Crafting a legal argument in the absence of guiding authority can feel impossible, especially for newish lawyers. I’ve often felt self-conscious about this type of analysis, sensing that this is the memo or argument that will reveal, once and for all, that I’m a total imposter.
If you too feel untethered without a case on point, this post may help. As I discuss below, there are several established legal reasoning techniques that can form the foundation of a solid legal argument.
I’ll get to those techniques below, but first, I’ll start with the crucial preliminary step of satisfying yourself that there is really, truly nothing on point.
1.Ask yourself: is there really nothing on point?
Don’t conclude prematurely that there’s nothing on point. You may reach several dead ends before you find a route through. Consider the following avenues:
Textbooks — Imagine what broad topics of law might touch on your problem, then go to the law library and check out several books on those topics. No idea what broad topics touch on your problem? BC lawyers can use the Courthouse Library’s catalogue search function, which searches not only the titles but also tables of contents of all publications in their collection. You may find your key words in areas of the law you hadn’t considered.
Keyword searches on a different legal database— If you’re coming up with nothing on one legal database, try another one. No access to paid databases? Lexis Advance Quicklaw and WestlawNext are available for free at BC Courthouse Library branches.
Academic articles — Scholars often provide a broad overview of an area of the law in the context of analyzing a specific legal issue. Find academic articles on Quicklaw, Westlaw, CanLII and through HeinOnline (available for free through the Courthouse Library).
A good old Google search —You never know what you’ll turn up — a relevant law journal article or a practitioner’s blog that happens to address your exact issue. An article found through Google may not necessarily be a persuasive authority, but it could guide you in the right direction.
Asking for help — For BC lawyers, the librarians at the Courthouse Library are an incredible resource. Call, visit a branch, or try their online Ask a Librarian service.
For other ideas, CanLII’s excellent publication, The Canadian Legal Research and Writing Guide, 2018 CanLIIDocs 161 contains a helpful chapter on where to look if you get stuck.
2. Ask yourself: why is there nothing on point?
Maybe there’s nothing on point because your file involves a wacky set of facts, unlikely to have occurred ever before. Maybe there is limited financial incentive for parties to have litigated the issue (though in BC, the CRT is making that less likely). In these circumstances, you likely can be reassured in your initial conclusion that there really is nothing directly on point, and you can move on to step three — reasoning from first principles.
On the other hand, if you think this legal issue must have arisen before, then you need to figure out where those decisions are hiding. Some possible ideas are:
You are using the wrong search terms. Perhaps there is a term of art you’re missing, a synonym you hadn’t considered, or a different way to phrase the issue.
The dispute is typically resolved in a different forum, such as private arbitration or an administrative tribunal.
There is a statutory provision that directly dictates the outcome
If you cannot figure out why you are coming up with nothing, return to the instructing lawyer or call a colleague.
3. Reason from first principles
Once you’ve satisfied yourself there is really nothing on point, it’s time to turn to first principles.
First principles are settled legal maxims expressed in their most basic form. For example:
Legal rules set out the legal consequences that flow from specified factual conditions. They are typically set out in a leading case or statute and can be applied to determine a specific answer on a legal issue. Sometimes a legal rule summarizes the elements that must be proven for a party to prevail on a particular issue. Other times a legal rule constructs a multifactorial balancing test. Examples: the five elements of a negligence claim; the grounds on which an easement can be cancelled; the two elements of unconscionability.
Legal principles are background ideas that courts sometimes apply when deciding cases. These general overriding principles do not necessarily dictate a particular outcome, but they play an important role in judicial analysis. Examples: the primacy of the best interests of the child in family law cases; the principle of proportionality in criminal sentencing; the overriding objective of the just, speedy, and inexpensive determination of every proceeding under the BC Supreme Court Civil Rules.
Modes of analysis are legal principles that provide a framework for analyzing specific types of legal issues. Examples: the rules of contractual interpretation and statutory interpretation; the provisions of the provincial and federal Interpretation Acts.
If you aren’t sure which first principles to apply, a good place to start is a textbook. For example, Irwin Law’s Essentials of Canadian Law series includes texts on almost every major Canadian legal topic. These books are available online free to BC Lawyers through the BC Courthouse Library. The full text of these books is searchable, which is helpful when you don’t know where to start.
4. Reason from policy
Sometimes, you won’t even be able to find a first principle that resolves your legal problem. In such a case, a policy argument may be persuasive.
In the context of legal reasoning, policy is the broad societal goal to be achieved by applying a legal rule to various situations. A policy is more abstract than a first principle.
To apply policy to a client’s facts, you first must discern the policy underlying the law. Sometimes there will be a statute or case that explicitly states the policy. Other times you will be able to find it in academic commentary.
The Supreme Court of Canada provides an example of policy-based analysis in Nelson (City) v. Marchi, 2021 SCC 41, dealing with the policy defence for government bodies in negligence cases. The Court acknowledged the confusion in the case law and instead based its analysis on the underlying rationale for policy immunity: separation of powers.
Policy-based analysis is not just appropriate when there are no applicable legal rules. In fact, it is most often combined with a legal rule-based analysis.
5. Argue that the decided cases have evolved to a general principle
Paul Perell (now Justice Perell) explains this technique in his article, Stare Decisis and Techniques of Legal Reasoning and Legal Argument. When there’s nothing on point, a lawyer can “go beyond first principles and instead develop an argument that the decided cases have evolved to a general principle that covers the immediate case.”
To determine a general principle from the case law, ask yourself if there is a common thread or rationale in the jurisprudence that will support your case.
Justice Perell points out that Lord Atkin applied this type of reasoning in Donoghue v. Stevenson, the familiar case involving a snail in a bottle of ginger beer. At the time, there was no general negligence principle at common law; a personal injury claim had to fall within one of many narrow causes of action, such as trespass on the person. Lord Atkin reasoned that while the decided cases each examined a specific type of liability, there was an underlying common rationale relating to duty of care. He went on to set out the neighbour principle, the foundation of the modern law of negligence.
As Justice Perell wrote: “Lord Atkin did not ignore the precedents. Instead he found within them an underlying principle which he then applied. In a sense, Lord Atkin looked backward before he moved the law forward.”
6. Consider case law from other jurisdictions
At times, Canadian courts are open to considering the domestic law of other common law countries. Foreign law may be used to reinforce conclusions based on domestic authorities or assist in framing novel legal issues. It may therefore be appropriate to consider researching the law of one or more foreign jurisdictions, such as the UK, USA, Australia, New Zealand, or South Africa (the laws of other countries may be relevant, but these are the jurisdictions most commonly cited in Canadian courts).
Approach foreign research with care. Researching the law of another country can be confusing, time-consuming, and the results ultimately unpersuasive to a Canadian court. Ensure you have instructions before getting started.
Once you have instructions to undertake foreign legal research, here are a few tips:
Researching foreign law requires you not only to find a case on point, but also to familiarize yourself with the legal process and structures of the foreign jurisdiction. Even then, it may still be difficult to assess the precedential value of any particular case. It is often more efficient to find a law journal article that provides an overview of the law from another country, rather than wading into the cases directly. (HeinOnline, available for free to BC lawyers through the Courthouse Library, is an great resource for foreign journal articles).
Consider carefully which jurisdiction(s) to research.
UK law is a good starting point, given our shared legal tradition. Numerous older UK cases have been accepted into Canadian law, though that does not mean newer cases will hold the same weight.
Sometimes the legal topic will dictate which jurisdiction is relevant. For example, there is a long tradition of Canadian courts citing American authorities on insurance law. Canadian courts also tend to cite American courts on class action law.
Perhaps you want to find a jurisdiction that has a statute in place that is similar to the one at issue.
Be particularly careful researching US case law. The US court structure is more complicated than ours, with two parallel, sovereign systems — federal and state law. Each of the 50 state court systems is independent and not bound by the decisions of their sister states. The volume of case law is immense. Finding an American authority that supports your position could amount to an act of cherry-picking.
UBC publishes a guide to researching foreign law, which can be a good place to start.
Additional resources
I hope these tips have been helpful.
If you want to learn more about legal reasoning, an excellent resource is The Law of Judicial Precedent, by Bryan A. Garner and others. While it is aimed at a US audience, Canadian lawyers will much of it highly relevant.
