In today’s guest blog, the Honourable J.E. Côté describes the expediency of textbooks, including what to look for in order to determine which texts are suitable.
Need for Textbooks
What is the most common error which lawyers make when they research law? Experts agree what it is. Lawyers plunge immediately to looking for case law or legislation. Instead, lawyers’ research should start by finding some published discussion of the topic, even if only for general principles and background. Often a textbook will help in many ways.
Canada has far more legal textbooks now than it did a generation ago. Some of them are of high quality, and few of them are useless or very misleading. But they are getting very expensive; some English legal texts can cost over a thousand dollars.
Yet over 70% of legal textbooks are not available online anywhere. The rest are, but are expensive.
It is often not necessary to buy every new edition of a textbook.
It is inefficient to go constantly to a courthouse library for the simplest legal research, and it is very dangerous to wing it without research.
So, a serious law firm needs some legal textbooks. So does a lawyer who keeps encountering the same subject. A law office without texts is not a firm of lawyers; it is a collection of notaries public.
Few firms can afford to buy the latest editions of all the textbooks on offer. How should you choose the most suitable ones?
The traditional method was reading published book reviews, but I have rarely found they help much. Practising lawyers hardly ever write reviews. The typical book review is by an academic, and falls into one of two baskets. For a practising lawyer, both are equally useless. One version (basket) is pro forma: here is a new edition of Blog’s textbook, and it is about this and that, and includes a new discussion of such and such. The other type is a doctrinal diatribe. It either praises a textbook (probably written by a friend) for being doctrinally correct and progressive, or damns the book because the reviewer (who may be a rival) disagrees with its theory or doctrine.
So you are on your own when you choose. How to know which text to buy? You have to see the possible textbooks yourself. That is not hard. The courthouse library has copies on the open shelf. (The university law library has them too, but they may well be locked away somewhere.) And the publishers are usually happy to send you books on approval. So it costs little or nothing for books which you reject and send back.
The Book’s Audience
One vital question for you is whether a textbook is designed purely to teach law school students. Many Canadian ones are. Or would the book be useful for a practitioner? English textbooks usually fall clearly into one category or the other. But few Canadian textbooks are designed primarily for practicing lawyers and few are written by practicing lawyers (or judges).
It is important to detect the basic aim of the text book. The most common distinction is between explaining principles, and cataloging authorities. Help with the latter is always useful, but some discussion of principles and basic concepts is essential, especially in the early stages. Most textbooks tend to do much more of one of these than the other. A few very large books do a fair job of both.
A lawyer will hone to need fairly large chunks of a principle text. A case-finding text may require mining only page or two
How eminent and experienced the author is, may be some indication. But some authors do not to their own work, especially when the task is keeping an established text up to date.
When you get a legal textbook into your hands, what should you look for? First, any clue as to whether it is for the classroom or the courtroom. Second, how much case law or other useful authority it cites. Third, whether it seems to be biased in one direction and selective, or whether it at least mentions the propositions and authorities on both sides of important questions. Third, how up to date it is. Fourth, whether it is merely a textbook on Ontario law, even if the misleading word “Canadian” is in the title. (Conversely, if you can read French reasonably well, sometimes you can find a very high-quality text published in Quebec, better than anything from Toronto. And see if an English text cites any Canadian cases; some big ones do.)
Different textbooks on the same general subject differ in their scope. Despite how law schools divide up the law into subjects for teaching purposes, there are no rigid boundaries. Many everyday topics in a law firm are on the border between two traditional subjects, such as contracts and torts. Or the topics raised by clients do not fit well into any traditional category. When a textbook grows (as all tend to), the next edition may drop a whole chapter, in order to save space and cost. For example, Snell’s Equity has shed many topics over the years.
Conversely, a good textbook will often contain a section, even a chapter, on something which you would not expect from the book’s title. Indeed knowing or discovering that is one of the great techniques of legal research. Most lawyers and students do not know that.
A very good place to look hard is the table of cases of the book you are considering purchasing. After all, what a barrister often wants most is citations to relevant cases. He or she can read the cases. Scan a page or two of the book’s table of cases, and see if it cites cases from Western Canada. And if it cites very recent cases.
Look at the approximate number of cases per page in the table. Multiply that by the number of pages in the table. That tells you approximately how many cases the book cites. Compare those numbers with rival textbooks on the same topic. You will be surprised. One textbook may well cite twice as many cases as a rival text. Publishers have many ways to make a book look bigger than it really is. It is also useful similarly to estimate how many cases on the subject the Canadian Abridgment cites, and see how few a textbook on the same topic cites.
When citing cases, do the textbook’s footnotes always give the neutral citation for the case? (For example, 2015 BCCA 123.) It is hard to look up cases reliably without that citation.
It is also helpful to find a lawyer in your firm who is acquainted with a precise topic or two within the field supposedly covered by the book. See if the book mentions that precise topic or not. If so, ask your local expert how accurate and useful that particular passage in the book is.
If you find an interesting, useful, or controversial statement in the book, look at the footnotes attached to it. Does the book purport to offer authority for the statement? Look at a few of the cases so cited. Do they support the proposition? (If you have time, see if they went on appeal, and if the book reveals that.)
Ease of Navigation
Does the book have an adequate number of subheadings and divisions, or are there multi-page passages with no subdivision?
Look hard at the table of contents and the index. Some books have far more detailed ones than others. Good text and citations in a book are next to useless if you cannot readily find them. Some otherwise good big textbooks have indexes which never seem to yield anything. Think up a few specific topics and see how readily the table of contents or the index lead you to the right discussion. It is especially helpful to recall some topic which you tried to research in the last year or so; would this book have led you to anything?
If you compare two rival texts on the same subject, often differences between the two appear quickly.
If money is a problem, look at the ratio of cost to benefit of rival books. Do not merely choose the cheapest or the best textbook.
P.S. I don’t get any money from the books I have written or co-written. This blog is not a sales pitch.
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