Introduction to Legal Research & Writing Lecture (September 3, 2024) - St. Clair College

Introduction to Legal Research & Writing PLG 155(1) September 3, 2024 About Me Professor of Social Justice and Legal Studies at St. Clair College Formerly worked and taught at Windsor Law and Detroit Mercy Law Background in political science and law Windsor Law graduate (2015) Osgoo...

Introduction to Legal Research & Writing PLG 155(1) September 3, 2024 About Me Professor of Social Justice and Legal Studies at St. Clair College Formerly worked and taught at Windsor Law and Detroit Mercy Law Background in political science and law Windsor Law graduate (2015) Osgoode Hall LLM graduate (2020) About You A few questions… Land Acknowledgement St. Clair College would like to recognize and acknowledge that it sits on the Three Fires Confederacy’s traditional territory of the Ojibwe, Odawa, and Potawatomi nations. We would also like to acknowledge the many other tribes and indigenous nations that call this beautiful land home. We give thanks to the land and surrounding water for sustaining us. Today’s Agenda Part I: Housekeeping – syllabus, academic integrity, expectations Part II: Introduction to the legal research process Part III: Overview of the Canadian legal system Part IV: Introduction to legal writing and the McGill Guide Today’s Objectives Identify the purpose and basic steps of the legal research process Identify the differences between primary and secondary sources of law Become familiar with the Canadian court system Recognize the principles of good legal writing Become familiar with the purpose and structure of the McGill Guide  PART I: HOUSEKEEPING PLG 155 (1) Blackboard Site The Blackboard site will be used to: Send important messages about the course Post assignment instructions Submit assignments Post additional weekly readings and resources View lecture Powerpoints View grades Accommodations Formal requests for accommodation must be made through Student Services (see this link) Students must self-identify with Accessibility Services and submit documentation Communication Please use email to contact me ( [email protected]) College policy stipulates that all communication take place through the St. Clair College email system When you email me, you must use your St. Clair College email address Office hours: Thursday (virtually through Teams) from 2-4, or by appointment Syllabus Can be found on the Blackboard site under “Syllabus and Course Outline” The syllabus outlines the course requirements, textbooks, and schedule It contains all deadlines relevant to the course It also outlines expectations with regard to academic integrity It is subject to change Academic Integrity Offence​ Example​ Plagiarism​ Cutting and pasting from the Internet without appropriate references. ​ Copying all or part of someone else’s work.​ Cheating​ Talking or using an unauthorized aid during an exam. ​ Unauthorized Collaboration ​ “Checking” answers with a peer. ​ Working together on an assignment intended to be done individually. ​ Misappropriation of Own Reusing part or all of an assignment from another class/semester. ​ Work​ Falsifying Information ​ Forging hours (placement). ​ Forging support document (doctor’s note). ​ Academic Dishonesty ​ Providing false or misleading reasons in relation to a request for late submission of an assignment.​ Attempting to​ Threatening or attempting to bribe an instructor to grant an extension or improve a grade. ​ Influence​ Impersonation​ Impersonating a student during an exam. ​ Contract Cheating ​ Purchasing assignments from Chegg or Course Hero.​ ChatGPT.​ Facilitating academic Lending a student an assignment. ​ misconduct​ Academic Integrity You must hand in your own work Use of artificial intelligence (i.e. ChatGPT) is strictly prohibited AI gets it wrong! AI does not do well with legal analysis You are training to become legal professionals, so you should be developing ethical habits now Expectations Come to class Do the readings Participate as much as you can Respect your peers and the classroom Manage your time wisely Honour the principles of academic integrity  PART II: INTRODUCTION TO THE LEGAL RESEARCH PROCESS What is Legal Research? Question: What makes legal research different from other types of research? What is Legal Research? Legal research is undertaken to (a) gather information we do not know; and/or (b) confirm the accuracy of information we do know Legal research is necessary to: Determine the applicable law Locate the applicable law Update the applicable law Help you understand the law (this is where secondary sources come in) Apply the law to the facts of your legal problem Advise a client Steps of the Legal Research Process Each legal problem will involve different research steps, but there are four basic building blocks: 1. Identify the issue(s) in a legal problem 2. Determine and locate the applicable law for each issue 3. Update the applicable law (if necessary) 4. Apply the law to the facts of the legal problem Steps of the Legal Research Each legal problem will require its own research plan Process based on the complexity of the issue(s) and the researcher’s knowledge of the topic area In a few weeks, we will discuss how to tailor the research plan to the issue(s) The types of sources you may have to consult include: Federal statutes and regulations Ontario statutes and regulations Statutes and regulations in other provinces Municipal by-laws Secondary sources (encyclopedias, annotated statutes, journal articles, dictionaries) Foreign sources (i.e. British or American law) International sources (i.e. treaties) Group Exercise Rania, a practicing Muslim, is employed in a fast-paced workplace. Rania has noticed that meetings are scheduled in large blocks during the day, making it very difficult for her to observe obligatory prayer. She mentions this issue to her boss and she asks if there is some flexibility to the meeting schedule. Her boss tells her that everyone is very busy and it is impossible to accommodate all employees. Rania must either choose between attending important team meetings or adhering to her faith. Discuss the fact pattern in your group and answer these questions: 1. What issue(s) are present? 2. What information do you have to find? 3. Where do you think you can look for that information?  PART III: OVERVIEW OF THE CANADIAN LEGAL SYSTEM Terminology Legislature Legislation Bill Statutory law Common law Civil law Jurisdiction Terminology Legislature: the federal or provincial law-making body Legislation: the actual laws in force Bill: a proposed law before the legislature Statutory law: law expressed in a statute (i.e. the Controlled Drugs and Substances Act) Common law: law developed by judges (case law) Civil law: law based on a civil code (only in use in Québec) Jurisdiction: the legal authority to do something (jurisdiction of a court to hear certain matters vs. Sources of Law There are two main sources of law: primary and secondary Primary sources are the actual laws: Statutes Regulations By-laws Case law Secondary sources are the tools used to assist in finding primary sources: Legal encyclopedias Annotated statutes Textbooks Journal articles Dictionaries Sources of Law Although secondary sources are very helpful, they are not a substitute for primary law You cannot cite a legal encyclopedia as your source for a provision of a statute; you must cite directly to the law Secondary sources help you understand and interpret primary law and they should be used as a guide Some secondary sources (particularly textbooks) can be slightly out of date, so it is The Canadian Court System The Canadian Court System The Supreme Court of Canada is the highest court in Canada Provincial/territorial courts of appeal are next down the hierarchy (i.e. the Ontario Court of Appeal) Provincial/territorial superior courts sit below courts of appeal (i.e. the Ontario Superior Court of Justice) Provincial/territorial courts sit below superior The Canadian Court System – Federal Courts The federal court system is separate The Supreme Court of Canada is still at the top of the hierarchy and it hears appeals from the Federal Court of Appeal The Federal Court of Appeal hears appeals from the Federal Court and the Tax Court of Canada The Canadian Court System – Tribunals Administrative tribunal decisions are appealed or judicially reviewed by different courts depending on whether they are provincial tribunals or federal tribunals The Canadian Court System The Canadian court system is premised on the doctrine of precedent – this means that lower courts are bound to follow decisions (precedents) of higher courts Example: the Ontario Superior Court of Justice is bound to follow decisions of the Ontario Court of Appeal and all courts across Canada are bound to follow decisions of the Supreme Court of Canada We will discuss this in more depth in Week 4  PART IV: INTRODUCTION TO LEGAL WRITING & THE MCGILL GUIDE Foundations of Good Legal In your law courses, you are required to follow Writing McGill Guide citation I will emphasize three important principles of good legal writing in this course: Plain language Use of the active voice Point-first There will be a more in-depth lecture on these principles in Week 6, but I want to introduce them to you today Plain Language One of the most crucial elements of good legal writing is clarity As you learn about the law, it can be tempting to use sophisticated legal terms The plain language movement encourages legal writers to use simple words and phrases to Enhance readability Decrease the chance of misinterpretation Reduce length Eliminate unnecessary words Help ensure a client can understand what is taking place Plain Language What things can you do to observe plain language writing? Edit, edit, edit Cut out unnecessary words Shorten sentences Break run-on sentences into two parts Be aware of your audience Don’t use ‘legalese’ Use the active voice Plain Language Exercise An example of a complicated paragraph that is difficult to read and interpret: Notwithstanding the aforementioned, the defendant’s conduct in regards to the agreement between the parties violated said agreement. The contractual terms and conditions specifically stipulated that it was incumbent on the defendant to deliver the prescribed item to the plaintiff in its original form, free of defects, imperfections, or deficiencies, and as agreed upon by the parties as of the date the contract was signed. The actions of the defendant, assessed in accordance with prevailing jurisprudence, demonstrate that the defendant indeed disregarded his undertakings and obligations pursuant to the agreement and triggered a breach of the agreement’s terms. Plain Language The same paragraph edited with plain language principles in mind: The defendant’s conduct violated the agreement between the parties. The contract stipulated that the defendant had to deliver the item to the plaintiff in its original form free of defects, imperfections, or deficiencies. The defendant’s actions show that they disregarded their contractual obligations, triggering a breach. Point-first Writing It is common to place your conclusion at the end of a paragraph Point-first writing involves presenting your conclusion at the start of a paragraph instead of burying it at the end If the conclusion is the first thing the reader sees in a paragraph, they know your argument at the outset The rest of the paragraph will support and justify the conclusion you presented As with the other two foundational principles, the objective behind point-first writing is clarity Active Voice The active voice means that the subject of a sentence performs the action It is helpful to use the active voice instead of the passive voice in legal writing because it is more direct and clear 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) Introduction to the McGill Guide The McGill Guide is a comprehensive guide to legal citation in Canada It contains specific rules about how to cite legislation, case law, secondary sources, foreign sources, government documents, etc. We will be working through the McGill Guide throughout the semester, but it is helpful for you to have a brief introduction Question: Why is proper citation of sources important? Introduction to the McGill Guide It is very important to cite all sources you use and cite them properly Accurate citation: Provides your reader with a reference to find information you describe Gives proper credit to a source (avoiding plagiarism) Satisfies expected standards of academic integrity Citation Rules 1.Anything taken or borrowed from a source must be cited (whether that is a direct quotation, a paraphrased quotation, or a thought). 2.Plagiarism is not always intentional. Sometimes people mistakenly forget to attribute something to a source. 3.If you are wondering whether to cite something, always err on the side of caution. 4.If you are having trouble paraphrasing a passage or putting it in your own words, put quotation marks around it and cite it appropriately. Citation Rules The McGill Guide states that the standard rule is to use footnotes for legal writing Footnotes appear at the bottom of the page and are numbered sequentially You must insert a footnote in the following situations: (1) The first time you reference a source (i.e. a piece of legislation); (2) Every time you quote from a source; and (3) Every time you reference, paraphrase, or allude to a passage in a source [McGill Guide at 1.3.1] Citation Rules - Footnotes Footnotes are written in superscripted numbers (i.e.3) next to the information you are referencing in the body of your work Generally, you should place the superscripted number at the end of the sentence after the punctuation The exception is if you are referring to a specific word, phrase, or quotation – in this case, put the superscripted number right after the word, phrase, or quotation The superscripted number will be reproduced at Summary Today we: Discussed the objectives of the legal research process; Reviewed the structure of the Canadian court system; Identified sources of law; and Began looking at how to use appropriate legal citation These topics were designed to provide you with the building blocks for success in this course and in some of your other courses Next week’s lecture will focus on statutes and Thank you for listening!