the course, work on incorporating these principles Part of good legal writing is also using proper citation, which we will continue to work on Plain Language Writing in plain language takes effort and it is a learned skill Strong legal writing is clear and direct Focus on eliminating unnecessary words and awkward phrases Also minimize the use of ‘legalese’ (legal words that are not commonly understood) Some examples: “in order to” = to “a large number of” = some “due to the fact that” = because/due to “in regard to” = about Point-first Writing Point-first writing is a more direct way of conveying your argument to the reader It involves placing your conclusion at the beginning of a paragraph rather than burying it at the end You won’t be able to write every paragraph this way (especially ones where you are explaining what the law is), but you should try to write some of your paragraphs with the conclusion at the beginning The conclusion will be up front and you can spend the rest of the paragraph justifying and explaining it Point-first Writing - Example Excerpt from pages 8-9 of the factum submitted by the Canadian Civil Liberties Association in Carter v Canada, 2015 SCC 5: The law is overbroad. A law will be overbroad when there is no connection between the purpose of the law and its effect on a specific individual. Section 241(b) may be rational in some cases, but its effects overreach in others. It deprives non-vulnerable, terminally ill and suffering individuals who wish to end their lives at a time and in a manner of their choosing from autonomous choice, thus constraining their life, liberty and security of the person interests in a manner that is overbroad with respect to the law's objective. Active Voice The active voice is generally more confident and direct than the passive voice Examples: “The shares were issued by the corporation.” (passive) “The corporation issued the shares.” (active) “It is believed by the victim that the accused committed the assault.” (passive) “The victim believes the accused committed the assault.” (active) Using the active voice usually involves using fewer words and it is a more direct statement Writing a Legal Memorandum Why do we write a legal memo? To help you understand an area of law and ultimately advise someone To create a record of the research you have done (for yourself or for other people you work with) To give to someone who has asked that research be done A legal memo must be written in an objective tone This means the memo is written impartially It must explain what the law is and how it will apply to a specific fact pattern It is not meant to advocate on behalf of a client Writing a Legal Memorandum After you have analyzed a given fact situation and identified the legal issue(s), you should: 1. Use secondary sources to help find a general statement of the law 2. Find the primary sources—statutes, regulations, bylaws and/or case law—that govern the issue(s) 3. Apply the law you have found to the fact situation to determine the answers to the issues you identified— and therefore the likely outcome of the case 4. Reach a conclusion Writing a Legal Memorandum Rely on your secondary sources (i.e. Halsbury’s) to help you find and understand the law Remember to use eLaws to find the applicable legislation (this will be the most current source) When you begin searching for cases, try to use specific search terms, keywords, and filters to narrow down your search results Remember to note-up the most relevant cases you find to see how they have been treated Once you know what the law is, begin to apply it to the fact pattern in an organized way Applying the Law to the Facts This can seem like a difficult step of the memo writing process You might think - how do I apply it? This is done in the discussion section of your memo using legal reasoning You discuss the law itself (i.e. a statutory provision or a common law rule developed in a case) and how it would apply in your specific scenario Applying the Law to the Facts – Statutory Law For example: “Statute XYZ sets out three criteria that an applicant must satisfy…” “For the first criterion, the applicant must show X” “In this situation, client A would be able to/not be able to show X because…” Applying the Law to the Facts – Case Law For example: “The R v Grant case established three factors to help determine when evidence that was obtained in a manner that violated the accused’s Charter rights can be excluded from trial” “The first step of the Grant inquiry focuses on the seriousness of the Charter-infringing conduct” “The police conduct in Client X’s case (breaking down his door and searching his home without a warrant) was quite serious and not just a minor infringement. In Case Y, the court found that the police breaking down the door of the accused’s home and conducting a warrantless search was on the more severe end of the spectrum…” Memorandum Format A memo should follow a specific format: Heading Introduction Facts Issue(s) Law Discussion Conclusion References PART V: MIDTERM TEST REVIEW Midterm Test Details The midterm test will be next Tuesday, October 15 at 2:00 pm You will receive one (1) hour to write the test It will be closed-book, except for your McGill Guide It is worth 10% of your grade in this class We will have an hour and a half lecture afterward (beginning at 3:30 pm in our normal room) Midterm Review – Week 1 Know your terminology (legislature, legislation, bill, statute, common law, jurisdiction) Primary vs. secondary sources of law The hierarchy of the Canadian court system Doctrine of precedent and stare decisis Midterm Review – Week 2 Statute vs. regulation Permissive, imperative, prohibitive, and offence provisions The legislative process Royal Assent and coming into force Annual vs. consolidated statutes Revised statutes How laws are amended McGill Guide citation for federal and provincial statutes and regulations Midterm Review – Week 3 The basic parts of a statute Sections, subsections, paragraphs, and subparagraphs of legislation Important statutory language (may/shall; and/or) Finding statutes and regulations online Midterm Review – Week 4 Understanding which judicial decisions are binding and which would be persuasive Understand terminology (i.e. majority, concurring, dissenting opinions) Know the basic parts of a judicial decision (i.e. facts, issues, law, reasons, ratio, disposition) McGill Guide citation for case law Midterm Review – Weeks 5 and 6 Understanding what noting-up a case means Fact identification and issue-spotting Understanding how to use secondary sources Thank you for listening!