Legal Brief for September, 2012

What is a Precedent Case?

When a client has a situation that involves a dispute of some kind, he or she will be looking to their lawyer for an opinion on the merits of the case - "will I win if we go to court?" - is the way the question is often put.  The lawyer's response is quite often - "maybe" - and the lawyer will then go on to review the various factors that go into how a case may turn out at trial.  One of the the factors the lawyer may mention is whether there are any precedent cases that may be helpful, or a hindrance, to the client's case.  In this Brief I will review what a precedent case is, and how they are developed and used in our legal system.

There are two sources of laws and legal principles in our system.  The first is from laws that are passed by the House of Commons for the Government of Canada or the Legislature for Alberta.  These laws are known as statutes.  A case may, or may not, involve the applicability of one or more statutes.  It can often become a complex issue as to whether a particular statute applies to a situation.

The second source is from what is known as the "common law".  Common law comes from decisions made by the courts in prior cases.

Our legal system is based on the principle of stare decisis, which translated in practical terms means "like cases should be decided alike".  In other words, if there was a case decided 100 years ago with the exact same facts as a client's present case, then a court is required to make the same decision in the current case as the previous decision 100 years before.  This approach provides for certainty and predictability within the legal system and for lawyers to be able to advise their clients.

When your lawyer advises you that "we have some good precedents on our side", he or she is in effect saying "there are some previously decided cases that are very similar to your case and which were decided in a manner favourable to your side of the dispute".  If your case goes to trial, then as part of the argument presented at the close of the trial, your lawyer will bring those prior cases to the attention of the judge, and will argue that your case should be decided in a like manner.

It is sometimes difficult however to find two cases with exactly the same facts.  Therefore it can be difficult to find a precedent that precisely supports your position, or is contrary to your side of the case.  In a situation like that, lawyers will look for points within the precedent cases that "distinguish" them from the current case.  Another technique used is to argue that certain statements in the prior case were not central to the main point of the case and therefore should not be given much credence in determining the outcome of the current case.  This technique is known as trying to sift what is known as obiter dicta (statements not directly relevant) from what is the ratio decidendi (the main point) of the case.  As you can see, one of the byproducts of a legal education is a certain familiarity with Latin.