Many sole practitioners have a distate for legal research. While larger law firms generally have dedicated departments of staff who handle the legal research tasks, the litigation culture can be quite different for single lawyer firms.
A sole practitioner has to take on many different roles in a litigation case, serving clients who often come to them with limited budgetary resources and an urgent call to proceed with litigation. Under such circumstances, the lawyer might feel pressure to get the case rolling without first taking the time out to analyze the strengths and weaknesses of the client’s legal position in light of similar fact case law.
In terms of managing client expectations, such pressures can present unintended legal hazards later on in the course of the lawyer-client relationship, as legal fees start to mount, resulting in a situation where the client feels compelled to abandon a course of action prematurely because they ran out of funds at a time when they had no clear idea as to where the case was going. Under such circumstances, they might simply drop their lawyer and proceed toward self-representation, feeling embittered and sour over the sense that they couldn’t get enough mileage out of their lawyer before they suddenly “tanked out.”
Lawyers can work toward avoiding these negative judgments of their services by incorporating legal research as a tool for practice management at the very outset of the solicitor-client relationship.
While many lawyers feel that legal research – especially in cases that turn on a party’s credibility – is not necessary so long as they have a firm grasp of the general legal principles and grounds that will likely be engaged by the client’s situation, they neglect to appreciate the extent to which case law precedent might provide a crucial guideline for evaluating the strengths and weaknesses of a client’s evidence. I refer to this kind of research as evidence-centered legal research.
Evidence-centered legal research entails an approach to case law research that prompts the lawyer to adversarially test the solidity of a client’s legal position early on in the course of the lawyer-client relationship, by probing the available body of case law, to look for fact parameters that closely match the distinguishing details in a client’s situation. It involves the search for the relevant evidentiary factors that a court has assessed in similar fact patterns.
Though most legal cases are factually distinguishable from one another, especially when they hinge on judicial determinations of a party’s credibility, it would be an error to overlook the many ways in which this kind of legal research might assist a lawyer in working through their client’s body of evidence, enabling them to devise the most efficient legal strategies after sitting the client down, early in the course of a legal action, and going through the estimated costs and benefits of proceeding.
In an ideal world, with evidence-centered research, you’re looking for a list of factors clearly articulated by a judge, and which – as a bonus – can be cited as dicta. But more often than not, you’ll be faced with judgments in which the factors themselves were not explicitly spelled out, but rather alluded to in the context of the decision. If, for instance, credibility issues arise out of one element of a similar fact situation, it helps to know the kinds and quality of evidence the court assessed in rendering its credibility inferences.
Though no lawyer can exactly predict the outcome of a case, evidence-centered research allows lawyers to at least back up their predictions by directing their clients to the relevant case law most on-point with their fact situations. Will more supporting independent affidavits be needed to back up that client in light of a similar case where supporting affidavits were material in determining similar evidence in a similar situation? To what extent did evidence of prior conduct inform a judge’s opinion in a similar situation?
And if there happens to be no case law on-point with their situation, it’s something the client should be informed of early on – that they’re perhaps entering a legal gray zone with no clear evidentiary guidelines for the lawyer to follow, with all the attendant risks and costs of proceeding in that light. It’s the very essence of due diligence, since the lawyer will have taken the trouble to assess the case law foundations for their informed opinion. In other words, they’re not simply going on the vapour of their gut opinion and instinct.
Once you educate yourself as to which gaps in evidence a court has assessed in similar situations, it will also help you to devise a reasonable settlement offer in line with a litigation result made at least slightly more predictable with your evidence-based search of the case law.
In turn, you will have fulfilled your duty as counsel to reasonably inform your client early on as to the costs and benefits of launching, or defending against, a family or civil litigation action – the very essence of managing a productive client relationship.
The preceding should not be relied on as legal advice. It is offered as general information only, on an as is basis.
James Cooper, a Toronto area lawyer, provides flexible limited retainer arrangements and affordable legal help for self-represented litigants (in both civil litigation and family law cases) and for sophisticated clients concerned with managing their legal fees.
Mr. Cooper also provides quality professional legal research assistance and civil litigation support services to lawyers, law firms, and members of the public throughout the Greater Toronto Area (including Markham, Thornhill, Etobicoke, and Richmond Hill) and throughout the Province of Ontario.