Criminal defence lawyers conduct rigorous legal research for each and every case. Mastering research can help lawyers get charges dropped, argue for more lenient judgments, and win in court.
This guide seeks to give readers deeper insight into how research for criminal defence cases is conducted in Canada. As such, it can be used by law students, criminal defence lawyers, paralegals, and other legal professionals who want to brush up on their legal research skills.
The guide can even help people not working in law who want to get a better understanding of how legal research takes place. A note of warning before we begin, however: You should not use this article to learn how to represent yourself. We always recommend seeking the advice of a professional criminal defence lawyer. This article serves only as a high-level overview; it will not give you the tools and techniques you need to defend yourself in a court of law.
What Is Legal Research In Criminal Law?
Legal research is the process of identifying, retrieving, and reviewing information that is pertinent to the case at hand; the goal of this research is to improve decision-making for clients. Legal research can:
- Provide an in-depth overview of the laws pertaining to the legal issue in question
- Find case law that supports the legal arguments you want to make
- Refute the prosecution’s arguments
- Support a case’s narrative
Why Legal Research Matters For Criminal Defence Attorneys
Legal research is fundamental to criminal defence work; it gives lawyers a more in-depth understanding of the legal issues in question and arms them with possible defences, precedents, and narratives that can be used to construct a more rigorous defence. Legal research is key at all stages of a case, from the moment the case is brought before the attorney to the moment a trial ends (if it comes to that).
The Legal Research Process For Criminal Lawyers
Step 1: Gather Critical Information About Your Legal Issue
Before in-depth research begins, preliminary research must take place. Using a case management tool can help you record the core facts of the case at hand; these tools will also help keep data sorted as your research continues. In this first step, you should answer core questions, including:
- What is the legal issue at hand?
- What are the whos, whats, whens, whys, and hows of your case?
- What are the most obvious relevant pieces of legislation associated with the case? (i.e., the Highway Traffic Act in Manitoba, the Criminal Code)
Take notes about all of the above; these notes will help you create a research plan and guide your research going forward.
Step 2: Establish Legal Issues & Desired Outcomes
Criminal defence lawyers will typically have a good grasp of the fundamentals of any legal issues they are presented with. In this step, you will use this knowledge, paired with your understanding of your client’s desired outcomes, to begin outlining your research plan. Taking this step will help you:
- Establish what you already know and what you need to learn
- Hone in on the right terms to research and where to look for answers
In criminal law, the client’s desired outcome is typically to avoid conviction – or at least, to minimize legal consequences. During your research, you may discover that a plea deal is more likely to give your client beneficial results; it is important to temper clients’ expectations based on the research you conduct.
Step 3: Learn & Understand Relevant Precedents
Consider which province or territory your legal issue has arisen in. Start by looking for precedent in that jurisdiction and/or from the Supreme Court of Canada. As a refresher:
- Supreme Court of Canada decisions are binding precedents in all jurisdictions.
- Provincial and territorial Court of Appeal decisions are binding precedents within all lower courts within that Court’s jurisdiction.
- Other provinces’ decisions may be used as persuasive precedents in other jurisdictions.
Step 4: Determine The Type Of Legal Sources You Need
There are two core types of legal sources to pay attention to in your research:
- Primary legal sources
- Secondary legal sources
Primary legal sources are the cornerstone of criminal defence research. These sources establish precedent and provide you with the tools needed to argue for more favourable results for your client. Primary legal sources include:
- Federal legislation, such as:
- The Criminal Code of Canada
- The Youth Criminal Justice Act
- The Controlled Drugs and Substances Act
- The Corrections and Conditional Release Act
- Provincial legislation, such as:
- The Highway Traffic Act
- The Mental Health Act
- Case law
Secondary legal sources help shore up your understanding of legal issues and provide you with a springboard from which to conduct further research. Secondary legal sources include:
- Legal textbooks
- Law review articles
- Academic journals
- Procedural guides
- Legal encyclopedias
Step 5: Begin Your Legal Research
We highly recommend beginning your legal research with secondary sources. The experts who publish those resources have already done the legwork for you. If the secondary sources were published by reputable entities, it means the research was likely in-depth, accurate, and well-vetted.
These sources will point you toward a wealth of primary sources from which you can construct a better defence for your client. You should even pay attention to sources where the defendant was found guilty; you can use differences between those cases and your client’s scenario to highlight why your client should not be found guilty.
Be sure to use legal research tools, ranging from case management programs to research databases; these tools will help you find new sources and track your progress.
Step 6: Check That You’re Using Relevant Law
Common law evolves over time. A precedent that was good for your last case may be useless now; higher courts may have invalidated the precedent, and governments may have enacted laws that supersede the precedent.
Older sources are less likely to be relevant, but they can still be useful, both as persuasive precedent and as guidance for how you should shape your legal arguments. In rare cases, very old sources may constitute binding precedent.
Step 7: Use A Memorandum To Solidify Your Research
A legal memorandum compiles all of your research into a streamlined document. This document can then be used to find any holes in the argument you are making and predict counterpoints that the prosecution may make. You can then conduct research on those holes and counterpoints, reevaluate your approach, create a new memorandum, and repeat the process.
Your legal memorandum should:
- State the facts of the case
- Identify the legal issues at question
- Apply your research to the facts to lead to your desired outcome
- Predict counterpoints (and counter them, if possible)
- Assess the likely outcome of the case
How To Conduct Winning Legal Research For Criminal Defence Cases
You now have a strong basis for conducting legal research. Beyond the seven steps outlined above, we have three tips to help you focus on the areas that matter and strengthen the case you are building:
Tip 1: Focus On Key Legal Issues
Criminal defence cases are often multifaceted. When conducting your research, it is crucial to begin by focusing on the key legal issues at question.
When you’re bogged down in the weeds, stop your research for a moment, take a breath, and ask yourself: Is the line of research I’m committing to right now the most likely route to secure the desired outcomes for my client? If the answer is no, it might be time to move to more fertile ground.
Tip 2: Assess The Strength Of Your Sources
We recommended it earlier in this article, but it’s worth recommending twice: create a legal memorandum. Run the sources you’ve compiled and the memorandum you’ve created by paralegals and other lawyers; get feedback, correct errors, shore up weak arguments, and repeat the process until you have a strategy that you believe will provide your client with the best results.
Tip 3: Utilize A Wide Range Of Legal Resources
Do not limit yourself to primary sources – and even more importantly, do not limit yourself to the sources you are comfortable with. Delve into all kinds of cases that are similar to your clients. Focus primarily on binding precedents, but don’t be afraid to look at similar cases from other provinces and territories; persuasive precedents can bolster your case.
Look at cases where the defendant was found not guilty and look at those where the defendant was found guilty. Read about reported decisions that did not go to trial – less glamorous, but useful for negotiating pre-trial outcomes. Ensure that all case law you rely on is still good law.
Looking For A Criminal Defence Lawyer? Contact Brodsky Amy & Gould
We hope that this article has provided you with a refresher on some best practices for legal research if you are a lawyer, law student, paralegal, or other legal professional.
For those outside of the legal profession, we hope this article has given you insights into the depth of research that legal teams conduct, if only to persuade you to pause before representing yourself. Legal research is only one step of the complex process of mounting a legal defence; it is not a process we recommend undertaking alone.
We encourage you to reach out to us if you need a criminal lawyer. Our team has experience representing clients in Manitoba who have been accused of criminal offences, including impaired driving, assaults, drug offences, fraud, theft, and more. Contact us for a consultation today.
The post How To Conduct Legal Research: A Guide To Criminal Defence Research In Canada appeared first on Brodsky Amy Gould Kinahan Mahoney.
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