Legal Research Skills

For some writers it means a summary; for others, a summary plus a critical commentary.  Check the assignment instructions.  If you have to write a summary plus a critical commentary, it's usually best to answer in two sections.  Some assignments have four sections, basically covering the same divisions.

What goes into a case summary?

This is your understanding of the case in your own words, as briefly and succinctly as possible (aim at less than 10% of the word count, or else proportional to the marks).  It may start with:

• the case citation (choose the most authoritative report series)
• parties (legal terminology) and brief facts
• type of court and history of the case
• date(s)
• judge(s)

and should then objectively cover the major aspects of the judgment, including:

• the major arguments presented by counsel
• ratio per judge, including commentary on the arguments presented
• holding
• decision.

Read your assignment instructions carefully to make sure you are emphasising those areas highlighted by your lecturers.    Below is an example of some initial notes on a case, with some 'prompts' to move from the summary to the critique.  It is an aid to your reading, but you will need to be selective about what you include in your summary. 

Example of Notes from a Case  (from Monash University)

In a case critique you need to write analytically, creating an argument. This is your opinion on the case and the judgment, analysing why you consider the case important.

Your claims must be substantiated and referenced, and with a clear and logical argument defined by sub-headings.  You should adopt a clear position from which to examine the significance of the case.  In developing your argument, you will draw on the case and other materials to reveal that significance.

Depending on the assignment, you should: 

• look for one or more major features, either procedural or substantive, such as dissenting arguments, legislative base, use of evidence, cases presented, considered, applied etc.
• analyse the strengths and weaknesses of the case, especially those points that may give rise to policy amendments.
• comment on how the legal arguments made by counsel have been used by each judge.
• identify and analyse differences in the judges' reasoning.
• discuss the impact or significance of a case, carefully considering current legislation and precedent.  Sometimes you have a very recent case to critique, so you need to go back to the legislation and to previous cases on the same topic. 
• consider possible areas of legislative reform, if included in the instructions.

Most law journals regularly publish case notes, especially on recent decisions.  You can choose:

• a general legal journal, such as the Law Institute Journal available for access in AUSTLII
• a general academic journal, such as Monash University Law Review
• or a journal dealing with a specific area of law such as the Journal of Equity available for access in Lexis Nexis.

See an example of a case note in AUSTLII.  

Another approach is to use a case citator, such as CaseBase, to find the case and associated commentary.  The articles referred to may be case notes or more general commentary covering the legal issues involved in the case.