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Assessing Your Results

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Information about Assessing Your Results
Education

Published on January 15, 2009

Author: pdawsondolden

Source: slideshare.net

Description

Presented at Continuing Legal Education Society of British Columbia workshop, "Legal Research", December 2004, to accompany paper of the same name.
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Assessing Your Results Paul Dawson

I. Introduction Knowing where to stop…

Knowing where to stop…

What is your purpose? Note up a case or statute Find a specific fact pattern Provide full summary of law Photo courtesy of Episteme.com

Note up a case or statute

Find a specific fact pattern

Provide full summary of law

What sources have you used? Canadian Abridgement Electronic databases Textbooks Reporter Series Journals Internet

Canadian Abridgement

Electronic databases

Textbooks

Reporter Series

Journals

Internet

Success… Fig.1: A strong precedent

Fig.1: A strong precedent

…and its alternatives Fig. 2 : Not a good precedent. Image courtesy of “Best Collection of Webimages and Clipart”

Fig. 2 : Not a good precedent.

What is a useful case? 1. Authoritative and binding statement of the law. 2. Supports the case you want to make.

1. Authoritative and binding statement of the law.

2. Supports the case you want to make.

This paper will cover… Assessing a case Stare decisis Escaping binding precedents Using out-of-province authorities

Assessing a case

Stare decisis

Escaping binding precedents

Using out-of-province authorities

II. Kicking the tires

A. Form What level of Court? What jurisdiction? Too long or short? May be a narrow precedent. How much law cited?

What level of Court? What jurisdiction?

Too long or short? May be a narrow precedent.

How much law cited?

Form (cont.) Search for a key word or case name. Use table of contents, if present. Use Quickcite references to locate key cases.

Search for a key word or case name.

Use table of contents, if present.

Use Quickcite references to locate key cases.

Substance What issues were before the Court? Is it a trial judgment, or interlocutory? Does the result turn on law or facts? Is it new law, or just repetition?

What issues were before the Court?

Is it a trial judgment, or interlocutory?

Does the result turn on law or facts?

Is it new law, or just repetition?

Substance (cont.) Identify the leading cases – are they present? Make tree, taxonomy, or table to keep track of key facts – and outcome. Record the results – how do the cases relate to your purpose?

Identify the leading cases – are they present?

Make tree, taxonomy, or table to keep track of key facts – and outcome.

Record the results – how do the cases relate to your purpose?

Don’t forget… Cases are like popcorn – addictive, but not necessarily nutritious. Remember your purpose, and your client.

Cases are like popcorn – addictive, but not necessarily nutritious.

Remember your purpose, and your client.

III. Stare Decisis Is your case binding, or persuasive?

Is your case binding, or persuasive?

Stare decisis balances: Certainty Stability Predictability Adaptability Justice Correction of error

Certainty

Stability

Predictability

Adaptability

Justice

Correction of error

Vertical stare decisis Lower Courts bound by higher courts in the same jurisdiction Courts not bound by courts from other jurisdictions Masters and Registrars bound by Judges, but not vice versa

Lower Courts bound by higher courts in the same jurisdiction

Courts not bound by courts from other jurisdictions

Masters and Registrars bound by Judges, but not vice versa

Vertical stare decisis ( per Master Funduk) Fig . 3 : Court of Appeal Fig . 4 : Supreme Court Images courtesy of Christines’ Free Bird Clipart

Horizontal stare decisis Courts generally follow their own decisions. Procedural requirements for challenging appeal decisions – 5 member panel. SCC will change only “with restraint”.

Courts generally follow their own decisions.

Procedural requirements for challenging appeal decisions – 5 member panel.

SCC will change only “with restraint”.

Hansard Spruce Mills Leading case on horizontal stare decisis in BC Should follow precedent unless: It is affected by subsequent decisions Binding authority not considered Made without full argument Palpably wrong

Leading case on horizontal stare decisis in BC

Should follow precedent unless:

It is affected by subsequent decisions

Binding authority not considered

Made without full argument

Palpably wrong

Escaping Binding Precedents Legal Reasoning Toolkit

Escaping Binding Precedents Legal Reasoning Toolkit

a. Check for subsequent treatment. Has the case been overturned? Can be explicit or implicit. CASE “A” CASE “B”

Has the case been overturned?

Can be explicit or implicit.

b. Redefine ratio Frame the ratio more or less broadly. Question of emphasis. Case “A” Case “A”

Frame the ratio more or less broadly.

Question of emphasis.

c. Alternate threads within the case Obiter – may be binding if a considered statement of law by appellate court. Dissents – not binding, but often helpful. Case “A” (Obiter) Dissent Case “A”

Obiter – may be binding if a considered statement of law by appellate court.

Dissents – not binding, but often helpful.

d. Distinguish your case Restrict the case to its facts, or show that yours are different. Case “A” Facts 1,2,3,4 Your Case Facts 1,2,5,6

Restrict the case to its facts, or show that yours are different.

e. Find parallel stream of authority Is there an equally binding but contradictory case, or stream of cases, that supports you? Case “A” Your Case Case “B”

Is there an equally binding but contradictory case, or stream of cases, that supports you?

V. Using Outside Cases Images courtesy Christine’s Free Bird Clipart

Outside cases are… Never binding in British Columbia Can be persuasive if there is : No local precedent Common statutory language Common regulatory scheme Common contract

Never binding in British Columbia

Can be persuasive if there is :

No local precedent

Common statutory language

Common regulatory scheme

Common contract

Be careful Common law diverging Is the case still good law at home? If not, might weaken value here

Common law diverging

Is the case still good law at home?

If not, might weaken value here

Consider: What level of Court? Well-known judge? Some Canadian courts more persuasive than others Are facts especially close? Does it draw on British Columbia law?

What level of Court?

Well-known judge?

Some Canadian courts more persuasive than others

Are facts especially close?

Does it draw on British Columbia law?

VI. Conclusion You can’t follow every lead Know when to stop Good luck!

You can’t follow every lead

Know when to stop

Good luck!

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