Legal Rhetoric - A Guide to Legal Writing, Legal Arguments & Legal Interpretation.docx

‘…rhetoric is the art of ruling the minds of men.’ -Plato

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Legal Rhetoric – Legal Writing, Legal Arguments & Legal Interpretation (Ojijo)

Book Title: Legal RhetoricOjijo’s Guide to Legal Writing, Legal Arguments and Legal

Interpretation

FIRST EDITION, 2012ISBN: 978-9966-123-48-0

Copyright © 2012, Ojijo. All rights reserved. This work is copyrighted by the author. No partsof this publication maybe reproduced, stored in a retrieval system, or transmitted in any form,

without permission of the publisher.

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Legal Rhetoric!In the court room, and in the law firm, where both sideshave all facts and all legal citations, the casewill be won, or lost, on rhetoric; on legalrhetoric; on the appreciation of legalprinciples, presumptions, doctrines, rules,tests, maxims, and phrases. To the legal writer,a mention of a doctrine here, a maxim there, anda test in the conclusion, will flower thearticle, making it to sound well researched,more persuasive and ultimately effective. To thelegal speaker, the solicitor, legal rhetoricarrests attention, holds conscience captive andwins the will of the adjudicator. Legal Rhetoric!

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Table of ContentsLIST OF AUTHORITIES..........................................................8

Statutes.......................................................................................................................................................... 8Rules.............................................................................................................................................................. 8Treatises........................................................................................................................................................ 8

LEGAL RHETORIC..............................................................9Definition and Scope of Rhetoric.................................................................................................................9Legal Rhetoric............................................................................................................................................. 16

RHETORICAL DEVICES..........................................................21Introducing Rhetorical Devices.................................................................................................................21Poetic Devices/Oratory............................................................................................................................... 22Maxims (of Equity)...................................................................................................................................... 32Law Idioms.................................................................................................................................................. 37Law Quotes................................................................................................................................................. 52Law Jokes..................................................................................................................................................... 60Latin Law Maxims....................................................................................................................................... 67

BASICS OF GRAMMAR AND PUNCTUATION IN ARTICLES...................................92Common Grammar Mistakes.................................................................................................................... 9214 Punctuation Marks.............................................................................................................................. 104

LEGAL BRIEFS..............................................................111Introducing Briefs.................................................................................................................................... 111Different Types Of Legal Briefs................................................................................................................ 113Plaints, Statements of Claim................................................................................................................... 115Defence, Statetement of Defence............................................................................................................121Other Briefs............................................................................................................................................... 125Brief Writing Tips...................................................................................................................................... 134

JUDGEMENTS................................................................171Definition, Scope and Contents............................................................................................................... 171Judgment Writing Tips............................................................................................................................. 177

OPINIONS.................................................................188Legal Opinion........................................................................................................................................... 188Judicial Opinions...................................................................................................................................... 191Advisory Opinions..................................................................................................................................... 198

LEGAL ESSAYS..............................................................199What is A Legal Essay?............................................................................................................................. 199Contents of Legal Essay?.......................................................................................................................... 200Tips for Legal Essays................................................................................................................................ 212Referencing and Footnoting of Legal Essays.........................................................................................220Citations of Legal Authorities/ Citation Rules........................................................................................226Law Review (Law Journals)....................................................................................................................... 231

LEGAL MEMORANDUM...........................................................234Definition and Scope of Legal Memorandum........................................................................................234Comparing Memos to Briefs................................................................................................................... 234

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Memorandum Format............................................................................................................................. 237The Two Types of Memoranda................................................................................................................ 240Memorandum Writing Tips..................................................................................................................... 244

CONTRACT DRAFTING..........................................................249Definition and Scope of Contract Drafting.............................................................................................249Contract Clauses....................................................................................................................................... 254Tips to Effective Contract Drafting..........................................................................................................260

LEGISLATIVE DRAFTING.......................................................267Definition and Scope of Legislative Drafting.........................................................................................267Common Definitions in Legisaltive Drafting..........................................................................................269Contents of A Bill/Statute/Constitution...................................................................................................274Punctuation And Grammar..................................................................................................................... 277General Drafting Principles..................................................................................................................... 293Sample Drafting Provisions..................................................................................................................... 303

EFFECTIVE LEGAL ARGUMENTS...................................................31121 General Rules of Effective Legal Arguments.....................................................................................311Trial Advocacy........................................................................................................................................... 346Moot Courts.............................................................................................................................................. 350Mock Trials................................................................................................................................................ 352Opening Statements................................................................................................................................ 355Motions..................................................................................................................................................... 356Evidentiary Objections............................................................................................................................. 360Adducing Evidence................................................................................................................................... 370Questioning Witnesses............................................................................................................................. 424Closing Statements................................................................................................................................... 428

LEGAL INTERPRETATION.......................................................429Introducing Legal Interpretation............................................................................................................429Contract Interpretation........................................................................................................................... 430Statutory Interpretation.......................................................................................................................... 450Constitutional Interpretation.................................................................................................................. 482

INDEX........................................................486

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List of Authorities

CasesCarlill v Carbolic Smoke Ball Company............................250, 251Eastwood v. Kenyon.........................................251, 252

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Legal Rhetoric

“Rich Lawyers Speak Like Lawyers.”

-OjijoDEFINITION AND SCOPE OF RHETORIC

defining rhetoric We watch and listen to great orators with a mixture of admiration and

envy, wondering how on earth they manage to stay so serene. Theirwords pour like honey, smoothly and effortlessly, as they influenceand persuade us with ease. This is rhetoric; the capability topersuade and win an argument, or to please and win acclaim. One ofthe biggest tools in the armory of a great lawyer is legalrhetoric; the art of using legal principles, rules, maxims,presumptions, tests and phrases to influence others.

Language has the power to shape the way people think and act and theability to use language effectively is fundamental to successfulpractice. Our understanding of law and language has given rise to aunique program that prepares our graduates to become better writersand better lawyers

Rhetoric is the art of discourse, an art that aims to improve thefacility of speakers or writers who attempt to inform, persuade, ormotivate particular audiences in specific situations.1 As a subjectof formal study and a productive civic practice, rhetoric hasplayed a central role in the Western tradition.2 Its best knowndefinition comes from Aristotle, who considers it a counterpart ofboth logic and politics, and calls it ‘the faculty of observing inany given case the available means of persuasion.’3 From ancientGreece to the late 19th Century, it was a central part of Westerneducation, filling the need to train public speakers and writers tomove audiences to action with arguments.4

1 Corbett, E. P. J. (1990). Classical Rhetoric For The Modern Student. New York: OxfordUniversity Press., p. 1.; Young, R. E., Becker, A. L., & Pike, K. L. (1970).Rhetoric: Discovery And Change. New York,: Harcourt Brace & World. p. 1;

2 See, e..g., Thomas Conley, Rhetoric in the European Tradition (University of Chicago, 1991).

3 ‘...rhetoric is a combination of the science of logic and of the ethical branch of politics...’ Aristotle. Rhetoric. (trans. W. Rhys Roberts). I:4:1359.; Aristotle, Rhetoric 1.2.1,

4 The definition of rhetoric is a controversial subject within the field and has given rise to philological battles over its meaning in Ancient Greece. See, for instance, Johnstone, Henry W. Jr. (1995). ‘On Schiappa versus Poulakos.’ Rhetoric Review. 14:2. (Spring), 438-440.

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The word rhetoric is derived from the word rhetor, the Greek term for oratoror ‘public speaker’.5 A rhetor was a citizen who regularly addressedjuries and political assemblies and who was thus understood to havegained some knowledge about public speaking in the process, thoughin general facility with language was often referred to as logôntechne, ‘skill with arguments’ or ‘verbal artistry.’6 Rhetoric thus evolved asan important art, one that provided the orator with the forms,means, and strategies for persuading an audience of the correctnessof the orator's arguments. Individuals engage in the rhetoricalprocess anytime they speak or produce meaning. Even in the field ofscience, the practices of which were once viewed as being merelythe objective testing and reporting of knowledge, scientists mustpersuade their audience to accept their findings by sufficientlydemonstrating that their study or experiment was conducted reliablyand resulted in sufficient evidence to support their conclusions.

Aristotle defines the rhetorician as someone who is always able to seewhat is persuasive.7Correspondingly, rhetoric is defined as theability to see what is possibly persuasive in every given case8.This is not to say that the rhetorician will be able to convinceunder all circumstances. Rather he is in a situation similar tothat of the physician: the latter has a complete grasp of his artonly if he neglects nothing that might heal his patient, though heis not able to heal every patient. Similarly, the rhetorician has acomplete grasp of his method, if he discovers the available meansof persuasion, though he is not able to convince everybody.

Rhetoric trains speakers to be effective persuaders in public forumsand institutions like courtrooms and assemblies. Public relations,lobbying, law, marketing, professional and technical writing, andadvertising are modern professions that employ rhetoricalpractitioners.

rhetoric as a course of studyRhetoric as a course of study has evolved significantly since its

ancient beginnings. The study of rhetoric has conformed to amultitude of different applications, ranging from architecture toliterature.9 Generally speaking, the study of rhetoric trains

5 Perseus.Tufts.edu, Rhetorikos, Henry George Liddell, Robert Scott, A Greek-English Lexicon, at Perseus

6 cf. Mogens Herman Hansen The Athenian Democracy in the Age of Demosthenes (Blackwell, 1991); Josiah Ober Mass and Elite in Democratic Athens (Princeton UP, 1989); Jeffrey Walker, Rhetoric and Poetics in Antiquity (Oxford UP, 2000).

7 Topics VI.12, 149b258 Rhet. I.2, 1355b26f.

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students to speak and/or write effectively, as well as criticallyunderstand and analyze discourse.

Rhetoric began as a civic art in Ancient Greece where students weretrained to develop tactics of oratorical persuasion, especially inlegal disputes. Rhetorical education focused on five particularcanons: inventio (invention), dispositio (arrangement), elocutio (style),memoria (memory), and actio (delivery). Modern teachings continue toreference these rhetorical leaders and their work in discussions ofclassical rhetoric and persuasion. Rhetoric was later taught inuniversities during the Middle Ages as one of the three originalliberal arts or trivium (along with logic and grammar).10

Throughout the 20th Century, rhetoric developed as a concentratedfield of study with the establishment of rhetorical courses in highschools and universities. Courses such as public speaking andspeech analysis apply fundamental Aristotelian methodologies (such asthe modes of persuasion: ethos, pathos, and logos) as well as trace rhetoricaldevelopment throughout the course of history.

The Egyptians held eloquent speaking in high esteem, and it was askill that had a very high value in their society. The ‘Egyptianrules of rhetoric’ also clearly specified that ‘knowing when not to speakis essential, and much respected, rhetorical knowledge.’11

Rhetoric, as an area of study, is concerned with how humans usesymbols, especially language, to reach agreement that permitscoordinated effort of some sort.12 The speech can produce persuasioneither through the character of the speaker, the emotional state ofthe listener, or the argument (logos) itself.

Isocrates taught public speaking as a means of human improvement. Hesuggested that while an art of virtue or excellence did exist, itwas only one piece, and the least, in a process of self-improvementthat relied much more heavily on native talent and desire, constantpractice, and the imitation of good models. Isocrates believed thatpractice in speaking publicly about noble themes and importantquestions would function to improve the character of both speakerand audience while also offering the best service to a city.13 Hethus wrote his speeches as ‘models’ for his students to imitate in

9 ‘...rhetoric is a combination of the science of logic and of the ethical branch of politics...’ Aristotle. Rhetoric. (trans. W. Rhys Roberts). I:4:1359.; Aristotle, Rhetoric 1.2.1,

10 George A. Kennedy, Aristotle, On Rhetoric: A Theory of Civic Discourse (New York:Oxford University Press, 1991).

11 Prill, Paul E. ‘Rhetoric and Poetics in the Early Middle Ages.’ Rhetorica 5.2 (1987): 131. JSTOR. Web. 20 February 2010. JSTOR.org

12 Ray, Angela G. The Lyceum and Public Culture in the Nineteenth-Century United States. (East Lansing: Michigan State University Press, 2005), 14-15.

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the same way that poets might imitate Homer or Hesiod, seeking toinspire in them a desire to attain fame through civic leadership.His was the first permanent school in Athens and Plato's Academyand Aristotle's Lyceum were founded in part as a response toIsocrates. Though he left no handbooks, his speeches (‘Antidosis’ and‘Against the Sophists’ are most relevant to students of rhetoric) becamemodels of oratory. He had a marked influence on Roman oratory andrhetoric, specifically influencing Cicero and Quintilian, two greatorators and teachers of rhetoric.

For the Romans, oration became an important part of public life.Cicero was chief among Roman rhetoricians and remains the bestknown ancient orator and the only orator who both spoke in publicand produced treatises on the subject. Rhetorica ad Herennium, is oneof the most significant works on rhetoric and is still widely usedas a reference today. Cicero is considered one of the mostsignificant rhetoricians of all time. His works include the earlyand very influential De Inventione (On Invention, often read alongsidethe Ad Herennium as the two basic texts of rhetorical theorythroughout the Middle Ages and into the Renaissance), De Oratore (afuller statement of rhetorical principles in dialogue form), Topics(a rhetorical treatment of common topics, highly influentialthrough the Renaissance), Brutus (Cicero) (a discussion of famousorators) and Orator (a defense of Cicero's style). He emphasizedthe importance of all forms of appeal (emotion, humor, stylisticrange, irony and digression in addition to pure reasoning) inoratory. But perhaps his most significant contribution tosubsequent rhetoric, and education in general, was his argumentthat orators learn not only about the specifics of their case (thehypothesis) but also about the general questions from which they werederived (the theses). Thus, in giving a speech in defense of a poetwhose Roman citizenship had been questioned, the orator shouldexamine not only the specifics of that poet's civic status, heshould also examine the role and value of poetry and of literaturemore generally in Roman culture and political life. The orator,said Cicero, needed to be knowledgeable about all areas of humanlife and culture, including law, politics, history, literature,ethics, warfare, medicine, even arithmetic and geometry. Cicerogave rise to the idea that the ‘ideal orator’ be well-versed in allbranches of learning: an idea that was rendered as ‘liberalhumanism,’ and that lives on today in liberal arts or general

13 Isocrates. ‘Against the Sophists.’ In Isocrates with an English Translation in three volumes, by George Norlin, Ph.D., LL.D. Cambridge, MA, Harvard University Press; London, William Heinemann Ltd. 1980.; Isocrates. ‘Antidosis.’ In Isocrates with an English Translation in three volumes, by George Norlin, Ph.D., LL.D. Cambridge, MA, Harvard University Press; London, William Heinemann Ltd. 1980.

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education requirements in colleges and universities around theworld.14

Quintilian began his career as a pleader in the courts of law; hisreputation grew so great that Vespasian (Emperor) created a chairof rhetoric for him in Rome. The culmination of his life's work wasthe Institutio oratoria (Institutes of Oratory, or alternatively, The Orator'sEducation), a lengthy treatise on the training of the orator in whichhe discusses the training of the ‘perfect’ orator from birth to oldage and, in the process, reviews the doctrines and opinions of manyinfluential rhetoricians who preceded him. In the Institutes,Quintilian organizes rhetorical study through the stages ofeducation that an aspiring orator would undergo, beginning with theselection of a nurse. Aspects of elementary education (training inreading and writing, grammar, and literary criticism) are followedby preliminary rhetorical exercises in composition (theprogymnasmata) that include maxims and fables, narratives andcomparisons, and finally full legal or political speeches.15 Thedelivery of speeches within the context of education or forentertainment purposes became widespread and popular under the term‘declamation.’

scope of rhetoricThroughout European History, rhetoric was viewed as a civic art by

several of the ancient philosophers. In his work, Antidosis,Isocrates states, ‘we have come together and founded cities and made laws andinvented arts; and, generally speaking, there is not institution devised by man which thepower of speech has not helped us to establish’. With this statement he arguesthat rhetoric is a fundamental part of civic life in every societyand that it has been necessary in the foundation of all aspects ofsociety. He further argues that rhetoric, although it cannot betaught to just anyone, is capable of shaping the character of man.He writes, ‘I do think that the study of political discourse can help more than any otherthing to stimulate and form such qualities of character’.

Looking to another key rhetorical theorist, Plato defined the scope ofrhetoric according to his negative opinions of the art. In‘Gorgias,’ one of his Socratic Dialogues, Plato defines rhetoric asthe persuasion of ignorant masses within the courts and

14 Black, Edwin. (1965)Rhetorical Criticism a Study in Method. Madison, WI: University of Wisconsin Press.

15 Histories of the emergence of rhetorical studies in 20th century America can be found in Cohen, H. (1994). The history of speech communication: The emergence of a discipline, 1914-1945. Annandale, VA: Speech Communication Association; and Gehrke, P.J. (2009). Theethics and politics of speech: Communication and rhetoric in the twentieth century. Carbondale, IL: Southern Illinois University Press.

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assemblies.16 Rhetoric, in Plato’s opinion, is merely a form offlattery and functions similarly to cookery, which masks theundesirability of unhealthy food by making it taste good. Thus,Plato considered any speech of lengthy prose aimed at flattery aswithin the scope of rhetoric.

Plato's student Aristotle redeemed rhetoric from his teacher andextended the definition of rhetoric, calling it the ability toidentify the appropriate means of persuasion in a given situation,thereby making rhetoric applicable to all fields, not justpolitics. In the words of Aristotle, in his essay Rhetoric,rhetoric is ‘the faculty of observing in any given case the available means ofpersuasion’. According to Aristotle, this art of persuasion could beused in public settings in three different ways. He writes inBook me, Chapter IIme, ‘A member of the assembly decides aboutfuture events, a juryman about past events: while those who merelydecide on the orator's skill are observers. From this it followsthat there are three divisions of oratory- (1) political, (2)forensic, and (3) the ceremonial oratory of display’.

More trusting in the power of rhetoric to support a republic, theRoman orator Cicero argued, in his major text on rhetoric, DeOratore17, that art required something more than eloquence. A goodorator needed also to be a person enlightened on a variety of civictopics.

James Boyd White argues further that rhetoric is capable not only ofaddressing issues of political interest but that it can influenceculture as a whole. In his book, When Words Lose Their Meaning, heargues that words of persuasion and identification define communityand civic life. He states that words produce ‘the methods by which cultureis maintained, criticized, and transformed’.18

In modern times, rhetoric has consistently remained relevant as acivic art. In speeches, as well as in non-verbal forms, rhetoriccontinues to be used as a tool to influence communities from localto national levels.

16 Plato, ‘Gorgias,’ The Classical Library17 Cicero. ‘De Oratore’ in Cicero Rhetorica. Vol. I (De Oratore) Edited by A. S.

Wilkins Clarendon Press Oxford Classical Texts 264 pages | 238x167mm 978-0-19-814615-5 | Hardback | 26 March 1963

18 James Boyd White, When Words Lose Their Meaning (Chicago: The University of Chicago Press, 1984).

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quntillian’s five (5) canons of rhetoricAccording to Quintillian, rhetorical training proper is categorized

under five canons that would persist for centuries in academiccircles:

1. Inventio (invention) is the process that leads to the development andrefinement of an argument.

2. Once arguments are developed, dispositio (disposition, or arrangement)is used to determine how it should be organized for greatesteffect, usually beginning with the exordium.

3. Once the speech content is known and the structure is determined,the next steps involve elocutio (style) and pronuntiatio (presentation).

4. Memoria (memory) comes to play as the speaker recalls each of theseelements during the speech.

5. Actio (delivery) is the final step as the speech is presented in agracious and pleasing way to the audience - the Grand Style.

St. Augustine, after his conversion to Christianity, became interestedin using these ‘pagan‘ arts for spreading his religion, and in hisDe Doctrina Christiana, Augustine begins the book by asking why ‘thepower of eloquence, which is so efficacious in pleading either forthe erroneous cause or the right’, should not be used for righteouspurposes (IV.3).

Thomas Hobbes also wrote on rhetoric. Along with a shortenedtranslation of Aristotle's Rhetoric, Hobbes also produced a number ofother works on the subject. Sharply contrarian on many subjects,Hobbes promoted a simpler and more natural style that used figuresof speech sparingly.

aristotle’s three (3) parts of rhetorical speechAristotle's treatise on rhetoric systematically describes rhetoric as

a human skill (techne). His definition of rhetoric is ‘the faculty ofobserving in any given case the available means of persuasion.’. His treatise infact also discusses not only elements of style and delivery, butalso emotional appeals (pathos) and characterological appeals (ethos).19 Aspeech consists of three things: the speaker, the subject that istreated in the speech, and the listener to whom the speech isaddressed20. It seems that this is why only three technical means ofpersuasion are possible: Technical means of persuasion are either

19 Patricia Bizzell and Bruce Herzberg The Rhetorical Tradition: Readings from Classical Times to thePresent, Boston: Bedford / St. Martins, 2nd ed., 2001, p. 486.

20 Rhet. I.3, 1358a37ff.

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(a) in the character of the speaker (ethos), or (b) in the emotional state of thehearer (pathos), or (c) in the argument (logos) itself.

ethosEthos is how the character and credibility of a speaker can influence

an audience to consider him/her to be believable. This could be any position in which the speaker—whether an

acknowledged expert on the subject, or an acquaintance of a personwho experienced the matter in question—knows about the topic. Forinstance, when a magazine claims that An MIT professor predicts that the robotic era iscoming in 2050, the use of big-name ‘MIT’ (a world-renowned American university for theadvanced research in math, science, and technology) establishes the ‘strong’ credibility.

The persuasion is accomplished by character whenever the speech isheld in such a way as to render the speaker worthy of credence. Ifthe speaker appears to be credible, the audience will form thesecond-order judgment that propositions put forward by the crediblespeaker are true or acceptable. This is especially important incases where there is no exact knowledge but room for doubt. But howdoes the speaker manage to appear a credible person? He mustdisplay (i) practical intelligence (phronêsis), (ii) a virtuouscharacter, and (iii) good will21; for, if he displayed none of them,the audience would doubt that he is able to give good advice atall. Again, if he displayed (i) without (ii) and (iii), theaudience could doubt whether the aims of the speaker are good.Finally, if he displayed (i) and (ii) without (iii), the audiencecould still doubt whether the speaker gives the best suggestion,though he knows what it is. But if he displays all of them,Aristotle concludes, it cannot rationally be doubted that hissuggestions are credible. It must be stressed that the speaker mustaccomplish these effects by what he says; it is not necessary thathe is actually virtuous: on the contrary, a preexisting goodcharacter cannot be part of the technical means of persuasion.

pathos Pathos is the use of emotional appeals to alter the audience's

judgment. This can be done through metaphor, amplification, storytelling, or

presenting the topic in a way that evokes strong emotions in theaudience.

The success of the persuasive efforts depends on the emotionaldispositions of the audience; for we do not judge in the same waywhen we grieve and rejoice or when we are friendly and hostile.

21 Rhet. II.1, 1378a6ff.

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Thus, the orator has to arouse emotions exactly because emotionshave the power to modify our judgments: to a judge who is in afriendly mood, the person about whom he is going to judge seems notto do wrong or only in a small way; but to the judge who is in anangry mood, the same person will seem to do the opposite22. The aimof rhetorical persuasion is a certain judgment (krisis), and anaction or practical decision (prohairesis). Moral education is not thepurpose of rhetoric, nor could it be effected by a public speech:‘Now if speeches were in themselves enough to make men good, they would justly, asTheognis says, have won very great rewards, and such rewards should have been provided;but as things are … they are not able to encourage the many to nobility and goodness.’ 23

How is it possible for the orator to bring the audience to acertain emotion?

Aristotle's technique essentially rests on the knowledge of thedefinition of every significant emotion. Let, for example, anger bedefined as ‘desire, accompanied with pain, for conspicuous revenge for a conspicuousslight that was directed against oneself or those near to one, when such a slight isundeserved.’ 24. According to such a definition, someone who believesthat he has suffered a slight from a person who is not entitled todo so, etc., will become angry. If we take such a definition forgranted, it is possible to deduce circumstances in which a personwill most probably be angry; for example, we can deduce (i) in whatstate of mind people are angry and (ii) against whom they are angryand (iii) for what sorts of reason. With this equipment, the oratorwill be able, for example, to highlight such characteristics of acase as are likely to provoke anger in the audience. In comparisonwith the tricks of former rhetoricians, this method of arousingemotions has a striking advantage: The orator who wants to arouseemotions must not even speak outside the subject; it is sufficientto detect aspects of a given subject that are causally connectedwith the intended emotion.

logosLogos is the use of reasoning, either inductive or deductive, to

construct an argument. Logos appeals include appeals to statistics, math, logic, and

objectivity. For instance, when advertisements claim that theirproduct is 37% more effective than the competition, they are makinga logical appeal.

22 cp. Rhet. II.1, 1378a1ff.23 EN X.9. 1179b4–1024 Rhet. II.2 1378a31–33

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For Aristotle, there are two species of arguments: inductions anddeductions25.

Induction (epagôgê) is defined as the proceeding from particulars upto a universal26. Inductive reasoning uses examples (historical, mythical, orhypothetical) to draw conclusions.

Deduction (sullogismos) is an argument in which, certain things havingbeen supposed, something different from the suppositions results ofnecessity through them27 or because of their being true28. Deductivereasoning, or ‘enthymematic’ reasoning, uses generally accepted propositions to derivespecific conclusions. The term logic evolved from logos. Aristotle emphasized enthymematicreasoning as central to the process of rhetorical invention.

Logical reasoning can hence be either inductive, or deductive. Wepersuade by the argument itself when we demonstrate or seem todemonstrate that something is the case.

25 Posterior Analytics I.1, 71a5ff.26 Topics I.12, 105a13ff.27 Topics I.1, 100a25ff.28 Prior Analytics I.2, 24b18–20

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LEGAL RHETORIC

defining legal rhetoric Based on Aristotle’s treatise on Rhetoric, Legal Rhetoric can be

defined as the use of persuasion and language with reasoning andcredibility in a context of law or justice.

Legal rhetoric is a cornerstone of great lawyers in court, and in thelaw firm, and the techniques have not changed. Legal rhetoric isabout the use of presumptions, principles, rules, tests, doctrines,maxims and legal phrases to persuade. Legal rhetoric is the use ofsayings, proverbs, idioms, personification of objects, and riddles,for the purposes of sending the message home. Any advocate one whohas had a complete education would have encountered rhetoric, whichmay in part explain why so many successful advocates are also greatorators. It was the mark of speech of elders, leaders, politicians,in various cultures, across centuries!

Great lawyers and advocates have used rhetoric, in and out of lawcourts and law firms, from Winston Churchill, Fidel Castro in‘History Will Absolve Me’ to Hugo Chavez, to Barrack Obama in ‘Yes We Can!’and Nelson Mandela, to J.F. Kennedy, history of the world waschanged because some people used rhetoric in their communication;they spoke and they wrote to seduce the mind of their listeners.They used Rhetoric. Rhetoric! They individually rallied theirpeople to war, strife, civil disobedience, revolutions, rebellion,colonialism, and release from colonialism, racism, electoralvictories, and belief in self, because they communicated, theycommunicated effectively. They brought people to their side. Theymade people change their minds. They won arguments. They changedthe world. They used rhetoric.

scope of legal rhetoric (principles, presumptions, doctrines, maxims,rules & tests of law)

Legal rhetoric normally focuses on two main issues: questions of factor questions of interpretation of the law.

On the province of law, we have (roughly) three kinds of law, each ofwhich generates a unique set of interpretive approaches:

و Constitutional law: sets up a structure of government at the national and state level, withexplicit and implicit governmental powers and individual rights.

و Statutes: legislature-made law.

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و Common law & equity: the system of judge-made law

The speech that takes place before a court is defined as the judicialspecies.29 The speaker either accuses somebody or defends herself orsomeone else. Naturally, this kind of speech treats things thathappened in the past. The audience or rather jury has to judgewhether a past event was just or unjust, i.e., whether it wasaccording to the law or contrary to the law.

legal principle or principle of lawA legal principle is a precept or rule which should be followed as far

as possible. As part of the law, general principles of law do notrepresent binding normative circumstances in the way that explicitlegal norms do, but can be seen as rules of law which should befollowed as far as possible. Since they do not carry such rigidbinding force as norms of the legal order proper, these principlesare called ‘optimization precepts’. The power of appreciatingprinciples was captured well by the American Billionare, RalphWaldo Emerson, when he stated,

‘If you learn only methods, you'll be tied to your methods, but if you learn principles you candevise your own methods.’

For example, the principle deriving from Roman law which holds thatagreements are to be kept (pacta sunt servanda) is a general judicialstarting-point to which there are many exceptions. Hence it ispossible to be released from excessively harsh and inequitablecontractual obligations on the basis of, inter alia, the principle ofreasonableness. The law includes numerous general principles of lawcarrying legal validity which can be mutually contradictory withouttheir validity as such being affected. Further, the principle that,‘Ignorance of the law is no defence’, applies equally to all human beings,both lawyers, and those not trained in law. However, there are somany laws, and new ones are being written every time, hence thebest way to understand the law is to understand its foundation; thelegal principles. The basis, upon which the law is founded, appliedand even repealed. These are the general principles, presumptions,doctrines, maxims, rules and tests of law. Indeed, the one not trainedin law need only know the principles, and they know the law.

Below are certain latin phrases on legal principles: Principia data sequuntur concomitantia.

Given principles are followed by their concomitants.

Principia probant, non probantur.

29 Aristottle. Rhetoric.

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Principles prove, they are not proved.

Unumquodque principiorum est sibimetipsi fides; et perspicua vera non sunt probanda.

Every general principle is its own evidence, and plain truths need not be proved.

presumptions of lawA presumption is the product of a rule according to which on proof of

one fact, the court may or must find that some other fact (calledthe “presumed fact”) exists. These are inferences that a court maydraw, could draw or must draw.

The inference that the court may draw could be affirmative or dis-affirmative (on the yes or on the no) presumptions enable a courtto find a fact to exist or to find a fact not to exist.Essentially presumptions will have effect on the burden of proof.If we are saying that presumptions will help the court to find acertain fact to exist, it will have an effect on what burden ofproof a person will have.

Presumptions (inferences) of fact play a very important part in theadministration of justice. Frequently the only means by which theD’s state of mind can be proved.

types of presumptions There are 3 categories of presumptions:rebuttable presumptions of factsThese are inferences that may be drawn upon the establishment of a

basic fact. Where the court may find that the presumed factexists on proof of some other fact. The operative word in thesepresumptions is ‘may’. When I find a basic fact to exist, I aminvited to come to court. There is an invitation to the court todraw a certain inference.

Where the court must find that the presumed fact exists upon proof ofsome other fact.

و No evidence can be received to contradict the presumed fact.

و Rules of substantive law, rather than of evidence.

Examples:

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و A child under the age of 8 years is not criminally responsible for any act/omission

و A male person under the age of 12 years is presumed incapable of having carnalknowledge.

و Presumption of genuineness: Presumption of genuineness in a document purporting to bethe Government Gazette.

و Presumption of Innocence: A mandatory presumption that has the effect of causing theconviction of the accused despite the presence of a reasonable doubt violates section11(d)'s presumption of innocence.

و Presumption of legitimacy: The fact that any person was born during the continuance of avalid marriage between his mother and any man, or within two hundred and eighty days(280) after its dissolution, the mother remaining unmarried, shall be conclusive proof thathe is the legitimate son of that man, unless it can be shown that the parties to the marriagehad no access to each other at any time when he could have been begotten.

rebuttable presumptions of lawTo rebut means to disprove something. Rebutabble presumptions are inferences that must be

drawn in the absence of conclusive evidence to the contrary. A good example isthe presumption of innocence, that every person accused of a crimeis innocent until proved guilty. Until there is conclusiveevidence dispelling the innocence of the accused person.Essentially these presumptions are said to be mandatory until Ihave other conclusive evidence to the contrary. Where the courtmust find that the presumed fact exists unless sufficient evidence to thecontrary is adduced.

Examples

و A child under 12 years is not criminally liable, unless it is proved that at the time of theact/omission he had capacity to know that he ought not to do the act/omission.

و A child born in lawful wedlock is legitimate

و A marriage ceremony constitutes a valid union

There are two kinds of rebuttable presumptions of lawevidential presumption of law Can be rebutted by the introduction of evidence sufficient to raise a

doubt about the presumed fact. E.g. Sexual Offences – evidential presumptions about consent in rape.

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persuasive presumption of lawCan only be rebutted by disproving the presumed fact to the

appropriate standard of proof. irrebuttable presumptions of lawThese must be drawn no matter how much evidence exists to the contrary. Once you

establish the basic fact pertaining to the presumption then youhave to draw the inference that will dispel that presumption. Theywill usually be drawn from statutory provisions. They are publicpolicy pronouncements, which decree that in the interest of publiccertain matters are decreed to be a certain way.

Example: An 8 year old boy is not capable of carnal knowledge.

doctrines A legal doctrine is a framework, set of rules, procedural steps, or

test, often established through a precedent in the common law,through which judgments can be determined in a given legal case.30

A doctrine comes about when a judge makes a ruling where a process isoutlined and applied, and allows for it to be equally applied tolike cases. When enough judges make use of the process soon enoughit becomes established as the de facto method of deciding likesituations.

a precedent is a ‘rule of law established for the first time by a court for a particular type of caseand thereafter referred to in deciding similar cases.’31

de facto is a Latin expression that means ‘concerning fact.’ In law, it often means ‘in practicebut not necessarily ordained by law’ or ‘in practice or actuality, but not officiallyestablished.’ It is commonly used in contrast to de jure (which means ‘concerning the law’)when referring to matters of law, governance, or technique (such as standards) that arefound in the common experience as created or developed without or contrary to aregulation. When discussing a legal situation, de jure designates what the law says, whilede facto designates action of what happens in practice. It is analogous and similar to theexpressions ‘for all intents and purposes’ or ‘in fact.’

rules of lawA rule is an established or prescribed standard for action; an

authoritative principal; the general norm for conduct in a specifickind of situation; a principle, standard, or regulation thatgoverns the internal workings of a court or an agency. A rule is anofficial regulation, code of regulations or set practice.

30 Emerson H. Tiller and Frank B. Cross, ‘What is Legal Doctrine?,’ Northwestern University Law Review, Vol. 100:1, 2006.

31 Black's Law Dictionary, p. 1059 (5th ed. 1979).

http://en.wikipedia.org/wiki/Northwestern_University_Law_Review

http://en.wikipedia.org/wiki/Northwestern_University_Law_Review

http://www.law.northwestern.edu/lawreview/v100/n1/517/LR100n1Tiller-Cross.pdf

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tests of lawA test is a procedure for critical evaluation; a means of determining

the presence, quality, or truth of something; hence a basis forevaluation or judgment.

maxims (of equity)A maxim (of equity) is a principle applied by courts to determine

cases fairly and justly, without restriction of common law orstatutes.32

32 Richard Edwards, Nigel Stockwell (2005). Trusts and Equity. Pearson Education. pp. 34. ISBN 1405812273.

http://en.wikipedia.org/wiki/Special:BookSources/1405812273

http://en.wikipedia.org/wiki/International_Standard_Book_Number

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why we need legal rhetoricRhetoric is not only useful for those who want to outwit their

audience and conceal their real aims, since even those who just tryto establish what is just and true need the help of rhetoric whenthey are faced with a public audience. Aristotle tells us that itis impossible to teach such an audience, even if the speaker hadthe most exact knowledge of the subject.33 The audience of a publicspeech consists of ordinary people who are not able to follow anexact proof based on the principles of a science.

Further, such an audience can easily be distracted by factors that donot pertain to the subject at all; sometimes they are receptive toflattery or just try to increase their own advantage. And thissituation becomes even worse if the constitution, the laws, and therhetorical habits in a city are bad. Finally, most of the topicsthat are usually discussed in public speeches do not allow of exactknowledge, but leave room for doubt; especially in such cases it isimportant that the speaker seems to be a credible person and thatthe audience is in a sympathetic mood. 34

For all these reasons, affecting the decisions of juries andassemblies is a matter of persuasiveness, not of knowledge. It istrue that some people manage to be persuasive either at random orby habit, but it is rhetoric that gives us a method to discover allmeans of persuasion on any topic whatsoever.

Further, law and rhetoric have a common cultural and historicalheritage, classical and contemporary rhetorical theory offerconceptual frameworks for understanding and learning legalargumentation.35

33 Aristotle. Rhetoric. Book II34 Francis J. Ranney; Aristotle’s Ethics and Legal Rhetoric: An Analysis…35 See Linda Levin & Kurt M. Saunders, Thinking Like a Rhetor, 48 J. Legal Educ. 108(1993); see also Julius Stone, Legal System and Lawyers' Reasonings 333 (Stanford,

1964).

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Rhetorical Devices INTRODUCING RHETORICAL DEVICES

Rhetorical devices are based on poetry. They make the words attractiveto listen to and to read. They cause the words to synchronize withthe listeners’ mind and environment, so that they are seduced intheir thoughts. If I read poetry, I will become a greatrhetorician, no wonder all the revolutionaries, great politiciansand people’s liberators read poetry, and read many books. There arevery many, and various such devices and they are herein attached atthe appendix, in the last pages of this great book, with examplesto boot. I can use these rhetoric tools in everyday conversations,and them I will be captive and entertaining to my friends, family,clients and colleagues; I will excel in rhetoric; and they willtell me, ‘Your kung fu is greater than my kung fu!’, and that will make mesmile.

I can use these rhetoric tools in everyday conversations. They willmake me be captivating and entertaining to my listener, my people,my friends, family, clients and colleagues; I will excel inrhetoric; and each of them will tell me, ‘Your kung fu is greater than mykung fu!’, and that will make me smile.

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POETIC DEVICES/ORATORY

tricolon/three part lists

Three-part lists, also known as a tricolon, are words, phrases,examples, or the beginnings or endings of phrases or sentences inthrees. By using three points to augment a single argument, itmakes it memorable for the audience without trying to bludgeon theminto submission by making too many points.

‘Government of the people, by the people, for the people’ ... PresidentAbraham Lincoln.

‘Never in the history of human endeavour has so much been owed by so many to sofew’ ... Sir WinstonChurchill

‘Tell me and I forget. Teach me and I may remember. Involve me and I will learn’ –Benjamin Franklin

‘The God-given promise that all are equal, all are free, and all deserve achance to pursue their full measure of happiness’ - Barrack Obama

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ANTITHESIS/CONTRASTS Contrasts, also known as antithesis, are two ideas that are usually

(although not always) diametrically opposed placed in closeproximity. It draws an audience’s attention to their differences ina much stronger way than if they are separated by severalsentences.

‘I have a dream that my four little children will one day live in a nation where they will not bejudged by the colour of their skin but by the content of theircharacter’ -- Martin Luther King, Jr.

‘We must learn to live together as brothers or perish together as fools’ -Martin Luther King, Jr

‘Reasonable men adapt to the world. Unreasonable men adapt the world to themselves. That'swhy all progress depends on unreasonable men.’ - George Bernard Shaw

‘No bastard ever won a war by dying for his country. He won it by making the other poorbastard die for his country’ - General George Patton

‘That's one small step for a man, one giant leap for mankind’ --NeilArmstrong

‘To be or not to be, that is the question’ - William Shakespeare (Hamlet)‘The success of our economy has always depended not just on the size of our

Gross Domestic Product, but on the reach of our prosperity ...’ -Barack Obama

‘Extremism in defense of liberty is no vice; moderation in the pursuitof justice is no virtue.’-Barry Goldwater - Republican Candidatefor President 1964

‘Not that I loved Caesar less, but that I loved Rome more’. Brutus in: ‘- Julius Caesar’ by William Shakespeare

‘It was the best of times, it was the worst of times, it was the age ofwisdom, it was the age of foolishness, it was the epoch of belief,it was the epoch of incredulity, it was the season of Light, it wasthe season of Darkness, it was the spring of hope, it was thewinter of despair, we had everything before us, we had nothingbefore us, we were all going direct to Heaven, we were all goingdirect To Hell.’ - Charles Dickens (A Tale of Two Cities)

‘Mankind must put an end to war, or war will put an end to mankind.’ -JFK, in aspeech to the UN.

Never in the field of human conflict was so much owed by so many to so few.’-WinstonChurchill, in his speech to parliament on August 20, 1940.

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alliteration

Alliteration repeats the same sound or letter beginning several wordsin sequence.

‘They are part of the finest fighting force that the world has everknown. They have served tour after tour of duty in distant,different, and difficult places.’ – President Barack Obama

‘With this faith we will be able to work together, to pray together,to struggle together, to go to jail together, to stand up forfreedom together, knowing that we will be free one day.’ – MartinLuther King, Jr.

‘....we shall not falter, we shall not fail.’- President G.W. BushAddress to Congress following 9-11-01 Terrorist Attacks.

‘Let us go forth to lead the land we love.’ President J. F. Kennedy,Inaugural 1961

‘Venme, vidme, vici.’ (I came, I saw, I conquered)-Julius Caesar ’Let us go forth to lead the land we love’ - J. F. Kennedy‘My style is public negotiations for parity, rather than private negotiations for

position’ - Jesse Jackson ‘Venme, vidme, vinci ‘ - Julius Caesar ‘We want no parlay with you and your grisly gang who work your wicked will ‘-

Winston Churchill ‘That power ... which derives strength and perverted pleasure from persecution’ -

Sir Winston Churchill ‘Step forward, Tin Man. You dare to come to me for a heart, do you? You clinking,

clanking, clattering collection of caliginous junk...And you, Scarecrow,have the effrontery to ask for a brain! You billowing bale of bovine fodder!’ -The Wizard of Oz

‘Our party ...has always been at its best when we’ve led not by polls, but by principle; notby calculation, but by conviction ...’ - Barack Obama

‘You'll never put a better bit of butter on your knife’ -advertising slogan,Country Life butter

allusion Allusion is a short reference to a famous person or event. It must be

easily understood. It explains, or enhances the subject underdiscussion without sidetracking the listener.

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‘You must borrow me Gargantua's mouth first.’ Tis a word too great for any mouth of thisage's size’ - Shakespeare

‘If you take his parking place, you can expect World War II all over again’

amplification

Amplification repeats a word or expression while adding more detail toit, in order to emphasize something.

‘I know I have but the body of a weak and feeble woman; but I have the heart of a king, andof a king of England, too’ - Queen Elizabeth I

ANADIPLOSIS (STARTING A CLAUSE WITH LAST WORD)

Anadiplosis repeats one or several words that end one clause and beginanother.

‘Some men are born with greatness, some men achieve greatness, and some men havegreatness thrust upon them’ - William Shakespeare

‘The love of wicked men converts to fear, fear to hate, and hate turns to death’ -William Shakespeare

‘Men in great place are thrice servants: servants of the state; servants of fame; andservants of businesses - Francis Bacon

‘They call for you: the general who became a slave; the slave who became a gladiator;the gladiator who defied an Emperor’ - Joaquin Phoenix (from the movieGladiator)

‘Suffering breeds character; character breeds faith.’ – Rev. JesseJackson

‘Fear leads to anger. Anger leads to hate. Hate leads to suffering.’ –Yoda

anaphora (repeating a clause)

Anaphora repeats the same word or words at the beginning of successivephrases, or sentences.

‘To think on death it is a misery, To think on life it is a vanity; To think on the worldverily it is, To think that here man hath no perfect bliss’ - Peacham

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‘But one hundred years later, the Negro still is not free. One hundred years later, thelife of the Negro is still sadly crippled by the manacles of segregation and the chains ofdiscrimination. One hundred years later, the Negro lives on a lonely island ofpoverty in the midst of a vast ocean of material prosperity. One hundred yearslater, the Negro is still languished in the corners of American society and findshimself an exile in his own land’ - Martin Luther King, Jnr.

‘But in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow thisground.’ - Abraham Lincoln

‘We shall not flag or fail. We shall go on to the end. We shall fightin France, we shall fight on the seas and oceans, we shall fightwith growing confidence and growing strength in the air, we shalldefend our island, whatever the cost may be, we shall fight on thebeaches, we shall fight on the landing grounds, we shall fight inthe fields and in the streets, we shall fight in the hills. Weshall never surrender.’-British Prime Minister Winston Churchill

‘For us, they packed up their few worldly possessions and travelled across oceans in searchof a new life. For us, they toiled in sweatshops and settled the West; endured the lash ofthe whip and ploughed the hard earth. For us, they fought and died, in places likeConcord and Gettysburg; Normandy and Khe Sahn’ - Barack Obama

antistrophe (repeating word or clause at end of sentences)Antistrophe, also called epistrophe, repeats the same word or phrase

at the end of successive clauses. ‘In 1931, ten years ago, Japan invaded Manchukuo -- without warning. In 1935, Italy

invaded Ethiopia -- without warning. In 1938, Hitler occupied Austria -- withoutwarning. In 1939, Hitler invaded Czechoslovakia -- without warning. Later in 1939,Hitler invaded Poland -- without warning. And now Japan has attacked Malaya andThailand -- and the United States -- without warning’ - Franklin D. Roosevelt

‘A day may come when the courage of men fails, when we forsake our friends and break thebonds of fellowship, but it is not this day. An hour of wolves and shattered shields,when the age of men comes crashing down, but it is not this day. This day wefight!’ - King Aragorn (from the movie 'The Return of the King'),

‘It was a creed written into the founding documents that declared the destiny of a nation: Yes,we can. It was whispered by slaves and abolitionists as they blazed a trail towards freedomthrough the darkest of nights: Yes, we can. It was sung by immigrants as they struck outfrom distant shores and pioneers who pushed westward against an unforgiving wilderness:Yes, we can’ - Barrack Obama

antimetaboleThe repetition of words or phrases in successive clauses, but in

reverse order.‘Not all schooling is education nor all education is schooling.’ – Economist Milton Friedman

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‘Absence of evidence is not evidence of absence.’ – Scientist CarlSagan

assonance Assonance is the successive use of different syllables with the same

or similar vowel sounds in words with different consonants. It issimilar to rhyme, but can be used with similar sounding words.

‘I feel the need for speed’ -- Tom Cruise (from the movie Top Gun)

‘It beats as it sweeps as it cleans’ - advertising slogan for Hoover vacuumcleaners.

‘Thy kingdom come, thy will be done.’ The Lord's Prayer

asyndeton (no conjunctions)Asyndeton is a lack of conjunctions (e.g. 'and') between successive

phrases or words. ‘He was a bag of bones, a floppy doll, a broken stick, a maniac.’ –

Jack Kerouac ‘…and that government of the people, by the people, for the people

shall not perish from the earth.’ – Abraham Lincoln‘We shall pay any price, bear any burden, meet any hardships, support

any friend, oppose any foe to assure the survival and the success of liberty’ - JFKennedy, Inaugural

Instead, they knew that our power grows through its prudent use; our security emanates fromthe justness of our cause, the force of our example, the temperingqualities of humility and restraint’ - Barrack Obama

chiasmus (reversal)Chiasmus is a very commonly used and effective technique where the

words in one phrase or clause are reversed in the next. ‘But just because you're born in the slum does not mean the slum is born in

you, and you can rise above it if your mind is made up’ - Jesse Jackson ‘It is not the men in my life that counts: It is the life in my men ‘- Mae West ‘And so, my fellow Americans, ask not what your country can do for you; ask

what you can do for your country’ -- John F. Kennedy, Inaugural Address

‘When the going gets tough, the tough get going’ - unknown

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‘Whether we bring our enemies to justice or bring justice to our enemies,justice will be done’- President George W Bush

‘If black men have no rights in the eyes of the white men, of course thewhites can have none in the eyes of the blacks’ - Frederick Douglass

‘The true test is not the speeches the president delivers; it is if the presidentdelivers on the speeches’ - Hilary Clinton

‘I'd rather be looked over than overlooked’ - Mae West ‘Is man one of God's blunders or God one of man's blunders?’ - Friedrich

Nietzsche‘One should eat to live, not live to eat’ - Cicero ‘The art of progress is to preserve order amid change and to preserve change amid

order’ - Alfred North Whitehead‘Your manuscript is both good and original; but the part that is good is not

original, and the part that is original is not good’ - Samuel Johnson

diacope

Diacope is repeating a word or phrase after an intervening word orphrase.

‘Free at last, free at last; thank God almighty, free at last!’ - Martin LutherKing

‘The people everywhere, not just here in Britain, everywhere -- they kept faith withPrincess Diana’ - Tony Blair

‘Put out the light, and then put out the light.’ – WilliamShakespeare, Othello

‘For the love of God, man, for the love of God.’ – Me, all the time‘You’re not fully clean unless you’re Zestfully clean.’ – Zest Soap

commercial

eponym Eponym is substitution of the name of a famous person recognized

famous for a particular attribute, for that attribute. By theirnature they often border on the cliché, but many times they can beuseful without seeming too obviously trite. While finding new orinfrequently used ones is best, it is also more difficult, becausethe name-and-attribute relationship needs to be well established:

‘You don't need to be Einstein to see that .... ‘

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‘That little Hitler is fooling nobody’

‘We all must realize that Uncle Sam is not supposed to be Santa Claus.’

hyperbole

Hyperbole is the deliberate exaggeration for emphasis or effect. Itmust be clearly intended as an exaggeration, and should be usedsparingly to be effective.

‘Ladies and gentlemen, I've been to Vietnam, Iraq, and Afghanistan, and I can say withouthyperbole that this is a million times worse than all of them puttogether’ - Kent Brockman (The Simpsons)

This stuff is used motor oil compared to the coffee at Starbuck's

‘If you call me that name again, I'm going to explode!’

hypophora (rhetorical question)

Hypophora is a figure of reasoning in which one or more questions orobjections is/are asked or stated and then answered by the speaker;reasoning aloud (i.e. the original 'rhetorical question)'.

‘When the enemy struck on that June day of 1950, what did America do?It did what it always has done in all its times of peril. It appealed to the heroism of itsyouth’ - Dwight D. Eisenhower

‘'But there are only three hundred of us,' you object. Three hundred, yes, butmen, but armed, but Spartans, but at Thermoplyae: I have never seen three hundred sonumerous’ - Seneca

metaphor

Metaphor is the comparison of two different things by speaking of onein terms of the other. A metaphor asserts that one thing actually isanother thing, not just like it.

‘From Stettin in the Baltic to Trieste in the Adriatic an iron curtain has descended acrossthe Continent’ - Sir Winston Churchill

‘All the world's a stage, and all the men and women merely players’ - WilliamShakespeare

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‘You shall not press down upon the brow of labor this crown of thorns, you shallnot crucify mankind upon a cross of gold’ - WJ Bryan, arguing against theintroduction of the Gold Standard

‘It is raining men.’ – The Weather Girls*Life's but a walking shadow; a poor player that struts and frets his

hour upon the stage. ‘Shakespeare, in ‘Macbeth’ *From Stettin in the Baltic to Trieste in the Adriatic, an iron

curtain has descended across the continent. - W. Churchill‘It came as a joyous daybreak to end the long night of their captivity’ -

Martin Luther King Jnr. ‘The torch has been passed to a new generation of Americans’ - President JF

Kennedy ‘The mother of all battles’ - Sadaam Hussein ‘The (Presidential Oath has) been spoken during rising tides of prosperity and the

still waters of peace. Yet, every so often the oath is taken amidst gatheringclouds and raging storms’ -Barack Obama

simile

Simile is a comparison between two different things that resemble eachother, comparing an unfamiliar thing to some familiar thing knownto the listener, usually prefaced with the word 'like':

‘He bestrides this narrow world like a colossus’ - William Shakespeare ‘My love is like a red, red rose’ - Robert Burns ‘Let us go then, you and me, where the evening is spread out across the sky like a patient

etherized upon a table’ - T.S. Eliot ‘We're going to go through them like crap through a goose’ - General George

Patton ‘Seeing John Major govern the country is like watching Edward Scissorhands try to

make balloon animals’- Simon Hoggart ‘It is like being savaged by a dead sheep’ - Labour politician Dennis Healey

on being verbally attacked by Tory minister Sir Geoffrey Howe ‘We will not be satisfied until justice rolls down like waters, and

righteousness like a mighty stream.’ – Martin Luther King, Jr.‘You’re as cold as ice.’ – Foreigner

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oxymoron

Apparent paradox achieved by the juxtaposition of words which seem tocontradict one another.

I must be cruel only to be kind. Shakespeare, Hamlet Hurts so good. John Cougar Melancamp

proverbs

A simple and concrete saying popularly known and repeated, whichexpresses a truth?

Samaki mkubwa hukamatwa na ndoano kubwa. (Swahili)

By the time the fool has learned the game, the players have dispersed. (Ashanti)

No one tests the depth of a river with both feet.

Money is sharper than a sword.

If you are in hiding, don't light a fire.

Two small antelopes can beat a big one.

When the fool is told a proverb, its meaning has to be explained to him.

When the cock is drunk, he forgets about the hawk.

A river that forgets its source dries up.

When a man steals your wife there is no better revenge than to let him keep her.

He who marries a beautiful wife and he who plants corn by the roadside all have the sameproblem; insecurity.

Akati kinikwa kakiri kabisa. (Kiga)

When the moon is not full, the stars shine more brightly.

personification

Attribution of personality to an impersonal thing.*England expects every man to do his duty.’- Lord Nelson The rose was a soft as a baby's skin‘Rise up and defend the Motherland’ - Line from ‘Enemy at the Gates’

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IdiomsAn idiom is a group of words whose meaning is different from the

meaning of individual words, and is used to pass a message.‘The cat's out of the bag’ instead of ‘The secret is given away,’

‘An apple a day keeps the doctor away.’

To ‘climb on the bandwagon.’

‘Saved by the bell.’

‘Bury the hatchet.’

To ‘have a chip on one's shoulder.’

‘A close shave.’

‘Dot the i's and cross the t's.’

‘He who pays the piper calls the tune.’

‘The pen is mightier than the sword.’

‘The pot calling the kettle black.’

‘Raining cats and dogs.’

To ‘shed crocodile tears.’

‘Clean bill of health.’

‘Close but no cigar.’ ‘Cut from the same cloth.’ ‘Strike while the iron’s hot.Symploce Symploce repeats the first and last word or words in one phrase or

sentence in one or more successive ones, thereby combining ANAPHORAand EPISTROPHE

‘Much of what I say might sound bitter, but It is the truth. Much of what I saymight sound like It is stirring up trouble, but It is the truth. Much of what Isay might sound like it is hate, but It is the truth’ - Malcolm X

‘Last night, Japanese forces attacked Hong Kong. Last night, Japanese forcesattacked Guam. Last night, Japanese forces attacked the Philippine Islands. Last night, theJapanese attacked Wake Island. And this morning, the Japanese attacked MidwayIsland’ - Franklin D Roosevelt

‘There are many people in the world who really don't understand, or say they don't, what isthe great issue between the free world and the Communist world. Let them come toBerlin. There are some who say that communism is the wave of the future. Letthem come to Berlin. And there are some who say, in Europe and elsewhere, we

38


can work with the Communists. Let them come to Berlin. And there are even afew who say that it is true that communism is an evil system, but it permits us to makeeconomic progress. Lass' sie nach Berlin kommen. Let them come to Berlin’ - JFKennedy

‘In the struggle for peace and justice, we cannot walk alone. In the struggle foropportunity and equality, we cannot walk alone. In the struggle to heal thisnation and repair this world, we cannot walk alone’ - Barrack Obama

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MAXIMS (OF EQUITY)

maxims of equity

The maxims of equity evolved, in Latin and eventually translated intoEnglish, as the principles applied by courts of equity in decidingcases before them.36

equity regards done what ought to be doneThis maxim means that when individuals are required, by their

agreements or by law to have done some act of legal significance,Equity will regard it as having been done as it ought to have, evenbefore it has actually happened. This makes possible the legalphenomenon of equitable conversion. Sometime this is phrased as ‘equityregards as done what should have been done.’ Due to his equitable interest inthe outcome of the transaction, the buyer who suffers a breach maythen be entitled to the equitable remedy of specific performance(although not always). It also is reflected in how his damages aremeasured if he pursues a legal, substitutionary remedy instead ofan equitable remedy. At law, he is entitled to the value at thetime of breach, whether it has appreciated, or depreciated.

equity will not suffer a wrong to be without a remedyex injuria ius oritur. When seeking an equitable relief, the one that has been wronged has

the stronger hand. The stronger hand is the one that has thecapacity to ask for a legal remedy (judicial relief). In equity,this form of remedy is usually one of specific performance or aninjunction (injunctive relief). These are superior remedies tothose administered at common law such as damages. The Latin legalmaxim is ubi jus ibi remedium (‘where there is a right, there must be a remedy’),sometimes cited as ubi jus ibi remediam. Case law dealing with thismaxim include Ashby v White37 (implied cause of action subsisted in cases wheremisfeasance of a public officer denied someone the right to vote) and Bivens v. SixUnknown Named Agents38 (an implied cause of action existed for an individual whoseFourth Amendment freedom from unreasonable search and seizures had been violated byfederal agents). The principle was key in the decision of Marbury v.Madison39, wherein it was necessary to establish that Marbury had aright to his commission in the first place in order for Chief

36 Richard Edwards, Nigel Stockwell (2005). Trusts and Equity. Pearson Education. pp. 34. ISBN 1405812273.

37 (1703) 92 ER 12638 403 U.S. 388 (1971)39 5 U.S. (1 Cranch) 137 (1803)

http://supreme.justia.com/us/403/388/case.html

http://en.wikipedia.org/wiki/United_States_Reports



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Justice Marshall to make his more wide-ranging decision. It washeld that the act that the provision of the Judiciary Act of 1789that enabled Marbury to bring his claim to the Supreme Court wasitself unconstitutional, since it purported to extend the Court'soriginal jurisdiction beyond that which Article III established.The petition was therefore denied; hence setting the precedent thata court can find an act of parliament to be unconstitutional; hencerendering no entitlement, and upon the breach of such ’inexistent’right, there flows no remedy from the law.

equity delights in equalityWhere two persons have an equal right, the property will be divided

equally. Thus Equity will presume joint owners to be tenants incommon unless the parties have expressly agreed otherwise. Equityalso favours partition, if requested, of jointly held property.

one who seeks equity must do equityTo receive equitable relief, the party must be willing to complete all

of their own obligations as well. The applicant to a court ofequity is as subject to the power of that court as the defendant.This may also overlap with the clean hands maxim (see below).

equity aids the vigilant, not the indolent equity aids the vigilant,not those who slumber on their rights

Vigilantibus non dormientibus aequitas subvenit.Once the party knows they have been wronged, they must act relatively

swiftly to preserve their rights. Otherwise, they are guilty oflaches. Laches is a defense to an action in equity. This maxim isoften displaced by statutory limitations, but even where alimitation period has not yet run, equity may apply the doctrine of‘laches,’ an equitable term used to describe delay sufficient todefeat an equitable claim. In Chief Young Dede v. Afrikan Association Ltd.40 theequitable rule of laches and acquiescence was introduced.

Alternatives:

و Delay defeats equity

و Equity aids the vigilant, not the indolent!

equity does not require an idle gestureAlso: Equity will not compel a court to do a vain and useless thing.

It would be an idle gesture for the court to grant reformation of a

40 1 N.L.R. p. 13

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contract and then to deny to the prevailing party an opportunity toperform it as modified.

equity delights to do justice and not by halvesWhen a court of equity is presented with a good claim to equitable

relief, and it is clear that the plaintiff also sustained monetarydamages, the court of equity has jurisdiction to render legalrelief, e.g., monetary damages. Hence equity does not stop atgranting equitable relief, but goes on to render a full andcomplete collection of remedies.

equity will take jurisdiction to avoid a multiplicity of suitsThus, ‘where a court of equity has all the parties before it, it will

adjudicate upon all of the rights of the parties connected with thesubject matter of the action, so as to avoid a multiplicity ofsuits.’ Burnworth v. Hughes41, This is the basis for the procedures ofinterpleader and the more rarely used Bill of Peace.

equity follows the lawEquity will not allow a remedy that is contrary to law. The court of

Chancery never claimed to override the courts of common law. InStory on Equity42,’where a rule, either of the common or the statute law is direct, andgoverns the case with all its circumstances, or the particular point, a court of equity is asmuch bound by it as a court of law, and can as little justify a departure from it.’ it isonly when there is some important circumstance disregarded by thecommon law rules that equity interferes. As per Cardozo in Graf v.Hope Building Corporation43, ‘Equity works as a supplement for law and does notsupersede the prevailing law.’

equity will not aid a volunteerEquity cannot be used to take back a benefit that was voluntarily but

mistakenly conferred without consultation of the receiver. Thismaxim protects the doctrine of choice.

This maxim is very important in restitution. Restitution developed asa series of writs called special assumpsit, which were later additionsin the courts of law, and were more flexible tools of recovery,based on Equity. Restitution could provide means of recovery whenpeople bestowed benefits on one another (such as giving money orproviding services) according to contracts that would have beenlegally unenforceable.

41 670 P.2d 917, 922 (Kan. 1983).42 Third English edition 1920 page 3443 254 N.Y 1 at 9 (1930)

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However, pursuant to the equitable maxim, restitution does not allow avolunteer or ‘officious intermeddler’ to recover. A volunteer is notmerely someone who acts selflessly. In the legal (and equitable)context, it refers to someone who provides a benefit regardless ofwhether the recipient wants it. For example, when someonemistakenly does not build an improvement on a home, equity norrestitution will allow the improver to recover from the homeowner.

The exception is if the doctrine of estoppel applies.equity follows the law: latin ‘acquits sequitur legem’The equity court observed common law while administering justice according to

conscience. Maitland says that, ‘Equity has come not to destroy the law but tofulfill it, to supplement it, to explain it.’44 According to Snell, ‘If some importantpoint is disregarded by common law court, then equity interferes.45’ Equity will notallow a remedy that is contrary to law. The court of Chancery neverclaimed to override the courts of common law.46 ‘where a rule,either of the common or the statute law is direct, and governs thecase with all its circumstances, or the particular pint, a court ofequity is a much bound by it as a court of law, and can as littlejustify a departure from it.’ it is only when there is someimportant circumstance disregarded by the common law rules thatequity interferes.47, Equity works as a supplement for law and doesnot supersede the prevailing law.

where equities are equal, the law will prevailEquity will provide no specific remedies where the parties are equal,

or where neither has been wronged. The significance of this maximis that applicants to the chancellors often did so because of theformal pleading of the law courts and the lack of flexibility theyoffered to litigants. Equity, in theory, had the power to alterthat status quo, ignoring the limits of legal relief, or legaldefences. This maxim reflects the hesitancy to upset the legalstatus quo. If in such a case, the law created no cause of action,equity would provide no relief; if the law did provide relief, thenthe applicant would be obligated to bring a legal, rather than

44 Maitland, Frederic William. (1897) History of English Law before the Time of Edward I (with Sir Frederick Pollock, 1895; new ed. 1898; see also his article ‘English Law’ in the Encyclopædia Britannica. Reissued by Cambridge University Press, 2010. ISBN 978-1-108-01807-4) ; See also Richard Edwards, Nigel Stockwell (2005). Trusts and Equity. Pearson Education. pp. 34. ISBN 1-4058-1227-3.

45 Snell, McGhee. (2005) Snell's Equity, the 32nd Edition. Sweet & Maxwell. 46 Hudson, Alastair, (2007). Equity and Trusts 5th edition, Routledge-Cavendish,

London, 2007. pg.34,47 As per Cardozo C.J in Graf V. Hope Building Corporation 254 N.Y 1 at 9 (1930)

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equitable action. This maxim overlaps with the previously mentioned‘equity follows the law.’

between equal equities the first in order of time shall prevailThis maxim operates where there are two or more competing equitable

interests; when two equities are equal the original interest willsucceed.

equity will not complete an imperfect giftIf a donor has made an imperfect gift, i.e. lacking the formalities

required at common law, equity will not assist the intended donee.A subset of equity will not assist a volunteer. Note the exceptionin Strong v Bird48. If the donor appoints the intended donee asexecutor of his/her will, and the donor subsequently dies, equitywill perfect the imperfect gift.

equity will not allow a statute to be used as a cloak for fraudEquity prevents a party from relying upon an absence of a statutory

formality if to do so would be unconscionable and unfair. This canoccur in secret trusts and also constructive trusts and so on.

equity will not allow a trust to fail for want of a trusteeIf there is no trustee, whoever has title to the trust property will

be considered the trustee. Otherwise, a court may appoint atrustee, or in Ireland the trustee may be any administrator of acharity to which the trust is related.

cardinal equityRemedy to be fashioned on the particular nature of the caseone who seeks equity must do equityIn order to receive some equitable relief, the party must be willing

to complete all of their own obligations as well. The applicant toa court of equity is as subject to the power of that court as thedefendant. This may also overlap with the clean hands maxim.

equity imputes an intent to fulfill an obligationGenerally speaking, near performance of a general obligation will be

treated as sufficient unless the law requires perfect performance,such as in the exercise of an option. Text writers give an exampleof a debtor leaving a legacy to his creditor equal or greater tohis obligation. Equity regards such a gift as performance of theobligation so the creditor cannot claim both the legacy and paymentof the debt.

48 (1874) LR 18 Eq 315

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equity acts in personam.This is the doctrine that an applicant must assert a ‘property

interest.’ It requires that the applicant be asserting a right ofsome significance, as opposed to emotional and dignitary interests.

graf doctrineSee the maxim of equity abhors a forfeiture

equity of redemption See the doctrine of equity abhors a forfeiture

equity abhors a forfeitureA debtor who is late in repaying his debt on or before a date certain (the

‘law’ day) will not forfeit his property on show of reasonable cause;and the lender cannot interpose a defense of laches, or equitable estoppel, tobar redemption as well. 49

equity does not require an idle gestureAlso: Equity will not compel a court to do a vain and useless thing. It would be an

idle gesture for the court to grant reformation of a contract andthen to deny to the prevailing party an opportunity to perform itas modified.

the clean hands doctrine (one who comes into equity must come withclean hands)

It is often stated that one who comes into equity must come with cleanhands. In other words, if you ask for help about the actions ofsomeone else but have acted wrongly, then you do not have cleanhands and I to not receive the help you seek. For example, if youdesire your tenant to vacate, you must have not violated thetenant's rights. However, the requirement of clean hands does notmean that a ‘bad person’ cannot obtain the aid of Equity. ‘Equitydoes not demand that its suitors shall have led blameless lives.’50

The defense of unclean hands only applies if there is a nexusbetween the applicant's wrongful act and the rights he wishes toenforce. Even scrooge could obtain equitable relief provided he wasnot suing to enforce a right he acquired through trickery or fraud.

equity will not permit a party to profit by his own wrong This is the alternative to Clean Hands Doctrine. In Riggs v. PAlir51, a man who

had killed his grandfather to receive his inheritance quicker (andfor fear that his grandfather may change his will) lost all

49 See, generally, Osborne, Real Estate Finance Law (West, 1979), Chapter 7.50 Loughran v. Loughran, 292 U.S. 215, 229 (1934) (Brandeis, J.).51 (1889) 115 N.Y. 506

45


right(s) to the inheritance. In D&C Builders v. Rees52 a small buildingfirm did some work on the house of a couple named Rees. The billcame to 732 pounds, of which the Rees had already paid 250 pounds.When the builders asked for the balance of 482 pounds, the Reesannounced that the work was defective, and they were only preparedto pay 300 pounds. As the builders were in serious financialdifficulties (as the Rees knew), they reluctantly accepted the 300pounds 'in completion of the account'. The decision to accept themoney would not normally be binding in contract law, and afterwardsthe builders sued the Rees for the outstanding amount. The Reesclaimed that the court should apply the doctrine of equitable estoppel,which can make promises binding when they would normally not be.However, Lord Denning refused to apply the doctrine, on the groundsthat the Rees had taken unfair advantage of the builders' financialdifficulties, and therefore had not come 'with clean hands'.

equity delights to do justice and not by halvesWhen a court of equity is presented with a good claim to equitable

relief, and it is clear that the plaintiff also sustained monetarydamages, the court of equity has jurisdiction to render legalrelief, e.g., monetary damages. Hence equity does not stop atgranting equitable relief, but goes on to render a full andcomplete collection of remedies.

52 [1965] EWCA Civ 3

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LAW IDIOMS

An idiom is a group of words whose meaning is different from themeaning of individual words, and is used to pass a message.

‘The cat's out of the bag’ instead of ‘The secret is given away,’

‘An apple a day keeps the doctor away.’

To ‘climb on the bandwagon.’

‘Saved by the bell.’

‘Bury the hatchet.’

To ‘have a chip on one's shoulder.’

‘A close shave.’

‘Dot the i's and cross the t's.’

‘He who pays the piper calls the tune.’

‘The pen is mightier than the sword.’

‘The pot calling the kettle black.’

‘Raining cats and dogs.’

To ‘shed crocodile tears.’

‘Clean bill of health.’

‘Close but no cigar.’ ‘Cut from the same cloth.’ ‘Strike while the iron’s hot.after the fact- After something (a crime etc.) has occurredWe were told, after the fact, that the law firm would not give any money to the fire victims.

act of God- an event or accident due to natural causes for which no human is

responsible and which could not have been avoided by planning ahead(a storm, an earthquake, a volcano etc.)

The insurance company refused to pay the money because they said; the forest fire was an actof God.

assemble a case (against someone)- To gather the evidence needed to make a legal case against someoneThe lawyers were unable to assemble a case against the man.

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assume liability- To accept the responsibility for paying the cost of something. The business refused to assume liability for the dangerous products.

bail (someone) out or bail out (someone)- to pay a sum of money that allows someone to get out of jail or stay

out of jail while waiting for a trialThe family of the accused criminal paid much money to bail him out.

beyond a reasonable doubt- a legal phrase meaning that something is almost certain and that the

proposition being presented in court must be proven enough thatthere is no reasonable doubt in the mind of a reasonable personthat the defendant is guilty of a crime

The judge sent the man to jail because he believed, beyond a reasonable doubt, that the manhad committed the crime.

bona fide- in good faith, without any element of dishonesty or fraud (bona fide

is from Latin)The mediator asked the two sides in the dispute to make a bona fide effort to solve the dispute.

breach of promise- the breaking of a promise which may also be a breach of contractThe couple was accused of a breach of promise when they broke the contract to buy the

condominium.

breach of the peace- causing a disturbance, violent or disorderly behaviorThe man was charged with a breach of the peace when he began fighting with the store clerk.

break the law- to fail to obey the lawThe woman was forced to quit her job after it was discovered that she had broken the law.

build a case (against someone)- to gather the evidence needed to make a legal case against someoneThe legal team was working hard to build a case against the suspected car thief.

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burden of proof- the necessity to prove a disputed fact as required by the laws of

evidenceThe burden of proof during the trial fell on the man who had accused his employee of theft.

by the book- following all the rules when you do somethingOur lawyer is very good and he does everything by the book.

case of mistaken identity- a case where you incorrectly identify someoneThe young man was arrested in a case of mistaken identity.

causing a disturbance- an offence committed by fighting/screaming/shouting/swearing or

being drunk in publicSeveral fans were arrested for causing a disturbance after the football game.

caveat emptor- ‘let the buyer beware’ (from Latin), a buyer of something is

responsible to examine the goods that he or she has purchasedCaveat emptor is a good concept to remember when you are buying a used car.

cease and desist- a legal phrase which means to stop doing something and not start

again - often used in the form of a cease and desist orderThe woman's husband was given a cease and desist order to stop bothering her.

circumstantial evidence- indirect evidenceThe court case was difficult to win because most of the evidence was circumstantial evidence.

citizen's arrest- an arrest which may be made by an ordinary citizen without a warrant

when somebody commits a crimeThe man tried to make a citizen's arrest of the violent homeless man.

civil action- legal action that deals with private or civil mattersThe couple decided to take civil action regarding their neighbor's noisy dog.

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civil law- the area of the law which deals with civil or private matters such

as violations of contracts (different from criminal law)The lawyer had much experience in civil law but almost no experience in criminal law.

class action lawsuit- a lawsuit that is made on behalf of a group of persons in a similar

situation or who have suffered a similar wrongThe workers filed a class action lawsuit against the law firm for damage to their health.

come clean (with someone about something)- to be completely honest with someone about something, to confess

something to someoneThe man decided to come clean with the police when he confessed everything about the crime.

commercial law- the area of law that governs business and commercial transactionsThe lawyer has specialized in commercial law since he first became a lawyer.

common law- the law that is not written in statutes but is based on custom and

court decisions of the past (most often with its origin in the oldunwritten laws of England)

We were able to make a decision about our case by researching previous cases of common law.

common property- real property owned by a group of tenants in a condominium or

subdivision which everyone has the right to use, land that is ownedby the government which everyone can use.

The exercise machine is common property and anyone in the apartment complex can use it.

community property- property belonging jointly to a married couple or acquired during

their marriageThe couple decided to divide some of their community property and give it to their children.

comparative negligence- in a civil lawsuit where the fault (negligence) of the two parties

is taken into account in assessing damages

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The judge determined that it was a case of comparative negligence and the landlord and thetenant both had to pay damages.

conclusive evidenceevidence that is so strong that it proves the point in question

beyond a reasonable doubtThe witness offered conclusive evidence that led to the conviction of the criminal.

conditional sale- a contract where the title to the goods being sold will not go to

the purchaser until a certain condition is fulfilledThe sale of the house was a conditional sale and I had to talk to my bank manager before the

deal was complete.

consecutive sentences- sentences that are given to someone with one sentence following

immediately after the other sentenceThe criminal was given three consecutive sentences for the murder of the young girls.

contempt of court- disobedience of the orders and authority of the court, disrespect

for the court processThe man was in contempt of court when he was several hours late for the trial.

crack down on (someone or something)- to enforce a rule or law more strictlyThe police have decided to crack down on speeding cars. criminal law- the law that is concerned with crimes by people against the state or

society with the purpose to punish the offenderThe university law department has the best criminal law library in the country.

dangerous offender- a person who has been convicted of a violent crime and is a

continuing threat to othersSeveral dangerous offenders escaped from the prison last week.

disorderly conduct- violent conduct that disturbs the peace of society or the communitySome football fans were charged with disorderly conduct after the fight during the game.

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disturbing the peace- disorderly or violent or threatening conduct that disturbs the peace

and tranquillity of the communityTwo men were arrested for disturbing the peace when they got into a fight in front of the

shopping mall.

draw up an agreement/contract- to put something into writing, to prepare a written statementMy lawyer is helping me to draw up an agreement to buy the small business.

due process (of law)- the rights that each person has to be protected by the lawThe man was accused of theft by his employer but he knew that he was entitled to due process

of law and would be found to be innocent.

examination for discovery- an oral examination that is taken under oath in which each side to a

lawsuit has the right to examine the other side's witnesses beforea trial or hearing

The man spent several hours in an examination for discovery in connection with his case.

expert witnessan expert or specialist whose opinions are used as evidence in a

trial or hearingThe lawyer called in an expert witness to look at the handwriting of the accused criminal.

extenuating circumstances- special circumstances that explain an irregular or improper way of

doing somethingThe man was able to avoid going to jail for stealing the money because of extenuating

circumstances.

false arrest- unlawful physical detentionIt was a case of false arrest when the man was arrested as a suspect in the robbery.

false pretenses- intentionally misrepresenting the facts in order to cheat or defraud

someone

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The woman was acting under false pretenses when she went to the bank and asked for a loan.

false witness- a person who deliberately offers false or inaccurate evidenceThe man was accused of being a false witness after he testified at the trial.

fee simple- absolute title or ownership of real estateThe property was sold fee simple by the woman.

fine print- the part of a document or contract that may contain important

information but is not easily noticed because the print is smallIt is a good idea to read the fine print before you buy something.

for cause- reasons which the law accepts as justifiedThe man was fired from his job for cause after several violations of his contract.

free and clear- owning something fully with no money owed or other restrictions on

the item or propertyMy parents own their home free and clear.

give notice- to inform an employer or employee or landlord or tenant that a

contractual agreement will endThe woman gave notice that she will leave her job next month.

go into effect- to becomes effective or in use (used for a law or rule)The new parking law will go into effect at midnight.

go legit- to begin operating as a legitimate or honest business after

operating as an illegal business.The man decided to go legit and get the proper license for his small business.

go on record- to make an official statement rather than an informal oneThe mayor of the city will go on record to oppose the new convention center.

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goods and chattels- personal property (as opposed to land and buildings)The goods and chattels of the man were seized by the bank to pay for his bad loan.

grace period- a period of time (often about 30 days) after a bill or something is

dueThere was a 30-day grace period in which to pay the speeding ticket.

gray area- an area of a subject that is not clearly definedSmoking near public buildings is a gray area that the smoking law does not deal with.

grounded in fact- based on factsThe decisions that were made during the legal discussions were grounded in fact.

grounds for (something)- a cause or reason for legal action such as a lawsuitThe fact that the woman lied to her employer was grounds for firing her from her company.

have a brush with the law- to have a brief experience or encounter with the lawThe man had a brush with the law when he was a teenager.

have a case (against someone)- to have strong evidence that can be used against someoneThe police do not have a case against the young woman.

(not) have a leg to stand on- to not have the facts to support or win an argument or a legal

charge that is made against you (usually used in the negative)The apartment manager tried to evict the young family but he did not have a leg to stand on

and he lost the case in court.

have a run-in with (the law or someone)- to have a bad or unpleasant encounter with the law or someoneThe man had a run-in with the law when he was on his holiday.

have custody of (someone or something)- to have the right to guard or protect or care for someone or

something

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The woman has custody of her two children.

have (someone) dead to rights- to prove someone absolutely guiltyThe police had the man dead to rights when they saw him stealing the car.

have (someone) in one's pocket- to have control over someoneThe businessman has the mayor of the city in his pocket.

have the right to (do something)- to have the freedom or legal right to do somethingThe lawyer did not have the right to ask personal questions during the trial.

implicate (someone) in (something)- to suggest that someone is involved in something or connected to

somethingThe president of the law firm was implicated in the expense account scandal.

in abeyance- the temporary suspension of an activity or a rulingMy grandfather's estate settlement was in abeyance while the lawyers looked at his will in more

detail.

in accordance with (something)- conforming to somethingThe new contract was written in accordance with the new employment law.

in arrears- late or overdue (usually for bills and money)My account at the department store is in arrears.

in bad faith- insincerely, with bad or dishonest intentions, with the intention to

deceive someoneThe manager was acting in bad faith when she refused to give the documents to the lawyer.

in consideration of (something)- after thinking about somethingIn consideration of the amount of time that was spent on my case they charged me a lot of

money.

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in custody of (someone or something)- being guarded or protected or cared for by someone or some groupThe police put the man in custody for the night.

in debt- owing moneyThe woman is in debt to the furniture store.

in dispute- something that is in disagreementMost parts of the contract are not in dispute.

in effect- a law that is necessary to obey, something that is exerting force or

influenceThe new law has been in effect for three months now.

in favor of (something)- in agreement with somethingThe members of the panel voted in favor of postponing the meeting.

in good faith- with good and honest intentionsI went to the mediation session in good faith in order to try and resolve the dispute.

in kind- in goods rather than in moneyWe were paid in kind for our work on the project.

in lieu of (something)- instead of somethingIn lieu of being paid for our extra work we were given extra time off.

in perpetuity- forever, eternallyThe man was promised by the city that he would receive free parking in perpetuity.

in person- personally, yourselfThe man was asked to appear in the courtroom in person.

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in plain English/language- in simple and easy to understand languageThe legal contract was written in plain English so that we could easily understand it.

in private- secretly, not openly or in public, confidentiallyThe discussion between the two judges took place in private.

in public- openly so others can see what you are doing, not secretlyThe new smoking law does not permit smoking in public.

in receipt of (something)- having received somethingMy lawyer is in receipt of the documents that I sent him.

in reference to (something)- concerning/regarding/about somethingThe letter was in reference to my earlier request for legal advice.

in (someone's) name- in someone's ownership, as someone's propertyWe put the property in my name so that it would be easier to get a loan with it.

in the act of (doing something)- while doing somethingThe man was arrested in the act of stealing money from the cash register in the store.

in the right- on the legal or moral side of an issue, not guilty of something, not

responsible for somethingI believed that I was in the right so I decided to take the case to court.

in trouble with the law- having legal problems, due to be punished by the lawThe teenager is often in trouble with the law.

in trust of (someone)- under the responsibility or care of someoneThe money was given to the child in trust of his grandparents.

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invasion of privacy- the act of doing something so that someone loses his or her privacySome people think that it is an invasion of privacy when there are video cameras in public

places.

invest (someone) with the power or legal right to (do something)- to give someone the power or right to do somethingThe judge invested the police with the power to enforce the decision of the court.

jump bail- to fail to appear in court and therefore give up the money that you

paid for bailThe criminal jumped bail and went to another city to live.

last will and testament- one's will (especially its latest edition) - a will is the legal

term to describe the document that says what a person wants to dowith his or her property after they die

I went to a lawyer in order to write my last will and testament.

law-abiding- obeying the lawThe couple was law-abiding citizens who never had any problems with the law.

a law unto oneself- someone who makes his or her own laws or rulesThe manager was a law unto herself and she thought that she could do whatever she wanted.

lay down the law- to state firmly what the rules or laws are for somethingWe decided to lay down the law regarding the vacation schedule for our employees.

a leading question- a question to a witness designed to suggest or produce the reply

desired by the questionerThe lawyer asked the witness a leading question but was told to stop by the judge.

legal age- the age when a person can do things such as buy alcohol or

cigarettes or when they are responsible for their actions and canborrow money etc.

The young men were not of legal age and could not buy cigarettes.

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let (someone) go- to free someone from prison or from an arrestThe court decided to let the man go because there was no evidence to keep him in prison.

letter of the law- the literal interpretation or the words of a law but not necessarily

the intent of those who wrote the lawThe lawyer always likes to follow the letter of the law.

lodge a complaint (against someone)- to make a complaint against someoneThe man decided to lodge a complaint against the law firm that had built the apartment

building.

a matter of record- a fact or something that is officially kept as a legal record and

therefore can be provedIt is a matter of record about how much money the mayor spent on the foreign trip.

mineral rights- the right to take minerals or money from the minerals on one's

propertyThe farmer owned all of the mineral rights on his property.

moral turpitude- behavior that is contrary to accepted rules of behaviorThe judge accused the lawyer of moral turpitude because of the tactics that he used to defend

his client.

next of kin- someone's closest relatives or family membersThe police notified the next of kin of the woman who was killed in the car accident.

null and void- worthless, canceledThe check which was written by the law firm was null and void.

of one's own free will/accord- by one's own choiceThe woman signed the contract to buy the car of her own free will.

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off the record- unofficial, informalThe judge told the lawyers off the record what they could expect the lawsuit to settle for.

offensive weapon- any weapon capable of being used to cause physical injury or harmThe young man with the knife was charged with carrying an offensive weapon.

on condition that- providing thatThe man was not sent to prison on condition that he volunteer and do work in the community.

on probation- serving a period of probation - probation is when a person who is

guilty of a crime is allowed to be free but is supervised by thegovernment and its probation officers

The man was on probation for robbing a small store last year.

on record- an official recorded statement or fact that everyone may knowThe businessman was on record as having refused to accept any illegal money.

out on bail- released from jail after you pay the bail bond money - the bail bond

is the money that you must pay to guarantee that you will appear incourt

The man was out on bail while he was waiting for his trial.

out on parole- out of jail but being supervised by the policeWhile the criminal was out on parole he was forced to meet with a social worker every week.

pay one's debt to society- to serve a sentence for a crime (usually in prison)The man was forced to pay his debt to society by going to prison for three years.

a peeping Tom- someone who looks into someone's window (usually a woman's window)

and watches him or herThere was a report of a peeping Tom near our apartment building.

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penalty clause- a section in a contract specifing an amount of money to be paid if

the contract is not fulfilledThere is a penalty clause in our apartment rental agreement if we decide to move early.

post mortem- a medical examination of a body made after death to determine the

cause of deathThe authorities performed a post mortem on the dead man to try and determine the cause of

his death.

power of attorney- a legal document granting authority for one person to act as

another's representativeThe woman was given power of attorney over her mother's daily affairs.

a preliminary hearing- a hearing before a judge to determine if there is enough evidence to

charge someone with a crimeThe man appeared at a preliminary hearing to determine the nature of the crime.

prima facie- at first view (prima facie is from Latin), something is assumed to

be true in the absence of evidence to the contraryPrima facie, it seems that the man has enough evidence to take legal action against his

employer.

privy to (something)- to have unique or special knowledge about somethingI was not privy to the conversation regarding the new business plan so I cannot comment on it.

punitive damages- extra damages awarded to someone in order to punish them and in

order to deter othersThe patient was awarded much money as punitive damages in his lawsuit against the hospital.

put (something) down in black and white- to write something down, to make or draw up a contractI put my plans for the meeting down in black and white.

quid pro quo- something for something (quid pro quo is from Latin), mutual

concessions made by the parties in a transaction

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The government and the teachers changed their contract demands in a quid pro quo effort tosolve their dispute.

the responsible party- the person or party that is legally or morally obliged to do

something or accept the blame for somethingThe responsible party was forced to compensate the victim of the crime.

run afoul of the law- to get into trouble with the lawThe young man ran afoul of the law and was taken into police custody.

serve notice on (someone)- to deliver a legal announcement or document to someoneThe law firm served notice on the workers that they would close the factory next year.

set (someone) free- to release someone from prison or captivityThe police set the man free when they decided that there was not enough evidence to charge

him with a crime.

show cause- to give a reason or explanation for somethingThe lawyer was asked to show cause about why the man was guilty of the crime.

show good faith- to demonstrate good intentions or good willWe try to show good faith when we meet the opposing side in our contract negotiations.

sign on the dotted line- to put your signature on a contract or other important documentWe signed on the dotted line of the contract to start the new business.

signed, sealed and delivered- having formally and officially signed somethingThe contract was signed, sealed and delivered before we went home for the evening.

skip bail- to fail to appear in court and therefore give up the money that you

paid for bailThe amount of bail was very high so that the accused criminal would not skip bail.

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small print- the part of a document or contract that may contain important

information but is not easily noticed because the print is smallI read the small print before I bought the television.

spirit of the law- something as it is meant to be and not as it is stated exactly, what

the people who made the law wanted to achieveThe judge tried to follow the spirit of the law and not only as it was written.

stand one's ground- to stand up for one's rightsI stood my ground and refused to do anything that was not totally honest.

stay of execution- a court order to temporarily stop another court order or judgment -

this can be used for any kind of court orderThere was a stay of execution on the order to demolish the old house.

straight and narrow- a straight and law-abiding route through lifeThe young man was back on the straight and narrow after talking with the police officer and

the social worker.

stretch the truth- to misrepresent the truth (usually in a small way)The witness was stretching the truth when she told the judge her excuse for the crime.

subject to (something)- depending on somethingThe sale of the house is subject to our getting a report from the housing inspector.

take effect- to become effective or in use (used for a law or rule)There is a new law related to Internet advertising that will soon take effect.

take the law into one's own hands- to try to administer the law on your ownThe transit supervisor was taking the law into his own hands when he tried to arrest the man.

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take precedence over (someone or something)- to be more important than someone or something, to have the right to

come before someone or something elseThe laws about the safety of children take precedence over many other laws.

to the letter- precisely, exactlyThe lawyer always suggests that his clients follow the judge's decisions to the letter.

trumped-up- false and exaggerated, invented by fraud or criminal deceptionThe business owner was arrested on trumped-up charges.

turn a blind eye to (someone or something)- to pretend not to see someone who is doing something wrong, to

pretend not to see something that may be troublesomeThe police often turn a blind eye to people who cross the street on a red light.

under a cloud (of suspicion)- to be suspected of doing something wrong or illegalThe manager of the coffee shop was fired from her job under a cloud of suspicion.

under age- below the legal age to do somethingThe boy was under age and was not able to buy cigarettes.

under arrest- arrested by the policeThe man was placed under arrest for stealing a car.

vicarious liability- the liability of one person through the act of anotherIt was a case of vicarious liability when the man was charged because of his friend's behavior.

with impunity- without risk of punishmentThe man continued to abuse his position and clients with impunity.

with no strings attached- with no obligations attachedThe man was forced to agree to the terms of the agreement with no strings attached.

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65


LAW QUOTES

1. Good men must not obey the laws too much. Ralph Waldo Emerson2. It may be true that the law cannot make a man love me, but it can

keep him from lynching me, and I think that's pretty important.Martin Luther King, Jr.

3. When the President does it; that means that it is not illegal.Richard Nixon

4. No man is above the law and no man is below it; nor do we ask anyman's permission when we ask him to obey it. Obedience to the lawis demanded as a right; not asked as a favor. Theodore Roosevelt

5. The life of the law has not been logic; it has been reason. OliverWendell Holmes

6. An unjust law is itself a species of violence. Mahatma Gandhi7. 'Fiat justitia ruat coelum'. Let justice be done, though the

heavens fall. Ceasar.8. You cannot make men good by law: and without good men you cannot

have a good society. C. S. Lewis9. If you have ten thousand regulations you destroy all respect for

the law. Winston Churchill10. Only one thing is impossible for God: To find any sense in any

copyright law on the planet. Mark Twain11. The law of love could be best understood and learned through little

children. Mahatma Gandhi12. Laws are sand, customs are rock. Laws can be evaded and

punishment escaped, but an openly transgressed custom brings surepunishment. Mark Twain

13. That old law about 'an eye for an eye' leaves everybody blind.The time is always right to do the right thing. Martin Luther King, Jr.

14. God created the law of free will, and God created the law of causeand effect. And he himself will not violate the law. We need to bethinking less in terms of what God did and more in terms of whetheror not we are following those laws. Marianne Williamson

15. As long as I have any choice, I will stay only in a countrywhere political liberty, toleration, and equality of all citizensbefore the law are the rule. Albert Einstein

16. Justice that love gives is surrender; justice that law gives is apunishment. Mahatma Gandhi

17. In tribal times, there were the medicine men. In the MiddleAges, there were the priests. Today, there are the lawyers. Forevery age, a group of bright boys, learned in their trades andjealous of their learning, who blend technical competence withplain and fancy hocus-pocus to make themselves masters of theirfellow men. For every age, a pseudo-intellectual autocracy,

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guarding the tricks of the trade from the uninitiated, and running,after its own pattern, the civilization of its day. Fred Rodell

18. Shame may restrain what law does not prohibit. Seneca19. The law does not concern itself with trifles. 'De minimis non

curat lex'. Legal maxim20. What is hateful to thyself do not do to another. That is the

whole Torah [Law], the rest is Commentary. Hillel21. It is the law of nature that woman should be held under the

dominance of man.Confucius

22. Be peaceful, be courteous, obey the law, respect everyone; butif someone puts his hand on you, send him to the cemetery. Malcolm X

23. The best way to get a bad law repealed is to enforce itstrictly. Abraham Lincoln

24. A country is in a bad state, which is governed only by laws;because a thousand things occur for which laws cannot provide, andwhere authority ought to interpose. Samuel Johnson

25. Law and justice are not always the same. Gloria Steinem26. Law school taught me one thing: how to take two situations that

are exactly the same and show how they are different. Hart Pomerantz27. No enactment of man can be considered law unless it conforms to the

law of God. William Blackstone28. The law is reason free from passion. Aristotle29. Man, when perfected, is the best of animals, but when separated

from law and justice, he is the worst of all. Aristotle30. The good of the people is the chief law. Cicero31. Criminals do not die by the hands of the law; they die by the hands

of other men. George Bernard Shaw32. But we know that the law is good, if a man use it lawfully;

knowing this, that the law is not made for a righteous man, but forthe lawless and disobedient, for the ungodly and for sinners, forunholy and profane, for murderers of fathers and murderers ofmothers, for manslayers. Bible 1 Timothy 1. 8-9.

33. Arms and laws do not flourish together. Julius Caesar34. Hard cases, it is said, make bad law. Lord John Campbell35. Where law ends, there tyranny begins. William Pitt, the Elder36. Law is not law, if it violates the principles of eternal

justice. Lydia Maria Child37. A state is better governed which has few laws, and those laws

strictly observed. Rene Descartes38. The laws are silent in the midst of arms. Cicero39. Equity follows the law. 'Aequitas sequitur legem'. Legal maxim40. Laws alone cannot secure freedom of expression; in order that

every man present his views without penalty there must be spirit oftolerance in the entire population. Albert Einstein

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41. Make crime pay. Become a Lawyer Will Rogers 42. There are three sorts of lawyers - able, unable and lamentable

Robert Smith Surtees 43. Necessity knows no law; I know some attorneys of the same

Benjamin Franklin 44. Law school has been described as a place for the accumulation of learning. First-year

students bring some in; third-year students take none away. Hence it accumulates.Unknown

45. Lawyers are always more ready to get a man into troubles than out of them. WilliamGoldsmith

46. A lawyer with a briefcase can steal more than a thousand men with guns. Mario Puzo47. The one great principle of Common lawis to make business for itself. Charles

Dickens 48. America is the paradise of lawyers. David Brewer 49. Lawyers are men whom we hire to protect us from lawyers. Elbert Hubbard 50. A Lawyer will do anything to win a case, sometimes he will even tell the truth. Patrick

Murray51. Only Lawyers and mental defectives are automatically exempt for jury duty. George

Bernard Shaw 52. The only way you can beat the lawyers is to die with nothing. Will Rogers 53. Trial lawyers get you reasonable doubt for reasonable fee. Ojijo 54. An incompetent lawyer can delay a trial for months or years. A competent lawyer can

delay one even longer. Unknown 55. Lawyer: An individual whose principal role is to protect his clients from others of his

profession. Unknown 56. Lawyers are the only persons in whom ignorance of the law is not punished. Jeremy

Bentham 57. A man without money needs no more fear a crowd of lawyers than a crowd of

pickpockets. R. Rinkle 58. Lawyers should never marry other lawyers. This is called ‘inbreeding,’ from which comes

idiot children and more lawyers. Kip Lurie 59. A lawyer is a learned gentleman who rescues your estate from you enemies and keeps it

to himself. Henry Bougham60. Many of life's circumstances are created by three basic choices:

the disciplines you choose to keep, the people you choose to bewith; and, the laws you choose to obey’. Charles Millhuff

61. Good people do not need laws to tell them to act responsibly,while bad people will find a way around the laws.’ Plato

62. ‘The only power any government has is the power to crack down oncriminals. Well, when there aren't enough criminals, one makesthem. One declares so many things to be a crime that it becomesimpossible for men to live without breaking laws.’ Ayn Rand (RussianWriter and Novelist, 1905-1982)

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63. ‘Nobody has a more sacred obligation to obey the law than those whomake the law’-Sophocles (One of classical Athens' three great tragic playwrights)

64. The law will never make men free; it is men that have to makethe law free.’-Henry David Thoreau (American Essayist, Poet and Philosopher, 1817-1862)

65. ‘A jury consists of twelve persons chosen to decide who has thebetter lawyer.’Robert Frost (American poet, 1874-1963)

66. Discourage litigation. Persuade your neighbors to compromisewhenever you can. As a peacemaker the lawyer has superioropportunity of being a good man. There will still be businessenough.’ Abraham Lincoln (16th US President (1861-65)

67. ‘In matters of conscience, the law of the majority has noplace.’ Mahatma Gandhi (Indian Philosopher, internationally esteemed for hisdoctrine of nonviolent protest, 1869-1948)

68. ‘Nothing is more destructive of respect for the government andthe law of the land than passing laws which cannot be enforced.’Albert

69. ‘No law or ordinance is mightier than understanding.’ Plato (AncientGreek Philosopher He was the world's most influential philosopher. 428 BC-348 BC)

70. ‘It is not desirable to cultivate a respect for law, so much asa respect for right.’ Henry David Thoreau (American Essayist, Poet andPhilosopher, 1817-1862)

71. ‘The purpose of the law is not to prevent a future offense, butto punish the one actually committed’ Ayn Rand (Russian bornAmerican Writer and Novelist, 1905-1982)

72. He who is his own lawyer has a fool for a client’. Proverb 73. ‘I've never been in love. I've always been a lawyer.’ Anonymous74. ‘The more laws, the less justice.’ Marcus Tullius Cicero (Ancient Roman

Lawyer, Writer, Scholar, Orator and Statesman, 106 BC-43 BC)75. ‘We are in bondage to the law so that we might be free’ Marcus Tullius

Cicero (Ancient Roman Lawyer, Writer, Scholar, Orator and Statesman, 106 BC-43 BC)

76. ‘The juries are our judges of all fact, and of law when they chooseit.’ Thomas Jefferson (American 3rd US President (1801-09). Author of the Declaration ofIndependence. 1762-1826

77. ‘A state is better governed which has few laws, and those lawsstrictly observed’ Rene Descartes (French Mathematician, Philosopher and Scientist,1596-1650)

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78. ‘It is necessary for him who lays out a state and arranges lawsfor it to presuppose that all men are evil and that they are alwaysgoing to act according to the wickedness of their spirits wheneverthey have free scope’ Niccolo Machiavelli (Italian writer and statesman, Florentinepatriot, author of 'The Prince', 1469-1527)

79. ‘Doctors are the same as lawyers; the only difference is thatlawyers merely rob you, whereas doctors rob you and kill me too.’Anton Chekhov (Russian playwright and master of the modern short story, 1860-1904)

80. I don't write polite letters. I don't like to plea-bargain. I liketo fight.’ Roy M. Cohn

81. ‘Law never made men a whit more just.’ Henry David Thoreau (AmericanEssayist, Poet and Philosopher, 1817-1862)

82. ‘The more laws are enacted and taxes assessed, the greater thenumber of lawbreakers and tax evaders’ Lao Tzu (Chinese taoist Philosopher,founder of Taoism, wrote ‘Tao Te Ching’ (also ‘The Book of the Way’). 600 BC-531 BC)

83. ‘Law school taught me one thing: how to take two situations thatare exactly the same and show how they are different’ Hart Pomerantz

84. ‘The minute you read something that you can't understand, I canalmost be sure that it was drawn up by a lawyer.’ Will Rogers (Americanentertainer, famous for his pithy and homespun humour, 1879-1935)

85. ‘In law a man is guilty when he violates the rights of others.In ethics he is guilty if he only thinks of doing so.’ Immanuel Kant(German Philosopher one of the foremost thinkers of the Enlightenment. 1724-1804)

86. ‘There are laws to protect the freedom of the press's speech,but none that are worth anything to protect the people from thepress’ Mark Twain (American Humorist, Writer and Lecturer. 1835-1910)

87. ‘We need a law that will permit a voter to sue a candidate forbreach of promise’ Anonymous

88. ‘The law condemns and punishes only actions within certain definiteand narrow limits; it thereby justifies, in a way, all similaractions that lie outside those limits.’Leo Nikolaevich Tolstoy (Russian moral Thinker, Novelist and Philosopher, notable for hisinfluence on Russian literature and politics. 1828-1910)

89. ‘I decided law was the exact opposite of sex; even when it wasgood, it was lousy’Mortimer Zuckerman

90. Laws are not masters but servants, and he rules them who obeysthem. Henry Ward Beecher

91. Laws grind the poor, and rich men rule the law. Oliver Goldsmith92. A verbal contract isn't worth the paper it is printed on. Sam

Goldwyn93. The good need fear no law; it is his safety, and the bad man's

awe. Ben Jonson94. One wrong does not justify another. 'Injuria non excusat

injuriam'. Legal maxim

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95. The verdict acquits the raven, but condemns the dove. Juvenal96. Nor is there any law more just, than that he who has plotted

death shall perish by his own plot. Ovid97. Ignorance of the law excuses no man; not that all men know the

law, but because it is an excuse every man will plead, and no mancan tell how to confute him. John Selden

98. The gods have their own laws. Ovid99. No one can be judge in his own cause. 'Nemo debet esse judex in

propria causa'. Legal maxim100. Still you keep o' th' windy side of the law. William Shakespeare

Twelfth Night.101. Laws are like spiders' webs which, if anything small falls into

them they ensnare it, but large things break through and escape.Solon

102. Let every man remember that to violate the law is to trample onthe blood of his father, and to tear that charter of his own andhis children's liberty. Abraham Lincoln

103. The power of the lawyer is in the uncertainty of the law. JeremyBentham

104. We must not make a scarecrow of the law, Setting it up to fearthe birds of prey, And let it keep one shape, till custom make it. Their perch and nottheir terror. William Shakespeare Measure for Measure.

105. We all know here that the law is the most powerful of schoolsfor the imagination. No poet ever interpreted nature as freely as alawyer interprets the truth. Jean Giraudoux

106. The law hath not been dead, though it hath slept. William Shakespeare107. ‘You are old,’ said the youth, ‘and your jaws are too weak for

anything tougher than suet; yet you finished the goose, with thebones and the beak. Pray, how did you do it?’ ‘In my youth,’ saidhis father, ‘I took to the law, and argued each case with my wifeand the muscular strength which it gave to my jaw has lasted therest of my life. ‘Lewis Carroll

108. The first thing we do, let's kill all the lawyers. WilliamShakespeare King Henry VI art 2.

109. Necessity knows no law; I know some attorneys of the same.Benjamin Franklin

110. What a cage is to the wild beast, law is to the selfish man.Herbert Spencer

111. Ignorance of the law, which everybody is supposed to know, doesnot constitute an excuse. Legal maxim

112. It is an honorable calling that you have chosen. Some of youwill soon be defending poor, helpless insurance companies who areconstantly being sued by greedy, vicious widows and orphans tryingto collect on their policies. Others will work tirelessly to

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protect frightened, beleaguered oil companies from being attackedby depraved consumer groups. Art Buchwald

113. To make laws that man cannot, and will not obey, serves to bringall laws into contempt. Elizabeth Cady Stanton

114. The King can do no wrong. 'Rex non potest peccare'. Legal maxim115. The law will never make men free; it is men who have got to make

the law free. Henry David Thoreau116. Nobody has a more sacred obligation to obey the law than those

who make the law. Sophocles117. It is the spirit and not the form of law that keeps justice

alive. Earl Warren118. The best way to get a bad law repealed is to enforce it

strictly. Abraham Lincoln 119. One who breaks an unjust law that conscience tells him is

unjust, and who willingly accepts the penalty of imprisonment inorder to arouse the conscience of the community over its injustice,is in reality expressing the highest respect for law. Martin LutherKing, Jr.

120. Law and order exist for the purpose of establishing justice andwhen they fail in this purpose they become the dangerouslystructured dams that block the flow of social progress. Martin LutherKing, Jr.

121. Lawless are they that make their wills their law. WilliamShakespeare

122. The strictest law sometimes becomes the severest injustice.Benjamin Franklin

123. Taste cannot be controlled by law. Thomas Jefferson 124. It is more dangerous that even a guilty person should be

punished without the forms of law than that he should escape.Thomas Jefferson

125. I have gained this from philosophy: that I do without beingcommanded what others do only from fear of the law. Aristotle

126. If the machine of government is of such a nature that itrequires me to be the agent of injustice to another, then, I say,break the law. Henry David Thoreau

127. All men are not created equal but should be treated as thoughthey were under the law. Andy Rooney

128. It is difficult to make our material condition better by thebest law, but it is easy enough to ruin it by bad laws. TheodoreRoosevelt

129. Obedience of the law is demanded; not asked as a favor. TheodoreRoosevelt

130. Many laws as certainly make bad men, as bad men make many laws. Walter Savage Landor, Imaginary Conversations

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131. Laws, like sausages, cease to inspire respect in proportion aswe know how they are made. John Godfrey Saxe, 1869 (Thanks, Garson O'Toole!)

132. This is a court of law, young man, not a court of justice. OliverWendell Holmes, Jr.

133. The trouble with the laws these days is that criminals knowtheir rights better than their wrongs. Author Unknown

134. Justice may be blind, but she has very sophisticated listeningdevices. Edgar Argo

135. Somebody recently figured out that we have 35 million laws toenforce the Ten Commandments. Attributed to both Bert Masterson and EarlWilson

136. I've never had a problem with drugs. I've had problems with thepolice. Keith Richards

137. There is plenty of law at the end of a nightstick. Grover Whalen138. In the Halls of Justice the only justice is in the halls. Lenny

Bruce139. Although the legal and ethical definitions of right are the

antithesis of each other, most writers use them as synonyms. Theyconfuse power with goodness and mistake law for justice. Charles T.Sprading, Freedom and its Fundamentals

140. If the laws could speak for themselves, they would complain ofthe lawyers in the first place. Lord Halifax

141. It is strange that men should take up crime when there are somany legal ways to be dishonest. Author unknown, quoted in Sunshinemagazine

142. Hunger makes a thief of any man. Pearl S. Buck143. Bad laws are the worst sort of tyranny. Edmund Burke144. The more laws the more offenders. Thomas Fuller, Gnomologia, 1732145. Law: the only game where the best players get to sit on the

bench. Author Unknown146. It ain't no sin if you bend a few laws now and then, just so

long as you don't break any. Mae West147. When there's a single thief, it is robbery. When there are a

thousand thieves, it is taxation. Vanya Cohen148. Capital punishment is as fundamentally wrong as a cure for crime

as charity is wrong as a cure for poverty. Henry Ford149. Poverty is the mother of crime. Marcus Aurelius150. War makes thieves and peace hangs them. George Herbert151. Obscenity is whatever happens to shock some elderly and ignorant

magistrate. Bertrand Russell, Look, 1954152. An appeal... is when you ask one court to show its contempt for

another court. Finley Peter Dunne153. The greatest crimes are caused by surfeit, not by want. Aristotle,

Politics

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154. Corn can't expect justice from a court composed of chickens. Afrikan Proverb

155. Men fight for freedom, then they begin to accumulate laws totake it away from themselves. Author Unknown

156. The more corrupt the republic, the more numerous the laws. Tacitus, Annals

157. The houses of lawyers are roofed with the skins of litigants. Welsh Proverb

158. The greater the number of laws and enactments, the more thievesand robbers there will be. Lao-tzu

159. Laws are spider webs through which the big flies pass and thelittle ones get caught. Honoré de Balzac

160. As one reads history, not in the expurgated editions written forschoolboys and passmen, but in the original authorities of eachtime, one is absolutely sickened, not by the crimes that the wickedhave committed, but by the punishments that the good haveinflicted; and a community is infinitely more brutalised by thehabitual employment of punishment than it is by the occasionaloccurrence of crime. ~Oscar Wilde, The Soul of Man Under Socialism

161. We don't seem to be able to check crime, so why not legalize itand then tax it out of business? Will Rogers

162. A lawyer is a gentleman who rescues your estate from yourenemies and keeps it for himself. Lord Brougham

163. Rather let the crime of the guilty go unpunished than condemnthe innocent. Justinian me, Law Code, A.D. 535

164. Judge: a law student who marks his own papers. H.L. Mencken165. Some circumstantial evidence is very strong, as when you find a

trout in the milk. Henry David Thoreau166. There is no such thing as justice - in or out of court. Clarence

Darrow, 1936167. It is hard to say whether doctors of law or divinity have made

the greater advances in the lucrative business of mystery. EdmundBurke

168. The state calls its own violence law, but that of the individualcrime. Max Stirner, The Ego and His Own

169. Good lawyers know the law; great lawyers know the judge. AuthorUnknown

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LAW JOKES

Question & AnswerQ: What's the difference between a good lawyer and a great lawyer? A:

A good lawyer knows the law. A great lawyer knows the judge.

Q: What do you call 5000 dead criminal defense lawyers at the bottomof the ocean? A: A good start!

Q: What's the difference between an attorney and a pit bull? A: Jewelry.

Q: How can you tell when a lawyer is lying? A: His lips are moving. Q: How does an attorney sleep? A: First he lies on one side, and then on the other. Q: How do you get a group of personal injury lawyers to smile for a

picture? A: Just say ‘Fees!’ Q: If you are stranded on a desert island with Adolph Hitler, Atilla

the Hun, and a lawyer, and you have a gun with only two bullets,what do you do? A: Shoot the lawyer twice.

Q: What do you call 5000 dead lawyers at the bottom of the ocean? A: Agood start!

Q: How can you tell when a lawyer is lying? A: His lips are moving.

Q: What's the difference between a dead dog in the road and a deadlawyer in the road? A: There are skid marks in front of the dog.

Q: Why will not shark attack lawyers? A: Professional courtesy. Q: What do you have when a lawyer is buried up to his neck in sand? A:

Not enough sand.

Q: Why did God make snakes just before lawyers? A: To practice. A commandwas given to a dog: ‘SPEAK!’ The dog said in return: ‘Not without my lawyer present!’

Q: Why is going to a meeting of the Bar Association like going into abait shop? A: Because of the abundance of suckers, leeches, maggots and nightcrawlers

Q: Why are there so many lawyers in the U.S.? A: Because St. Patrick chasedthe snakes out of Ireland.

Q: What’s the difference between a lawyer and a herd of buffalo? A:The lawyer charges more.

Q. Why will sharks not attack lawyers? A. Professional courtesy.

Q. What's the definition of a lawyer? A. A mouth with a life support system.

Q. What's the definition of mixed emotions? A. Watching your attorney driveover a cliff in your new car.

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Q. Have you heard about the lawyers’ word processor? A. No matter whatfont you select, everything comes out in fine print.

Q. What do you call a smiling, sober, courteous person at a barassociation convention? A. The caterer.

Q. What do you have when a lawyer is buried up to his neck in sand? A.Not enough sand.

Q. What's the difference between a lawyer and a terrorist? A. I cannegotiate with a terrorist.

Q. What's the difference between a lawyer and a trampoline? A. Youtake off your shoes before you jump on a trampoline.

Q. If you drop a snake and an attorney off the Empire State Building,which one hits first? A. Who cares?

Q. What do honest lawyers and UFOs have in common? A. You always hearabout them, but you never see them.

Q. What's the difference between a lawyer and a vulture? A. Lawyersaccumulate frequent flyer points.

Q. What's the difference between an attorney and a pit bull? A.Jewelry.

Story jokesHow many personal injury attorneys does it take to change a light

bulb? How many can you afford? Three - one to turn the bulb, one toshake him off the ladder, and the third to sue the ladder company.

‘A Lawyer will do anything to win a case, sometimes he will even tellthe truth.’ Patrick Murray

Lawyers, I suppose, were children once.’ Anonymous ‘A lawyer with a briefcase can steal more than a thousand men with

guns.’ Mario Puzo Lawyers are men who hire out their words and anger.’ Horace (Ancient Roman

Poet. 65 BC-8 BC)

‘You seem to be in some distress,’ said the kindly judge to thewitness. ‘Is anything the matter?’ ‘Well, your Honour,’ said thewitness, ‘I swore to tell the truth, the whole truth and nothing but the truth, but everytime I try, some lawyer objects.’

A new client had just come in to see a famous lawyer. ‘Can you tell me how much you charge?’ said the client. ‘Ofcourse’, the lawyer replied, ‘I charge $200 to answer three

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questions!’ ‘Well that's a bit steep, isn't it?’‘Yes it is’, said the lawyer, ‘And what's your third question?’

The scene is the darkest jungle in Africa. Two tigers are stalkingthrough the jungle when the one in the rear suddenly reaches outwith his tongue and licks the butt of the one in front. The leadtiger turns and says, ‘Hey, cut it out, alright.’ The other tigersays sorry and they continue on their way. After about five minutesthe rear tiger suddenly repeats his action. The front tiger turnsangrily and says,’ I said don't do that again!’ The rear tiger says‘sorry’ again and they continue. After about another five minutes,the rear tiger repeats his action. The front tiger turns and says,‘What is it with you, anyway? I said to stop.’ The rear tiger says,‘I really am sorry but I just ate a lawyer and I'm just trying toget the taste out of my mouth.’

A local United Way office realized that the organization had neverreceived a donation from the town's most successful lawyer. Theperson in charge of contributions called him to persuade him tocontribute. ‘Our research shows that out of a yearly income of atleast $700,000, you give not a penny to charity. Wouldn't you liketo give back to the community in some way?’ The lawyer mulled thisover for a moment and replied, ‘First, did your research also showthat my mother is dying after a long illness, and has medical billsthat are several times her annual income?’ Embarrassed, the UnitedWay rep mumbled, ‘Um ... no.’ The lawyer interrupts, ‘or that mybrother, a disabled veteran, is blind and confined to awheelchair?’ The stricken United Way rep began to stammer out anapology, but was interrupted again. ‘Or that my sister's husbanddied in a traffic accident,’ the lawyer's voice rising inindignation, ‘leaving her penniless with three children?!’ Thehumiliated United Way rep, completely beaten, said simply, ‘I hadno idea...’ On a roll, the lawyer cut him off once again, ‘So if Idon't give any money to them, why should I give any to you?’

A pick pocket was up in court for a series of petty crimes. The judgesaid ‘Mr. Banks you are hereby fined $100.’ The lawyer stood up andsaid ‘Thanks, my lord, however my client only has $75 on him atthis time, but if you'd allow him a few minutes in the crowd. . .’

Two small boys, not yet old enough to be in school, were overheardtalking at the zoo one day. ‘My name is Billy. What's yours?’ askedthe first boy. ‘Tommy,’ replied the second. ‘My Daddy's anaccountant. What does your Daddy do for a living?’ asked Billy.Tommy replied, ‘My Daddy's a lawyer.’ ‘Honest?’ asked Billy. ‘No,just the regular kind’, replied Tommy.

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One day, there was this lawyer who had just bought a new car, and hewas eager to show it off to his colleagues, when all of a sudden aneighteen wheeler came out of nowhere and took of the driver's sidedoor with him standing right there. ‘NOOO!’ he screamed, because heknew that no matter how good a mechanic tried to fix it, it neverwould be the same. Finally, a cop came by, and the lawyer ran up tohim yelling. ‘MY JAGUAR DOOR WAS JUST RUINED BY SOME FOOLISHDRIVER!!!’ he exclaimed. ‘Your a lawyer aren't you?’ asked thepoliceman. ‘Yes, I am, but what does this have to do with mycar?!?!’ the lawyer asked. ‘HA! Your lawyers are always somaterialistic. All you care about is your possessions. I bet youdidn't even notice that your left arm is missing did you?’ the copsaid. The lawyer looked down at his side and exclaimed ‘MY ROLEX!’

A guy walks into a post office one day to see a middle-aged, baldingman standing at the counter methodically placing ‘Love’ stamps onbright pink envelopes with hearts all over them. He then takes outa perfume bottle and starts spraying scent all over them. Hiscuriosity getting the better of him, he goes up to the balding manand asks him what he is doing. The man says ‘I'm sending out 1,000Valentine cards signed, 'Guess who?'‘ ‘But why?’ asks the man. ‘I'ma divorce lawyer,’ the man replies.

A man was chosen for jury duty who really wanted to be dismissed fromserving. He tried every excuse he could think of but none of themworked. On the day of the trial, he decided to give it one moreshot. As the trial was about to begin, he asked if he couldapproach the bench. ‘Your Honor,’ he said, ‘I must be excused fromthis trial because I am prejudiced against the defendant. I tookone look at the man in the blue suit with those beady eyes and thatdishonest face and I said 'He's a crook! He's guilty!' So, yourHonor, I cannot possibly stay on this jury!’ With a tiredannoyance the judge replied, ‘Get back in the jury box, you fool.That man is the defendant's lawyer.’

For three years, the young attorney had been taking his briefvacations at this country inn. The last time he'd finally managedan affair with the innkeeper's daughter. Looking forward to anexciting few days, he dragged his suitcase up the stairs of theinn, and then stopped short. There sat his lover with an infant onher lap! ‘Helen, why didn't you write when you learned you werepregnant?’ he cried. ‘I would have rushed up here, we could havegotten married, and the baby would have my name!’ ‘Well,’ she said,‘when my folks found out about my condition, we sat up all nighttalkin' and talkin' and decided it would be better to have abastard in the family than a lawyer.’

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A lawyer defending a man accused of burglary tried this creativedefense: ‘My client merely inserted his arm into the window andremoved a few trifling articles. His arm is not himself, and I failto see how I can punish the whole individual for an offencecommitted by his limb.’ Well put,’ the judge replied. ‘Using yourlogic, I sentence the defendant's arm to one year's imprisonment.He can accompany it or not, as he chooses.’ The defendant smiled.With his lawyer's assistance he detached his artificial limb, laidit on the bench, and walked out.

A grade school teacher was asking students what their parents did fora living. Timmy stood up and said, ‘My mom is a doctor!’ Sarahstood up and said, ‘My father is a professor!’ Little Johnny stoodup and said, ‘My dad is a piano player in a whorehouse!’The teachercouldn't believe what she's had just heard, so she made a point ofcalling Little Johnny's father that evening to discuss thesituation. Little Johnny's father explained, ‘Actually, I'm a lawattorney, but how am I supposed to explain that to a seven year oldkid!’

A woman went to her doctor for advice. She told the physician that herhusband had developed a penchant for anal sex, and she wasn't sureit was such a good idea. The Doctor asked, ‘Do you enjoy it?’ Shesaid, she did. He asked, ‘Does it hurt you?’ She said no. TheDoctor then told her, ‘Well, then, there's no reason that youshouldn't practice anal sex, if that's what you like, so long asyou take care not to get pregnant.’ The woman was mystified. Sheasked, ‘I can get pregnant from anal sex?’ The Doctor replied, ‘Ofcourse. Where do you think lawyers come from?’

A doctor vacationing on the Riviera met an old lawyer friend and askedhim what he was doing there. The lawyer replied, ‘Remember thatlousy real estate I bought? Well, it caught fire, so here I am withthe fire insurance proceeds. What are you doing here?’ The doctorreplied, ‘Remember that

lousy real estate I had in Mississippi? Well, the river overflowed,and here I am with the flood insurance proceeds.’ The lawyer lookedpuzzled. ‘Gee,’ he asked, ‘how did you start the flood?’

A guy phones a law firm and says, ‘I want to speak to my lawyer.’ Thereceptionist says, ‘I'm sorry, but your lawyer died last week.’ Thenext day the same guy phones the law firm and says, ‘I want tospeak to my lawyer.’ Once again the receptionist replies, ‘I'msorry, but your lawyer died last week.’ The next day the guy makeshis regular call to the law firm and say, ‘I want to speak to mylawyer.’ ‘Excuse me sir,’ the receptionist says, ‘but this is third

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time I've had to tell you that your lawyer died last week. Why doyou keep calling?’ The guy replies, ‘Because I love hearing it!’

Two attorneys were walking out of a bar and a beautiful young ladywalks by. One attorney turns to his associate and comments ‘Boy, Iwould like to fuck her! The other attorney thinks for a second andsaid ‘Out of what’?

An engineer dies and reports to the pearly gates. St. Peter checks hisdossier and says, ‘Ah, you're an engineer -- you're in the wrongplace.’ So the engineer reports to the gates of hell and isadmitted. Pretty soon, the engineer gets dissatisfied with thelevel of comfort in hell, and, as is the wont for engineers, startsdesigning and building improvements. After a while, they've got airconditioning and flush toilets and escalators, and the engineer isa pretty popular guy. One day God calls Satan up on the telephoneand asks, ‘So how's it going down there in hell?’ Satan replies,‘Hey things are going great. We've got air conditioning, flushingtoilets and working escalators, and there's no telling what anengineer is going to come up with next.’ God replies, ‘What you’vegot an engineer? That's a mistake -- he should never have gottendown there; send him up here.’ Satan says, ‘No way. I like havingan engineer on the staff, and I'm keeping him.’ God says, ‘Send himback up here or I'll sue.’ Satan laughs uproariously and answers,‘Yeah right. And just where are you going to get a lawyer?’

A lawyer trying to get tickets to a Broadway show finally settled fora couple of seats a year in advance. When the exciting nightarrived and he sat down in his seat, a woman in front of the lawyernoticed the empty seat next to him and asked why such a valuablecommodity was unused. The lawyer replied that his wife couldn'tmake it. The woman asked him if he didn't have relatives or friendswho could have used the seat. He replied, ‘Oh, they're all at thefuneral.’

A doctor and a lawyer were talking at a party. Their conversation wasconstantly interrupted by people describing their ailments andasking the doctor for free medical advice. After an hour of this,the exasperated doctor asked the lawyer, ‘what do you do to stoppeople from asking you for legal advice when you're out of theoffice?’‘I give it to them,’ replied the lawyer, ‘and then I sendthem a bill.’ The doctor was shocked, but agreed to give it a try.The next day, still feeling slightly guilty, the doctor preparedthe bills. When he went to place them in his mailbox, he found abill from the lawyer.

A lawyer is standing in a long line at the box office. Suddenly, hefeels a pair of hands kneading his shoulders, back, and neck. The

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lawyer turns around. ‘What the hell do you think you're doing?’‘I'm a chiropractor, and I'm just keeping in practice while I'mwaiting in line.’ ‘Well, I'm a lawyer, but you don't see mescrewing the guy in front of me, do you?’

A man is at his lawyer's funeral and is surprised by the turnout forthis one man. He turns to the people around him. ‘Why are you allat this man's funeral?’ A man turns towards him and says, ‘We'reall clients.’ ‘And you ALL came to pay your respects? Howtouching.’ ‘No, we came to make sure he was dead.’

An elderly patient needed a heart transplant and discussed his optionswith his doctor. The doctor said, ‘We have three possible donors.The first donor is a young, healthy athlete who died in anautomobile accident. The second donor is a middle-aged businessmanwho never drank or smoked and who died flying his private jet. And,the third donor is an attorney who died after practicing law for 30years. Which do you want?’‘I'll take the lawyer's heart,’ said thepatient. After a successful transplant, the doctor asked thepatient why he had chosen the lawyer's heart. ‘It was easy,’explained the patient, ‘I wanted a heart that hadn't been used.’

Three men, a doctor, an accountant and a lawyer are dead and theyappear in front of St Peter. St Peter tells them that they have toanswer one question in order to get to Heaven. He looks at thedoctor and asks, ‘There was a movie that was made about a ship thatsank after hitting an iceberg, what was its name?’ The doctoranswers, ‘The Titanic’ and he is sent through. He then looks at theaccountant and say, ‘How many people died in that ship?’Fortunately the doctor had just watched the movie and he answers,‘1 500!’ St Peter sends him through and then finally turns to thelawyer and commands, in a very heavy voice, ‘Name them!’

In heaven, the angels asked god where he would spend his next holiday.

God said: At least not on earth. Last time I went there, I left agirl pregnant and those people haven't stopped talking about itsince!

A big city London lawyer went duck hunting in rural Scotland. He shotand dropped a bird, but it fell into a farmer's field on the otherside of a fence. As the lawyer climbed over the fence, an elderlyfarmer drove up on his tractor and asked the lawyer what he wasdoing. The lawyer responded, ‘I shot a duck and it fell into thisfield, and now I'm going to retrieve it.’ The old farmer replied.‘This is my property, and you’re not coming over here.’ Theindignant lawyer replied. ‘I'm one of the best trial lawyers in theUK, and if you don't let me get that duck, I'll sue you and take

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everything that you own. The old farmer smiled and said,‘Apparently, you don't know how we do things in Scotland. We settlesmall disagreements like this, with the Scottish Three Kick Rule.’The lawyer asked, ‘What is the Scottish Three Kick Rule?’The farmerreplied, ‘Well, first I kick you three times and then you kick methree times, and so on, back and forth until someone gives up.’ Theattorney quickly thought about the proposed contest and decidedthat he could easily take the old codger. He agreed to abide by thelocal custom. The old farmer slowly gets down from the tractor andwalked up to the city fella. His first kick planted the toe of hisheavy work boot into the lawyer's groin, which dropped him to hisknees. His second kick nearly ripped the nose off his face. Thelawyer was flat on his belly, when the farmer's third

kick to a kidney nearly causing him to give up, but didn’t. The lawyersummoned every bit of his will and managed to get to his feet andsaid, ‘Okay, you old tosser, now It is my turn.’ The old farmersmiled and said, ‘Naw, I give up, I can keep the duck!’

One day Saint Peter and Lucifer were having a problem with theirboundaries. The following was their dialogue: Saint Peter: Yourfence is a little bit on my side. Lucifer: Yes, but I will not moveit an inch. St. Peter: Then I'll sue you.Lucifer: Oh yeah? Where do you think you'll get a lawyer?

Taking his seat in his chambers, the judge faced the opposing lawyers.‘So,’ he said, ‘I have been presented, by both of you, with abribe.’ Both lawyers squirmed uncomfortably. ‘You, attorney Leon,gave me $15,000. And you, attorney Campos, gave me $10,000.’ Thejudge reached into his pocket and pulled out a check. He handed itto Leon ... ‘Now then, I'm returning $5,000, and we're going todecide this case solely on its merits.’

A redneck, a preacher, and a lawyer are traveling in a car when itbreaks down in front of a farm. They ask the farmer if they couldspend the night. The farmer said, ‘Sure, but my guest room only hasroom for two. One of you will have to sleep in the barn. Thepreacher says, ‘I don't mind being with God's animals. I will sleepin the barn.’ An hour later, there's a knock on the guest roomdoor. It is the preacher. He says, ‘I can't stand that noisychicken. Could I switch with one of you?’ The redneck says, ‘Thereare always loud animals back in Alabama. I can take it.’ An hourlater, there's a knock on the guest room door. It is the redneck.He says, ‘I can't stand that smelly cow! Could I switch with one ofyou?’ The lawyer says, ‘Well, I guess that leaves me.’ An hourlater, there's a knock on the door. It is the chicken and the cow.

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A couple was driving to a church to get married. On the way, they gotinto a car accident and died. When they arrive in heaven, they seeSt. Peter at the gate. They ask him if he could arrange it so theycould marry in heaven. St. Peter tells them that he'll do his bestto work on it for them. Three months pass by and the couple heardnothing. They bump into St. Peter and ask him about the marriage.He says, ‘I'm still working on it.’ Two years pass by and nomarriage. St. Peter again assures them that he's working on it.Finally after twenty long years, St. Peter comes running with apriest and tells the couple it is time for their wedding. Thecouple marries and lives happily for a while. But after a fewmonths the couple goes and find St. Peter and tell him things arenot working out, and that they want to get a divorce. ‘Can youarrange it for us?’ they ask. St. Peter replies, ‘Are you kidding?!It took me twenty years to find a priest up here. How am I gonnafind you a lawyer?’

A very successful lawyer parked his brand-new Lexus in front of hisoffice, ready to show it off to his colleagues. As he got out, atruck passed too close and tore off the door on the driver's side.The lawyer immediately grabbed his cell phone, dialed 911, andwithin minutes a policeman pulled up. Before the officer had achance to ask any questions, the lawyer started screaminghysterically. His Lexus, which he had just picked up the daybefore, was now completely ruined no matter what the body shop didto it. When the lawyer finally wound down from his ranting andraving, the officer shook his head in disgust and disbelief.’ I cannot believe how materialistic you

lawyers are,’ the cop said. ‘You are so focused on your possessionsthat you don't notice anything else.’ How can you say such athing?’ asked the lawyer. The cop replied, ‘Don't you know thatyour left arm is missing from the elbow down? It must have beentorn off when the truck hit you.’ My God!’ screamed the lawyer. ‘MyRolex!’

A lawyer was well into a lengthy cross-examination of a witness,stopped and said: ‘I object, Your Honor! One of the jurors isasleep.’ The Judge ruled: ‘You put him to sleep... You wake himup.’

Stupid Lawyer Questions Q: Now doctor, isn't it true that when a person dies in his sleep, in

most cases he just passes quietly away and doesn't know anythingabout it until the next morning?

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Q: What happened then? A: He told me, ‘I have to kill you because Ican identify me.’ Q: Did he kill you?

Q: Was it you or your brother that was killed in the war?Q: The youngest son, the 20-year-old, how old is he? Q: She had three children, right? A: Yes. Q: How many were boys? A:

None. Q: Were there any girls? Q: Were you alone or by yourself?Q: I show you Exhibit 3 and ask you if you recognize that picture? A:

That's me. Q: Were you present when that picture was taken?Q: Were you present in court this morning when you were sworn in?Q: You say that the stairs went down to the basement? A: Yes. Q: And

these stairs, did they go up also?Q: Now then, Mrs. Johnson how was your first marriage terminated? A:

By death. Q: And by whose death was it terminated?Q: Do you know how far pregnant you are now? A: I'll be three months

on March 12th. Q: Apparently then, the date of conception wasaround January 12th? A: Yes.

Q: What were you doing at that time?Do you have any children or anything of that kind?Was that the same nose you broke as a child?Q: Mrs. Jones, do you believe you are emotionally stable? A: I used to

be.Q: How many times have you committed suicide?Q: So, you were gone until you returned?Q: You don't know what it was, and you didn't know what it looked

like, but can you describe it?Q: Have you lived in this town all your life? A: Not yet.

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LATIN LAW MAXIMS

Latin maxims and legal phrases are sometimes compared to axioms ingeometry. These are the established universal principles of law andmoral philosophy, usually well known to people in the legalprofession.

AA mensa et thoro - From bed and board.A vinculo matrimonii - From the bond of matrimony.Ab extra - From outside.Ab initio - From the beginning.Absoluta sententia expositore non indiget - An absolute judgment needs

no expositor.Abundans cautela non nocet - Abundant caution does no harm.Accessorium non ducit sed sequitur suum principale - An accessory does

not draw, but follows its principal.Accessorius sequitur - One who is an accessory to the crime cannot be

guilty of a more serious crime than the principal offender.Acta exteriora iudicant interiora secreta - Outward acts indicate the

inward intent.Actio non accrevit infra sex annos - The action has not accrued within

six years.Actio non datur non damnificato - An action is not given to one who is

not injured.Actio personalis moritur cum persona - A personal action dies with the

person.Actiones legis - Law suits.Actori incumbit onus probandi - The burden of proof lies on the

plaintiff.Actus nemini facit injuriam - The act of the law does no one wrong.Actus non facit reum nisi mens sit rea - The act does not make one

guilty unless there be a criminal intent.Actus reus - A guilty deed or act.Ad ea quae frequentius acciduunt jura adaptantur - The laws are

adapted to those cases which occur more frequently.Ad hoc - For this purpose.Ad infinitum - Forever, without limit, to infinity.

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Ad perpetuam rei memoriam - For a perpetual memorial of the matter.Ad quaestionem facti non respondent judices; ad quaestionem legis non

respondent juratores - The judges do not answer to a question offact; the jury do not answer to a question of Law.

Aedificare in tuo proprio solo non licet quod alteri noceat - It isnot lawful to build on one's own land what may be injurious toanother.

Aequitas legem sequitur - Equity follows the law.Aequitas nunquam contravenit legem - Equity never contradicts the law.Alibi - At another place, elsewhere.Alienatio rei praefertur juri accrescendi - Alienation is preferred by

law rather than accumulation.Aliunde - From elsewhere, or, from a different sourceAllegans contraria non est audiendus - One making contradictory

statements is not to be heard.Allegans suam turpitudinem non est audiendus - One alleging his own

infamy is not to be heard.Allegatio contra factum non est admittenda - An allegation contrary to

a deed is not to be heard.Ambiguitas contra stipulatorem est - An ambiguity is most strongly

construed against the party using it.Ambiguitas verborum patens nulla verificatione excluditur - A patent

ambiguity is never helped by averment.Amicus curiae - A friend of the Court.Angliae jura in omni casu libertati dant favorem - The laws of England

are favorable in every case to liberty.Animo furandi - With an intention of stealing.Animo testandi - With an intention of making a will.Annus luctus - The year of mourning.Ante - Before.Aqua currit et debet currere, ut currere solebat - Water runs and

ought to run.Arbitrium est judicium - An award is a judgment.Argumentum ab auctoritate fortissimum est in lege - An argument drawn

from authority is the strongest in law.

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Argumentum ab impossibilii plurimum valet in lege - An argument fromimpossibility is very strong in law.

Argumentum ad hominem - An argument directed a the person.Argumentum ad ignoratiam - An argument based upon ignorance (i.e. of

one's adversary).Arma in armatos sumere jura sinunt - The laws permit the taking up of

arms against the armed.Assentio mentium - The meeting of minds, i.e. mutual assent.Audi alteram partem - Hear the other side.Aula regis - The King's Court.

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BBenignior sententia in verbis generalibus seu dubiis est preferenda -

The more favorable construction is to be placed on general ordoubtful words.

Bis dat qui cito dat - He gives (pays) twice who pays promptly. Bona fide - Sincere, in good faithBona vacantia - Goods without an ownerBoni judicis est ampliare jurisdictionem - It is the part of a good

judge to enlarge his jurisdiction, i.e. remedial authority.Boni judicis est judicium sine dilatione mandare executioni - It is

the duty of a good judge to cause execution to issue on a judgmentwithout delay.

Boni judicis lites dirimere est - It is the duty of a good judge toprevent litigation.

Bonus judex secundum aequum et bonum judicat et aequitatem strictojuri praefert - A good judge decides according to justice and rightand prefers equity to strict law.

Breve judiciale non cadit pro defectu formae - A judicial writing doesnot fail through defect of form.

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CCadit quaestio - The matter admits of no further argument.Cassetur billa (breve) - Let the writ be quashed.Casus fortuitus non est spectandus; et nemo tenetur divinare - A

fortuitous event is not to be foreseen and no person is bound todivine it.

Causa proxima, non remota spectatur - The immediate, and not theremote cause is to be considered.

Caveat emptor - Let the purchaser beware.Caveat venditor - Let the seller beware.Cepi corpus et est languidum - I have taken the body and the prisoner

is sick.Cepi corpus et paratum habeo - I have taken the body and have it

ready.Ceteris paribus - Other things being equal.Consensu - Unanimously or, by general consent.Consensus ad idem - Agreement as to the same things.Consuetudo loci observanda est - The custom of the place is to be

observed.Contra - To the contrary.Contra bonos mores - Against good morals.Contra non valentem agere nulla currit praescriptio - No prescription

runs against a person not able to act.Contractus est quasi actus contra actum - A contract is an act as it

were against an act.Conventio et modus vincunt legem - A contract and agreement overcome

the law.Coram Domino Rege - In the presence of our Lord the King.Coram non judice - Before one who is not a judge.Corpus delicti - The body, i.e. the gist of crime.Corpus humanum non recipit aestimationem - A human body is not

susceptible of appraisement. Crimen omnia ex se nata vitiat - Crime vitiates every thing, which

springs from it.

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Cujus est dare, ejus est disponere - He who has a right to give hasthe right to dispose of the gift.

Cujus est solum, ejus est usque ad coelam; et ad inferos - He who ownsthe soil owns it up to the sky; and to its depth.

Cum duo inter se pugnantia reperiuntur in testamentis ultimum ratumest - When two things repugnant to each other are found in a will,the last is to be confirmed.

Cursus curiae est lex curiae - The practice of the court is the law ofthe court.

Custos morum - A guardian of morals.

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DDamnum sine injuria - damage without legal injury.De bonis asportatis - Of goods carried away.De bonis non administratis - Of goods not administered.De die in diem - From day to day.De facto - In fact.De futuro - In the future.De integro - As regards the whole.De jure - Rightful, by right.De minimis lex non curat - The law does not notice trifling matters.De novo - Starting afresh.Debile fundamentum fallit opus - Where there is a weak foundation, the

work fails.Debita sequuntur personam debitoria - Debts follow the person of the

debtor.Debitor non praesumitur donare - A debtor is not presumed to make a

gift.Debitum et contractus sunt nullius loci - Debt and contract are of no

particular place.Debitum in praesentme, solvendum in futuro - A present debt is to be

discharged in the future.Delegata potestas non potest delegari - A delegated authority cannot

be again delegated.Derivativa potestas non potest esse major primitiva - The power which

is derived cannot be greater than that from which it is derived.Deus solus haeredem facere potest, non homo - God alone, not man, can

make an heir.Dies Dominicus non est juridicus - Sunday is not a day in law.Discretio est discernere per legem quid sit justum - Discretion is to

discern through law what is just.Doli incapax - Incapable of crime.Dominium - Ownership.Domus sua cuique est tutissimum refugium - Every mans house is his

safest refuge.

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Dona clandestina sunt semper suspiciosa - Clandestine gifts are alwayssuspicious.

Dormiunt leges aliquando, nunquam moriuntur - The laws sometimessleep, but never die.

Doti lex favet; praemium pudoris est; ideo parcatur - The law favorsdower; it is the reward of chastity, therefore let it be preserved.

Dubitante - Doubting the correctness of the decision.Duo non possunt in solido unam rem possidere - Two cannot possess one

thing each in entirety.

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EEi incumbit probatio qui - The onus of proving a fact rests upon the

man.Ei incumbit probatio qui dicit, non qui negat - The burden of the

proof lies upon him who affirms, not he who denies.Error, qui non resistitur approbatur - An error not resisted is

approved.Et cetera - Other things of that type.Ex cathedra - With official authority.Ex concessis - In view of what has already been accepted/Ex dolo malo actio non oritur - A right of action cannot arise out of

fraud.Ex facie - On the fact of it.Ex gratia - Out of kindness, voluntary.Ex nihilo nil fit - From nothing nothing comes.Ex nudo pacto actio non oritur - No action arises on a contract

without a consideration.Ex parte - Proceeding brought by one person in the absence of another.Ex post facto - By reason of a subsequent act.Ex praecedentibus et consequentibus optima fit interpretatio - The

best interpretation is made from things preceding and following.Ex turpi causa non oritur actio - No action arises on an immoral

contract.Exceptio probat regulam - An exception proves the rule.Executio est executio juris secundum judicium - Execution is the

fulfillment of the law in accordance with the judgment.Executio est finis et fructus legis - An execution is the end and the

fruit of the law.Executio legis non habet injuriam - Execution of the law does no

injury.Extra legem positus est civiliter mortuus - One out of the pale of the

law (i.e. an outlaw) is civilly dead.

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FFaciendum - Something which is to be done.Factum - An act or deed.Facultas probationum non est angustanda - The right of offering proof

is not to be narrowed.Falsa demonstratio non nocet - A false description does not vitiate.Fatetur facinus qui judicium fugit - He who flees judgment confesses

his guilt.Felix qui potuit rerum cognoscere causas - Happy is he who has been

able to understand the causes of things.Felonia implicatur in qualibet proditione - Felony is implied in every

treason.Festinatio justitiae est noverca infortunii - The hurrying of justice

is the stepmother of misfortune.Fictio cedit veritati; fictio juris non est, ubi veritas - Fiction

yields to truth. Where truth is, fiction of law does not exist.Fides servanda est - Good faith is to be preserved.Fieri facias (abreviated fi. fa.) - That you cause to be made.Filiatio non potest probari - Filiation cannot be proved.Firmior et potentior est operatio legis quam dispositio hominis - The

operation of law is firmer and more powerful than the will of man.Forma legalis forma essentialis est - Legal form is essential form.Fortior est custodia legis quam hominis - The custody of the law is

stronger than that of man.Fractionem diei non recipit lex - The law does not regard a fraction

of a day.Fraus est celare fraudem - It is a fraud to conceal a fraud.Fraus est odiosa et non praesumenda - Fraud is odious and is not to be

presumed.Fraus et jus nunquam cohabitant - Fraud and justice never dwell

together.Fructus naturales - Vegetation which grows naturally without

cultivation.Frustra probatur quod probatum non relevat - That is proved in vain

which when proved is not relevant.

94


Furor contrahi matrimonium non sinit, quia consensus opus est -Insanity prevents marriage from being contracted because consent isneeded.

95


GGenerale nihil certum implicat - A general expression implies nothing

certain.Generalia praecedunt, specialia sequuntur - Things general precede,

things special follow.Generalia specialibus non derogant - Things general do not derogate

from things special.Generalis regula generaliter est intelligenda - A general rule is to

be generally understood.Gravius est divinam quam temporalem laedere majestatem - It is more

serious to hurt divine than temporal majesty.

96


HHabeas corpus - That you have the body.Habemus optimum testem confitentem reum - We have the best witness, a

confessing defendant.Haeredem est nomen collectum - Heir is a collective name.Haeres est nomen juris, filius est nomen naturae - Heir is a term of

law, son, one of nature.Haeres legitimus est quem nuptiae demonstrant - He is the lawful heir

whom the marriage indicates.Homo vocabulum est naturae; persona juris civilis - Man is a term of

nature, person of the civil law.

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IId est (i.e) - That is.Id quod commune est, nostrum esse dicitur - That which is common is

said to be ours.Idem - The same person or thing.Idem nihil dicere et insufficienter dicere est - It is the same to say

nothing as not to say enough.Ignorantia facti excusat, ignorantia juris non excusat - Ignorance of

fact excuses, ignorance of law does not excuse.Imperium in imperio - A sovereignty within a sovereignty.Impotentia excusat legem - Impossibility is an excuse in the law.Impunitas semper ad deteriora invitat - Impunity always leads to

greater crimes.In aequali jure melior est conditio possidentis - When the parties

have equal rights, the condition of the possessor is better.In alta proditione nullus potest esse acessorius; sed principalis

solum modo - In high treason no one can be an accessory; but aprincipal only.

In Anglia non est interregnum - In England there is no interregnum.In camera - In private.In casu extremae necessitatis omnia sunt communia - In a case of

extreme necessity everything is common. In criminalibus probationes debent esse luce clariores - In criminal

cases the proofs ought to be cleared than the light.In curia domini regis, ipse in propria persona jura discernit - In the

Kings Court, the King himself in his own person dispenses justice.In delicto - At fault.In esse - In existence.In extenso - At full length.In fictione legis aequitas existit - A legal fiction is consistent

with equity.In foro conscientiae - In the forum of conscience.In futoro - In the future.In jure non remota causa sed proxima spectatur - In law not the remote

but the proximate cause is looked at.

98


In limine - At the outset, on the threshold.In loco parentis - In place of the parent.In mortua manu - In a dead hand.In novo casu novum remedium apponendum est - In a new case a new

remedy is to be applied.In omni re nascitur res quae ipsam rem exterminat - In everything is

born that which destroys the thing itself.In omnibus - In every respect.In pari delicto potior est conditio possidentis - When the parties are

equally in the wrong the condition of the possessor is better.In personam - Against the person.In pleno - In full.In quo quis delinquit in eo de jure est puniendus - In whatever thing

one offends in that he is to be punished according to law.In re dubia magis inficiatio quam affirmatio intelligenda - In a

doubtful matter the negative is to be understood rather than theaffirmative.

In republica maxime conservanda sunt jura belli - In a State the lawsof war are to be especially observed.

In situ - In its place.In terrorem - As a warning or deterrent.In testamentis plenius testatoris intentionem scrutamur - In wills we

seek diligently the intention of the testator.In traditionibus scriptorum non quod dictum est, sed quod gestum est,

inspicitur - In the delivery of writings (deeds), not what is saidbut what is done is to be considered.

In verbis, non verba sed res et ratio quaerenda est - In words, notwords, but the thing and the meaning are to be inquired into.

Indicia - Marks, signs.Injuria non excusat injuriam - A wrong does not excuse a wrong.Intentio inservire debet legibus, non leges intentioni - Intention

ought to be subservient to the laws, not the laws to the intention.Inter alia - Amongst other things.Interest reipublicae res judicatas non rescindi - It is in the

interest of the State that things adjudged be not rescinded.

99


Interest reipublicae suprema hominum testamenta rata haberi - It is inthe interest of the State that mens last wills be sustained.

Interest reipublicae ut quilibet re sua bene utatur - It is in theinterest of the State that every one use properly his own property.

Interest reipublicase ut sit finis litium - It is in the interest ofthe State that there be an end to litigation.

Interim - Temporary, in the meanwhile.Interpretare et concordare leges legibus est optimus interpretandi

modus - To interpret and harmonize laws is the best method ofinterpretation.

Interpretatio fienda est ut res magis valeat quam pereat - Such aconstruction is to be made that the thing may have effect ratherthan it should fail.

Interruptio multiplex non tollit praescriptionem semel obtentam -Repeated interruption does not defeat a prescription once obtained.

Invito beneficium non datur - A benefit is not conferred upon oneagainst his consent.

Ipsissima verba - The very words of a speaker.Ipso facto - By that very fact.Ira furor brevis est - Anger is brief insanity.Iter arma leges silent - In war the laws are silent.

100


JJudex est lex loquens - A judge is the law speaking.Judex non potest esse testis in propira causa - A judge cannot be

witness in his own cause.Judex non potest injuriam sibi datam punire - A judge cannon punish a

wrong done to himself.Judex non reddit plus quam quod petens ipse requirit - A judge does

not give more than the plaintiff himself demands.Judiciis posterioribus fides est adhibenda - Faith must be given to

later decisions.Judicis est judicare secundum allegata et probata - It is the duty of

a judge to decide according to the allegations and the proofs.Judicium non debet esse illusorium, suum effectum habere debet - A

judgment ought not to be illusory; it ought to have its propereffect.

Juduces non tenentur exprimere causam sententiae suae - Judges are notbound to explain the reason of their judgment.

Jura naturae sunt immutabilia - The laws of nature are immutable.Jura publica anteferenda privatis juribus - Public rights are to be

preferred to private rights.Juramentum est indivisibile et non est admittendum in parte verum et

in parte falsum - An oath is indivisible and it is not to be heldpartly true and partly false.

Jurare est Deum in testem vocare, et est actus divini cultus - Toswear is to call God to witness and is an act of divine worship.

Jus - A right that is recognised in law.Jus accrescendi praefertur oneribus - The right of survivorship is

preferred to incumbrances.Jus ad rem; jus in re - A right to a thing; a right in a thing.Jus dicere, non jus dare - To declare the law, not to make the law.Jus est norma recti; et quicquid est contra normam recti est injuria -

The law is a rule of right; and whatever is contrary to a rule ofright is an injury.

Jus naturale - Natural justice.Jus naturale est quod apud omnes homines eandem habet potentiam -

Natural right is that which has the same force among all men.Jus scriptum aut non scriptum - The written law or the unwritten law.

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Jusjurandum inter alios factum nec nocere nec prodesse debet - An oathmade between third parties ought neither to hurt nor profit.

Justitia est duplec; severe puniens et vere praeveniens - Justice istwo-fold; severely punishing and in reality prohibiting (offences).

Justitia firmatur solium - The throne is established by justice.Justitia nemini neganda est - Justice is to be denied to no one.

102


LLeges posteriores priores contrarias abrogant - Subsequent laws repeal

prior conflicting ones.Legibus sumptis desinentibus legibus naturae utendum est - When laws

imposed by the State fail, we must use the laws of nature.Lex aliquando sequitur aequitatem - The law sometimes follows equity.Lex citius tolerare vult privatum damnum quam publicum malum - The law

would rather tolerate a private injury than a public evil.Lex dabit remedium - The law will give a remedy.Lex dilationes abhorret - The law abhors delays.Lex est judicum tutissimus ductor - The law is the safest guide for

judges.Lex est sanctio sancta jubens honesta et prohibens contraria - The law

is a sacred sanction, commanding what is right and prohibiting thecontrary.

Lex indendit vicinum vicini facta scire - The law presumes that oneneighbor knows the acts of another.

Lex necessitatis est lex temporis i.e. instantis - The law ofnecessity is the law of time, that is time present.

Lex neminem cogit ad vana seu impossiblia - The law compels no one todo vain or impossible things.

Lex nil frustra facit - The law does nothing in vain.Lex non a rege est violanda - The law must not be violated even by the

King.Lex non deficere potest in justitia exhibenda - The law cannot fail in

dispensing justice.Lex non novit patrem, nec matrem; solam veritatem - The law does not

know neither father nor mother, only the truth.Lex non oritur ex injuria - The law does not arise from a mere injury.Lex non requirit verificari quod apparet curiae - The law does not

require that to be proved which is apparent to the Court.Lex non favet delicatorum votis - The law does not favor the wishes of

the dainty.Lex plus laudatur quando ratione probatur - The law is the more

praised when it is supported by reason.Lex prospicit not respicit - The law looks forwared, not backward.

103


Lex punit mendaciam - The law punishes falsehood.Lex rejicit superflua, pugnatia, incongrua - The law rejects

superfluous, contradictory and incongruous things.Lex spectat naturae ordinem - The law regards the order of nature.Lex succurrit ignoranti - The law succors the ignorant.Lex tutissima cassis, sub clypeo legis nemo decipitur - Law is the

safest helmet; under the shield of the law no one is deceived.Lex uno ore omnes alloquitur - The law speaks to all through one

mouth.Longa possessio est pacis jus - Long possession is the law of peace.Longa possessio parit jus possidendi et tollit actionem vero domino -

Long possession produces the right of possession and takes awayfrom the true owner his action.

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MMagister rerum usus; magistra rerum experientia - Use is the master of

things; experience is the mistress of things.Major continet in se minus - The greater contains the less.Majus est delictum se ipsum occidere quam alium - It is a greater

crime to kill ones self than another.Mala fide - In bad faith.Mala grammatica non vitiat chartam - Bad grammar does not vitiate a

deed.Mala in se - Bad in themselves.Mala prohibita - Crimes prohibited.Malitia supplet aesatem - Malice supplies age.Malo animo - With evil intent.Mandamus - We command.Maximus magister erroris populus est - The people are the greatest

master of error.Melior est conditio possidentis, ubi neuter jus habet - Better is the

condition of the possessor where neither of the two has the right.Melior testatoris in testamentis spectanda est - In wills the

intention of a testator is to be regarded.Meliorem conditionem suam facere potest minor deteriorem nequaquam - A

minor can make his position better, never worse.Mens rea - Guilty state of mind.Mentiri est contra mentem ire - To lie is to act against the mind.Merito beneficium legis amittit, qui legem ipsam subvertere intendit -

He justly loses the benefit of the law who seeks to infringe thelaw.

Minatur innocentibus qui parcit nocentibus - He threatens the innocentwho spares the guilty.

Misera est servitus, ubi jus est vagum aut incertum - It is amiserable slavery where the law is vague or uncertain.

Mors dicitur ultimum supplicium - Death is called the extreme penalty.Muilta exercitatione facilius quam regulis percipies - You will

perceive many things more easily by experience than by rules.

105


NNam nemo haeres viventis - For no one is an heir of a living person.Naturae vis maxima est - The force of nature is the greatest.Necessitas inducit privilegium quoad jura privata - With respect to

private rights necessity induces privilege.Necessitas non habet legem - Necessity has no law.Necessitas publica est major quam privata - Public necessity is

greater than private necessity.Negligentia semper habet infortuniam comitem - Negligence always has

misfortune for a companion.Nemo admittendus est inhabilitare se ipsum - No one is allowed to

incapacitate himself.Nemo bis punitur pro eodem delicto - No one can be twice punished for

the same offence.Nemo cogitur suam rem vendere, etiam justo pretio - No one is bound to

sell his own property, even for a just price.Nemo contra factum suum venire potest - No man can contradict his own

deed.Nemo debet esse judex in propria causa - No one can be judge in his

own case.Nemo plus juris transferre ad alium potest quam ipse habet - No one

can transfer to another a larger right than he himself has.Nemo potest contra recordum verificare per patriam - No one can verify

by the country, that is, through a jury, against the record.Nemo potest esse tenens et dominus - No one can at the same time be a

tenant and a landlord (of the same tenement).Nemo potest facere per alium, quod per se non potest - No one can do

through another what he cannot do himself.Nemo potest mutare consilium suum in alterius injuriam - No one can

change his purpose to the injury of another.Nemo praesumitur esse immemor suae aeternae salutis et maxime in

articulo mortis - No one is presumed to be forgetful of his eternalwelfare, and particularly in the hour of death.

Nemo prohibetur pluribus defensionibus uti - No one is forbidden tomake use of several defences.

Nemo punitur pro alieno delicto - No one is punished for the crime ofanother.

106


Nemo se accusare debet, nisi coram Deo - No one should accuse himselfexcept in the presence of God.

Nemo tenetur accusare se ipsum nisi coram Deo - No one is bound toaccuse himself except in the presence of God.

Nemo tenetur armare adversarium contra se - No one is bound to arm hisadversary against himself.

Nexus - ConnectionNihil quod est inconveniens est licitum - Nothing inconvenient is

lawful.Nil facit error nominis cum de corpore constat - An error of name

makes not difference when it appears from the body of theinstrument.

Nisi - UnlessNon compus mentis - Not of sound mind and understandingNon constat - It is not certainNon decipitur qui scit se decipi - He is not deceived who knows that

he is deceived.Non definitur in jure quid sit conatus - What an attempt is, is not

defined in law.Non est arctius vinculum inter homines quam jusjurandum - There is no

stronger link among men than an oath.Non est factum - It is not his deedNon est informatus - He is not informed.Non facias malum ut inde veniat bonum - You shall not do evil that

good may come of it.Non jus, sed seisina, facit stipitem - Not right, but seisin makes a

stock (from which the inheritance must descend).Non refert quid notum sit judici si notum non sit in forma judicii -

It matters not what is known to the judge if it is not knownjudicially.

Non sequitur - An inconsistent statement, it does not followNullus commodum capere potest ex sua injuria propria - No one can

derive an advantage from his own wrong.Nullus recedat e curia cancellaria sine remedio - No one should depart

from a Court of Chancery without a remedy.

107


108


OOmne sacramentum debet esse de certa scientia - Every oath ought to be

of certain knowledge.Omnia delicta in aperto leviora sunt - All crimes (committed) in the

open are (considered) lighter.Omnia praesumuntur contra spoliatorem - All things are presumed

against a wrongdoer.Omnis innovatio plus novitate perturbat quam utilitate prodeat - Every

innovation disturbs more by its novelty than it benefits by itsutility.

Optima legum interpres est consuetudo - The best interpreter of lawsis custom.

Optimus interpres rerum est usus - The best interpreter of things isusage.

109


PPacta privata juri publico non derogare possunt - Private contracts

cannot derogate from public law.Par delictum - Equal fault.Pari passu - On an equal footing.Partus sequitur ventrem - The offspring follows the mother.Pater est quem nuptiae demonstrant - The father is he whom the

marriage points out.Peccata contra naturam sunt gravissima - Wrongs against nature are the

most serious.Pendente lite nihil innovetur - During litigation nothing should be

changed.Per curiam - In the opinion of the court.Per minas - By means of menaces or threats.Per quod - By reason of which.Post mortem - After death.Prima facie - On the face of it.Prima impressionis - On first impression.Pro hac vice - For this occasion.Pro rata - In proportion.Pro tanto - So far, to that extent.Pro tempore - For the time being.Publici juris - Of public right.

110


QQuaeitur - The question is raised.Quantum - How much, an amount.Qui facit per alium, facit per se - He who acts through another acts

himself.Qui haeret in litera, haeret in cortice - He who stices to the letter,

sticks to the bark.Qui in utero est, pro jam nato habetur, quoties de ejus commodo

quaeritur - He who is in the womb is considered as already born asfar as his benefit is considered.

Qui non habet potestatem alienandme, habet necessitatem retinendi - Hewho has not the power of alienating is under the necessity ofretaining.

Qui non habet, ille non dat - He who has not, does not give.Qui non improbat, approbat - He who does not disapprove, approves.Qui non obstat quod obstare potest facere videtur - He who does not

prevent what he is able to prevent, is considered as committing thething.

Qui non prohibet quod prohibere potest assentire videtur - He who doesnot prohibit when he is able to prohibit, is in fault.

Qui peccat ebrius, luat sobrius - He who does wrong when drunk must bepunished when sober.

Qui potest et debet vetare et non vetat jubet - He who is able andought to forbit and does not, commands.

Qui prior est tempore potior est jure - He who is prior in time isstronger in right.

Qui sentit commodum, debet et sentire onus - He who derives a benefitought also to bear a burden.

Qui tacet consentire videtur - He who is silent appears to consent.Quid pro quo - Consideration. something for something.Quidcquid plantatur solo, solo cedit - Whatever is planted in or

affixed to the soil, belongs to the soil.Quod ab initio non valet, in tractu temporis non convalescit - What is

not valid in the beginning does not become valid by time.Quod constat curiae opere testium non indiget - What appears to the

Court needs not the help of witnesses.

111


Quod necessarie intelligitur, id non deest - What is necessarilyunderstood is not wanting.

Quod necessitas cogit, defendit - What necessity forces it justifies.Quod non apparet, non est - What does not appear, is not.Quod non habet principium non habet finem - What has no beginning has

no end.Quod per me non possum, nec per alium - What I cannot do through

myself, I cannot do through another.Quod prius est verius est; et quod prius est tempore potius est jure -

What is first is more true; and what is prior in time is strongerin law.

Quod vanum et inutile est, lex non requirit - The law does not requirewhat is vain and useless.

Quoties in verbis nulla est ambiguitas, ibi nulla expositio contraverba expressa fienda est - When there is no ambiguity in words,then no exposition contrary to the expressed words is to be made.

RRatio est legis anima, mutata legis ratione mutatur et lex - Reason is

the soul of the law; when the reason of the law changes the lawalso is changed.

Re - In the matter of.Reprobata pecunia leberat solventem - Money refused releases the

debtor.Res - Matter, affair, thing, circumstance.Res gestae - Things done.Res integra - A matter untouched (by decision).Res inter alios acta alteri nocere non debet - Things done between

strangers ought not to affect a third person, who is a stranger tothe transaction.

Res judicata accipitur pro veritate - A thing adjudged is accepted forthe truth.

Res nulis - Nobodys property.Respondeat superior - Let the principal answer.Rex est major singulis, minor universis - The King is greater than

individuals, less than all the people.Rex non debet judicare sed secundum legem - The King ought not to

judge but according to the law.

112


Rex non potest peccare - The King can do no wrong.Rex nunquma moritur - The King never dies.Rex quod injustum est facere non potest - The King cannot do what is

unjust.

113


SSalus populi est suprema lex - The safety of the people is the supreme

law.Sciens - Knowingly.Scienter - Knowingly.Scire facias - That you cause to know.Scribere est agere - To write is to act.Se defendendo - In self defence.Secus - The legal position is different, it is otherwise.Semper praesumitur pro legitimatione puerorum - Everything is presumed

in favor of the legitimacy of children.Semper pro matriomonio praesumitur - It is always presumed in favor of

marriage.Servitia personalia sequuntur personam - Personal services follow the

person.Sic utere tuo ut alienum non laedas - So use your own as not to injure

anothers property.Simplex commendatio non obligat - A simple recommendation does not

bind.Stare decisis - To stand by decisions (precedents).Stet - Do not delete, let it stand.Sub modo - Within limits.Sub nomine - Under the name of.Sub silentio - In silence.Sublata causa, tollitur effectus - The cause being removed, the effect

ceases.Sublato fundamento, cadit opus - The foundation being removed, the

structure falls.Suggestio falsi - The suggestion of something which is untrue.Sui generis - Unique.Summa ratio est quae pro religione facit - The highest reason is that

which makes for religion, i.e. religion dictates.Suppressio veri - The suppression of the truth.Suppressio veri expressio falsi - A suppression of truth is equivalent

to an expression of falsehood.

114


TTalis qualis - Such as it is.Terra firma - Solid ground.Testamenta latissimam interpretationem habere debent - Testaments

ought to have the broadest interpretation.Traditio loqui chartam facit - Delivery makes a deed speak.Transit terra cum onere - The land passes with its burden.

115


UUbi eadem ratio ibi idem jus, et de similibus idem est judicium - When

there is the same reason, then the law is the same, and the samejudgment should be rendered as to similar things.

Ubi jus ibi remedium est - Where there is a right there is a remedy.Ubi non est principalis, non potest esse accessorius - Where there is

no principal, there can be no accessory.Ubi nullum matrimonium, ibi nulla dos es - Where there is no marriage,

there is no dower.Ultima voluntas testatoris est perimplenda secundum veram intentionem

suam - The last will of a testator is to be fulfilled according tohis true intentio.

Ut poena ad paucos, metus ad omnes, perveniat - That punishment maycome to a few, the fear of it should affect all.

Utile per inutile non vitiatur - What is useful is not vitiated by theuseless.

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VVerba debent intelligi cum effectu - Words ought to be understood with

effect.Verba intentionme, non e contra, debent inservire - Words ought to

serve the intention, not the reverse.Verbatim - Word by word, exactly.Vi et armis - With the force and arms.Via antiqua via est tuta - The old way is the safe way.Vir et uxor consentur in lege una persona - A husband and wife are

regarded in law as one person.Volens - Willing.Volenti non fit injuria - An injury is not done to one consenting to

it.Voluntas in delictis non exitus spectatur - In offences the intent and

not the result is looked at.Voluntas reputatur pro facto - The will is taken for the deed.

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Basics of Grammar and Punctuation in Articles

COMMON GRAMMAR MISTAKES

Punctuation and grammar are invisible elements of style. People willnever congratulate you for correct grammar, any more than theywould recommend a book for its flawless punctuation. But make amistake, even a trivial one, and the damage to your credibility canbe completely out of proportion to the error. In some cases,punctuation and grammar are more than cosmetic flaws. The rules,which are not nearly as absolute as one might imagine, are ofteninvoked to determine the precise meaning of a clause in a contract,a statute, or a precedent—the presumption being that the judge orlawyer or legislator actually knew the rules. Sometimes millionsof dollars hang in the balance. Sometimes, in fact, it is a matterof life and death.

Avoid Parenthetical Aliases.INSTEAD OF THIS: Hotstuff Chile Pepper, Ltd. (hereinafter called

"Hotstuff") seeks judgment for breach of a contract. Hotstuff hadagreed to . . . (18 words)

DO THIS: Hotstuff Chile Pepper, Ltd. ("Hotstuff") seeks judgment forbreach of a contract. Hotstuff had agreed to . . . (16 words)

INSTEAD OF THIS:

McFarland made the acquisition of three buildings.INSTEAD OF THIS:

He underwent three evidential breath tests by means of an evidentialbreath-testing device.

INSTEAD OF THIS:

It is also necessary to make clear that Officer Rigby accepted thatthere was no reason to stop the defendant in the first place.

DO THIS: Officer Rigby admitted there was no reason to stop the defendant in

the first place.

DO THIS: McFarland acquired three buildings.

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119


Avoid The Verb “To Be” When It Can Be Replaced By A More SpecificVerb.

To apply this rule, you should memorize all the forms of the verb “tobe”—which is the most irregular verb in English. It has eightbasic forms:

am, are, iswas, werebe, being, been.This verb has legitimate uses, of course; but your writing will be

more forceful and more economical if you replace it with a morespecific verb lurking elsewhere in the sentence, disguised as anadjective or an abstract noun.

INSTEAD OF THIS:

Boeing’s contention is that those shares are worth $100 million.INSTEAD OF THIS: Mr. Bledsoe has been resistant to the advice of her counsel. INSTEAD OF THIS:

The argument advanced by Stevens was that . . . DO THIS:

Boeing contends that those shares are worth $100 million.

DO THIS:

Mr. Bledsoe has resisted the advice of her counsel. DO THIS:

Stevens argued that . . .

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Avoid “It” And “There” As Dummy Subjects. “It” and “there” are considered dummy subjects (“It was” or “There

were”) where they stand in for words that might be the realsubjects of the sentence. Like the verb “to be,” dummy subjectshave their legitimate uses. Sometimes, however, they can bereplaced by a real subject and a stronger verb.

INSTEAD OF THIS:

It was submitted by counsel for the plaintiff that the extension wasnot qualified by the proviso.

DO THIS:

Plaintiff's counsel submitted that the extension was not qualified bythe proviso.

Avoid Passive VoiceIn passive voice, the grammatical subject receives the action (e.g.,

“John was kissed by Mary”), as opposed to the active voice, inwhich the grammatical subject performs the action (e.g., “Marykissed John). The passive voice has legitimate uses, but lawyerstend to lapse into it unnecessarily when active voice would be moredirect and economical. Active voice is always more economical andforceful.

INSTEAD OF THIS:

No other evidence was called by the Defendants to give support to theallegations.

DO THIS:

Defendants called no other evidence to support the allegations.

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Avoid Using Words With Overlapping Meaning In The Same Sentence. INSTEAD OF THIS:

On appeal, appellant argues that . . . The building was round and circular in shape.

DO THIS:

Appellant argues that . . . The building was round.

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Avoid Block Quotations As readers, most judges and lawyers skip over block quotations, hoping

to glean their essence from what precedes or follows. As writers,however, they seem to imagine that their readers will be morepatient than themselves, carefully examining what they themselveswould skip, searching for a nugget of authority buried within amound of dross. The best way to avoid this problem is toparaphrase. You, after all, have done the hard work. You haveread and deciphered the authority, and you have reached aconclusion about its relevance to the issue at hand. Why make yourreader repeat that task? Just say what the passage means, in yourown words, and reference it. For instance,

Normally, a company is not bound by contracts entered upon by agents who have no authorityto do so. However, if someone represents himself or herself as an agent of a company withauthority to sign contracts for that company, and if the company does anything that wouldgive the impression that the employee did in fact have that authority, the company may beconsidered bound by those contracts. (See Diplock LJ in Freeman & Lockyer (AFirm) v Buckhurst Park Properties (Mangal) Limited [1964] 2 QB 480 at 503.)

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Avoid Long SentencesSome of the finest sentences in law and literature are long ones.

Hence, if you don’t know how to write a good long sentence, stickto short ones. The problem with many legal sentences is not theirlength, but their tangled syntax—clauses and phrases jumbled like aspilled box of toothpicks. The obvious solution is to break longsentences into two or three short ones. It also helps to look forsuppressed narratives in long sentences. If the sentence containstwo or three events, try putting the events in short sentencesarranged chronologically.

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Don’t Confuse “Which” With “That.”

When you cannot put a comma before a which, you probably should havewritten “that.”

The agreement satisfied all claims, which either party might have

against the other under the Matrimonial Property Act. (WRONG)mabefore and or or joining the last two elements in a series of threeor more.

The judgment was verbose, obscure, and just plain wrong.The judgment was verbose, obscure and just plain wrong.Both versions are defensible; it’s a matter of personal preference.

But be consistent: don’t switch randomly from one convention to theother.

Don’t Put Ellipsis Dots At The Beginning Of Quoted Material.According to the police officer’s report, the defendant’s jeep “. . .

would have been travelling at least 80kph.” (WRONG) The ellipsis dots are unnecessary because the initial lower case w in

“would” indicates that words have been omitted at the beginning ofthe quoted sentence.

According to the police officer’s report, the defendant’s jeep “wouldhave been travelling at least 80kph.” (RIGHT)

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Make Sure Subjects And Verbs Agree.

The limits of police powers to stop a vehicle on a road are notentirely clear and has been debated for some time. (WRONG)

The subject of “has been” in this example is “limits.” Every

competent speaker of English knows that “limits has been” is wrong,but writers sometimes get confused when the subject and the verbare separated, as they are in this case, by intervening words.

The limits of police powers to stop a vehicle on a road are not

entirely clear and have been debated for some time. (RIGHT)

I need to make sure the verb agrees with the subject, even if itlinks a plural noun with a singular noun.

Defenses based on sovereign immunity has become a vexed question.

(WRONG) Defenses based on sovereign immunity have become a vexed question.

(RIGHT) If the correct version seems awkward to you, rephrase the sentence

entirely. The courts have given mixed signals regarding sovereign immunity.

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Make Sure Objects Are In The Objective Case. The Master asked my learned opponent and I to submit additional

evidence. (WRONG) Between you and I, there are no significant issues in this case.

(WRONG) Linguists call this error “hypercorrectness”: trying too hard to get

it right—a result, no doubt, of the unfortunate writer’s havingbeen corrected by schoolmarms and schoolmasters for saying thingslike “Mickey and me went to the movies.”

The error normally occurs when there are words between the verb orpreposition and first person pronoun (I/me). The solution is toremove the intervening words and trust your ear. You wouldn’t say,“The Master asked I to submit additional evidence.” Nor would yousay, “Between I and you” in any context. So don’t let theintervening words confuse you about the correct form of thepronoun.

The Master asked my learned opponent and me to submit additional

evidence. (RIGHT) Between you and me, there are no significant issues in this case.

(RIGHT)

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Use Possessives Before Gerunds. A gerund is the –ing form or a verb used as a noun. (It is not to be

confused with a present participle, which is the –ing form of averb used as an adjective or part of a compound verb.)

This agreement was conditional upon the plaintiff securing suitablepremises in the North Mall in Ulster Street Hamilton. (WRONG)

Constable Brew remained on the property despite the defendant tellinghim to leave. (WRONG)

Officer Noble, almost as an afterthought, mentioned that he felt the

defendant’s driving warranted him being stopped and spoken to.”(WRONG)

This is a rule few people understand; but those who do will take

notice if you get it wrong. Notice that in the last example, thewriter gets it right at first (“the defendant’s driving”), but thenerrs at the end (“him being stopped”).

This agreement was conditional upon the plaintiff’s securing suitable

premises in the North Mall in Ulster Street Hamilton. (RIGHT) Constable Brew remained on the property despite the defendant’s telling

him to leave. (RIGHT) Officer Noble, almost as an afterthought, mentioned that he felt the

defendant’s driving warranted his being stopped and spoken to.”(RIGHT)

If the correct version sounds awkward, rephrase the sentence entirely. Constable Brew remained on the property even though the defendant had

told him to leave.

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Don’t Split Infinitives. An infinitive is the form of a verb preceded by “to” (e.g., “to file,”

“to argue,” “to grant,” “to deny,” etc.). Was there a lawful basis to initially search the defendant's

apartment? (WRONG)t This is a silly rule, but it has been around for so many centuries

that people are accustomed to seeing it observed. It is based on afaulty analogy with Latin, in which infinitives consist of one wordinstead of two and are therefore impossible to split. If you canavoid splitting an infinitive, you should do so rather than riskdistracting those few readers who would care.

Was there a lawful basis to search the defendant's apartment

initially? (RIGHT) When the correct version strikes you as awkward, rephrase the

sentence. Sometimes, however, you may choose to defy conventionand split an infinitive just because you prefer it that way.

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Don’t End Sentences With Prepositions. Prepositions are words that show relationships, including

relationships in time, space, or agency (e.g., “by,” “for,”“with,” “before,” “on,” “upon,” etc.).

The rule against ending sentences with prepositions is also based on afaulty analogy with Latin, and it occasionally does violence to thenatural idiom of English. In Latin and in languages derived fromLatin, prepositions are a group of words that just don’t make anysense unless they have a noun after them. That’s why these wordsare called “pre-positions.” They must have another wordafter them. You can’t imagine a sentence ending with cum in Latinany more than you could imagine one ending with avec in Frenchor con in Spanish.

But English is different from these other language. It is basically aGermanic language, and in Germanic languages, words that sometimesbehave like prepositions can in fact occur at the end of asentence, as illustrated in the following example, which occurredin the highly respected New York Tmes Book Review:

One is Heidi Franklin, an art historian whom he observes to be ashomely as himself and whom he resolves to later hit upon.

Even though it makes no sense to subject English to the rules offoreign languages, the notion that we should imitate Latin in thismatter has been with us for so long (since that eighteenth century)that many people accept it as sacred. Violating this rule, then,is likely \to distract people who happen to know it.

At times, though, following the rule is more awkward than violatingit. Robert Stone, the author of the example above could havewritten the following sentence instead:

One is Heidi Franklin, an art historian whom he observes to be ashomely as himself and upon whom he resolves to later hit.

That’s a bit stilted and antique. Stone, was right to follow thenatural inclinations of the English language and ignore theartificial rule.

You may have noticed that Stone also splits an infinitive: “to laterhit.” So to be perfectly “correct,” he should have written thissentence:

One is Heidi Franklin, an art historian whom he observes to be ashomely as himself and upon whom he resolves to hit later.

If you read this sentence aloud, you will probably agree that therules were broken with good reason. Still, it is good to know the

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rules, so you can observe or break them by choice rather than byaccident.

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14 PUNCTUATION MARKS

In this lesson, I will learn about punctuation marks, including thefull stop, comas, colons, semi colons, and others.

Fourteen Punctuation Marks in English/Kiswahili Grammar

Knowing where and when to use the fourteen punctuation marks cangreatly improve my writing skills.

There are fourteen punctuation marks in English grammar? They are:

1. Period 2. Question mark 3. Exclamation point 4. Comma 5. Semicolon 6. Colon 7. Dash 8. Hyphen 9. Parentheses, 10. Brackets, 11. Braces, 12. Apostrophe, 13. Quotation marks, and 14. Ellipses

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Punctuations Marks for Sentence Endings

Three of the fourteen punctuation marks are appropriate for use assentence endings. They are the period, question mark, andexclamation point.

£ Period (.) The period (.) is placed at the end of declarative sentences,

statements thought to be complete and after many abbreviations.

For example:

As a sentence ender: Jane and Jack went to the market.

After an abbreviation: Her Mar. birthday came and went.

£ Question mark (?) Use a question mark (?) to indicate a direct question when placed at

the end of a sentence. For example: When did Jane leave for themarket ?

£ Exclamation Point/Mark (!) The exclamation point/mark (!) is used when a person wants to express

a sudden outcry or add emphasis.

Within dialogue: “Ohh No!” screamed Jane.To emphasize a point: My mother-in-law's rants make me furious!

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Punctuations Marks For Pause in Series/Lists

The comma, semicolon and colon are often misused because they all canindicate a pause in a series.

£ Comma (,) The comma is used to show a separation of ideas or elements within the

structure of a sentence. Additionally, it is used in letter writingafter the salutation and closing.

Separating elements within sentences: Suzi wanted the black, green,and blue shoes.

Letter Salutations: Dear Uncle John,

Separation of two complete sentences: We went to the movies , and wewent to the beach.

To set off clauses or phrases tucked within a sentence.Justice O’Connor, in a passionate dissent, reviewed the history

of habeas corpus.The defendant, who had twice escaped custody, was escorted into the

court with chains on his hands and feet.To set off clauses and phrases at the beginning or the end of a

sentence.In a passionate dissent, Justice O’Connor reviewed the history

of habeas corpus.When the defendant entered the courtroom, the jurors were startled to

hear a chain rattling between his feet.At the date of separation no formal appraisal was available, although

the parties had some rough estimates.To separate independent clauses joined by and, or, but¸ for.

The accident occurred in California, but the suit was filed inOklahoma.

The defendant rose slowly from his chair, and the foreman intoned theverdict in a tone reeking of self-satisfaction.

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Competent editors disagree about whether you should put a commabefore and or or joining the last two elements in a series of threeor more.

Put a pair of commas around clauses beginning with “which.” The appraisal, which was filed at this hearing, indicated a value of

$13,000.One comma is enough if the which clause occurs at the end of a

sentence.The wife signed the agreement , which was then signed by the husband.£ Semicolon (;) The semicolon (;) is used to connect independent clauses. It shows a

closer relationship between the clauses than a period would show.For example: John was hurt ; he knew she only said it to upset him.

£ Colon (:) A colon (:) has two main uses:

The first is after a word introducing a quotation, an explanation, anexample, or a series. It is also often used after the salutation ofa business letter.

The second is within time expressions. Within time, it is used toseparate out the hour and minute: 12 : 15 p.m.

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Punctuations Marks to Contain Words/ Ideas

Brackets, braces and parentheses are symbols used to contain wordsthat are a further explanation or are considered a group.

£ Parentheses ( () ) Parentheses ( () ) are curved notations used to contain further

thoughts or qualifying remarks. However, parentheses can bereplaced by commas without changing the meaning in most cases. Forexample: John and Jane ( who were actually half brother andsister ) both have red hair.

£ Brackets ([]) Brackets are the squared off notations ([]) used for technical

explanations. YourDictionary uses them when you look up worddefinitions. At the bottom of each definition page, bracketssurround a technical description of where the word originated.

£ Braces () Braces () are used to contain two or more lines of text or listed

items to show that they are considered as a unit. They are notcommonplace in most writing, but can be seen in computerprogramming to show what should be contained within the same lines.

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Other Punctuations Marks

Two kinds of dashes are used throughout written communications. Theyare the endash and the emdash.

£ Endash (-)An endash is a symbol (-) that is used in writing or printing to

connect numbers or to connect elements of a compound adjective,such as

1880-1945 or

Princeton-New York Trains.

However, the emdash has more complicated grammatical use. The symbolof is used to:

Indicate a break in thought or sentence structure Introduce a phrase added for emphasis, definition, or explanation Separate two clauses

It is used in the following manner:

We only wanted to get two birds-but the clerk talked us into four pregnant parakeets.

£ Hyphen (-) A hyphen (-) is the same symbol as the endash. However, it has

slightly different usage rules. A hyphen is used between the partsof a compound word or name or between the syllables of a word,especially when divided at the end of a line of text.

Examples of this in use include:

Between a compound name: Mrs. Smith-Reynolds

Within a compound word: back-to-back

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£ Apostrophe (') An apostrophe (') is used to indicate the omission of a letter or

letters from a word, the possessive case, or the plurals oflowercase letters.

Examples of the apostrophe in use include:

Omission of letters from a word: An issue of nat'l importance.

Possesive case: Sara's dog bites.

Plural for lowercase letters: Six people were told to mind their p'sand q's. It should be noted that, according to Purdue University,some teachers and editors enlarge the scope of the use ofapostrophe, and prefer their use on symbols (&'s), numbers (7's)and capitalized letters (Q&A's), even though they are notnecessary.

Apostrophes are also used in abbreviations, such as in “can’t”,instead of “cannot”, or “won’t”, instead of “will not”, or “don’t”,instead of “do not”.

It is important to note that in reported speech, I am allowed to useshortened words, with apostrophes, but in direct speech, I shoulduse full sentences. Aposptrophes make the words weaker. Fullsentences make words forceful.

£ Quotations marks ( “” ) Quotations marks ( “” ) are a pair of punctuation marks used primarily

to mark the beginning and end of a passage attributed to anotherand repeated word for word. They are also used to indicate meaningsand to indicate the unusual or dubious status of a word.

Single quotation marks (') are used most frequently for quotes withinquotes.

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£ Ellipses mark (. . . )The ellipses mark is generally represented by three periods (. . . )

although it is occasionally demonstrated with three asterisks(***). The ellipses are used in writing or printing to indicate anomission, especially of letters or words. Ellipses are frequentlyused within quotations to jump from one phrase to another, omittingunnecessary words that do not interfere with the meaning. Studentswriting research papers or newspapers quoting parts of speecheswill often employ ellipses to avoid copying lengthy text that isnot needed.

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Legal Briefs

INTRODUCING BRIEFS

brief, case summaryLegal memoranda are sometimes called “briefs”. The word “brief”,

however, has another meaning – it refers to a short synopsis of acase. Instead of reading a 25 page case, for example, manyattorneys will ask their clerks (or their associates) to summarizea case – or to “brief” the case. The brief will give the attorneythe information he or she requires, to decide whether the case isrelevant and worth spending the time to read in depth. A brief, inthis context, is a form of taking notes and includes a variety ofsections. Briefs should not be longer than one to two pages longand should be easy to read so that the reader does not have tospend much time understanding the reasoning of the case.

legal briefs-structureThe first section of the case brief usually contains a description of

the facts of the case. It also includes the name and citation ofthe case. The second section will contain a brief description ofthe procedural history of the case, that is, a short description ofwhat happened at the trial level and at the appellate level, orwhat types of motions were filed and when. The third sectionusually contains a short statement of the main issue or issues thatthe case addresses. The fourth section usually containsthe holding of the case, i.e., the ultimate outcome. The lastsection contains a discussion of the court’s analysis. The name ofthe judge or other information may be included in a miscellaneoussection. Additionally, any concurrences or dissents should receivesome discussion.

Every lawyer who ever has to make a written submission to a court—which is to say every litigator—owes it to his or her client to beas effective a brief writer as possible. What are the hallmarks ofa good brief? “It must be lucid, cogent, succinct, interesting, informative,convincing.”53

Brief writing is both an art and a science. An art in the creativityand imagination required for each particular brief, and a science

53 Interview by Bryan A. Garner with Anthony M. Kennedy, Associate Justice, United States Supreme

Court, Washington, D.C. (2006–2007), available athttp://www.lawprose.org/supreme_court.php.

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since the methodology is the same, for consistency and certainty,as the law ought to be.

A brief should do the same thing:It should convey the viewpoint of the authors (and their client) in a forceful way that is most

likely to persuade its intended audience—the judge or judges who will be deciding the case.

Like sculpting, brief writing is part inspiration and part hard work.Some lawyers are natural brief writers. They have an instinctivesense of how to convey a point, how to organize their arguments,and how to engage a I will reader. Other lawyers become successfulbrief writers by exposing themselves to the good writing ofaccomplished brief writers, I will reading what expert briefwriters have to say on the subject, and, most importantly, holdingthemselves to a high standard of excellence whenever they have abrief to write.

One eminent teacher of brief writing, Bryan A. Garner, has suggestedthat Maslow’s four-stage analysis of skill development appliesfully to the art of brief writing.54 Maslow’s four stages are (1)unconscious incompetence; (2) conscious incompetence; (3) consciouscompetence; and (4) unconscious competence.

The terms pretty much suggest their meaning. Lawyers in the firstphase are clueless about their own cluelessness.55 Garner believesthat a majority of lawyers are in this first category. Lawyers inthe second phase are poor brief writers and know it. They eitherrepress their awareness or work to remedy their deficiencies.56 Thethird stage is for lawyers who have made the effort to becomestrong brief writers and are on their way to accomplishing thatobjective. As Garner puts it: “These are the ones who troublethemselves to find out what respected authorities say aboutwriting. They don’t leave I will readily answerable [stylistic andsyntactical] questions unanswered.”57 The fourth category iscomprised of lawyers who “have integrated their years of learningso thoroughly into their writing that their accumulated knowledgeis like muscle memory.”58 Far too few lawyers are in the third andfourth categories.

54 Bryan A. Garner, Legal Writing: Great Lawyers Seek the Highest Level of Writing Competence, STUDENTLAW., Mar. 2004, at 1055 Id.56 Id.57 Id. at 1158 Id.

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learn the goal of brief writingAs with any other pursuit, mastering the art of brief writing begins

with understanding the goal of brief writing. To state what shouldbe obvious, the goal of brief writing is to persuade the audience—i.e., the judge or judges who will be deciding the case. It is notthe goal to vent one’s spleen about the unfairness or stupidity ofthe trial judge; no matter how aggrieved the brief writer and/orthe client may feel. Nor is it the goal to settle a score withopposing counsel. It also is not the goal of an appellate brief toimpress the client or the court with the author’s vocabulary orerudition. The sole function of a brief is to assist the court incoming to the conclusion that the brief writer’s position is thecorrect one.

The main purpose of a brief is to clearly and concisely convince thecourt my views are correct, logical and reasonable. The brief ormemorandum establishes the legal argument for the party, explainingwhy the reviewing court should affirm or reverse the lower court'sjudgment based on legal precedent and citations to the controllingcases or statutory law. To achieve these ends, the brief mustappeal to the accepted forces such as statutory law or precedent,but may also include theories of law and justice, policy argumentsand social statistics. For example if the law is vague or broadenough to allow the appellate judge some discretion in his decisionmaking, an exploration of the consequences of the possible decisionoutside of legal formalism may provide guidance. Such arguments mayalso support a legal argument when the purpose of the law at issuemay be clear, but the particular application of that law in serviceof that purpose is in dispute.

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DIFFERENT TYPES OF LEGAL BRIEFS

There are several types of briefs, as below:legal briefsA brief (Latin "brevis", short) is a written legal document used in

various legal adversarial systems that is presented to a courtarguing why the party to the case should prevail. In England andWales, the phrase refers to the papers given to a barrister whenthey are instructed.Legal briefs are used as part of arguing a pre-trial motion in a case or proceeding. Legal briefs are used as part ofarguing a pre-trial motion in a case or proceeding.

merit briefsMerit briefs (or briefs on the merits) refers to briefs on the

inherent rights and wrongs of a case, absent any emotional ortechnical biases.

amicus briefsAmicus briefs refer to briefs filed by persons not directly party to

the case. These are often groups that have a direct interest in theoutcome.

memorandum of lawMemorandum of law may be another word for brief, although that term

may also be used to describe an internal document in a law firm inwhich an attorney attempts to analyze a client's legal positionwithout arguing for a specific interpretation of the law.

IRAC case briefs Are usually a one page review done by a paralegal or attorney,

ultimately used by the attorney to find previously decided cases byan Appellate court, in State or Federal Jurisdiction, which showhow the courts have ruled on earlier similar cases in court.

student briefsIn most law schools, students usually study historical cases by

"briefing" them. Law school briefs are shorter than court briefsbut follow a similar structure: presentation of issue, presentationof facts, presentation of legal and policy arguments andpresentation of outcome. Student case briefing is a widely acceptedpedagogical method among law professors today. A student briefentails the same concept, but it is presented to a law professor. Astudent classroom brief contains short summaries and analysis of acase using notes from class discussions and case law.

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trial briefThe trial brief is a written summary or statement explaining your

position or a particular issue to the judge. The trial brief statesthe facts, evidence, and legal arguments that you plan to presentat trial. It typically includes citations to legal authority (suchas statutes, case law or rules) to support your position. A trialbrief is required to be filed before the trial, usually by thedeadline set out in a scheduling order. Trial briefs are presentedat trial to resolve a disputed point of evidence. It is a writtensummary or statement explaining my position or a particular issueto the judge. The trial brief states the facts, evidence, and legalarguments that I plan to present at trial and typically includescitations to legal authority (such as statutes, case law or rules)to support my position.

pre-hearing briefA written summary explaining my position or a particular issue to the

judge. The pre-hearing brief states the facts, evidence, and legalarguments that I plan to present at a hearing and typicallyincludes citations to legal authority (such as statutes, case lawor rules) to support my position. A pre-hearing brief providessimilar information to a trial brief, but it can be filed before ahearing. A pre-hearing brief is not required unless the courtorders it. However, I to choose to file a pre-hearing brief thatsummarizes your position before a hearing.

appellate briefAppellate briefs refer to briefs that occur at the appeal stage. An

appellate brief is a legal argument that is written and presentedto an Appellate Court. The purpose is to convince the court touphold or reverse a decision set at a lower court level. Thepurpose of an appellate brief is explain why the lower court’sdecision was erroneous (for the petitioner/appellant) or why it wascorrect (for the respondent/appellee). It is an advocacy paper, soit must be persuasive on every issue of fact and law. The appellantand appellee must file individual briefs to aid the appellate courtin its consideration of the issues presented. Failure to do soresults in a dismissal of the appeal. Any statements referring tothe trial record must be supported by an appropriate reference toit. The appellant's brief must specifically discuss the allegederrors that entitle the appellant to a reversal and discuss whyeach ruling of the lower court was wrong, citing authority, such asa case in which a similar point of law has been decided or astatute that applies to the particular point in issue.

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Many appeals are decided on the basis of written briefs alone.

In real-world appellate advocacy, the brief plays a far more importantrole in persuading the court than does oral argument. In the vastmajority of cases, oral argument makes no difference; the case iswon or lost on the brief.

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PLAINTS, STATEMENTS OF CLAIM

plaint

The exhibiting of any action, real or personal, in writing; the party making his plaint is called the plaintiff.

A typed written statement of claim must be full and clear enough to enable the Judge and defendants to understand the nature and grounds of the claim, as well as the relief sought. Paragraghs should be numbered, outlining the nature of the claim and the factsrelied upon.

The grounds of the claim and relief sought must be specified. Any claim for interest sought must be specified as well as the method of interest calculation.

We can divide the plaint in three parts:

(1) The Heading and Title

(2) The Body

(3) The Relief

(1) The HEADING:- The plaint should begin with the name of the court in which the suit is brought, Rule 1 (a), Order VII

For example,

“In the court of district judge at Dehradun”.

After the name of the court, in the next line the number of the suit and the year to be written in the following manner,

“Suit No…………of 2013”, or

“Original Suit No…………..of 2013”.

Note:-place for number should be left blank, which will be filled by the court officials.

THE TITLE:- After the heading, title should be written as per Rule 1 (b), Order VII. It contains the name , description and place of residence of the plaintiff.

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Note:- Plaintiff may be one or more and addresses may be different, true details of each of the plaintiff should be given. The word “Description” includes the name of father and other particulars of the plaintiff. The main purpose is to identify the plaintiff. The plaintiff may be minor or a person of unsound mind. A detailed statement regarding this must be given in the plaint (Rule 1 (d) Order VII), because a minor or insane person cannot sue or be sued.He can only sue or be sued through next friend (who may act as a next friend or be appointed guardian for the suit see Order XXXII Rule 1 and 4 CPC).Where there are several plaintiffs, a serial number should be given to each of them.

After the name of the plaintiff, name of the defendant or defendants should be written as per Rule 1(c), Order VII. And father’s name and place of residence of each of the defendant should be given , if there are several defendants, a serial number should be given toeach of them.

Note:- Defendants against whom no relief is claimed may be added as Performa defendants and written in the last and a statement in this regard must be given in the plaint that why these persons or person added as Performa defendants.In case of minor defendant or aperson of unsound mind, A detailed statement regarding this must begiven in the plaint (Rule 1(d), Order VII.), because a minor or a person of unsound mind cannot be sue or sued. He can only sue or besued through guardian ad litem, the Court shall appoint a proper person to be guardian for the suit for such minor under the procedure prescribed in Order 32, Rule 3.

Form of the title is given below:

The forms are given in Appendix A of the Code of Civil Procedure. Order 6 Rule 3 provides, the forms in appendix A when applicable, and where they are not applicable forms of the like character, nearly as may be, shall be used for all pleadings. These forms shows that a statement as to when the cause of action arose and thecourt has jurisdiction may be written jointly in one paragraph.

General:-

1.“A B, son of ……………………r/o………………………..

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2…………

3…………

Plaintiffs".

Versus

1.“C D, son of…………………………..r/o………………………

2…………

3………….

Defendants".

In case of minor and unsound mind person,

1.”A B, son of………………………r/o………………………, a minor, by C D, son of………………………….r/o……………….his next friend…………

2………………

3……………..

Plaintiffs.”

versus .

1. E F, son of……………………r/o…………………………, a minor, through his guardian GH,son of……………………r/o…………..................., appointed by the order ofthe court (name of the court etc )

Defendant.”

In case of representative suit:

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1.”A B, son of…………………….., r/o……………………………………….., suing on behalf of himself and of all the Sikh resident of the village…...(name of thevillage)……….”

Or

In case of Trust

1. “A B, son of…………………………, r/o ……………………………………………., managing trustee Kalumal dharmshala etc”

2. The Body.

This is the most important part of the plaint. It can be divided into short paragraph. All the facts related to the claim of the plaintiff must be written here in details. Order VII, Rule 1 (e) requires that the plaint shall contain “the facts constituting the cause of action and when it arose”. Basically it contains two part, under the first part of this clause are all the facts, on thebasis of which plaintiff claims his case, in other words each and every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms and in the second part of the clause is “when cause of action arose.”? It is related to the date of cause of action.The meaning and definition of the cause of action is given in side bar of the page under the heading NOTES.

Date of Cause of Action: The exact date of the cause of action as far as possible should be given in the plaint. Where, however, the exact date is not known, plaintiff can mention the near about date when cause of action accrued. The main object to mention the date of cause of action is to ascertain whether the suit is within limitation or not.

Jurisdiction: the civil procedure code lay down the rules for the purpose of jurisdiction. Section 15 provides "every suit shall be instituted in the court of the lowest grade competent to try it". Section 16 provides the provision regarding institution of suit of immovable property and for the recovery of movable property

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actually under distraint or attachment, it says all the suits relating to immoveable property or for recovery of movable propertyunder distraint or attachment shall be instituted in the court within the local limits of whose jurisdiction the property is situate, subject to the pecuniary or other limitations prescribed by any law.

Provided that a suit to obtain relief respecting , or compensation forwrong to, immovable property held by or on behalf of the defendant,may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business,or personally works for gain.

Explanation.- In this section “property” means property situate in jurisdiction.

Where the immoveable property is situate within jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate.

In case, where local limits of jurisdiction of Courts are uncertain, the code provides, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction :

Provided that the suit is one with respect to which the court is competent as regards the nature and value of the suit to exercise jurisdiction".

Suits for compensation for wrongs to person or movable-- the Code provides “Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain,

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within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi".

Other suits to be instituted where defendants reside or cause of action arises—the Code provides “Subject to the limitations aforesaid, every suit shall be instituted in Court within the locallimits of whose jurisdiction—

(a) the defendant, or each of the defendants where there are more thanone, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain,

Provided that in such case either the leave of the Court is given, or the defendants who do not resides, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

[Explanation].—A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver

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them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C beingtogether at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, wherethe cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of such these cases, if the non- resident defendant object, the suit cannot proceed without the leave of the court.

Valuation of Suit : Specific law deals with the mode of valuing certain suits for the purpose of determining the jurisdiction of the Court59. It is the duty of the plaintiff to write clearly and separately in his plaint the valuation of his claim for the purposeof court fees and of jurisdiction.

Court fee : Court fees are payable according to the provision of the law, or related provisions.60

Relief :

(a) ........................................................

(b) ........................................................

(c) ..........................................................

Note:- When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it would lead to miscarriage of

59 see for instance, THE SUITS VALUATION ACT, 1932, India60 see for instance, THE COURT FEES ACT, 1987

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justice. Thus it is said that no amount of evidence, on a plea thatis not put forward in the pleadings, can be looked into to grant any relief.

“that a case not specifically pleaded can be considered by the court only where the pleading in substance, though not in specific terms,contain the necessary averment to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirement indicate, this should be only in exceptional cases where the court is fully satisfied that the pleading and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise”.

“It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppels, acquiescence,non-joinder of cause of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In asuit for recovery of 1 million, the court cannot grant ten million.In a suit for recovery possession of property ‘A’, Court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends onthe pleadings, prayer, court fee paid, evidence let in, etc.”61

Pleading to be signed : The C.P.C. provides every pleading shall be signed by the party and his pleader( if any ) :

61 Bachhaj Nahar versus Nilima Mandal and others.2009 (1) SCCD 220, ( also see Bhagwati Prasad v. Shri Chandramaul, AIR 1966 SC 735. , Ram Sarup Gupta (Dead) by L.Rs. v. Bishun Narain Inter College, AIR 1987 SC 1242 ).

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Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue and defend on his behalf.

Verification of Pleadings: The C.P.C. provides the mode of Verification of Pleadings

(1) Save as otherwise provided by any law for the time being in force,every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2)The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shallstate the date on which and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

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DEFENCE, STATETEMENT OF DEFENCE

defence

In the defence the respondent must answer each allegation made by the applicant in the statement of claim. Matters in dispute should be apparent when the defence is delivered. Points of disagreement between the parties are referred to as “issues”. Where facts are admitted they cease to be an issue in the proceedings. Consequently, they need not be proved at the trial.

Trial by ambush

Trial by ambush is no longer an acceptable defence trial tactic. The defence need to adopt a proactive 'cards on the table approach'. The defence statement, which is mandatory in the crown court, is a formal document that sets out the accused's defence and the issues with the prosecution case. It can also be used to identify areas ofdisclosure or reasonable lines of enquiry for the prosecution to consider.

If you are served with a statement of claim and you wish to defend theproceedings, a statement of defence must be filed and served on theother party. This statement must be filed within 30 days of the statement of claim being received.

If you fail to file within the 30 days a statement of defence you willnot be able to defend the proceedings without leave of the Court. This application must be accompanied by an affidavit in support anda draft statement of defence.

The numbered paragraphs specified statement of defence must align withthe numbered paragraphs in the statement of claim when refuting allegations.

The statement of defence must include details of any positive defence and include enough information to fairly inform the judge and otherparties of the nature and details of the defence.

Reply

The applicant may respond to the defence with a reply, although not for the sole purpose of denying the allegations in the defence. A

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reply is to raise facts and matters in answer to the allegations inthe defence.

Contents of defence statement

A defence statement is a written statement:

(a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely,

(b) indicating the matters of fact on which he takes issue with the prosecution,

(c) setting out, in the case of each such matter, why he takes issuewith the prosecution,

(d) setting out the particulars of the matters of fact on which he intends to rely for the purposes of his defence, and

(e) indicating any point of law (including any point as to admissibility or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.'

disclosure requests

Listed below are examples of defence disclosure requests. Requests fordisclosure must not be used indiscriminately and must be relevant and tailored to the issues in the case.

¯ Please provide the defence with copies of unused items (insert numbers) from the MG6C(give date and reference number).

¯ Has the complainant made previous false allegations against any other person? If so, please disclose copies of the relevant documentation.

¯ Please disclose the date, time, circumstances and any contemporaneous notes or record of every occasion when the complainant has given an account of the allegation.

¯ Has the complainant made any application to the CICA[79] or to any other agency for compensation? If so, please disclose details of the application including any account given of the alleged facts. Does the complainant intend to make any such application? Has the complainant received any advice from the police as to when and in what circumstances they might make such claims?

¯ Has the complainant received any counselling for the effects of the alleged offence? If so, provide details of when and by whom. Please supply all relevant documentation.

¯ Please provide copies of all notes and records of any contact the police have had with any civilian prosecution witnesses.

Admissions

If you are satisfied that an allegation is true, you should admit the allegation.

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You can often admit a lot of the allegations in a statement of claim and still draft a successful defence.

If you do not admit the allegation, the plaintiff can assume that it is contested and will set about gathering evidence to prove the allegation. This may have adverse consequences for you, and could make the proceedings unnecessarily lengthy.

Denials

If you believe an allegation is untrue, you should deny the allegation.

For example:

A statement of claim might read like this:

5. On 1 May 2006, the plaintiff and the defendant entered into a written contract for the sale of the property.

A non-complying defence would read as follows:

5. The defendant denies the allegations contained in paragraph 5 of the statement of claim because it is not true.

If you deny an allegation, you must include reasons why - that is, your alternative version of the key facts. A better defence would be:

5. In respect to paragraph 5, the defendant denies the allegations because:

a. The allegations are, as a matter of fact untrue;

b. On 1 May 2006, the plaintiff gave the defendant a written contract for the sale of the property which the plaintiff had signed;

c. The defendant did not ever sign the contract;

d. The defendant never agreed to purchase the property from the plaintiff.

See rule 166 of the UCPR for more information about how to deny an allegation and the effect that a denial will have on the future of the proceedings.

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Non admissions

You only have a short amount of time to prepare your defence and many of the allegations in the statement of claim may be outside your knowledge at this point. You can take the third option for those allegations - a non admission. For example:

12. In respect to paragraph 12 of the statement of claim, the defendant does not admit the allegations because it has not completed its investigations and does not know whether the allegations are true or false. The defendant will plead further once its investigations are complete.

Once again, you need to provide a reason why the allegation is not being admitted. If it is because you have not completed your investigations, you have an obligation to set about investigating the allegation and you should amend your defence in due course to clarify your position.

Rule 166 of the UCPR sets out the obligations that you will have if you plead a non admission in your defence.

You must either admit or deny each allegation of fact made in the statement of claim, unless an allegation does not affect you (for example, the allegation is against another defendant).

Denials of allegations of facts must not be evasive. For example, if you wish to deny an allegation that you received a sum of money, you must either deny that you received any money or set out how much you did receive, rather than simply denying that you received the particular amount specified.

Your statement of defence must be clear and particular – if you deny an allegation of fact, you should give enough detail so the court and the plaintiff/s can understand specifically how you are defending yourself (you should refer to particular times, places, amounts etc - but you do not need to provide evidence to support your defence at this stage).

If an allegation is not denied, it will be treated as being admitted.

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If you want to raise a matter of defence that does not arise from youradmissions or denials of the plaintiff’s allegations, you must include this in your statement of defence.

In the High Court of New Zealand

[Name of registry] Registry (Note: This is the City/Town where the matter is filed)

No: [Court file number]

Under the [specify the act/s and section/s]

In the matter of [specify matter to which proceeding relates]

Between [full name, place of residence, occupation]Plaintiff(Note: If more than one plaintiff list them separately as 2nd

plaintiff, 3rd plaintiff etc)

And [full name, place of residence, occupation]Defendant(Note: if more than one defendant list them separately as 2nd defendant, 3rd defendant etc)

Statement of Defence

Filed by: [Defendant’s name and address for service]

The Defendant Says: (Note: if more than one defendant specify which defendant – for example, 1st defendant, 2nd defendant)

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[Here respond separately to everything claimed in the statement of claim which has been served upon the defendant. You must either admit or deny the allegations of fact in the statement of claim, but you do not have to plead to an allegation that does not affect you. If you deny an allegation of fact in the statement of claim you must not be evasive and points must be answered in substance. You must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the court, the plaintiff, and any other parties of the defendant's defence].

(Note: if you do not deny an allegation it will be treated as being admitted)

(Signature and date)(Note: please ensure your name is printed under your signature)

This document is filed by the defendant in person. The address for service of the defendant is [address]. (Note: if more than one defendant specify which defendant – for example, 1st defendant, 2nddefendant)

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OTHER BRIEFSStatement Of Defence And CounterclaimYou can file a statement of defence and a counterclaim in one

document, which means you will need to pay only the fee for filing a counterclaim.

A counterclaim must be filed before the timeframe for filing a statement of defence has expired.

Statement of cross-claim

If you want to make a claim against another defendant in the proceeding, you can file a cross-claim.

A cross-claim is essentially a statement of claim against another defendant to the proceeding. Refer to the statement of claim section for more information on statements of claim.

Notice of proceeding

A notice of proceeding tells the defendant that you are taking legal action against them. In judicial review proceedings, a notice of proceeding tells the respondent (the body whose decision you are seeking review of) that you are taking legal action against it.

The content that must be in a notice of proceeding is set out in form G2 of the High Court Rules (unless a summary judgment application is made at the time you file the proceeding).

Attach the following documents to the notice of proceeding:

Attach a memorandum containing the information set out in form G3 (unless you are making a claim under the Declaratory Judgments Act 1908 or the Family Protection Act 1955).

If you are making a claim under the Declaratory Judgments Act 1908, attach a memorandum containing the information set out in form G4

If you are making a claim under the Family Protection Act 1955, attacha memorandum containing the information set out in form G5

If you apply for a summary judgment when you file the proceeding, the content that must be in the notice of proceeding is set out in formG13. See summary judgment

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Statement of claim

A statement of claim tells the court and the defendant/s what you are seeking and why you are seeking it.

You need to follow the general requirements about the format of court documents, and also rules of the High Court Rules, which outline what a statement of claim has to contain.

A statement of claim needs to:

list the full name, address and occupation of each party involved (forexample, you as applicant and the respondent/s) on the coversheet

clearly set out the events or circumstances that caused you to make a claim (called the causes of action) with a separate paragraph for each event or circumstance

describe the causes of action in enough detail to allow the court and the defendant/s or respondent/s to understand specifically what youare alleging against each defendant or respondent (for example, youshould refer to particular times, places, amounts etc but you do not need to describe the evidence that supports the facts you are alleging at this stage)

clearly say what you are seeking or what relief you are claiming (for instance, the amount of money you are seeking from the defendant) –note: the only relief available in judicial review proceedings is for a decision to be quashed and referred back to the original decision-maker, or for the decision to be quashed and substituted by a new decision of the High Court

if there is more than one cause of action, state the relief you are seeking immediately after each cause of action (a cause of action should only be included if you are seeking something as a result).

The information in a statement of claim should be specific, concise and relevant. It should not be vague or contain information that isnot specifically relevant to what you are claiming.

Originating applicatio, originating summons

Originating applications are documents that tell the court and any respondents about the orders you are seeking from the court. Originating applications must be accompanied by an affidavit in support (unless the court says that evidence will be heard orally).

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Notice of appeal

A notice of appeal tells the court and the other parties that you wantto appeal a decision.

A notice of appeal should contain:

the full name and description of each party on the coversheet (note: the original decision-maker cannot be named as a respondent)

the Act you are bringing the appeal underthe decision or part of a decision that you are appealing againstthe grounds on which you are appealing (in enough detail that the

court and the other parties can understand what you claim was wrongwith the original decision)

the relief that you are seeking (for example, that the original decision be overturned).

Template: Notice of appeal (Word, 26 KB)

Bankruptcy notice

A bankruptcy notice must comply with forms prescdibed by the High Court Rules. A certified copy of the judgment or order on which it is based must be attached.

You will need to give two copies of the bankruptcy notice to the court: one to be filed with the court and one to be signed by a registrar or deputy registrar and returned to you so you can serve it on the debtor.

Creditor’s application for adjudication

A creditor’s application for adjudication must comply with form B3 of the High Court Rules. You must attach an affidavit in support and asummons to debtor with copies so that one may be filed and another served on the debtor.

Affidavit in support of a creditor’s application foradjudication

An affidavit in support of a creditor’s application for adjudication must comply with form B4 of the High Court Rules.

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Summons to debtor

A summons to debtor must comply with form B5 of the High Court Rules.

Notice by debtor of intention to oppose application

A notice by debtor of intention to oppose application must comply withform B6 of the High Court Rules. As with a general notice of opposition, an affidavit in support must be attached.

Order adjudicating debtor bankrupt

If the judgment debtor is declared bankrupt, you will need to bring an‘order’ to the court for sealing as soon as possible. The order must comply with form of the High Court Rules.

You will need to provide at least three copies of the order to the court: one to be kept by the court, one for the Official Assignee and one for the debtor. If you want a sealed copy for yourself you should provide an extra copy.

Once the court has sealed the order, they will give you back the sealed duplicates for you to serve on the Official Assignee and thedebtor. It is important that this is done promptly as the Official Assignee is not able to take any steps with the debtor’s property until the sealed order is received.

Application for writ of habeas corpus

An application for writ of habeas corpus must generally be made by originating application.

If the applicant needs it with unusual urgency, the court may accept an oral application made by telephoning the High Court registry closest to where the applicant is being detained.

Interlocutory application

In some circumstances you may want to file an interlocutory application for orders or directions either at the start of the proceeding or later on.

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Interlocutory applications filed on notice: an on-notice application will be provided to all other parties to the proceeding and they will be able to respond to your application. This application will need to comply with form of the High Court Rules.

Interlocutory applications filed without notice: a without-notice application will be filed in court but does not need to be given tothe other party. This application will need to comply with form of the High Court Rules.

Sealing an interlocutory order: if you get an interlocutory order, youmust draw up the order and submit it to the registrar for sealing if the order affects a person who is not a party to the proceeding,joins a person as a party to the proceeding, or asks that it is served on a person. The order must comply with form of the High Court Rules. You must file an original order plus enough copies forthe other parties.

Interlocutory application for interim injunction: an interim injunction is a temporary order of the court that prohibits or compels some action until the court has heard the arguments of all the parties and made a permanent order.

Applications for interim injunctions are made by filing an interlocutory application. Interim injunctions can only be applied for after the statement of claim has been filed in a proceeding, unless there is real urgency.

To apply for an interim injunction, you will need to file the following documents:

interlocutory application for interim injunctionaffidavit supporting the interlocutory applicationan undertaking as to damages (that is, a signed document stating that

you will pay any damages awarded against you as a result of the injunction - see rule 7.54 of the High Court Rules and the Costs and disbursements section of this website).

a memorandum explaining why urgency is needed, if you are applying foran interim injunction under urgency.

Notice of appearance under protest to jurisdiction

You can file a notice of appearance under protest to jurisdiction if you believe that the High Court does not have the jurisdiction to

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hear a claim. The notice can be filed until the time period for filing a statement of defence has expired. The content of a notice of appearance under protest to jurisdiction is set out in form G7 of the High Court Rules.

Note: if you take a step that is useful or necessary only if jurisdiction is conceded, then you will have submitted to the court’s jurisdiction.

Notice of appearance for ancillary purposes

If you do not oppose the plaintiff’s claim but want to be heard on anysecondary matter (including costs), you can file a notice of appearance for ancillary purposes.

There is no time limit for filing this document but note the rules governing judgment by default - rules.

The content that must be in a notice of appearance for ancillary purposes is set out in form G8 of the High Court Rules.

Notice of appearance reserving rights

If you do not oppose the plaintiff’s claim but want to reserve some rights as a defendant, you can file a notice of appearance reserving rights. You might do this if you think a hostile third party may be joined or an existing party may take steps that are not in your interests.

There is no time limit for filing this document but note the rules governing judgment by default - rules.

The content that must be in a notice of appearance reserving rights isset out in form of the High Court Rules.

Statement of defence and counterclaim

You can file a statement of defence and a counterclaim in one document, which means you will need to pay only the fee for filing a counterclaim.

A counterclaim must be filed before the timeframe for filing a statement of defence has expired.

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See above for information on the requirements for a statement of defence. See below for information on the requirements for a counterclaim.

Statement of counterclaim

If you want to make a claim against the plaintiff/s in response to theclaim made against you, you can file a counterclaim. A counterclaimis a statement of claim against the plaintiff that has the heading 'Counterclaim'. Refer to the statement of claim section for more information on statements of claim.

Where your counterclaim is against the plaintiff/s and another person (whether that person is a party to the proceeding or not), a noticeof proceeding and memorandum must be filed along with the counterclaim. See above for the content that must be in a notice ofproceeding and a memorandum.

Statement of cross-claim

If you want to make a claim against another defendant in the proceeding, you can file a cross-claim.

A cross-claim is essentially a statement of claim against another defendant to the proceeding. Refer to the statement of claim section for more information on statements of claim.

A cross-claim must be accompanied by a notice in the form set out.

Statement of claim against a third party

If you want to make a claim against a third party (a party not previously named as a party to the proceeding) in response to the claim made against you, you can file a third party notice. A third party notice must be filed and issued within 10 days after the timeframe for filing a statement of defence expires, unless the court directs a longer timeframe.

The content that must be in a third party notice is set out in form ofthe High Court Rules. A third party notice must be filed along witha statement of claim against the third party.

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Notice of opposition

If you are a party to a proceeding and want to oppose an interlocutoryor originating application on notice that was filed by another party, you will need to file a notice of opposition. The notice of opposition tells the court and the applicant/s that you oppose the orders that are sought and the grounds on which you oppose them. The content that must be in a notice of opposition is set out in form of the High Court Rules.

If you want to file any evidence in support of your notice of opposition, you should file an affidavit when you file your notice of opposition. See the Evidence section of this website for more information.

A notice of opposition must be filed within 10 working days of when you were served with the application. If the hearing is within 10 working days, you will need to file the notice of opposition at least 3 working days before the date of the hearing; see rule 7.24 of the High Court Rules

Notice of cross-appeal

You must file a notice of cross-appeal at least 2 working days before the first appeal conference.

A notice of cross-appeal needs to contain the same information as a notice of appeal.

To: The Registrar of the High Court at (name of Registry)(Name of the Cross-Appeal Respondent)(Name of the authority that made the decision being appealed)

This document notifies you that –

[Here state that the cross-appeal appellant (naming the cross-appeal appellant) appeals the whole or part of (if appealing part of the decision specify which part) decision of (specify the decision and the date of the decision]

Grounds

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[Here specify your grounds (including the points of law) that you relyon in sufficient detail to fully inform the court, the other parties to the appeal, and the decision-maker of the issues in the appeal]

Relief

[Here specify the relief sought – that is, the orders that you want the court to make]

(Signature and date)(Note: please ensure your name is printed under your signature)

This document is filed by the cross-appellant in person. The address for service of the cross-appellant is [address].

Affidavit

An affidavit must comply with the relevant form in the High Court Rules (depending on the type of application it relates to).

In the High Court of New Zealand

[Name of registry] Registry

No: [court case number]

Under the [specify the Act/s and section/s]

In the matter of [specify matter to which the proceeding relates]

Between [full name, place of residence, occupation]Plaintiff/Applicant(Note: If more than one plaintiff or applicant list them separatelyas 2nd plaintiff/applicant, 3rd plaintiff/applicant etc)

And [full name, place of residence, occupation]

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Defendant/Respondent(Note: if more than one defendant or respondent list them separately as 2nd defendant/respondent, 3rd defendant/ respondent etc)

Affidavit/Affirmation* of [full name]

(Note: *select one – that is, either affidavit or affirmation)(Note: if you have made a previous affidavit/affirmation, the second

(and subsequent) affidavit/affirmation should be numbered – for examples, Second Affidavit of Joe John Smith)

Filed by: [name of party presenting the affidavit/affirmation and address for service]

(Note: the party who presents the affidavit/affirmation is not necessarily the person who makes the affidavit/affirmation. The term ‘party’ means a party to the legal proceeding; the party wouldbe presenting the affidavit/affirmation as evidence for their case.)

I [full name, place of residence, occupation] swear/solemnly and sincerely affirm*

(Note: full name means your full legal name; and place of residence means the city or town where you live.)

(* Choose one. If you want to swear on the Bible put ‘swear’; otherwise if you want to affirm put ‘solemnly and sincerely affirm’)

[State your evidence, numbering it by paragraph]

(Note: remember to attach any documents you refer to in your affidavit, and refer to them as an exhibit (with a number or letter) – for example, bank statement of plaintiff, dated 01/01/01,marked as ‘EXHIBIT A’. The exhibit itself must be marked with the letter or number assigned to it in the affidavit, (so in the

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example the bank statement should be marked with an ‘A’) and have an exhibit note. The High Court has a stamp for marking exhibits with exhibit notes; exhibit notes are filled in by the person taking the affidavit/ affirmation.)

Signature of the deponent:(Note: place your signature here after printing this document)

Sworn/Affirmed* at this day of 20

(* Choose one. If you want to swear on the Bible put ‘Sworn’; otherwise if you want to affirm put ‘Affirmed’)

(Note: leave the spaces blank. The person taking the affidavit will fill them in)

Before me:

(Note: leave the above space blank. The person taking the affidavit will fill it in).

Affidavit of service

You need to file an affidavit of service if you apply to place a company in liquidation or if the defendant or respondent denies having been served.

The affidavit of service needs to state:

the day and time that the debtor was servedwho served themhow they were served (and if they were served in person)how the person who served the debtor knew that they were the debtor

(for example, the person identified themselves as the person named in the bankruptcy notice).

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A copy of the documents served must be attached to the affidavit as exhibits. See the Evidence section of this website for more information.

An affidavit of service must comply with form of the High Court Rules.

Summary judgment

Summary judgment is a procedure that allows a plaintiff to obtain judgment from the court without going through a full trial. Summaryjudgment can only be done in certain, relatively rare situations where there is no genuine arguable defence to one or more of the claims against the defendant. Summary judgment cannot be used as a shortcut in cases where the defendant intends to defend the claim and can raise an arguable defence.

If you are the plaintiff and you are applying for summary judgment, your statement of claim and notice of proceeding must be accompanied by an interlocutory application on notice for summary judgment in form G31 and a supporting affidavit. When applying for summary judgment, the notice of proceeding must comply with form G13 of the High Court Rules.

If you want to oppose a plaintiff’s application for summary judgment, you must file a notice of opposition at least 3 working days beforethe hearing. The date of the hearing will be in the notice of proceeding. You can also file a statement of defence.

If you are the defendant and you are applying for summary judgment, your application for summary judgment and supporting affidavit willbe filed at the same time as your statement of defence.

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BRIEF WRITING TIPS

learn the parties/call parties by nameWhereas Shakespeare said, ‘a rose by any other name smells just as sweet,’, the

Chinese remind us that, ‘the first sign of wisdom is to call things by their rightnames.’ This is one area where Shakespeare was wrong, and the Chineseare right. This simple technique will make my presentation moredigestible and elegant.

I will describe who each of the groups are by giving a briefbackground about the group, and then tell why they think they havea claim. This section should be several paragraphs long.

Unless there is a good reason to use the parties’ respectiveprocedural designations, refer to the parties by name rather thanas “appellant” or “appellee.” All that those terms convey is theprocedural posture of the case as it currently stands. Similarly,“plaintiff” and defendant” merely remind the court that someone wassuing someone else in the lower court. To make the brief asintelligible as possible for a judge who is trying to keep in mindwho is saying what about what, use the parties’ proper names. Whenit is necessary to use a short form for repeated reference, try tocome up with appropriate and easily understandable abbreviationsthat will stay with the judge without the need to refer to aglossary. For example, unless a company is well known by itsacronym (like “GM”), try using an abbreviation that is a short formof the name (for example, “Ford” rather than “FMC” when referringto Ford Motor Co.).

As an equally acceptable alternative, adopt and use some genericdesignation that will help the reader follow the flow of events andarguments. This will help the judges appreciate what certainparties allegedly did or why certain parties are advancing certainarguments. Thus, for example, I will speak about the “employer” andthe “union,” or the “manufacturer” and the “supplier,” or thedealer” and the “purchaser.” Indeed, in many situations, thesegeneric terms may make it easier to follow what is going on thanusing proper names, such as when several companies or severalindividuals are involved and even using proper but unfamiliar namesmay not help the judges keep everyone straight.

Further, I will learn to address the adjudicatingauthority/forum/tribunal, or bench, by name. If theauthority/forum/tribunal is headed by a magistrate, I will refer tothe bench as your honour, or your worship. On the other hand, if the benchis constituted of judges, or justices, in essence, it is a highcourt, or a tribunal of high court, or supreme court, or higher

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court, like appellate court, then I will refer to the bench as mylord (s) or my lady(ies).

learn the rulesThe lawyer writing a brief for a court of appeals must consult two

sets of rules. One is the Rules of Appellate Procedure, which applyin all courts of appeals. A brief writer also must study the "localrules" of the court to which the appeal is being taken. Each courtof appeals has authority to supplement or modify the rules;idiosyncratic rules abound, setting traps for unwary advocates. Forexample, page limits for reply briefs; brief length by the numberof words; timetables for obtaining leave to file an amicus brief;footnotes in printed briefs meet the same minimum size requirementsas text; "excerpts of record" rather than the "joint appendix"; andspecial citation forms for documents. The list goes on and on.

When I get a brief-writing assignment, the first thing I need to do isreview the applicable statutes and rules governing appellateprocedure in whatever court I am in. This is necessary for tworeasons: (1) to avoid malpractice; and (2) to learn what the courtexpects of you. Pay particular attention to deadlines, requirementsfor ordering transcripts or making record designations,requirements for form and content of briefs, and other rulesgoverning practice before the court. I will not assume that Ialready know the rules because I handled an appeal in the samecourt last year. Rules change; and a refresher never hurt anyone.Do this first. Some of the rules will tell me how much time I haveto get things done. I need to be aware of those deadlines soonerrather than later. I don’t want to find out about a deadline 24hours before it arrives, or worse, 24 hours after it’s passed.Where can I find the rules? The first place to look is the court’sweb site. Every federal appellate court has one, and each has linksto the Federal Rules of Appellate Procedure and the court’s localrules. Most state appellate courts have their own web sites withlinks to their own sets of rules. In addition, many federalappellate courts have their own Practitioner’s Guide. If I find one on mycourt’s web site, I will rejoice: on-line publication that willtell me everything I need to know about practicing before thatcourt. I will bookmark those web pages, and visit them early andoften. Another place I can usually find rules of appellateprocedure is in the law books. Look in the statutory compilations.

Usually the first non-boilerplate item in an appellate brief will besomething called the "Questions Presented" or the "IssuesPresented" or the "Statement of Issues." This section can becritical. It is difficult to underestimate the importance of clear,

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effective framing of the issues: In advocacy, as in life, firstimpressions last. Unfortunately, many briefs state the issues in away that either impairs the author’s credibility or confuses thecourt’s understanding of what the appeal is about. Advocacy has arole in drafting the questions presented, but it is a mistake — anda common one — to slant the formulation of the issue too obviouslyin my own favor.

I must also make the questions comprehensible. If the judges cannotunderstand what the case is about from the initial substantiveexposure to my writing — a statement they expect to be clear — theymay have far less patience with the parts of my brief that maylegitimately be complex. A good brief writer can formulate clear,neutral-sounding questions but frame them in a way that tends(subtly, of course) to suggest the answer the writer seeks. Thequestion should not present my argument, but it should express aclear point of view about the case.

Another key to successful appellate litigation (at least for theappellant or petitioner) is to limit the number of questionspresented. Here again, there are no universal rules: Two questionspresented are sometimes too many and five are sometimes too few. Butit is fair to say that judges are more likely to give fullattention to fewer issues than to many. An appellate lawyer mustresist the temptation (and the pressure from client or trialcounsel) to include many issues in the hope that, somehow,lightning will strike one of them. And it is never good advocacy topresent two or more questions that simply rephrase what is really asingle legal issues.

Sometimes, a succinct introductory sentence or two, or even a succinctparagraph, placed before the questions presented will aidunderstanding of a complex case. Most courts permit this device,although relatively few advocates use it. Here is an example:

Prior to 1983, the tax code prohibited the compounding of interest on tax deficiencies or on taxoverpayments. In section 344 of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA),Congress repealed that prohibition and provided for the compounding of all such interest.Section 344(c) of TEFRA directed that these changes would apply to "interest accruing afterDecember 31, 1982." The question presented is whether section 344(c) authorized thecompounding of appellant’s tax-deficiency interest, which had completely ceased accruingon February 1, 1982.

The statement of the question presented broke out the main ideas intoseparate sentences so that the judges could understand more easilywhat they were being asked to decide.

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learn to refineThe first draft is just that: a first draft. Writing experts agree

that it’s a good idea to allow an interval between the end ofdrafting and the start of editing. The ideal is at least a full daynot looking at or thinking about the brief. If I have just spentseveral days filling my brain to the brim and probably a full daypouring it all out into the draft. The experience can be cathartic.I need the mental break. I also need an interval to switch from thecreative mode of a writer to the critical mode of an editor.Inaccuracy and imprecision are usually the result of inadvertencerather than design. I will read and re- read my own sentences toensure that I am saying exactly what I mean to say. If timepermits, when my draft is almost complete, look at the cases andthe relevant portions of the record one more time.

learn murphy’s lawMurphy’s Law—anything that can go wrong will go wrong—applies nowhere

with greater force than it does to getting an appellate briefcopied, bound, and filed timely. Get the final version of the briefto the photocopy folks at least 24 hours before filing—longer ifthey need the time to copy and bind. If the partner who needs toreview and sign the brief is dilly-dallying, diplomatically remindhim or her that I need to get the brief to photocopying 24 hoursbefore filing to assure timely filing and avoidance of malpractice.When the brief is signed and I will ready to be copied, don’t relyon interoffice mail to get the brief and my instructions tophotocopying. Take it there myself. Talk to the photocopypersonnel, and make sure they know what I need and when I need it.Do all of this far enough in advance so that, if something does gowrong (e.g., red covers when I need blue), I have time to fix itbefore the brief must be filed. If the brief is going to be filedby hand delivery to clerk of court, I will not rely on my firm’scourt-run system to get the job done. If I have a reliable courtrunner, personally give the brief to him or her for filing, alongwith my instructions about when it must be filed. Have the courtrunner call I by cell phone as soon as the clerk clocks in thebrief—until I get that call, assume that the job is not yet done.If I do not have a reliable court runner available, enlist areliable paralegal. I will have someone take the brief to the postoffice, get it hand-cancelled (to make sure it’s postmarkedtimely), and obtain a receipt of mailing. The receipt is myassurance that the brief was, in fact, mailed and postmarkedtimely. Again, if I do not feel comfortable relying on someone elseto run this errand properly, do it myself. When I know the brief

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has been filed timely (and not a minute before), relax. Andcongratulate myself on a job well done.

learn to format/organiseI will pay attention to the formatting of my brief. Although the

relevant court rules undoubtedly will dictate some elements of theformatting, I will also be left with some discretion. Review somesample briefs, and decide what looks pleasing and Readable to you.Make sure that my formatting decisions are implemented consistentlythroughout the brief.

Use a readable font that is no smaller than 12 points—in the footnotesas well as the text. It really does get harder to I will read smallprint when I reach middle age, and most federal appellate judgesare in this group (or beyond it). Use margins of at least an inchto give my text a nice frame. I will not make the print too largeor leave too much white space, however: Having too little text oneach page may actually make it harder for the court to follow myargument and will force I to shorten my paragraphs too much.

Be judicious in my use of emphasis. If I emphasize too many phrases,my brief will look too busy and seem overwrought. Also, pick oneform of emphasis and stick with it: I can use underlining, italics,boldface type, or some combination of those. Bold italics is themost readable form of emphasis.

Always I will read the court’s formatting rules, as every court hasits own local rules for formatting. Some require text to be in 14-pt. font, some require 12-pt. font; some courts require the text tobe aligned along the left side of the page, others require it to bejustified. A court will not accept a brief that contains improperformatting.

Organizing a brief properly is one of the most challenging aspects ofbrief writing. I should strive to avoid redundancy while makingsure that I have sufficiently laid the groundwork for eachparagraph and section. As noted in the Introduction and at variousother points in this treatise, the goal of trying to persuadefederal appellate judges to rule in my favor requires that theyunderstand my legal arguments and their relationship to the facts.Not only must I decide the overall sequence of the points I want tomake, I also must develop each point in some kind of organized way.The chapters in this treatise dealing with the opening brief, theresponse brief, and the reply brief offer some suggestions abouthow to decide what organization to use.

There is no single “right” organization. The crucial point, however,is that there must be some organization. To be sure, some

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repetition is built into the structure of the brief: I may have aStatement of the Case, an Introduction, a Summary of the Argument,and then the Argument itself. Obviously, some of the same pointswill be made in both the Argument and the Summary of the Argument.Similarly, I may decide to repeat certain key facts in both theStatement of Facts and the Argument.

learn the argument (persusasion not argumentation)This is the part of the brief where I present my case. Analyze why the

law supports the relief I am requesting. Apply the law to my set offacts and cite to cases that support my position. Generally, Ishould make only strongest arguments; the weak ones can be arguedorally.

This is the core of the brief. Argument is somewhat like writing apersuasive essay with lots of research references. It presentssupport for the issues presented earlier. Solid research is used toback every part of the argument. Arguments must be well-organizedand convincing; attorneys will win or lose their case based on thequality and substance of what is said. Each point the team wantsthe court to consider in deciding the case must be described, andthe reasons explained with appropriate references to researchmaterials used, and text citations inserted as frequently asneeded.

The Court is interested in seeing that justice is done and lawcorrectly applied. The Attorney team must present the client's casein the best possible light, and suggest that the action requestedis not only consistent with past legal precedent, but is also justand consistent with the rule of law.

The goal of a brief is to convince the Court that one's position iscorrect, logical and reasonable. The Statement of Factsshould never be argumentative in tone. The Statement of Facts is fortelling the court what the case is about. The argument portion ofthe brief is for contention about the significance of those facts.Nothing impairs a brief writer’s credibility more than anemotional, sarcastic, plaintive, or visibly one-sided Statement ofFacts. In order words, in the Statement of Facts, understatedadvocacy works best. A judge will be more prepared to believe thatmy client should win if my statement seems objective than if iteditorializes. A judge will be more inclined to accept the fairnessof my statement if it acknowledges the other side’s strongestpoints and introduces — but does not argue — the facts or conceptsI will later use to counter the other side. Remember, judges arelawyers, too, who are accustomed to careful analysis of facts andauthorities. If my statement presents my case in a fair but

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favorable light, I do not need to carry every argument all the wayto its logical conclusion at that point. I certainly need not drownthe reader in rhetoric. It is essential in the Statement of Factsto describe the record accurately. An answering brief that can showthat I have distorted the record, or quoted material out ofcontext, or otherwise arguably misled the court, can bedevastating. The resulting loss of credibility will — I may be sureof this — undermine the reception that every other part of my briefreceives. Although the tone must at all times remain neutral anddispassionate, artful selection, emphasis, and organization offacts can go far to shape a I will reader’s perception of the case.The trick for the appellant is to make the reader feel that thestatement presents a fair description of what happened — an accountof the material facts leavened with a recognition of thepresumption of correctness that fortifies the factfinder’sresolution of factual disputes — yet, at the same time, have thereader come away with the feeling that the outcome of the trialcourt proceedings was none too sensible or fair. Conversely, if Iam the appellee, I will try to suggest that the appellant hasdistorted the facts, which, when correctly described, make thetrial court outcome seem fair, reasonable, and almost inevitable.

The brief needs to treat the Court as a potential ally to be won overby effective persuasion. Briefs should never take a tone thatimplies that the Court is one's opposition.

Even when the rules do not require a summary, it usually is a goodidea to write one except in the simplest cases. And itis always essential to good appellate advocacy that somewhere in thebrief — if not in a summary, then near the beginning of theargument itself or even somewhere in the statement — counselprovide an overview of the position they will be arguing. Withoutthis, it often becomes impossible (or possible only after an amountof effort that exceeds what the judges are able to spend) tounderstand a litigant’s exact position. If judges do not understanda litigant’s position, they may well substitute a position that iseasy to understand — but is not what the party meant and is easy torebut. "[a] mere repetition of the headings under which the argument is arranged is not[a] sufficient" summary of argument.

Of course, even the most engaging story can persuade only if it isbelieved. Just as important as telling a compelling story isconvincing the court that my brief fairly portrays the facts andlaw. The court is much more likely to adopt my reasoning, if itconcludes that I have been an honest advocate for my position.Nothing undermines the effectiveness of a brief more than

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statements that fall apart upon examination. So, no matter howtempting it may be to use “poetic license” when I am drafting mybrief, do not do it. Do not obfuscate or gloss over the difficultquestions, but instead squarely address the matters that are mostlikely to trouble the court. Every single statement in my briefshould be accurate and supportable. Never overstate, exaggerate, orfudge, but strive instead to be punctiliously clear and precise. Tothis end, quoting from a case, exhibit, or testimony is usually farmore effective than paraphrasing it. Let the court’s or witnesses’words speak for themselves. Providing an actual quotation from theauthority on which I rely provides built-in comfort that the judgesare getting an accurate presentation.

If something is true, simply assert it and provide the authority formy proposition, preferably quoting the relevant support for mystatement. I will let the authorities speak for themselves ratherthan try to provoke the appellate court into weighing just how“clear” the asserted proposition is.

Then make additional arguments to demonstrate client is notliable/guilty. Continue to cite relevant cases, statutes andconstitutional provisions that further bolster their overallargument.

Structurally, each part of the argument is first directed atsupporting the various issues of one's own case, then also opposingthe contentions anticipated to be brought up by the opposing party.

In my arguments, I will first state a fact, then state the rule oflaw, and finally connect.

Further, to persuade, I will not criticise subjectively. I will learnobjective criticism. Turning to a point of general application, Ishould be especially careful how I refer to the court or agencybelow. If I am the appellant or the petitioner, I am, of course,asking the appellate court to reverse that court or agency. Theappellate court knows that. It knows I disagree with the outcomethus far. It will reverse in an appropriate case. But its initialinclination, almost always, will be sympathetic to the fellow judgewho had to sit through the trial or to the agency that had to siftthrough the entire record now being selectively quoted on appeal.Criticism of the lower tribunal therefore should be statedcarefully and objectively (for example, "the trial court did notaddress the ‘waiver’ issue" or "the agency’s entire response tothis argument was as follows").

In addition, to argue persuasively, I will learn to argue the alternative.It is very important that Attorneys have a thorough understanding

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of both sides in order to effectively present and defend theircase.

Finally, I will learn the counter-argument. It will not help my caseto ignore any valid arguments that can be made by the other side.Address these arguments and explain to the court why my case isdifferent. Distinguish any relevant cases that do not support myargument on their facts.

learn clarity / learn to simplifyThe first step in persuading the court that the brief writer’s

position is correct is making the facts and law understandable tothe judge. A good brief writer sees herself as a translator,explaining complex factual and legal concepts in a way that areaderwith limited time and no prior knowledge of the case will easilycomprehend. Although that goal frequently entails simplifying— andalways involves omitting irrelevant details—the good brief writeris careful not to sacrifice precision or to gloss over importantnuances.

I will avoid using long, abstract words or legalisms like“hereinafter” and “aforementioned.” No one uses those words in reallife, and I should not weigh down my brief with them. Keep in mindthat: Good brief writing is good writing. While a brief must deal with legaldoctrines and principles, try to avoid making the brief I will readlike something an eighteenth-century English conveyance would havewritten and instead, recognizing the limitations on this goal, tryto aim to have the judges enjoy I will reading my submission.

Most judges, whether at the trial or appellate level, are generalists.They are called upon to decide a very broad range of legal issuesand, as a consequence, seldom have the luxury of becoming an experton any. By contrast, many lawyers have limited their practices toone or a few areas and can legitimately claim deep expertise inthose areas. That expertise can be a doubleedged sword. Althoughthe value of an encyclopedic knowledge of a complex area of law(such as tax, patents, government contracts, or antitrust) isobvious, lawyers with such knowledge are sometimes susceptible toomitting necessary background material, bogging down in theminutiae, and/or slipping into jargon that is incomprehensible tosomeone who has less familiarity with the field.

If the judge has to work too hard to understand what I am talkingabout, there is a very good chance that the force of my argumentswill be lost on him.

In his sardonic speech on how to lose an appeal, Judge Alex Kozinski ofthe Court of Appeals for the Ninth Circuit put it this way:

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[W]inning arguments should not just be buried, they should also be written so as to be totallyunintelligible. Use convoluted sentences; leave out the verb, the subject, or both. I will avoidperiods like the plague. I will be generous with legal jargon and use plenty of Latin. Anddon’t forget the acronyms or the bureaucratese.62

One frequent method of confounding an appellate judge is the techniqueof packing a sentence with arcane acronyms in a misguided effort tosave space. Talking in code may be fun as a child’s game, but itdoes not satisfy the goal of communicating with the decision-makeron an appeal. The technique often characterizes the briefs ofspecialist lawyers who have immersed themselves in the facts of aparticular case and in a specific area of law. They know what theyare talking about, even if the judge is not in on the secret.

Here is a too-good-to-be-true example of what not to do provided byJudge Kozinski:

LBE’s complaint more specifically alleges that NRB failed to make an appropriatedetermination of RPT and TIP conformity to SIP.63

An effective brief will describe the law in a way that will be crystalclear to areader who is sophisticated but lacks specific knowledgeof the particular legal question that is being discussed. Effectivebrief writers take the same approach to the facts, boiling downcomplex matters to their essential core and explaining the relevantfacts with precision and economy.

To be compelling, a brief must also be understandable and concise. TheCourt will I will read many briefs throughout the session, so it isimportant to write in a clear and interesting manner.

How long should the statement be? Recall what Lincoln said about howlong a horse’s legs should be: long enough to reach the ground. Astatement should be long enough to tell the judges or Justices whatthey need to know, and no longer. Sometimes that will mean fourpages of a 50-page brief, and sometimes 20 or 25. In a caseinvolving a plain legal issue, a short factual account may suffice,followed by a more elaborate legal analysis. In a fact-intensivecase, on the other hand — a challenge to an administrative agencyratemaking decision, for example — the statement may need to bemuch more elaborate. It may have to set forth in some detail therelevant statutory scheme and the structure of the particularregulated industry, followed by an account of the course of agencyproceedings. In such a situation, it may then be possible, building

62 Honorable Alex Kozinski, How Me too Can * * * Lose Your Appeal, MONTANA LAW., Oct. 23, 1997, at 5, 22.

63 Id. (italics supplied by Judge Kozinski).

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on the factual foundation that the statement has laid, to have acomparatively short legal discussion. In general, areader isunlikely to grow too impatient with a statement that usefully setsforth relevant facts, even at some length. However, if thestatement seems to be loaded with irrelevant detail — eitherbecause it actually is full of irrelevancies or because it is sopoorly organized that the reader cannot grasp the relevance of whatis being said — then it is likely to receive an unsympathetic Iwill reading.

The Statement of Facts is the place to introduce the parties and toexplain any shorthand I will use to refer to them, plus theacronyms that I intend to use in the brief. Such shorthandreferences can help keep the writing lively, which is an importantgoal. Rules specifically advises counsel to "keep to a minimumreferences to parties by such designations as ‘appellant’ and‘appellee’." That advice is but one example of a larger point.

I will remember that part of being clear is being brief.Legal briefs should be brief.It should go without saying that busy judges prefer a short non

repetitive brief to a ponderous one that either repeats the samepoint or, even worse, makes different arguments in support of thesame point in different places within the brief. As Justice Scaliaput it,

“I want it there in front of me, I want it clear, and I want it fast. And if possible, I want itelegant...”

Brief means brief. I will write as concisely as possible. Judges arenot impressed by length. In addition, key arguments will be lost inmyriad words. Only in exceptional circumstances should a briefexceed 20–25 pages.

learn rhetoric/styleThe brief can also use rhetoric in the form of proverbs, metaphors, or

riddles. For instance, to illustrate a contradictory practice inrelation to a legislation and how it affects application to twosections of the community, trade, or services, I can write:

There is an old riddle: Which weighs more, a ton of feathers or a ton of bricks? While many findthe question deceptive at first, the correct answer, that a ton is a ton regardless of what isbeing weighed, becomes irrefutably clear once explained. But in enacting and nowdefending the NR Exemption, the State has managed to get the answer wrong — a ton ofsoybeans or chicken feed is treated as though it weighs less than a ton of baked beans ordog food.

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The reader is sure to understand the point and may even have gotten asmile out of the arduous task of I will reading a brief.

Content is not everything, of course. Writing also matters in anappellate brief and in the argument section especially. The pointis not that judges consciously grade style or decide appeals basedon which brief they think is better written. Rather, it is thatjudges must understand and remember my position before they canagree with it — and a stylish brief usually is more understandableand memorable. Appellate judges are busy people. Judges must I willread thousands of pages of briefs a month. There is not alwayssufficient time for a judge to untangle convoluted sentences ordense prose. In addition, typographical and grammatical errors candistract from more important matters. And, if it is possible towrite the brief in a lively fashion — without making the writingstyle itself a distraction — the reader is likelier to comprehendand remember it. Here again, heated rhetoric and overstatement areharmful. Perhaps the most common flaw in appellate briefs iswriting in emphatic, unequivocal, and conclusory terms. Suchbriefs, overconfident, even cocky, in tone and uninformative incontent, are likely to obscure what the judges must really decideand what analytical steps are needed to reach a sound decision —especially if the weakness in the argument has been glossed over inan effort to make the position seem stronger than it is. This isnot only unhelpful to the court, but injurious to the advocate’sown cause. It is far better to confront the issues coolly,honestly, and logically, guiding the reader lucidly down a paththat leads to victory. Tone matters too. In a recent, highlypublicized criminal case, appellate counsel did a masterful job ofidentifying the issues and mustering legal and factual support forhis client’s position. He did so, however, in a self-righteoustone, overstating accusations of prosecutorial misconduct,belittling the trial judge, and portraying his client as the victimof a person who, the jury had found, was herself the victim of theclient’s serious criminal conduct. If I must put a rhetoricalflourish somewhere in my briefs — and sometimes that may be useful— the beginning or end of the reply brief is the place to put it.Rhetoric turns appellate judges off when they see it as asubstitute for analysis. By the time they I will read my replybrief, however, the judges should know that I am prepared toanalyze — and have analyzed — the issues fully. Having, in a way,paid my dues, I have more leeway for a catchy phrase or metaphor atthe beginning of the reply brief. This may help dramatize thecentral defect in the adversary’s brief, which the judge will havejust I will read; such a phrase at the end of the reply brief may

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be the last word the judges I will read before they put down theirpapers.

A well-chosen figure of speech can be priceless, as long as I amexplaining a complex legal point and not taking a pot shot at theother side: bang effect. As with any good novel or essay, the lastsentence in my argument section should crystallize my message andoffer the judges a parting thought.

Think like a judgeWhen writing a factum try and think like a judge. Change places with

your judge, and keep three things in mind: in a judge's day many matters are competing for his or her

attention; an initial first impression is critical in the ultimate hard sell

to the Court; an appeal court will not afford the same luxury of time that you

enjoyed at trial.Write to persuade the judge At a basic level (and this can be played out directly or indirectly in

a careful way) the story has to make sense to the judges in termsof their personal perceptions and attitudes about life. It has tobe consistent with what they think is right and what they think iswrong. Understand that strategically you have to make the judgepart of your thinking processes – part of your team. The "deal" youpropose to him/her must work for both parties, you and the judge.Legal writing differs from other sorts of writing in that it issingularly directed toward persuading the reader (a judge, tribunalmember, arbitrator or other decision-maker) to accept a certainposition. Everything that counsel submits should put into thereader's mind the information and motivation necessary for afavourable decision. You're not writing to entertain, show howsmart you are, how many authorities you can cite for oneproposition, or even writing to inform. You're writing to persuade.Real persuasion takes place when the reader thinks the conclusionis his or her own idea. Your job as a writer is to help them findthe right ideas in themselves that will lead them to decide thecase your way.

let your audience feel for your clientWhen was the last time your audience viewed the world through the eyes

of a client? Success at trial occurs when your audience think,feel, and react from a client's perspective. Form your arguments byusing language and questions in such a way that guides your

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audience to think like children. For instance, consider posingquestions like, "do you know someone who must sit in a wheelchairon the front porch and watch the neighbors play their games?"

Point FirstAlways start with the point you are trying to make - not the details

of your argument. Readers and listeners remember and absorbinformation better when they first know why it matters and how itis relevant.

The Right Spin Although the appellate standard of review limits judicial intervention

on findings of fact, the facts still matter a lot. For instance, infamily law situations, broad legal standards such as "reasonableneeds" and "inequitable" and "economic hardship" gives the judges alot of leeway to apply the facts to achieve a fair result.

Know Role of Court of AppealThe most effective technique for respondents is to show that the trial

decision rests on findings of fact, and that these findings arereasonably supported by the evidence. To get the court tointervene, you must identify a major error that affects the justiceof the case. In other words, satisfy the "who cares?" principle.

Anticipate the Court's Concerns The most effective advocates are the ones who can notionally trade

places with the judge, anticipate what is likely to concern thecourt and then provide a persuasive answer

Reader-friendly writingLegibility (easy reading) is fundamental to readability (easy

understanding). Good legibility is determined by font choice andthe relationships between type size, line length and spacing(between letters, words, lines and paragraphs). An effectivedocument is one that conveys your message well and quickly. Anumber of simple, but important, rules of thumb include:

don't rely entirely on standard prosey block paragraphs. Look foralternative methods of formatting (e.g., bullets) that make itvisually easier for the reader;

use sensible paragraphing and numbering. Don't go further than athird level of breakdown (e.g., 1(a)(i)). If you feel the need togo beyond that then chances are you've overused headings (youaren't drafting legislation after all). Avoid roman numerals – theylook too much like a foreign language;

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if the items listed have no rank ordering, then bullets arepreferable to numbered lists;

never use a font smaller than 10 or larger than 12 for the mainbody of the text;

avoid lines that are entirely capitalized – their uniform sizemakes them difficult to read;

avoid underlining – it's a throwback to the days of typewriters.Use italics or boldface to add emphasis;

there is evidence that justified right margins make text harder toread, so it may be best to use ragged right margins for factums;

align headings to the left in a larger, bolded font. Use a smallerbolded font for sub-headings;

readers like "white space", and makes the rest more easilyabsorbed.

Most lawyers write sentences that are too long. Usually small wordswork better than big ones.

Words are key to persuading. Too many words and the reader tunesout. Too few and they think you're hiding.

Avoid long paragraphs: one-breath ruleA good rule of thumb is that a paragraph should not be so long that it

cannot be read aloud in one breath (generally 2-3 sentences). Ifyou have more to say, then break the ideas into separateparagraphs.

Avoid qualifiers and phrasesThey're a waste of space and add nothing to the quality. Classic

examples include:Get rid too of verbose/fancy dancy intros/fillers:Instead of

At that point intime

By means of

By reason of

By virtue of

For the purpose of

Use

Then

By

Because

By

To

Because

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For the reason that

From the point ofview

In accordance with

In connection with

In favour of

In order to

In relation to

In terms of

In the event that

In the nature of

On the basis of

Prior to

Subsequent to

With a view to

With reference to

With regard to

With respect to

The fact that shehad died

He was aware of thefact that

Despite the factthat

Because of the factthat

In some instances

For

By

About

For

To

About

In

If

Like

By

Before

After

To

About

About

About

Her death

He knew that

Although

Because

Sometimes

Often

When

Usually

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In many cases

In the case of

In the majority ofcases

It is not the casethat he

During the time that

For the period of

There is no doubtbut that

Whether or not

The question as towhether

Until such time as

Attend at

He did not

While

For

No doubt

Whether

Whether

Until

Go to

Not using the word "Not"Avoid using the word "not" whenever you can. For some reason, lawyers

invoke phrases like: "the witness did not remember" or "the car didnot hit the tree". It's simpler and more elegant to say: "thewitness forgot", "the car missed".

Nothing is absoluteAbsolute expressions (all, always, every, invariably, never, none, totally, undoubtedly)

are rarely accurate and should be used lightly. Absolutes tend totrigger a reader's perversity; once told that, "the campaign was atotal failure," many readers begin to hunt for signs of partialsuccess.

Write with colourAction verbs and deliberately colourful phrases make a difference. For

example, a look might be a glance or a glare or a sidelong stare.Likewise people don't just say things, they shout , mumble , orstammer.

call people by their names, not titles, or statuses in courtAvoid lazy/easy short forms like appellant/respondent. The reader will

never get into the story if the main players are faceless. Don't

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make it a struggle for the reader to figure out who is who. Maybeuse the word that describes who they are/what they do – doesn'thave to be complicated:

Landlord, Tenant use the parties' real names whenever possible if the names are long, shorten them but don't take them out personalizing a case may be important for the appellant or the

respondent – for example, the respondent in a family law case mightuse the parties' first names to limit the story to the four wallsof their house and thereby show that the issue is not of 'nationalimportance' per the S.C.C. leave to appeal standard.

What you call them (or don't call them) is a strategic decision.Write visuallyPictures, charts and diagrams can really help to communicate.

Particularly for legislation or complex corporate relationships,consider a foldout chart.

Options include: diagram, in phases, of how matter in litigation occurred sequencing, in diagram/written "box" form of what happened chart of key relationships/key factual findings you want the judge

to rule on/make.Beware of clichésExpressions worn thin by countless repetition are not persuasive and

should be avoided. Everyone's familiar with the expressions below –familiarity is precisely the problem.

Add insult to injury Bitter end Blind as a bat Turn for the worst Pitch blackUse LogicLogic is important to your outcome: 1 therefore 2, X therefore Y,

negligence therefore damages. People think this way. Five optionsto build logic include:

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1. Analogies – analogies anchor the reader to a particularidea/concept, or maybe then move them sideways to where you wantthem to move to.

2. Headings – headings that make a positive statement and develop alogical flow.

3. Conclusion – have a conclusion that picks up from your opening.Creates a circle.

4. The one-two punch – ie: 2 follows 1. eg: George Bush post September11: "Great sorrow has come to our country. And from that sorrow hascome great resolve".

5. (Rolling) Triads – ie: 2 follows 1 and 3 follows 2 ( ideally withsequential bridging, repetition of a key word to bridge from 1 to2, repetition of a different key word in 2 to bridge from 2 to 3).eg: George (or Michael): " Whether we bring our enemies to justiceor bring justice to our enemies, justice will be done".

The importance of the analogyAs a practical reality, most people reason from analogy based on their

experience. People decide what feels right. Many non-lawyers (andjudges) cannot easily accept a new proposition unless it's alogical extension of an already-held view. A simple analogy can goa long way toward convincing your listener, either to confirm whatthey already accept, or move one step sideways from an acceptedposition.

For example: Jehovah's Witness religious rights case:

"A blood transfusion these days is like skating on thin ice" A firm of actuaries faced with a Discipline Committee, one of whose

members is from a competing firm:"The legal equivalent of a cow wandering into an abattoir"

Products liability: "Letting the industry self-regulate according to a voluntary set ofstandards and guidelines is like letting Colonel Sanders babysitthe chickens""A smoke detector that's rendered ineffective by an ordinary short-circuit is like a life preserver that keeps you afloat until itgets wet""Before the factory worker could loosen her grip, her hand wasyanked into the machinery like a rag doll through an old wringerwasher"

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After a rotary power lawnmower had hurled a rock into the eye of a13-year-old, the analogy used was:"Toro had sent a four-wheel cannon into a residential neighborhood"

Where the disability of a person or machine is alleged to besmall: "Like a clock that only loses 5 minutes per hour""Like a chemical plant near your home with only a small leak""A scar is only small on someone else's face"

acknowledge the counter argument, authority Every case has two sides. If you close your eyes to the other side's

case your client will suffer. Your credibility will be affected ifyou ignore, or worse deny, indisputable problems. A good strategyis to be the first to reveal the damaging information. Do notdescribe it as a "problem", call it a "challenge". Tell the judgebefore your adversary stands up and does it for you. Sounds simple,but be fair – it builds reputation. Confront applicable adverseauthority expressly and early – not merely because you're anofficer of the court, but because it's more strategic to do so. Theother side will probably cite it anyway, and even if they don't,the clerks will find it, or the judge may know it. Not allprecedents are created equal. Even if you are faced with adverseauthority, consider whether your case is one where you should askthe court to make new law.

Be credibleTreat every brief and factum as a chance to build your and your firm's

credibility with the court. Not every lawyer is brilliant, butevery lawyer can be credible. A lawyer who acknowledges in astrategic way the obvious challenges of their case up front andwith candor is going to be more credible throughout the proceeding.Likewise, nothing will alienate the court more than the appearancethat you're distorting the plain meaning of a case or deliberatelyoverlooking an important case or finding of fact.

use active voiceGenerally the passive voice should be avoided in favour of

the active voice: for example, the case was decided by the court– passive; the court decided the case – active; the statute will beenacted by Parliament – passive; Parliament will enact the statute– active.

Caring is contagiousIf you're passionate about what you write, about what you say, other

people will be too.

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Factum, central documentThe importance of the factum: central document, more important at

appeal than oral argument. Practically speaking, the factum isquickly becoming more important than oral submissions. Given theirheavy workload and the limited time allotted for oral arguments,there is a natural tendency among judges to come to a preliminaryjudgment upon the basis of written submissions. Therefore, thefactum is a critical first opportunity to make a favourableimpression on the court. Many cases can be won and lost on thebasis of the factums alone.

A. Before Oral Submissions the factum should make a strong first impression that the court

will carry throughout the rest of the appeal process; the factum should introduce the issue and the law to the members of

the court, who may or may not be familiar with the precise legalproblem you are addressing;

the factum is the Court's principal source of information about thecase and the law.

B. During Oral Submissions your factum should act as a blueprint and reference that the Court

can follow during your oral argument; the factum should be carefully structured to coincide with your

oral argument such that it minimizes the need for note taking bythe judges who are then free to follow the logical flow of yourargument.

C. After Oral Submissions if you have done everything properly, the factum will act as a

memory aid for judges writing reserved judgments; ask yourself whether the court is likely to reserve judgment in

your case.first page rule Most plane crashes happen during take-off. Likewise do most writings.

The first page should say it all. Every factum should contain anoverview statement (no longer than one paragraph) that tells thereader what the case is about, who did what to whom, what theissues are, and outlines our position on those issues.

Cultivate CredibilityIn your introduction and fact section, your goal is to build

credibility and motivate the judge to rule your way. Credibility

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comes from the details. Be respectful, be detailed and bereasonable in the relief you request. Weak arguments will hurt yourcredibility. By showing a judge that you are willing to lead herinto error, you reduce the trust that you want the judge to have inyour other arguments. As my mother told me (and your mother toldyou): "if it's worth doing, it's worth doing well".

Give the judge the questionOnly one thing matters to the judge: "what's the question I'm supposed

to answer?" Until the judge figures that out, he or she is notgoing to pay much attention to your argument. The key toinfluencing judges and winning cases is to focus your attention onthe key issues as soon as you get in the door. In order toeffectively do this, identify the issues early and let everythingdevelop out of that.

Limit the issues – Abide by the Rule of ThreeIn any appeal, the significant issues cannot number more than three.

If you've identified more than three critical issues, then you'rewrong (strategically). Few trial judges make more than threereversible errors in a single judgment (but if they do, and dooften, you can start your appeal with "This is an appeal from thejudgment of Mr. JusticeÂ·, but we have other grounds of appeal aswell"). Secondary issues aren't worth pursuing. If you can't getthe court to bite at your main point, then he or she isn't going toswallow your second or third string arguments.

Conclusion A good closing will encapsulate two or three compelling reasons for

the court to adopt your position. In brief, make your conclusionsclear and make your reasons explicit. What you are really trying todo is draft the judge's decision. Writing the conclusion is simpleif the opening was well-drafted. A good advocate will close byanswering the questions posed in the issues section. However, itisn't enough to simply give the answers, a good conclusion willalso outline the reasoning that leads inevitably to the answerprovided. Pick up the theme of your opening. Restate it, refine it,re-develop it. It can build a logical solidity, can close thecircle.

CostsOne final thing: ask for costs . A surprising number of counsel

forget to ask for them.

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learn grammarIt is impossible to become a first-rate brief writer without mastering

basic writing skills. There is no such thing as good legal writing,just good writing.” A brief must convey a tone of polishedprofessional skill in the art of written communication. After all,judges make their living as legal writers. They expect that thelawyers who appear before them will show due regard for the craftof good writing when they submit one of the hundreds or thousandsof briefs the judges must I will read each year.

This means that, however graceful or “challenged” my own personalwriting style, at a minimum I must either know the rules ofgrammar, punctuation, and usage or have a finely honed intuitiveunderstanding of them.

I simply cannot afford to have a court distracted or confused bygrammatical errors, which at best suggest sloppy thinking and atworst can change the meaning of my sentences. As Chief JusticeRoberts explains, “it’s like music.

If I am listening to music and somebody hits the wrong note, it kind of detracts from it and Ihear it. I notice it, and if I notice it, I am not noticing the argument, I am noticing the wordsand that’s unfortunate.

Indeed, distracting the reader could be the least of my problems. AsJustice Stevens warns, “it’s perhaps unfair, but if someone usesimproper grammar I begin to think well maybe the person isn’t ascareful about his or her work as he or she should be.”

The importance of taking the time to improve my overall writing skillscannot be overstated.

Further, to make my writing more grammatical, I will use transitions.Each paragraph should have relevance to the prior thought. Includesignal words such as “First,” “Therefore,” “In addition,”“Similarly,” “However.”

Paragraphs of more than half a page are seldom justified. They seemvisually daunting to the reader. They also suggest that too manythoughts have merged into that single paragraph. By contrast, theoccasional very short paragraph can pack a punch.

To keep the reader interested and awake, vary my sentence length andstructure: A short sentence can break up the monotony of severallong ones. Interspersing the occasional participial phrase can makethe writing more interesting than using the standard “noun-verb”form in sentence after sentence.

I will use the active voice unless there is a specific reason to usethe passive voice. After I have drafted my argument, go through and

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recast passive voice sentences in the active voice unless I canidentify the reason that justifies using the passive. Short,direct, declarative sentences tend to be more persuasive, and theymake life easier for the reader, who will be more inclined to paycloser attention when I need to use a passive or complex sentenceto make an important point. Judges appreciate it—and pay moreattention—when my brief is “interesting.” Judges I will readhundreds and hundreds of these briefs.

I will learn to vary my word choice within paragraphs. For example,rather than saying repeatedly that the plaintiffs “argue” certainpoints, I can say that they “contend,” “assert,” “suggest,” or“insist.” Do not use long phrases when short ones will do. Whenediting my own work, experiment with trying to reduce the number ofwords I use to convey my points. The need to satisfy word or pagelimits often will force I to strive for economy in my language. Buteven if I have plenty of space, shorter is almost always better, ifI can be concise without sacrificing meaning or nuance.

Further, I will write affirmatively. I will not write defensivelysimply because my goal is to defend the decision below. Forexample:

Defensive sentence: “The record does not demonstrate the errors of lawalleged by the appellant.”

Affirmative sentence: “The record supports the Court’s conclusion.”Stylistically, the argument is written in forceful, active, positive

language. (A team wants the court to rule FOR their client, notsimply against the opposing counsel.) The argument also forms thecore of one's oral presentation and will be used by the Justices tomake their decision.

learn conclusionsThis is where I summarize my argument and specifically states the

result desired. The conclusion can be as short as one sentence, andshould not exceed a single short paragraph. I will determine whatconclusions of fact and law the court must reach to rule in myclient’s favor. These determinations will provide an outline of thestructure of the brief. I will tell the court what relief I amseeking and ask for that relief.

learn to footnoteAlthough some judges and lawyers have become quite hostile to

footnotes, footnotes are a useful home for points that otherwisewould detract from the flow of the argument. But too many

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footnotes, or if they are too small or tightly packed together, thejudge may skip over them.

learn to use headings and sub-headingsThe writing of the argument, as shown in the sample brief, uses

headings and subheadings to begin each section of the narrative andhelp clearly organize the argument. The same structure of headingsand subheadings should be summarized in the table of contents. Theidea is to do everything in terms of both form and substance tohelp the Court understand the reasonableness and logic of theargument, and thus decide in one's favor.

learn the sections/ table of contentsThe Table of Contents should reference the first page number of all

sections of the brief including all point and subpoint headings.Use dot leaders (.....) to connect the section to the page number.

A brief is made up of:

ٮ Table of Contents

ٮ Table of Authorities

ٮ Jurisdictional Statement

ٮ Statement of the Issues

ٮ Statement of the Case

ٮ Statement of the Facts

ٮ Summary of the Argument

ٮ Argument

ٮ Conclusion

learn to titleThe Title Page must contain the name of the court and its location, a

case number, the names and addresses of the parties involved in thecase, identify the court from where the case originated, the personpresenting the brief (the Appellant or Respondent) and a requestfor an oral argument.

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learn preliminary statementThis should identify the party submitting the brief and inform the

court of the relief requested. Generally, a preliminary statementshould be kept short and provide the court with enough informationto understand the issues to be addressed in the brief.

learn to list contentsThe table of contents is a separate, single page that lists each

element of the brief (excluding itself and the title page) and thepage on which each element begins. Because the Argument is the mostcomplex part of the brief, the headings and subheadings used withinthe argument section should also be listed in the contents with thecorresponding page number.

learn to list authorities/ table of authoritiesThe table of authorities is a list, no more than one page long, of all

materials used to support the argument. It includes every page inthe brief where the particular excerpt is found. It is similar tothe bibliography of a term paper, except that the citation formatis different, and cases are usually grouped by type: state statute,case law, Constitutional provisions and other materials.

The Table of Authorities should reference the page of every citation(both long form and short form) used anywhere in the substantiveportions of the brief.

For authorities that are cited in extenso (extensively), I will use theabbreviation passim rather than list the page number.

Each category of sources should be listed separately (e.g., list all casesunder one heading and all statutes under another heading).

learn jurisdictional statementThe Jurisdictional Statement should provide the statute or other

authority and any essential facts that grants the court thejurisdiction to hear the case.

Petitioner seeks review of the order of the Board of Immigration Appeals dismissing herappeal. This Court has jurisdiction to hear an appeal of a decision of the Board ofImmigration Appeals pursuant to 8 U.S.C. § 1252 (2002).

learn statement of the caseThe Statement of the Case should summarize the procedural details and any

relating facts. Summarize only those procedural details that arerelevant and material to the appeal.

On April 9, 2002, Petitioner, being accused of Conspiracy to Commit Bid-Rigging, 15 U.S.C. § 1,waived prosecution by indictment. On April 30, 2002, Petitioner pled guilty to 15 U.S.C. § 1.

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On October 18, 2002, District Judge Andrew Hand of the United States District Court for theDistrict of Connecticut sentenced Petitioner to a term of imprisonment not less than 12months but no more than 26 months. It is from that final order and judgment thatPetitioner appeals to this Court.

The term "brief" does not include motions, applications, appendices,exhibits, or other documents. The term "brief" means only:

ٮ An appellant's opening brief

ٮ A respondent's brief

ٮ An appellant's reply brief

ٮ A petition for rehearing

ٮ An answer thereto, or

ٮ An amicus curiae brief.

When an appellate brief in a civil appeal is submitted to a Court ofAppeal, an electronic copy or four paper copies of the brief mustalso be served on the Supreme Court by one of the means indicatedbelow.

learn the case/recordThe best way to learn about the case is to study and master the

record. But if I get the brief-writing assignment before the recordis available, there are some things I can do right away to getstarted. Get copies of everything filed in the trial court by anyparty or by the court: all pleadings, motions, legal memoranda orbriefs, jury charges, jury verdict forms, orders, judgments,written reasons for judgment, and (if available) transcripts. Iwill read these materials; they should give I a sense of the caseand some general ideas about possible issues for appeal. If I didnot participate in the trial, talk to trial counsel. Find out whathe or she thinks about errors the trial court may have committedand the impact those errors may have had on the final judgment. AsI do these things, start thinking about issues to raise on appeal.Make a list of possible issues, and include in the list everythingthat looks like it has any chance of success. Eventually, I willneed to narrow the list down to no more than three or four issues—the fewer, the better. But at this preliminary stage, err on theside of inclusion.

The record includes the original papers and exhibits filed in thetrial court, the transcript of proceedings (if any), and a

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certified copy of the docket entries prepared by the clerk of thetrial court. The record is the universe in which I live and work asan appellate advocate. The appellate court’s job is to review therecord for errors. If something is not in the record, it cannot bereviewed on appeal. Judge Alex Kozinskme, says that for appellatelawyers, knowing the record is often more important than knowingthe law:

Arguing about the law in the abstract is interesting and fun, but what wins cases is the lawyer’sability to marshal the facts littered over an extensive trial court record in a way that’sconsistent with favorable controlling authority . . . In real-life appellate advocacy, therecord plays a key role, and a lawyer’s mastery of the record—or lack thereof —oftenmakes the difference between winning and losing. 64

How do I master the record? There is only one way: a tremendous amount oftedious work. I must get my hands on the trial court record, or a copyof it, as soon as it becomes available. Some appellate courts willlet I borrow the record; others have arrangements with copyingservices to copy the record for the lawyers. Find out what mycourt’s procedure is for getting access to the record, and dowhatever it takes to get a copy for myself. I will “clone” or“replicate” the record: that is, to copy every page and bind eachvolume of the copies the same way that the original record isbound. I then have a copy of the record that looks and feelsexactly like the record that the appellate judges and their lawclerks will work with. With many courts now moving towardelectronic filing, I may find that the record is in electronicform. Whatever form the record is in, get a copy, preferably in thesame form that the court’s judges and law clerks will use.

I will not depend on my memory of what happened at trial. Human memoryis flawed. And often, several weeks to several months pass betweenthe end of trial and the start of brief writing. Moreover, theappellate court will decided the case on the record, not on mymemory or my adversary’s memory of what happened at trial. As Istudy the record, summarize it the way I would summarize adeposition. This means extracting the pertinent sections of therecord and writing (or dictating) them into another document. Theidea is to end up with a condensed version of the record thatincludes only the information I may need to write the brief.Summarizing the record is tedious and time-consuming, but it paystwo important dividends. First, the summary will help I workefficiently and thus save time over the long haul. Second, by goingthrough the exercise of summarizing the record, I will learn therecord cold. Efficiency comes from being able to work with the

64 Kozinski, “In Praise of Moot Court—Not!,” 97 Columbia L.Rev. 178, 189 (1997).

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summary, rather than the bulkier and more voluminous record,throughout the remainder of the briefing process. To fulfill thispurpose, the summary must include all pertinent information,together with citations to the pages in the record where theoriginal information can be found. The result is that I learn thematerial better because I bring more of my mental resources to bearon the task. To gain these learning benefits, I must summarize therecord myself. If I delegate this task, then I will “lose[ ] theopportunity to gain the familiarity with the evidence that is necessary for good appellateadvocacy.”65 There are many good ways to organize a record summary.Here is what works for me—try it, and modify to suit my needs andpreferences. To summarize a record on computer, some lawyers I knowuse Summation or other specialized litigation software. Personally,I prefer plain old word processors: WordPerfect or MS Word. I findWord and WordPerfect documents easy to organize and, at crunchtime, easy to search. I format each paragraph with “hangingindent,” beginning each paragraph with the record-page numberfollowed by a tab. The effect is to have the page numbers lined upvertically in the left margin, making them easy to spot. Whensummarizing a voluminous record, I like to create a separatecomputer document for each witness’s testimony, using the witness’sname as the file name. I keep all these documents in one subfolder,usually labeled “Witness testimony” or something similar, so that atcrunch time, I can run a search on all documents in that subfolderto locate whatever crucial information I need immediately. Eachdocument is eventually printed and placed in a three-ring binder. Iput the witness’s name and record volume in the document header, sothat each page of the summary tells me who supplied the particulartestimony and which record volume it’s in.

theory of the case (legal briefs)It is the implicit message in your brief that wil tie

together the factual, legal, and policy issues in your brief. Ashort answer to the question(s) presented. It also normalyincludes a briefexplanation of the legal basis for that answer.

For example, in a case where a prison warden has imposed severalrestrictions on the prisoners, a unifying theory would be thatthe restrictions, as a set, constitute a necessaryand appropriate security plan for the prison. Each restriction isthen valid as an integral part of a prison security plan,rather than a separate, unrelated restriction66.

65 Michael R. Fontham, Written and Oral Advocacy, §3.7 (1985).

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Alternately, you might be defending a client who maintains he wasfalsely arrested. Your implicit theory of the case might be“you got the wrong guy.” Using this theory, each argument in thebrief, from “the arrest warrant was invalid,” to “the police did not take appropriate measures to ascertain your client’sidentification” would al be written so as to emphasize that the wrong man was arrested.

Or suppose your client is being prosecuted for stealing from a store.But your client is very poor and was only stealing food to feed hisfamily. Your theory of the case might be that your client had nochoice. Using this theory, your facts section might be crafted to emphasize your client’s difficult financial situation, the young ages of his children, the fact that he had conducted a thoroughjob search, or was unable to obtain public assistance in time.Additionaly, you might use as precedent in your analysis sectioncases in which courts were lenient on people convicted ofstealing in order to support their family. Alternately, youropponent’s theory of the case might be that theft lawsshould be strictly construed and enforced.

You wil find that developing a strong theory of the case isparticularly necessary when you are dealing with new orunsettled areas of the law. When a court has not alreadydefinitively decided an issue, it may be more open toa new perspective on the issue. In such a situation, a wel -developed case theory can be of great benefit to your client.

Now that you’ve developed your theory of the case, you canbegin examining persuasive writing techniques; your theory ofthe case wil determine which persuasive writing techniques are mostuseful to you. To start, here are six areas you can focus on:67

Statement of the Facts(legal briefs)An objective and completedescription of the legaly significant facts

relevant to the discussion section.Discussion (legal briefs)This is the heart of the memo. This section is where you present the

legal answer, using basicconcepts of legal writing, includinglogical large and smalscale organization and case analysis.

66 Jil J. Ramsfield, The Law As Architecture: Building Legal Documents 131 (WestGroup) (2000)

67 Adapted from John C. Dernbach and Richard V. Singleton, A Practical Guide toLegal Writing & Legal Method, 18791, 21524 (2d ed. 1994); Mary Bernard Ray and JilJ. Ramsfield, Legal Writing: Get ing It Right and Get ing It Written (3d ed.2000).

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This section discusses both the strengths and theweaknesses ofyour client’s case, synthesizes the law, and uses that law toaddress arguments on both sides before making a recommendation.

Conclusion (legal briefs)A more thorough summary of theanalysis in the memo than the brief

answer. It should not repeat what came before; insteadit should synthesize your findings, recommend a strategy, andadvise your client.

Summary of the Argument (legal briefs)A statement of the major conclusions in your brief and the

reasons supporting those conclusions. This section usualy does not include citations to cases, statutes or regulations,but is stil specific to the client’s case under review. TheSummary of the Argument should be selfcontained so that a readerwho had the time to read this section only would still understandthe essence of your argument.

Statement of the Case (legal briefs)An account of the facts of the case as told from your client’s

perspective. Although it should not dishonestly omitimportant legal facts, it should seek to make thecourt sympathetic to your client. This section also includes thecase's procedural posture.

Argument (legal briefs)The heart of the brief. This section contains your favorable

interpretation, analysis, and application of the law to yourclient’s case. The argument section stil uses the basic conceptsof legal writing, including logical large and smal scaleorganization, and case analysis. The argument section also stiladdresses counter arguments. However, what makes the argument section most effective is how counterarguments are distinguished and thus rendered inapplicable to your case. Instead ofobjectively examining both sides of the case, weaknesses in yourclient’s case are minimized, while strengths in your client’s caseare highlighted.

Conclusion (legal briefs)This states what it is you want the court to do, i.e. affirm the lower

court’s decision. the sense of direction you create forthe reader through the structure of your brief. Byinventing a unifying theme, you create a mechanism by whichthe reader processes your brief: readers can more easily process

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one idea into which several other ideas fit than processseveral, separate ideas.

Standard of Review, de novo review, clearly erroneous reviewThe standard of review is the criteria that a court uses to

evaluate the decisions of the court below. The standard ofreview determines the latitude afforded to an appel ate courtto substitute its judgment for that of the trial court. Forexample, appelate courts have much more latitude in reviewinconstitutional cases involving individual rights than administrative law cases involving technical facts and rules.The standard of review adopted in a case will depend onthe nature of the case and the case’s proceduralposture when the decision of the court below was issued.

There are several different standards of review. For example, under “de novo review,” the widest review, an appelate court is free tosubstitute its legal conclusions for that of the lower court,without extending deference to the reasoning or decisions ofthe lower court. Under a more limited “clearly erroneous review”an appel ate court is more deferential to a lower court’sfinding of fact, and reviews only for clear errors. The standard ofreview varies from state to state, and from issue to issue.

In order to determine the applicable standard of review for yourcase, you will need to research prior cases in your jurisdictionthat address the same issues you are addressing in your brief.You should include the standard of review in your briefand cite to the case(s) that state the appropriate standard ofreview.

Remember that the standard of review wil inform the scope of yourwriting. If you are writing about a factualissue and the applicable standard of review is clearly erroneous,you will need to focus on the facts of the case and why the courtbelow did or did not make any clear errors. Ifyou are writing about a legal issue and the applicable standard ofreview is de novo, you can focus on the legal mistakes the courtbelow did or did not make. Additionaly, the standard of reviewwil influence the way in which you craft your “Issues Presented”section; under a clearly erroneous standard, the issuepresented might focus on the lower court’s mistakes. Under a de novo standard, the issue presented might focus on the original legal questions. The standard of review is criticalbecause it defines the scope of issues that the court wil actual ybe reviewing.

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Analogical comparative reasoningAnalogical comparative reasoning, already familiar

to you because you used it in writing your memo, is the mosttraditional form of legal analysis. It is most useful when there is particular precedent on the legal issue in question because it shows the reader that the courts in your jurisdiction wouldmake a similar conclusion when dealing with the facts of yourcase. In brief writing, comparative reasoning doesthe same thing. It shows the validity of your legal analysisand thus adds to the persuasiveness of your brief. Whenyou have clear precedent, you can directly importthe comparative reasoning techniques you learned in writing yourmemo into your brief.

For situations in which direct precedent is lacking, however, you might consider a particular form of neoclassical reasoning,like analogy within deduction.68 Analogy within deduction beginswith defining the rule (the major premise) by stating the statute,or synthesizing precedent. The client’s situation (the minorpremise) is then proven by analogizing it to previoussupporting cases. Next, counterarguments are disproved bydistinguishing the client’s case from those cases from which the counterarguments originate. After having proven that the client’s case is more like the supporting cases, and lesslike the cases from which counterarguments originate, aconclusion on your client’s case can then be made.69

Another form of reasoning uses the legal trends available in your ownjurisdiction. Surveying the laws in your jurisdiction wilalow you to determine what the trends in legal thinking are. Onceyou have determined the trends, you can then frame an argument withthat trend in mind. You can also use persuasive authorityto ilustrate what the application of law should be in yourjurisdiction.

Another reasoning technique is to frame the arguments in the contextof legal process. Legal process focuses on the fairness ofprocedural treatment. Finaly, you could also frame your argumentsin the context of critical theory or law and economics. As a briefwriter you can use any of these reasoning techniques. The importantthing to remember is that you are using the theoryand making the arguments that best serve your client's needs.

68 Jil J. Ramsfield, The Law As Architecture: Building Legal Documents 299303 (WestGroup 2000).

69 Jil J. Ramsfield, The Law As Architecture: Building Legal Documents 31470 (WestGroup 2000).

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Audience (legal briefs)Are you writing to a trial or appel ate court? Trial courts

emphasize precedent. Thus a trial court wil be comparing the rules, reasoning and policy of your case, to previouslydecided cases. Accordingly, analogizing your case to a priorcase decided by the trial court might be your best legal strategy.If this is new law, however, trial courts wil be interested intheories, politics, empirical data, and other convincing information.

Alternately, an appel ate court wil focus on whether the trialcourt applied the law correctly or made any legal errors. Ifthe appel ate court decides the trial court made mistakes, it wilthen have to consider whether the mistakes dictate a reversal ofthe trial court under the standard of review. Arguing thatthe trial court committed a reversible legal error may be your bestlegal strategy for an appel ate court.

Point HeadingsPoint headings can be used in memo writing to guide your

reader through your memo. Point headings in a brief should domore than guide your reader; they should also be concise arguments for your side. In a brief, point headings and sub-headings are located within the body of the Argument sectionand are also listed in the Index. In addition to providing anoutline of your arguments, they serve as thesis statements forthe major sections and subsections of the brief. As such, theyprovide the reader with a persuasive and concise summary ofthe legal argument in that section.

Because point headings include the legal conclusions and the basic reasons for those conclusions, they are a great place toconvey your theory of the case through use of persuasive sentencestructure and language.

Consider the folowing point headings, both of which mightbe used in a case where your client, a doctor, is facing liabilityfor failing to successfuly sterilize a former patient:

1. The plaintiffs should not get any damages. 2. The court should not award the plaintiffs damages for the

costs of raising their normal, healthy daughter to majorityage because a healthy child is not a legaly recognized injury.

The second point heading is more effective because it not onlystates the legal conclusion, but also uses emotionprovoking language to state the legal conclusion and

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legal reasoning persuasively. It subtly tel s the reader “there isno reason for damages hereraising a healthy daughter is a gift,not an injury.”

Descriptive language In choosing your words, be more descriptive when you want an image to

remain in the reader's mind, and less descriptive when you wantthe reader to forget the image. Descriptive language can alsobe useful in conveying your theory of the case. For example, ifyou believe that your client committed a crime because he wasyoung and naïve, you might want to subtly emphasize his youth andnaiveté in the statement of the facts by using the facts thatdraw atention to his age or lack of life experience. You might alsouse titles to convey deference to authority, i.e.,referring to your client as Officer Harding or Dr. Ossining.

three assumptions of all written workEvery lawyer, and every judge makes three assumptions about written

work submitted to them by associates, or lawyers, respectively.First, it will contain no typographical errors. Second, it will contain no grammatical errors. Third, all citation forms will be correct.

write in short sentences. If a sentence runs on for more than three and one-half typed lines,

break thesentence in half. Make it two sentences.

paragraphs per page Put two or three paragraphs on a typed page. If asingle paragraph fills the whole page, break the paragraph inhalf. Make it two paragraphs.

use active voice

Use only the active voice. Write: “Jim threw the ball.” Not: “The ballwas thrown by Jim.”

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use an action verb instead of the verb “to be”

When you have a choice, always use an action verb instead of the verb“to be” and an adjective. At this firm, we write: “The rule applieshere.” Not: “The rule is applicable here.”

start each paragraph with a topic sentence

This is important. Few people do it. You will do it. If you don’t knowwhat a topic sentence is, look it up. Now. Topic sentence is a

sentence that summarises the content of the paragragh.

headings and sub-headings

Use many headings and sub-headings to break up your memorandum orbrief. Little pieces are easier to read.

prefer “that” to “which”When you have a choice between using the word “which” and using the

word “that,” the word “that” is correct. There are exceptions tothis rule. Do not worry about them. If you follow the rule, youwill be right 95 percent of the time. If the exception applies, thesenior lawyer will make the change.

rule against however

Do not start a sentence with the word “however.” Re-write the sentenceto put the word “however” in the middle of the sentence. There areexceptions to this rule. Do

not worry about them. If you follow the rule, you will be right 95percent of the time.

Use “to” instead of “in order to.”

Do not use the phrase “in order to.” Use “to” instead.

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Discussing a Case

When you are writing a legal memorandum for internal use,there is only one proper way to discuss a case. This is the way:In Smith v. Jones, 1. Somebody sued somebody for something.2. The trial court held something. (The trial court didnot “discuss” something or “analyze” something or“believe” something; it held something. Ordinarily,a trial court grants or denies a motion, or enters ajudgment. Use the proper verb to describe theholding.)3. The appellate court held something. (Ordinarily, anappellate court will affirm, reverse, vacate, or remand.Use the proper verb to describe the holding.)4. Now, you can say anything else about the case thatyou care to.If you start chatting about the case before you have covereditems 1, 2, and 3, I will notice your error. I will changeyour memorandum and make it right. I will know that you lackself-discipline.

use persuasive precedentWhen I discuss a case in a brief, I think carefully about thepersuasive force of the precedent. I prefer to cite cases wherethe trial court did what my opponent is seeking here, and theappellate court reversed. By discussing the holding of thatcase in my brief, I tell my trial judge that he could do what theother guy wants him to do, but that the appellate court wouldreverse. Judges do not like to be reversed. Accordingly, if aprecedent contains the implicit threat of reversal, I will use

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that threat (gently, of course) when I discuss the case in abrief.The second most persuasive precedent is a case in whichthe trial court did what I am asking the trial court to do in mycase, and the appellate court affirmed. In that situation, I amable to tell my trial judge that if he does what I am asking himto do, he will not be reversed. There is no implicit threat here,but there is at least a guarantee of affirmance.The least helpful case is one in which a court simply discussesan issue in dictum. If that is the best case that you canfind, I will cite that case in my brief. Beggars can’t be choosers.Your memorandum, however, must tell me the holding ofthe case first. If you do not tell me the holding in your memo,then I will not believe that you read and understood the holding.I will be forced to go to the library and read the case. I willnot like this.

The Structure of a BriefAny child can write a persuasive brief. Here’s the magic formula.Follow it.I. IntroductionAn introduction contains one or two short paragraphs. It has no

footnotes. It says something sexy about the case.II. Allegations of The Complaint (in a motion todismiss) or Undisputed Facts (in a summary judgment motion)orFacts (for most other briefs):In short sentences, bring the reader up to speed. Include in your

statement of facts every fact that you will later mention in yourargument. Do not include facts that are unnecessary for yourargument.

III. Argument

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Our client is entitled to win for [three] reasons. First,[reason one]. Second, [reason two]. Third, [reasonthree].

A. Our Client Should Win for Reason One The other guy falls prey to reason one. Ourclient therefore wins for reason one. In this state, the rule is that

litigants win forreason one. For example, in Smith v. Jones [discuss case, as per the

formula above].Similarly, in Doe v. Doe, [discuss case, as per the formula above].[One sentence or paragraph explaining why our situation is

indistinguishable.]Therefore, our client wins for reason one.

B. Our Client Should Win for Reason Two Etc.

discuss the statute or rule, before caselawWhen writing your argument, remember that we are practitioners, not

academics. Your professors discussed cases because they found casesto be interesting. We prefer statutes or rules to cases. If thereis a statute or rule on point, discuss it

before you begin discussing the case law.

IV. Conclusion

For these reasons, this court should [grant our motion or deny theother guy’s motion].

Put a date on it here. Otherwise, the certificate of service will gettorn off sometime, and you (or some other person using the brief asa model in the future) will regret not knowing when the brief waswritten.

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avoid abbreviationsThere are matters of style unique to writing a brief. First, when

writing a brief, avoid alphabet soup. Judges read many briefs everyday. Most lawyers use alphabetical short forms for the names ofparties, statutes, and agencies. Those alphabetical short formsbecome meaningless after a judge has read the first twenty orthirty briefs. If ABC Co. thinks FDA regulation triggers MDApreemption in the U.S., then ABC Co. will lose. In this firm, weuse words, not gibberish. This rule applies in particular toselecting short forms for parties’ names. Use words, not letters,as a short form. For example, “National Superior Fur Dressing &Dying Company” does not become “NSFDDC.” This is gibberish. Thereare exceptions to this rule. They include IBM,

AT&T, GM, and VW. If I think that an exception applies, I will makethe change. You use words, not letters. When selecting the words tobe used as the short form,

think about the persuasive force of the words. For example, NationalSuperior Fur Dressing & Dying Company could beshortened to“National Superior” if you would like the company to sound like alarge corporation. On the other hand, the short form should be“Superior Fur” if you want the company to sound like a Ma-and-Paoutfit.

do not use block quotationsDo not use block quotations rarely. Your judge is busy. The judge’s

eye will naturally jump over a block quotation and go on to thenext line of text. By including a block quotation, you are invitingthe judge not to read the critical quotation.

You can avoid block quotations by using quotations of fewer than fiftywords. If necessary, use a quotation that is forty-nine words long.Then say: “The Court went on . . . .” Then use another forty-nine-word quotation. This will trick the judge into reading thequotation. This trick is not simply permitted; it is required atthis law firm. If you feel compelled to include a block quotationin a brief, assume that the judge will not read it. You must trickthe judge into learning the content of the block quotation. You dothis by summarizing the substance of the block quotation in

the sentence immediately preceding it.

Thus, do not introduce a block quote: “In Smith v. Jones, the Courtheld: . . . .” Rather, introduce the quote: “In Smith v. Jones, the

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Court held that our client wins and the other guy loses: . . . .”By using this form, the judge will get your point

even when he does not read the block quotation.

use argumentative headings

“This Court Should Grant Summary Judgment Because There Is No PrivateRight of Action under the Federal Food, Drug and Cosmetic Act.”Not: “The Relevant Provisions of the FFDCA.”

all submissions have similar outlinesBecause the pattern of legal logic is always the same, the structure

of an effective pleading at any level is identical to the structureof a judgment. These genres have different audiences, but the samepurpose: to persuade. There is one important difference. Ajudgment has the advantage of authority. A judge can issue anorder instead of merely asking for one. If the logic of the law isso simple and repetitive, why do judges and lawyers have so muchtrouble organizing what they write?

unreliable evidenceBecause despite the appearance of logic, litigation is always messy and

uncertain. It relies on “facts” inferred from observations thatcannot be replicated, reported by witnesses who may or may not betelling the truth or by experts who are generally contradicted byopposing experts. Inferences made from events described bywitnesses are never as reliable as scientific inferences, which aremade from replicable observations. Even expert evidence thatclaims to be “scientific” can be contested by other data or otherinterpretations of the same data.

many possibilities of framing issuesSecondly, the the issues hardly arise from the facts, with a logical

inevitability. Good lawyers can find many issues in any set ofallegations, some more likely than others to benefit their client’sposition. Unanticipated issues and surprising facts may ariseduring the trial, and sometimes on appeal. Even when opposinglawyers agree on the issues, they can frame them differently togain an advantage.

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distinguishability of precedentIn addition, analogies, which are the basis of common law (the claim

that the case at bar is essentially like a precedent), alwayslimp. Precedents are always distinguishable.

ambiguous statutory provisionsFurthermore, the language of the law is rotten with ambiguity.

Despite the best efforts of legal drafters, a motivated reader canfind more than one meaning in any text. A word like “murder” mayseem plain enough—until we have to decide how it applies in casesof abortion or assisted suicide. A term like “marriage” may seemplain enough—until we have to decide when cohabitation becomesmarriage, or whether one member of a same-sex union can claimspousal benefits on the other’s insurance policy. Absolutely noword in the law is immune from the ambiguity it might contract,like a contagious disease, in the context of a novel set of facts. What seems like “plain meaning” when a legal text is drafteddisappears in a swirl of indeterminacy when the text is applied tofacts the drafters did not anticipate.

write according to the rulesMany jurisdictions publish rules to assist lawyers in organizing their

submissions. These rules generally make excellent sense. “First,tell us what the issues are,” they seem to say, reflecting anawareness that facts have no significance until they are placed inthe context of an issue. “Then tell us what the case is about”—reflecting the frustration of judges who have to read dozens ofpages before discovering the basic fact situation from which thecase arises. And finally, “Organize the rest of the judgment ina logical and predictable order”—a plea from readers who arecontinually surprised by what pops up next in an argument.

Paradoxically, judges and lawyers sometimes forget that as readersthey want precisely what their readers want from them. Rules forpleading or for appellate procedure generally work just as well oneither side of the bench, and at every level, all the way up toSupreme Court.

identify and partition the issues, determine the legal questions

Plan the body of the pleading or the judgment before settling on anintroduction.

Determining the issues early is essential to efficiency in thewriting process and economy in the result. You cannot distinguishrelevant facts and arguments from pointless digressions until you

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have determined precisely what questions the court is being askedto settle. Partitioning the issues is essential to the structure ofyour argument. Unless each issue is clearly separated from theothers, your argument will seem like a vast swamp, shapeless,devoid of direction. Dividing your argument into discrete issuesenables you to focus you analysis on each one individually. Italso enables your reader to move from one issue to the next with asense of orderly progression.

prepare an opp/flopp analysis for each issueThe easiest way to organize the analysis of each issue is to follow

this pattern:OPP (Opposing Party’s Position)FLOPP (Flaw in Opposing Party’s Position)Conclusion (Whether a claim exists, or not)(If you are a judge, change “OPP” to “LOPP,” or “Losing Party’s

Position.”)OPP: Respondent contends that he had not been informed of the penalty

clause in the contract.FLOPP: The evidence shows that both the respondent and his attorney

received the contract thirty days before signing it.CONCLUSION: Therefore respondent’s contention that he was unaware of

the penalty clause has no merit.The first sentence in this pattern would be followed by supporting

details, perhaps by quoting the respondent’s contention verbatim;the second sentence would be followed by citing evidence indicatingthat respondent had received the contract in plenty enough time toexamine it.

The OPP/FLOPP pattern can be effective even when the writer is themoving party and the opposing party has not yet expressed aposition. The OPP in this situation is whatever the opposing partyhas done or said (or failed to do or say) that motivates you tofile this particular motion or application. The FLOPP explains whyopponent’s words or actions are factually inaccurate orincompatible some law or legal principle.

The LOPP/FLOPP is effective whether the controlling law is a statutoryprivision or merely a principle of equity or a matter of judicialdiscretion.

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The OPP/FLOPP pattern helps judges and lawyers think clearly about theapplication of fact to law. It helps lawyers determine whetherthey have a case or not, and whether they should advise theirclients to settle rather than enter into litigation they are likelyto lose. It also keeps judges honest, protecting them from theirown biases. Nothing is more frustrating to the bar and to thepublic than a high profile decision that is not supported by aclear and logical application of law to facts. And nothing can bemore damaging to public trust in the integrity of the judiciary.

let the reader conclude the decision with you, let the reader compltethe syllogism

When the conclusion is obvious, it may be effective to leave itunstated and allow your readers to complete the syllogism on theirown. Judges, of course, have to make their conclusions explicit inthe form of findings or orders, usually at the end of the ruling asa whole. Sometimes it is effective to refer to an unstatedconclusion as if it were so obvious that it can be safely tuckedaway in a subordinate clause (e.g., “Because respondent had ampletime to examine the contract before signing it . . .”). Understatement of this sort can be more powerful than rhetoricalexcess. It implies that any reasonable reader would agree withyou.

avoid charged languageBe careful about using highly charged language to characterize the

opposing party’s position. Charged language is a rhetorical weaponthat often backfires. It pleases readers who agree with you inadvance, but it alienates impartial readers and infuriates theopposition and anyone who may be sympathetic to the opposition’spoint of view. Charged language is often a sign that an argumentis based on passion rather than law. Normally, judges try to riseabove emotion. They want you to give them reasons, not feelingsnor even ideals, that will survive scrutiny on appeal. If you area judge, you should be able to express the losing party’s positionas effectively as you can—as if you were representing that partyyourself—and then identify the flaw in that position with surgicaldetachment. If you cannot find the flaw in your best statement ofthe losing party’s position, you may need to reconsider yourconclusion.

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focus judgement on the protection of the innocent, not punishment ofthe guilty

An adverse ruling in family court is never easy to accept; butdisappointed parents will find it easier to respect a decision thatfocuses on the child’s best interest rather than on a finding thateither party has been found a less competent parent. Even when thedecision is actually based on the unsuitability of one parent, itdoes no harm to acknowledge whatever parental strengths the judgecan attribute to that parent, even if, for the record, it alsomentions the weaknesses that are critical to the decision. And inbankruptcy cases and contract disputes—where assets have to bedivided equitably in the absence of clear language or mathematicalformulae—are often best resolved by downplaying the notion of awinner and a loser. In cases like these, judges sometimes havelittle to rely on other than a subjective sense of fair play. Whenever possible, the tone of the judgment can ease thedisappointment of the litigants, even though both parties arelikely to be dissatisfied with the result.

framing issues (judgement)It generally makes sense to begin with the position of the party with

the burden of proof, or the party claiming wrong has been done,whether that party loses or wins.

Plaintiff argues that the value of the condominium at the time of the

divorce was $150,000.Respondent, however, presented evidence that the value was roughly

half that amount.After carefully weighing the evidence presented by each side, I find

that . . . because . . . . Headings.

If a pleading or judgment is very short—two or three pages—it may needno headings. In longer texts, headings are essential. At thebeginning of a document, in the table of contents, headings providea roadmap, foreshadowing the journey you want your reader to take. Within the document, headings serve as signposts marking the

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boundaries between various stages of the journey. They show whereeach argument ends and another begins. To serve these functionseffectively, headings must be as brief as possible. They shouldnot be entire arguments .

There are two kinds of headings: generic and case specific. Words andphrases like “Introduction,” “Background,” “Order,” “ReliefSought,” “Cases Cited,” “Issues,” “Findings of Fact” are genericheadings. Generic headings can be transferred from case to case,regardless of the facts and issues. They can be very useful. Sometimes they are required. In addition to generic headings,however, are case-specific headings, like “Was the Warrant Valid,”or “What is the meaning of ‘obscenity’ in Section 905?” Case-specific headings are extremely useful when they mark boundariesbetween the analysis of separate issues.

There are three ways to phrase a case-specific heading. You can phrase it as an argument:The University of Montevallo is not an Agency of the State.You can phrase it as a question:Is the University of Montevallo an Agency of the State?Or you can phrase it as a topic:State Agency.

Great lawyers prefer argumentative headings, never wanting to pass upan opportunity to press their point of view, whereas the judgementsprefer a question type of heading. Topical headings are meant foracademia, and professors. Topics or questions convey a sense ofdetached objectivity, which is in itself a persuasive stratagem.

Inbtroductory Statement to summarise facts and issues

Introductory statement should have content, and not merely form. Avoidbeginning with technical, dry, or uncontested assertions. Somelawyers are convinced that they are bound by tradition, rules, orlogic to begin their pleadings in a given way, quoting rules,statues, and form. A judge is likely to gloss over it, nto readingti at all. Similarly, most judges offer declaratory introductions,

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statements to the effect that having examined the proceedings andthe exhibits, considered the arguments of counsel, and dulydeliberated, a given judgemtn has been reached.

Such self-congratulatory gambit serves no jurisprudential purpose. Itis a sort of judicial throat clearing. It enables the judge toput something on paper before getting around to the case at hand.

A perfect introduction provides two things: a synopsis of the factsand a brief statement of the issues. Imagine how you would beginif you were telling a neighbor about the case. Start with theissue, if the issue has far-reaching implications. Otherwise,start with a brief story indicating of the human conflict, “who didwhat to whom,” followed immediately by a concise statement of thequestions (the issues) that the court needs to decide.

This combination of facts and issues in a nutshell provides thecontext your arguments will make sense and be worth reading. Inaddition, by delineating the issues in a few lines, you canforeshadow the structure of the argument to follow. Here is anexample:

Ojijo Pascal was convicted of assault, battery, rape, and murder, each in the firstdegree. According to the evidence, Saunders wore gloves and a mask when hecommitted these crimes, concealing his identity from his victim and fromwitnesses on the scene. In this appeal, Ojijo argues that the lineup in which hewas identified was suggestive, that articles of clothing used in his identificationwere illegally seized from his apartment, and that he had no access to counselat key points during the investigation.

This beginning is exceptional not only for what it does, but perhapsmore importantly for what it does not do. It does not establishstanding or jurisdiction with the ubiquitous phrase, “Pursuant toRule 123 appellant asks. . . .” It has no legal jargon or long,tangled sentences. In fact, there is nothing in this opening thatwould seem odd or technical in a good newspaper. And that is anexcellent standard for legal writing.

The writer also avoided citing specific sections of the code andspecific references to precedent. He did not feel obliged to tellus that assault, battery, rape, and murder are illegal activities(e.g., “contrary to sections w, x, y, and z of the CriminalCode”). Nor did he feel obliged, at this stage, to tell use whatstatutes, precedents, or standards the appellant had invoked insupport of his claims. This may be essential information at somepoint—the precedents will have to be cited and distinguished, thestatutes and standards may have to be quoted if there is any

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dispute about their meaning or the application to this particularset of facts. But details of this sort should be saved for thesections in which issues are analyzed. No need cluttering theopening paragraph with more information than the reader needs atthis point.

This beginning provides the necessary context for understanding theanalysis that follows. You can even predict the headings: “LineupIdentification”; “Search and Seizure”; “Access to Counsel.” And inpredicting the headings, you are predicting the structure of therest of the document. You are, in effect, promised an easy andinteresting read. Although lawyers are not obliged to make theirwriting interesting, doing so does have the effect of helping thereader pay attention to the argument.

Use a stories instead of abstracts, use names instead of statuses, inintroduction, and conclusion

Thhe use of status, such as applicant, accused, respondent, defendant,plaintiff, etc, leads to construction of the pleading as anabstract problem, and removes the important subjectivity needed toput face to the wrogn committeed. In most cases, however, a simplestory-plus-issue is the best way to gain the reader’s interest andattention. But the temptation to write abstractly is hard toresist. Here is the opening paragraph in a case about unlawfuldetention:

[1] This is an application supported by an affidavit in which the applicant is seekingto be admitted to bail pending her trial. The affidavit discloses that the applicantwho has been in custody since October, 1985 was on 3rd December, 1985committed to the High Court for trial for the offence of Infanticide. On 18thDecember, 1985 she applied to the High Court at Kitwe to be admitted to bailpending her trial.

This is an adequate beginning, but it reads like an abstract problemin the law instead of what it really is, a case about a young womanwho has been improperly held in jail without bail. Starting withthe story would have given the case the sense of urgency and humansignificance it deserved:

[1] Rosemary Chilufya has been in jail for nearly five months, awaiting trial on acharge of infanticide. The High Court has refused to set bail, on the ground thatinfanticide is a form of murder, and murder is not a bailable offense. A thresholdissue in this case, however, is whether the Supreme Court has the authority to . . .

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stating issues, issue framing, statement of issuesStating the issues effectively requires steering a course midway

between too much detail and too little. Too much because itoverwhelms the reader and predicts what follows in bewilderingspecificity:

1. The issues in this appeal in respect of the Appellant’s 1994 taxation year are:

a) Whether the Appellant, in determining LCT liability under Part

I.3 of the Act, is entitled to deduct the amounts of the Estimates

from its “capital”, or whether such amounts are to be included

in its “capital”:

i) as “reserves” pursuant to ss. 181(1) and 181.2(3)(b), or

ii) as “other surpluses” pursuant to s. 181.2(3)(a);

b) Alternatively, if the Estimates are “reserves” or “other

surpluses”, whether the Appellant, in computing its income

under Part I of the Act, is entitled to deduct the amounts of the

Estimates from its revenue;

c) Whether the Appellant, in determining LCT liability under Part

I.3 of the Act, is entitled to deduct the $37,481,776 amount” as a

“deferred tax debit balance” within the meaning of

s.181.2(3)(h).

The other extreme is to provide too little detail:

The issue is whether the appellant is entitled to deductions he claimed on his tax returns for1994.

This version does not predict the structure of what follows, nor doesit give the reader a glimpse of the grounds on which each sidebases its argument.

A good statement of issues foreshadows the structure of what follows,provides the reader with a glimpse of the grounds of the argument. It does not cite laws, precedents, or records that can be moreusefully cited in the analysis section. In this particular case,after a brief description of what the appellant claimed in his tax

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returns, the issues might might have been effectively stated likethis:

The issues are:· Whether the Appellant is entitled to deduct the amounts of

the estimates from its “capital.”· Whether the Appellant is entitled to deduct the amounts of

the Estimates from its revenue· Whether the Appellant is entitled to deduct the $37,481,776

as a “deferred tax debit balance.”

statement of jurisdiction Some pleadings are required by rule to begin with a statement of

jurisdiction, even if jurisdiction is not contested. If you arewriting such a pleading, minimize the distraction by making it seemlike the boiler plate it is. Give it a heading (“Jurisdiction”)and a single sentence citing the applicable rule. If possible, setit off in a box in a corner of the page—a ritual recognition thatyou would not be in court if you had no right to be there.

Beggining, Background, or Introduction Summary of the Case Use another heading (“Background,” or “Introduction” “Summary of the

Case”) to direct your reader’s attention to your brief narrativeand statement of the issues. If jurisdiction is actuallycontested, list it as your first issue, but save your argument forthe analysis section. Avoid getting bogged down in a jurisdictionissue before telling your version of the essential facts. Astrategic narrative of the facts may dispose your reader to rule inyour favor on jurisdiction when there ruling could reasonably go ineither direction.

When jurisdiction and standing are uncontested, starting with“Pursuant to” to answer a non-argument is like putting a hotdogstand on prime real estate. The first paragraph and the last arepossibly the only places where you can count on the reader’sattention. Why waste this space by filling it with information thereader can be presumed to know?

tell a storyA good beginning makes the reader want to read more. A notable

example is this introduction in a per curiam by the Ontario Court ofAppeals:

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[1] Professor Starson is an exceptionally intelligentman. His field of expertise is physics. Although he has no formalqualifications in that field, he is in regular contact with some ofthe leading physicists in the world. In 1991 he co-authored anarticle entitled “Discrete Anti-Gravity” with Professor H. PierreNoyes, who teaches physics at Stanford University and is theDirector of the Stanford Linear Accelerator Center. ProfessorNoyes has described Professor Starson’s thinking in the field ofphysics as being ten years ahead of its time.

[2] Unfortunately, Professor Starson has a history ofmental illness, dating back to 1985. He has been diagnosed assuffering from a bipolar affective disorder. On several occasionsduring the last 15 years he has spent time in mental institutions. In November 1998 Professor Starson was found not criminallyresponsible on account of mental disorder on two counts of utteringdeath threats. In January 1999 the Ontario Review Board orderedthat he be detained at the Centre of Addiction and Mental Health(the Centre).

Notice that this passage does not call attention to itself as writing. The words are transparent, invisible, like lenses through which wesee characters and events. The writer doesn’t seem to be trying towrite. The art conceals the artifice. It’s as if the story wroteitself. But of course it did not. A story is almost always anargument—all the more effective because it does not seem like anargument.

In this case, the plot thickens when we find out that the unusualProfessor Starson “has a history of mental illness.” And itthickens further when we discover a few sentences later that hedoes not want the medication the Ontario Review Board wants to givehim, because it would cloud his mind and hinder his ability toconduct his theoretical research.

A beginning like this entices the reader to continue reading. Whowould not be curious to know how the case was resolved?

the conclusion (argument) Briefly summarize what you want the court to decide, what remedy you

want the court to grant and what grounds the court has for grantingit. Write your conclusion as if you suspected that a busy judgemight read your ending before reading anything else, hoping to findthere your argument in a nutshell. And when the relief you seek isbased on common sense or pure equity, the concluding section caninclude the “To-rule-otherwise” rule. Judges rely on this devicewhen they have little or no law to justify their decisions. “To

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rule otherwise would be to invite . . .” and then list thehorrible, unjust, and illogical things that would follow from adifferent decision. Pointing out unjust consequences can bepersuasive when the law is a feeble ally.

sample conclusion

For the reasons above, plaintiff's Motion to Remand is due to be granted. Plaintiff asks thisCourt to issue an order remanding this action to the Circuit Court for Barbour County,Alabama, Clayton Division. In addition, plaintiff requests that this Court order defendantsto pay all just costs and expenses, including attorney's fees, incurred as a result of theimproper and groundless removal of this case.

the conclusion (judgement) Your concluding section may include only an order. However, if you

think the court above yours, or the press, or the losing partymight miss the essence of your analysis, use your conclusion as asummation. Repeat your analysis, but in different words, andsuccinctly. Brevity is essential. A conclusion that exceeds onepage is likely to seem like a new argument instead of aconclusion. The concluding section also provides an opportunityfor obiter dicta—instructions to the bar on related matters that arenot logically essential to the case you are deciding. And whenyour decision is based on common sense or pure equity, theconcluding section can include the “To-rule-otherwise” rule. Judges rely on this device when they have little or no law tojustify their decisions. “To rule otherwise would be to invite . ..” and then list the horrible, unjust, and illogical things thatwould follow from a different decision.

sample judgment

For the reasons above, plaintiff's Motion to Remand is granted. This action is remanded to theCircuit Court for Barbour County, Alabama, Clayton Division. In addition, defendants willpay all just costs and expenses, including attorney's fees, incurred as a result of theimproper and groundless removal of this case.

Howeer, in a pleading of any complexity, however, an ending of thissort misses an opportunity to revisit the argument. A brief reviewof the argument can assist the reader70.

It may seem paradoxical that a good ending resembles a goodbeginning. The resemblance is not accidental. Judges and lawyers

70 Stark, Steven D. Writing to Win. New York: Doubleday, 1995.

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are busy people. They do not necessarily read from top to bottom. If they get lost in an argument, they may flip to the end, hopingto find a synopsis there. They will not be helped by a conclusionthat says merely “For the foregoing reasons . . . ,” sending themright back to the thicket they had just abandoned. An effectiveconclusion summarizes those foregoing reasons in a nutshell, inplain English, without repeating citations and references that arealready included in the body.71

every word to have a meaningGood legal writing is characterized partly by absences: an absence of

unnecessary repetition, an absence of irrelevant detail, an absenceof tangled sentence structure. In good writing, every wordcounts. Remove one and you miss it, just as you would miss a pieceleft out of a jigsaw puzzle. If you are an experienced reader oflegal arguments, you know how tedious they can be, not because theconcepts are difficult but because they have been obscured byverbiage that serves no purpose.

remove jargonGood legal writing is also characterized by an absence of unnecessary

jargon. Of course, every profession has its special language. Even non-lawyers have to accept expressions like “estoppel,” habeascorpus, and arguablydecree nisi if there are no handy equivalents inordinary English. But there is no excuse for phrases like interalia when there are handy English equivalents (“among otherthings”). And while it may be understandable that lawyers wouldspeak to one another of filing a pro hac petition, nunc pro tunc, theyshould probably tell their clients that they are seekingpermission, rectroactively, to practice in a jurisdiction otherthan their own.

use ordinary words, ordinarilyNor is there any reason for lawyers to use ordinary words (“such,”

“same,” “said”) in ways that ordinary people do not use them. Judges should test for legalisms by imagining how a phrase wouldsound if in ordinary conversation72. You would never say “I have

71 Garner, Bryan A. The Winning Brief : 100 Tips for Persuasive Briefing in Trialand Appellate Court. New York: Oxford UP, 1999.

72 In his “A Primer of Opinion Writing, for Four New Judges” (cite below), George Rose Smith of the Arkansas Supreme Court tells new

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mislaid my keys, dear, have you seen same?” You would never say“Sharon Kay stubbed her toe. Such toe is mending now.” You wouldnever say, “May I have another slice of pie? Said pie is the bestyou ever made.” Nor would you say, “Let me tell you somethingfunny about our dog, hereinafter called Mo.” This sort of mumbojumbo may impress the uneducated; but it makes lawyers the laughingstock of literate society. Hardly a year goes by without someonesending Christmas greetings that parody the worst habits of theprofession. One year it was a card that began, “From us (‘thewishor’) to you (hereinafter called ‘the wishee’).” Another yearit was a well known Christmas tale that began, “Whereas, on orabout the night before the Holiday of which one can take judicialnotice is commonly called Christmas.” The law works best even forlawyers when non-lawyers can makes sense of it.

Call Parties By Name Rather Than By Their Positions In Court.

Calling parties by positions often requires readers to skip back andforth between the text and the cover sheet (“style of cause” insome jurisdictions).

Referring to people by their proper names can help avoid confusion onappeal, particularly when the position of the litigants has changedfrom moving party to responding party. Sometimes, of course, it isimpossible to call parties by individual names, particularly whenthere are multiple plaintiffs or multiple defendants. Then youhave no choice but to resort to their positions in court or togroup them under some other appropriate heading (e.g., “thesurvivors,” or “the victims,” or “the Joneses”).

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Judgements

DEFINITION, SCOPE AND CONTENTS

Defining a judgment, decreeA judgment is the statement given of the grounds of a decree and order

as decision or the final determination of the rights of the partiesin an action or proceedings given by a court of justice or othercompetent tribunal. It is a judicial determination that, on matterssubmitted to a court for decision, a legal duty or liability doesor does not exist, and or that, with respect to a claim in suit, acause of action does or does not exist or that a defence does ordoes not exist. In some jurisdictions, the terms "judgment" and"decree" are more or less synonymous and inter changeable in codepractice.

As a general rule, courts are not constituted for the purpose ofmaking advisory decrees or resolving academic disputes. A mereadvisory opinion upon an abstract question is obviously not ajudgment at all when no parties are to be bound, and the rights ofno one are directly affected.

validity of judgment, judgement (validity)judgement (legal principles) It is essential to the validity of a judgment that it be based on,

and be in conformity with, recognized principles and fundamentalsof law. The validity, force and effect of a judgment must bedetermined by the laws in force at the time and in the State orcountry where it was rendered. The gown that Judges are required towear have the sleeves stretch out beyond the limits of the arm andhand down. The Judge must wear all the laws of the country on thesleeve of his robe.

judgement (court judisdiction)It is essential to the validity of a judgment that it be the sentence

or adjudication of a duly constituted court or judicial tribunal. judgement (court term), judgement (coram non-judice)It is essential to the validity of a judgment that it be rendered by a

court sitting at the time and also in the place authorised by law,the tribunal not being otherwise a court in any legal sense, andthe proceedings being, therefore, coram non-judice. In some cases,however, it has been held that the fact that a term of court atwhich a judgment was rendered was held at a time other than thatprescribed or authorised by law, while rendering the judgment

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erroneous and constituting ground for its reversal, does not renderthe judgment void; but voidable. Judgments should be rendered inopen court and not in chambers.

judgement (court constitution)Illegal constitution of the court with respect to the Judges sitting

renders the judgment absolutely void. In the absence of aconstitutional or statutory provision, forbidding a disqualifiedJudge from acting, a judgment rendered by a disqualified Judge isvoidable but not void. It is essential to the existence andvalidity of a judgment that the decision shall have been renderedin an action or proceeding before the court, in some formrecognised and sanctioned by law.

judgement (court pecuniary jurisdiction)Where the jurisdiction of a court depends on the amount in

controversy, a judgment for a sum in excess of the amount overwhich the court has jurisdiction is void.

judgement (evidentiary consideration)Judgment has to self-contained and it must show that the court has

made an independent application of its mind to the facts of thecase and the evidence adduced by the parties. It must reveal aconsideration of such evidence and the conclusions to which suchevidence would persuade. Where the finding, in a criminal case, isas to the guilt of some of the accused while to the innocence ofothers, the finding has to be supported by reason.

Form and Contents Of Judgmentsjudgement (strict formality)Strict formality ordinarily is not essential to the validity of a

judgment, and substantial compliance with statutory requirements issufficient.

judgement (narrow construction)A judgment should not decide more than what is necessary in law under

which the proceedings have been taken. For example, in a proceedingunder section 145 of the Code of Criminal Procedure, the Magistratewhile deciding question of possession, cannot define shares of co-sharers. He has to find out only as to who was in actualpossession.

judgement (reason)Stating inclination merely is not sufficient, but the court must give

reasons for disagreeing with defence contentions. Further, without

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reasons, the students cannot learn the law, practitioners cannotfind arguments, parties cannot feel that their cases have hadserious attention and courts of appeal have nothing to upset orconfirm. When the judgment neither gave reasons for disagreeingwith defence contentions nor adverted to the patent lapses of theinvestigations, it was held that accused were entitled to benefitof doubt. Justice should not only be done but it should be shown tohave been done. The defence evidence is as important as thejudgment cannot be said to be complete. In a case where truthcannot be separated from falsehood on account of the two beinginextricably mixed up, the court cannot make out any absolute newcase for the prosecution by conjecture. While separating the grainfrom the chaff, the court should not break the grain and mix thesame with chaff.

judgement (completeness)A judgment should be complete in itself and contain within its four

corners the mandate of the' court, without extraneous references,and leaving open no matters of description or designation out ofwhich contention may arise as to the meaning. It should not leaveopen any judicial question to be determined by others.

Judgment (language)Although it has been held that, as a matter of practice, established

precedents with respect to the language of a judgment should befollowed, apart from statute no particular form of words isnecessary to constitute a judgment, provided the words used aresuch as to indicate a final determination of the rights of theparties and the relief granted or denied.

Jurisdictional RecitalsExcept as statute or court rule may otherwise provide, the judgment of

a court of general jurisdiction need not, as a general rule,contain a recital of the jurisdictional facts.

judgement (certainty)A judgment must be definite and certain in itself, or capable of being

made so by proper construction. It must fix clearly the rights andliabilities of the respective parties to the cause.

Conditional JudgmentsAs a general rule, a judgment must not be conditioned on any

contingency; but in a number of instances, as where equitablerelief is awarded, conditional judgments have been sustained.

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Alternative JudgmentsAs a general rule, a judgment should not be in the alternative,

although under some circumstances, such as in actions for thespecific recovery of property, an alternative judgment may beproper.

verdictIn law, a verdict is the formal finding of fact made by a jury on

matters or questions submitted to the jury by a judge.73 The term,from the Latin veredictum, literally means "to say the truth" andis derived from Middle English verdit, from Anglo-Norman: acompound of ver ("true," from the Latin vērus) and dit ("speech,"from the Latin dictum, the neuter past participle of dīcere, tosay).

verdict Criminal lawIn a criminal case, the verdict, which may be either "not guilty" or

"guilty"—except in Scotland where the verdict of "not proven" isalso available—is handed down by the jury. Different counts in thesame case may have different verdicts.

A verdict of guilty in a criminal case is generally followed by ajudgment of conviction rendered by the judge, which in turn befollowed by sentencing.

In legal nomenclature, the verdict is the finding of the jury on thequestions of fact submitted to it. Once the court (the judge)receives the verdict, the judge enters judgment on the verdict. Thejudgment of the court is the final order in the case. If thedefendant is found guilty, he can choose to appeal the case to thelocal Court of Appeals.

Compromise verdict A compromise verdict is a "verdict which is reached only by the

surrender of conscientious convictions upon one material issue bysome jurors in return for a relinquishment by others of their likesettled opinion upon another issue and the result is one which doesnot command the approval of the whole panel," and, as such, is notpermitted.74

General verdict A general verdict is one in which the jury makes a complete finding

and single conclusion on all issues presented to it. First, the

73 see Black's Law Dictionary, p. 1398 (5th ed. 1979)74 "Monti v. Wenkert, 947 A. 2d 261—Conn: Supreme Court 2008". Supreme Court of

Connecticut. May 27, 2008. Retrieved 29 November 2010.

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jury finds the facts, as proved by the evidence, then it appliesthe law as instructed by the court, and finally it returns averdict in one conclusion that settles the case. Such verdict isreported as follows:

"We the Jury find the issues for the plaintiff (or defendant, as thecase may be) and assess his damages at one hundred thousanddollars."

Sealed verdict A sealed verdict is a verdict that's put in a sealed envelope when

there is a delay in announcing the result, such as waiting for thejudge, the parties and the attorneys to come back to court. Theverdict is kept in a sealed envelope until court reconvenes andthen handed to the judge.75

Special verdictIn English law, a special verdict is a verdict by a jury that

pronounces on the facts of the case but does not draw the ultimateinference of whether the accused is guilty or not; the judge thenapplies the law and to convict or acquit.76 In the words of WilliamBlackstone, "The jury state the naked facts, as they find them tobe proved, and pray the advice of the court thereon".77

The judge forced a special verdict in the famous case of R v. Dudleyand Stephens but generally such verdicts should only be returned inthe most exceptional cases.7879

DictaStatements which are not necessary to the decisions which go beyond

the occasion and lay down a rule that is unnecessary for thepurpose in hand (usually termed 'dicta') have no binding authorityon another court, though they may have merely persuasive efficacy.Rights of property should not be upset, however, merely because,when historically traced through the reports of centuries, theyrest upon a dictum, nor is it right to distrust a practice that

75 "Sealed Verdict Law and Definition". Retrieved 2 May 2011.76 Simpson, A. W. B. (1984). Cannibalism and the Common Law: The Story of the Tragic

Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It GaveRise. Chicago: University of Chicago Press. pp. pp 209–210. ISBN 978-0-226-75942-5.; Morgan, E. M. (1923) "A brief history of special verdicts", Yale Law Journal,32:575–592; see also Lord Mackay of Clashfern (ed.) (2006) Halsbury's Laws ofEngland, Vol.11(3) 4th ed. 2006 reissue, "Criminal Law, Evidence and Procedure",1339. Special verdict.

77 Commentaries on the Laws of England (14th ed.) 3 37778 R v. Bourne (1952) 36 Cr App Rep 125 at 127, CCA, per Lord Goddard CJ79 R v. Agbim [1979] Crim LR 171, CA

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follows on dicta when it is the practice and not the dicta thatforms the binding authority.

admissibility of evidence (judgement)The tricks played by our senses are terrifying to the seekers of

truth. Memory generally fades with the passage of time, and when awitness is required more than once to recall an event, his act ofrecalling on a subsequent occasion may be merely an imperfectmemory of what he said on an earlier. Effectively, the witness'sstatement, given in court perhaps months after the event, is thereal evidence while, his original proof of evidence, given perhapswithin hours of the event, and his deposition at the preliminaryhearing, given a few days or weeks after the event, are referred toonly for the purpose of contradicting him and not as independentevidence. The legal insistence upon the necessity for an oath andupon oral statement in court appears in this light to beirrational. It may also be pointed out that the rule excludingprevious statements as evidence of the truth of the facts stated isfundamentally inconsistent with another rule, namely, that awitness who professes that he has forgotten the details of an eventcan refer to a memorandum of it which he made previously (not onoath, or subject to cross-examination) and have this memorandumaccepted as part of his evidence.

Judgment WritingThe basic and broad requirements of a judgment are prescribed and

formalized. The structure of a trial court judgment is indicatedand differentiated from that of a small causes court and from thestructure of the appellate judgment.

relief (judgement)The reliefs to be considered are interest, costs and compensatory

costs. The extent of relief to be granted by each court areprovided by statutes. These provisions of law stand supplemented byRules and Orders approved by the High Court.

evidence (weight), weight of evidence, rule of preponderance ofevidence, preponderance of evidence , proof beyond reasonable doubt

One distinctive feature, very relevant for judgment writing, is thetreatment of evidence. It is that the rule of preponderance ofevidence prevails in civil matters while that of beyond reasonabledoubt in a criminal case. See to it that your judgments follow thisrequirement. The rule of receiving evidence of analyzing it anddrawing inferences from it remain the same but the overall effectis materially different. This requirement of proof beyond

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reasonable doubt should not take one into the realm of possibilityand impossibility, but rather, one should confine reasons to therealm of probabilities arising out of an over-view of the wholecase without too much emphasizing any single factor.

adjournments (judgment)When too many adjournments are granted on the ground that the learned

counsel is not prepared for arguments, the conclusion drawn is thateither the Court has not exercised proper control over the conductof the case has been over-indulgent or that such adjournmentrelates to the delay on the part of the Court in preparing thejudgment and the unpreparedness of the counsel to argue the case isused as a veil. In either case it reflects adversely on thepresiding Officer of the Court.

grounds (judgement)All the grounds taken up in the Memo of appeal or at the time of

argument should find mention in the judgment and there should alsobe an express mention of the grounds which though taken at onestage or the other during the course of the hearing but wereabandoned finally. The appellate courts ordinarily lay the blame onthe counsel for not urging the grounds at the stage of arguments ifit is not dealt with in the judgment. Hence, the reason for thetrial court to lay them out in judgement.

value system (judgement)The value system is under great challenge and in doubt these days.

That doubt should not find a place directly or indirectly in thejudgment. The judgment should confine itself to the law and thevalue system enshrined in the law Independently of it no attemptshould be made to superimpose either individual or any other valuesystem. The ultimate object of the decision or judgment of a Courtis the dispensation of justice. As Lord Denning would call it, "thenearest we can get to define justice is to say that it is what theright minded members of the community those who have right spiritwithin them could believe to be fair."

simplicity (judgement)Judgment should be as simple, as short, as direct and as intelligible

to as large section of the population as you can make it. The daysare gone when the people had time to read a long judgment andappreciate all its niceties. More and more people want tounderstand the impact of judicial adjudication because as DeanRoscoe Pound once remarked, the people understand the question

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litigated and every one has ready answer for it also but what theydo not understand is such tardy proceedings and involved judgments.

Judges must through their judgments reach the people and satisfy themwith regard to the justness, correctness and fairness or theiradjudication, as well as to make up for the prevailing illiteracyand ignorance. My duty as a Judge must be "to objectify the law,not my own aspirations, convictions and philosophies, but those ofmen and women of my time". Cordozo in his "Nature of the JudicialProcess".

Classification of JudgmentsThe judgments may be classified as follows:-Classification by Class of Court - Civil Judgments, Criminal

Judgments, Revenue Judgments; Constitutional JudgmentsGenerally speaking, there are civil, criminal and revenue courts and

the type of judgment would differ in each cases. On the criminalside, with which we are concerned at the moment there are Courts ofSessions Judges, Additional Sessions Judges, Assistant SessionsJudges and the Magistrates of the First, Second and Third Class.

Classification by Stage of list - trial Court Judgments, appellateCourt Judgments or Court of revision Judgments; high courtjudgments, supreme court Judgments

According to the stage of litigation there are judgments of trialCourts, appellate Courts and Courts of revision. Even in appellatejudgments, there is consideration difference in the judgments offirst appeal and those of second appeal.

Classification by Nature of trial - regular judgment, or summaryjudgment;

Judgments may be delivered after regular trial or after a summaryhearing. On the criminal side, summary jurisdiction is exercised byMagistrates under the Code of Criminal Procedure. Judgments inregular trials are full and detailed while those under summarytrials are brief statements of reasons in support of findings.Likewise appeals are generally decided after full hearing. Theyare, however, also dismissed summarily under the Code of CriminalProcedure.

Despite these and some other distinguishing features, there are somefactors which are common to all kinds of judgments.

Judgment (form)1. Heading;2. Facts submitted by the prosecution and accused;

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3. Points for determination;4. Decision on these points;5. Reasons for the decision;6. Final order convicting or acquitting the accuse;7. Awarding sentence in case of conviction;8. Signature and the date of decision and announcement.

judgement (Legal Requirements)judgement recording The Judge who records the evidence should record the judgment or his

succeeding Judge or Magistrate should do so. statement of particulars (judgement)Then every judgment of a Criminal Court must contain a clear statement

of the points for determination, the decision thereon and thereasons therefore. The judgment should state sufficient particularsto enable a court of appeal to know that facts (of prosecutioncase) are proved and how.

Signature and Dated (judgement)The judgment shall be signed and dated by the Presiding Officer be, it

a Magistrate, or a Judge. open court delivery (judgement)The judgment shall be pronounced in open Court either immediately

after the termination of the trial or at some subsequent time ofwhich notice shall be given to the parties or their counsel.

presence of accused/defendant (judgement)The accused shall, if in custody be brought up, or if not in custody,

be required by the Court to attend to hear judgment delivered,except where his personal attendance during the trial has beendispensed with and sentence is one of fine only or he is acquitted,in either of which case it may be delivered in the presence of hisCounsel.

JUDGMENT WRITING TIPS

Language (judgement)The following rules should be kept in mind regarding the language of a

judgment: -A judgment should be written in the language of the Court or in

English.It should be plain and easily understood. If the judgment is in the

English language, the use of oriental words should be avoided,

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except technical, revenue or law terms. Poetic allusions should beavoided.

The judgment should not be prolix or verbose "A prolix judgment is atorture to write and a torture to read".

The language should be sober and temperature and should not besatirical. There should be no joking in a judgment. Judges shouldbe dignified and restrained in expression of opinion maintainingimpartiality and discarding bias.

Written by Presiding Officer (judgement)A judgment should not be written by a clerk and signed by the Court.

It should be written by the Presiding Officer of the Court or fromhis diction. The law makes it permissible to dictate orally toanother, but in that case every page of the judgment should besigned.

duties of a judge (judgement)The duties of a Judge are two-fold: the ascertainment of facts and the

application of law, including the consequent punishment. determination of facts (judgement)The determination of facts also involves the problem of admissibility,

cogency and effect of evidence and also the question of evidenceand method of the Judge.

Application of Law(judgement)The Judge has to consider the relevant law on the Statute Book and see

which section or sections, or a part of section applies to the casein hand.

punishment (judgement)In criminal cases the court has to punish the offender as the law of

the country defining offences or crimes ordains a Magistrate or aJudge to do so. There are several theories of punishment such asthe retributive, preventive, deterrent and reformative under theresponsibility category and the educative and treatment theories,which fall under the irresponsible category. Punishment in criminalcases must be as under the Ordinance.

cross cases (Judgments)Judgments in cross cases have been a matter of concern in appeals. It

must be remembered that charge, evidence and judgments in crosscases should be separately recorded. Each judgment should besupported by the evidence on that file and no reference of evidenceeither ocular or circumstantial (including documentary) may be made

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which has been recorded on the file of the cross case unless itsprimary or secondary evidence has been brought on the file in hand.

justice (judgement)In essence, justice it means constant and perpetual disposition to

render to every man his due and is80, therefore, an act of renderingwhat is right and equitable to one who has suffered wrong. Justice'is the greatest interest of man on earth. It is the ligament whichholds civilized societies as nation and then civilized nationstogether. Wherever the temple of justice stands and as long as itis duly honoured there is a foundation for social security, generalhappiness, and for the improvement and progress of our race.

order (judgement)Order is a formal expression of the decision of a civil court which is

not a decree. decree (judgement)Decree' is the formal expression of an adjudication, which as far as

regards the Court expressing it, conclusively determines the rightsof the parties with regard to all or any of the matters incontroversy in the suit.

judgement to comprise points for determination, determination, andreason

Judgment is supposed to comprise the points for determination and thefindings thereon along with the reasons for the findings. In theabsence of these points it is no a judgment in the eye of law. Theexpression of reasons is, in fact, a demonstration that justice isdone and that Judge had applied his mind to the facts and argumentsin the case before arriving at the conclusion. Hence, the judgmentshould, not only state the evidence, but also the findings and howit supports the findings. Even an exparte decree or order should beself-explanatory. Omission to give reasons for the findings is amaterial irregularity amounting to an illegality, which may vitiatean otherwise just decision.

Appreciation of evidence (judgement)Appreciation of evidence is cardinal principle of dispensation of

justice. The acceptance or rejection of evidence should depend uponthe consistency it has with the case of the party and on the testof cross-examination as well as its co-relation with othercircumstances of the case. Instead of simply enumerating theevidence, it has to be logically weighed on the basis of well-known

80 Black's Law Dictionary

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and well-settled principles of law. A careful analysis andappraisement of evidence is, therefore, an absolute necessity inthe interest of justice. In the absence of proper reasoning even afinding of fact is open to challenge. It is a matter of commonsense and has been repeatedly emphasised that a judgment cannot bebased upon the personal knowledge of the Presiding Officer orsuspicion, conjectures or surmises but should be based upon theevidence on the record and be supported by it. It must indicate ajudicial appreciation of the circumstances and must show that thecourt has applied its conscious mind to the case without fear andfavour. In suits in which issues have been framed, the court has tostate its findings or decisions separately on each issue unless thefindings on any one or more of them is sufficient for the decisionof the suit. The oral and documentary evidence adduced upon eachissue should be carefully reviewed and considered in the judgment.Discussion of evidence covers a major portion of the judgment andthe right conclusion or findings depend on question of fact.Therefore, proper care and attention should be paid to thisimportant part of the judgment.The Judge or Magistrate has to basehis findings on evidence, strictly in accordance with the law. Hecannot use his own knowledge about the character of witnesses orimport into his judgment facts other than those brought throughproper evidence. Obviously he should not base his findings onconjectures.

judgment to be written The judgment should be written either in the language of the Court, or

in English;direction as to costs (judgement)judgement should contain the direction of the Court as to costs;statement of the case (judgement)

Judgement requires a concise statement of the case and not necessarilya memorandum of the evidence.

witness statement (judgement)In some cases, it may be necessary to refer to or give a summary of

statement of a witness but then it should preferably beincorporated in the reasons given for the decision. The referenceto the findings of witnesses should invariably be by his name andnumber as a witness;

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period (judgement)There is a common saying taht justice delayed is justice denied. When

the trial in Court is over, the Judge should proceed at once or assoon as possible, to the consideration of his judgment. It isessentially necessary that he should do so while the demeanour ofthe witnesses and their individual characteristics are fresh in hismemory. He should bear in mind that his first duty is to arrive ata conscientious conclusion as to the true state of those facts ofthe case about which the parties are not agreed. Instances haveoccurred of judgments not being written until a considerable timeafter final arguments have been heard. This practice is open tograve objection. The judgment is supposed to be written andpronounced within 14 days of the date on which arguments have beenheard and in case of violation a written explanation for the delayhas to be furnished by the sub-ordinate courts;

certificate of judgementThe sub-ordinate Courts are required to append to their monthly and

quarterly statements a certificate of the effect that the judgmentshave been pronounced in all cases within a month of the hearing offinal arguments. Every District Judge or a Civil Judge proceedingson leave or transfer must before making over the charge send acertificate that he has written judgments in all cases in which hehad heard arguments; and should an officer be forced to lay downthis charge suddenly he shall nevertheless write the judgment insuch cases and send them for pronouncement to his successor.

appeal (judgement)In Civil cases, an appeal is not an inherent right exercisable by a

party consequent on the passage of a decree. It can be availed ofonly where it is expressly granted by law and in that sense anappeal is the creation of a statute. The Civil Procedure Codeprovides the right of appeal from original decree unless it isotherwise expressly barred by any law. The right of second appealis much restricted as against the provisions of Civil ProcedureCode. By virtue of Civil Procedure Code, the right of second appealis available only on the following grounds, namely: -

¯ The decision being contrary to law or usage having the force of law;¯ The decision having failed to determine some material issue of law or usage having the

force of law;¯ A substantial error or defect in the procedure provided by this Code or by any other law for

the time being in force, which may possibly have produced error or defect in the decision ofthe case upon the merits.

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statutory right of appeal (judgement)The statutory right of appeal confers the right of hearing the whole

of the dispute unless expressly restricted and the Appellate Courthas to consider controversy entirely afresh both as regards thefacts or law and to substitute it by its own judgment for that ofthe sub-ordinate Court.

judgement structure (appeal judgment)The judgment of the Appellate Court shall be in writing and shall

state:-The points for determination; the decision thereon; thereasons for the decision; the relief to which the appellant isentitled; and be signed and dated by the Judge or by the Judgesconcurring therein.

judgement structure (appeal judgment)The judgment of the Appellate Court shall be in writing and shall

state:-The points for determination; the decision thereon; thereasons for the decision; where the decree appealed from isreversed or varied, the relief to which the appellant is entitled;and be signed and dated by the Judge or by the Judges concurringtherein.

'points for determination' (judgement)The term 'points for determination' means all the important questions

involved in the case. The Court is required to record points forthe determination so as to determine that it has dealt with theapplied its mind to all the point in controversy. The Court mustalso state its reasons for the decision. It is also required toopine with regard to each point and the judgment has got to beilluminative of all the considerations leading to the decisionarrived at by the Court. The practice of reproducing the order ofthe lower court with minor or paragraphical changes is highlyobjectionable. The Court must invariably apply their independentdisposition instead of giving a mere resume of the judgment of thelower court.

confirming, varying or reversing The judgment of an Appellate Court may be for confirming, varying or

reversing the findings of the lower court. The Appellate Court hasfurther powers to pass any decree and make any order which ought tohave been passed or made and pass or make such further or otherdecree or order as the case may require and this power may beexercised by the Court notwithstanding that an appeal is against apart of the decree and may be exercised in favour of all or for oneof the respondent or the parties although such respondents or

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parties may not have filed any appeal or objection. In these termsvery wide discretion is given to the Appellate Courts in order toprotect the ends of justice from being defeated.

conduct of judge (judgement)The conduct of a Judge also plays an important role in producing a

qualitative judgment. The cardinal virtues in a judge as describedby Lord Denning are: patience to hear what each side has to say;ability to understand the real worth of the argument; wisdom todiscern where truth and justice lie; and decision to pronounce theresult. The judge, on the one side, has to ascertain the facts andon the other apply law to determine the fate of the litigation. Hisduties are, therefore, two fold in nature.

A judge is authorised under law to decide disputes, which may bebetween State, Corporation, Authority and citizen or citizen andcitizen. The real strength of a judge lies in the jurisdiction andthe manner in which he exercises it; the character, neutrality, anddiscipline the exhibits in the proceeding and judgment. In anarticle entitled 'Judges and Judicial Power' published in a book with thesame title, Lord Denning observed:

"So far as judicial power is concerned, it is a mistake to think of a judge as having power. Hehas jurisdiction to decide cases, but he has no power of his own. His only power is to decideaccording to law: and the law is to be found in the statutes or in the doctrines laid down byhis predecessors over the years. Their principal function is to restrain the abuse of power byothers in the State. If the government does anything beyond its power, it acts ultra varies.Its action is void. It has no legal effect."

Justice can only be administered by Courts in aid of the law and tofurther and develop the law and not to defeat the law.81

decree decree is the formal expression of an adjudication which, so far as

regards the court expressing it, conclusively determines the rightsof the parties with regard to all or any of the matters incontroversy in the suit and may be either preliminary or final.

introductory sentence (judgement)The Judgment usually opens with introductory sentences to describe the

nature of the case. But it is not necessary to describe the natureof the case. The introduction, if any, should be brief consistingof one or two sentences.

81 Jalal Din Vs. Mst.Noor Sian PLJ 1892 S.C.413

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statement of fact (judgement)At the time of stating facts, it should be kept in mind that it is not

necessary to narrate them in detail. It would be sufficient ifimportant facts are mentioned leaving details to be dealt with atthe time of discussing the issues.

statement of issues(judgement)After stating the facts concisely, issues should be taken up. This is

the stage when facts should be narrated and reference be made tothe evidence of the parties.

conclusion (judgement)The conclusion should be supported by reasoning and reference to the

evidence. The finding should be recorded after discussing evidence,questions of law and explaining all such points and flaws, whichrequire explanation. The practice of stating the summary ofevidence and concluding that in the opinion the case is proved ornot proved should at no cost be adopted. Unless the facts, evidenceand law are discussed and reasoned out in support of the conclusionthe entire judgment can be assailed. The judgment should not bebased on conjectures, surmises, whims and caprices. Any findingbased on these grounds can be easily set-aside by the higher Courtwhere it is challenged. The judge should avoid dealing of raisinghypothetical or imaginary questions, which have not arisen. Heshould restrict himself to the issues on the questions fordetermination.

judgement to apply the lawA judgment is always based on the provisions of law which are applied

to the facts of the case. Therefore before preparing judgment acareful study of such law should be made. It would not be enough toread some sections of the Act. One has to examine the judgments ofthe Supreme Court and High Court if available. If it is felt thatproper assistance has not been rendered at the bar then it is theduty of the judge to study himself. Omission to do so has beentermed as dereliction of duty.

A judge of the subordinate Court is bound by the Judgment of theSupreme Court and the High Court to which he is subordinate, unlessit has been over ruled. It is the duty of the Judge to apply thecorrect law and he is presumed to know it including thenotifications issued from time to time.

While quoting the authorities full reference of the judgment should bemade. If necessary and proper even the observations may also bequoted. The head notes should never be quoted or reproduced in

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judgment. They are sketchy, misleading and do not convey whatactually has been decided. Such quotations adversely reflect uponthe quality of judgment and the judge himself. It gives animpression that the judge has not taken the troubl to even read therelevant portion of the authority, shown lethargy and has notattempted to apply his mind.

simplicity (judgement language)Judgement should not be ambiguous resulting in every party thinking it

is in his favour or against him. Repetition of facts and law shouldbe avoided. Verbose language and lengthy judgments do not creategood impression. However it should not be so short and laconic thatthe very purpose of judgment is frustrated. It should be precise,concise, balanced, clear and intelligible. Such judgments decidethe controversy conclusively and score out possibility ofmultiplicity of litigation. They make a mistake, however, whenthey require their readers to wander through the same process ofdiscovery—to follow them down blind alleys, wrong turns, falsestarts, and irrelevant facts until the issues finally pop up likemushrooms after rain.

judgement structure for small courtsJudgments by the Court of Small Causes should contain points for

determination and the decision thereon, but need not be elaboratecontaining discussion of evidence and reasons for arriving at theconclusion. However the observations regarding facts and decisionmust be to the minimum which is intelligible for determination bythe Revisional Court that it is according to law.

judges characterA judge has to be just, firm, polite, serene, possess good moral

character and integrity. The judgments reflect the qualities of ajudge and unless you have these qualities you can not produce agood judgment. Complaints are made of outside interference but itis universally accepted without fear of contradiction that so longa judge is upright, honest and God fearing with intellectualhonesty no one can dare to interfere with his duties. If any judgehas character and a reasonable degree of courage, all partiesrespect it. He is rarely bothered by any one. A judge has to befair but firm and will have no trouble from political or any othersources. 82

Judges should be humble but firm, dignified and sober, calm and selfcomposed judge performing their duties in faithful discharge of

82 L. Staffer Oliver "The Bench IS A Hard Seat":

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their oath and according to law without fear or favour, affectionor ill will and the moment they feel that they are unable to fulfiltheir oath they would not hesitate to lay down their robes. Theyshould be the embodiment of courage, character, honestty,integrity, dignity and learning. Judges must be models forlearning, uprightness, firmness, caliber and courage. Theses arethe judges who are living monuments for our guidance.

A Judge has to be natural, principled and disciplined. He has to usewisdom, learning and discretion. The judgment delivered by him isthe cumulative effect and out come of these abilities and qualitiescombined together.

Legal ConclusionsA good judgement must also reflect the Judge’s familiarity with the

current state of the law. The judgement should demonstrate theJudge’s knowledge of both the applicable statutory provisions andthe relevant case law or legal precedents.

Depending on the facts of the case at bar, it may be necessary, forinstance, to explore the relevant articles of the nationalconstitution as well as the provisions of the enabling statute fromwhich the Prosecution derives the authority to pursue the Defendantfor an alleged crime.

Furthermore, if this is an issue that has been previously litigated,it might be worthwhile to examine and analyse the manner in whichthe highest court in the jurisdiction settled it previously. It isunnecessary for a trial Judge to examine a case as if it were in avacuum and risk having the judgement overturned by a higher courtfor failure to follow stare decisi.

Such analysis would lay the proper foundation for the Judge’s findingsin the case at bar. However, this part of the discussion should benarrowly tailored to the scope of the alleged crimes. Thus, if theDefendant is charged with murder, it is no use having a lengthydiscussion on the legal definition of some other crime.

Avoid block quotations It is not good practice to quote large chunks of text from books or

other judgements. Paraphrase whenever you can. This enables thereader to appreciate your mastery of the concept described. Whereof course, the use of words in a text is in dispute or where thelanguage of the contract is in dispute, such quotations areinevitable.

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FootnotesIn order to keep the length of the judgement within reasonable limits

and to incorporate lengthy documents, textbooks passages or casesthat may have been consulted or relied upon, it is often necessaryto include footnotes to the judgement. These should be carefullyselected and referenced.

The practise of including lengthy footnotes that are not essential tothe understanding of the judgement should be deplicated.

judgment of the courta judgemetn where all court presiding officers agree.

clear execution orderBeing the final result of a legal procedure a judgement shall provide

a balanced conflict solution. An ideal judgement enables bothconflict parties to live in peace together. For that purpose it isnecessary to deliver a clear execution order giving preciseinstructions to both parties who has to do what. The partiesthemselves who are not jurists need a simple to read instructionabout what the law says and what the law requires them to do. Theparties also need to see that their position has been attentivelyheard by the judge.

Execution OrderThis part of the judgement formulates the decision the judge has made.

It informs the parties exactly about what the court orders them todo and how the decision shall be executed. The given order must beenforceable, this means it has to be very precise, naming exactlythe parties, their duties, the deadlines, the amounts of money, theinterest rates to be paid, etc. It must be clear for the enforcingcourt or the enforcement agents (like judicial police officers)without any further discussion what obligations the parties have tofulfill according to the decision. Any vague formulation of anexecution order could cause the parties to start a new disputeabout the execution and the contents of the decision.

Findings of Facts:This part of the judgement must show the facts the judge bases his/her

decision upon. It also must give a short reason why disputed factsare regarded to be proved by the judge due to his/her weighing ofthe relevant evidence.

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quick judgementTo any of us sitting in judgment on others, whether as judge or

magistrate, judgment writing often feels like the bane of ourexistence but it is, of course, the ultimate reason for ourexistence. In The Eumenides, the Greek playwright Aeschylus wrotein 458 B.C. :

“Fair trial, fair judgment …

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judgement foramtA judgement should have the following format.Front Page¯ Heading¯ Parties¯ Judgment¯ Coram¯ Assessors¯ Dates¯ Summary¯ Annotations

Introduction¯ Jurisdiction Statement¯ Introductory Statement

Body¯ Paragraphs¯ Citation of books¯ Citation of cases¯ Citation of statutes¯ Rules¯ Quotations¯ Citation of Judges¯ Footnotes¯ Language

Last Page¯ End of judgment¯ Coram (Judges)¯ Counsels

Heading (judgement)Case number must be at the top right corner of the front page. Title of the Court must be capitalised, bolded, centred and be underli

nedThe words, ‘in the matter between” must follow immediately after the t

itle of the Court .Names of parties (judgement)The names of the parties must be capitalised and be bolded. There

should be single line spacing between the names of the parties.In criminal cases, the parties must be capitalised, bolded and be aligned to the left. Where there are multiple accused, theyshould be

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stated as such and in the order they appear in the indictment. The names should be aligned to the left and the numberof accused be aligned to the right.

e.g.RexVAb Accused 1Cd Accused 2Ef Accused 3 JudgementThere should be double line spacing between the names of the parties a

nd judgemet.CoramThe coram is the names of the judge, or presiding officer. AssessorsIf any, there should be names of assessors.DatesThere must be date of the judgement, on the front page.SummaryThe summary must contain the principles and law. In writing the

summary, hyphen and a space must be used to separate points. Thesummary must be italicised.

AnnotationThere must be a list of cases, statutes and books cited in the body of

the judgment. All the annotations must have proper references forease of location.

Paragraphs (judgement)There must be numbered paragraphs for ease of reference and each parag

raph must contain one point. All paragraphs must be justified.Citation of booksAuthor and title of the book must appear in the body of the paragraph.

Pages and publications must be shown in the footnotes.The author and title of the book must be in bold.

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Citation of casesThe names of the parties must appear in the body and be bolded. The ci

tation must appear in the footnotesCitation of statutesThe name of the statute must appear in the body and be bolded. The

section, number and date of publication must be shown in thefootnotes

RulesWhen the High Court Rules are cited for the first time, their full nam

e should be stated and then a small ‘r’ should be placed inbrackets. When the rules are cited again, the small ‘r’ will be used instead of the full name of the rules. E.g. High Court Rule8-(r)

QuotationsQuotations must be indented on both sides, italicised and be placed in

inverted commmas. If the Court wants to add emphasis ina quote, it should bold the word or sentence that is being emphasised. The word “my emphasis” is preferred.

Citation of JudgesIn citing Judges in the text, one should avoid using words like, “as h

e then was” or “the late Justice”.FootnotesFootnotes should be brief and must show pages, publications, publisher

s and gazette number, etc...CounselThe judgement must indicate the names of counsel or pleaders on both

sides, that is, plaintiff and defendant, or applicants andrespondents.

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OpinionsLEGAL OPINION

defining a legal opinionThe primary purpose of a legal opinion is communication of advice to

either a lay or professional client. It is therefore of the utmostimportance that it is clear and in plain, understandable English. Alegal opinion will often have the over arching question of does theclient have a good and viable case. This is clearly the mostimportant question to any client and must be approached withhonesty and directness. If the client’s case is not viable theymust be advised of this in the course of the legal opinion, ifthere is something which can be done to improve the client’sprospects of success, a good legal opinion will spell this out veryprecisely. Numbered action points are one way of achieving clarityin this regard.

definition and scope of legal opinionAn opinion is a document stating advice on one or several issues

arising in a case. It must contain considered advice but it is aworking document therefore it must use language that is accurate,precise and concise.

It can be aimed at a professional client, a lay client or both and ispractical in nature dealing with real situations. Issues can besuch matters as liability; chance of success, evidence; what isalready present or what further evidence is required to improve anissue (consideration being given to both sides in the matter) andpractical and legal solutions or opinions on procedure or nextsteps in complicated or tactical issues.

Any opinion involves the application of a practitioner's specialistexpertise and therefore should involve in depth research. It cansometimes also be a second opinion.

title (legal opinion)The legal opinion should be written following a structure. It should

be entitled OPINION or ADVICE and contain the title of the case inthe heading.

legal opinion introduction The first paragraphs should serve as an introduction to the legal

opinion, laying out the salient facts and what you have been askedto advise about. At this point, many legal opinions will set outthe main conclusions and advice and the overall opinion. This isgood practice as it will encourage focus throughout the legal

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opinion and the reader will be able to read the followingparagraphs knowing where they are leading. A percentage chance ofsuccess can be included in this section if appropriate.

legal opinion reasons The subsequent paragraphs should set out your reasons for reaching the

legal opinion which you do in the opening paragraphs. This is wherethe legal structure will come in. Each issue should be taken in itslogical order. Each section should include you opinion on thatissue and the reasons for it.

legal opinion structure There are certain rules of structure which ought to be followed for

the sake of consistency in legal opinions. One example of these isthat liability should be dealt with before quantum in civil claims.If there are two or more defendants take each of the defendant’sliability in turn before turning to quantum. The document shouldfollow a logical structure. It should start with a heading followedby confirmation of the instructions as to when they were receivedand what is required. There should be a very short reiteration ofthe material facts and a quick summary including all the endproducts of the reasoning: likely outcome, chance, and possiblequantum of damages, if applicable. The main body of the opinionshould include explanation of legal and any other liability,evidence and further information followed by solutions: both legaland practical. Advice should be included as to next steps that areavailable or should be considered. These should relate to, notsimply reaching a settlement or winning a case, but also how to doso, including the use of any tactical issues and what should beaccepted or conceded, It is helpful at the end of the document tolist the main points in the body of the document (with crossreferences) and a to do list. Paragraphs should be a sensiblelength and numbered to allow for cross-referencing. Sub-headingsshould be used sparingly but where appropriate and specific to thecontent of that area of the document. The language, structure,content and practical value of an opinion are the indicators ofwhether one is good or otherwise

legal opinion conclusion The concluding paragraph of a legal opinion ought to be a ‘Next Steps’

paragraph advising the instructing solicitors of what needs to bedone to strengthen the client’s case.

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legal opinion –the lawThere is no need to set out basic principles of law with which the

reader will be familiar. Otherwise, authorities should be cited tosupport propositions of laws and when doing so a full citationshould be given. If a particular case is central to your reasoning,the basis on which the case was decided should be set out fully inthe legal opinion. Paraphrasing the effect of the decision isadvisable, to offer a personal tone. Always refer the case you areciting back to the facts being dealt with in the legal opinion.Always cite the most authoritative case on the point of law beingdealt with. For example, there is no point citing a Court of Appealjudgment which has been overruled by a subsequent House of Lordscase. If there is a statutory provision which deals directly withthe subject of the legal opinion then this should be clearly statedand its effects fully explained. Of course care must be taken toensure that any statutory provision being cited is in force at thetime of writing the legal opinion.

legal opinion-clarityAny legal opinion should be written with the reader in mind. It should

be clear, well reasoned and as concise as it is possible to bewithout sacrificing completeness. It is of little use to a layclient if they cannot understand the opinion due to it beingwritten in unintelligible language or if it contains in depth legalor technical terms.

legal opinion-editing for grammatical or typographical errors Any piece of legal writing should be read before submission to ensure

against grammatical or typographical errors which will detract fromthe communicative value of the work. Above all, the advisorypurpose of a legal opinion should be borne in mind at all times. Aswith other legal documents proof reading, accuracy, clarity andcorrect spelling, grammar and punctuation are of optimum importancebut language should reflect the reader of the document.

legal opinion-no referencesNo opinion should ever be an academic piece of writing and therefore

should not generally include references to law or statutoryauthorities unless absolutely necessary or where the area of law isspecialist or new or where cases are being compared. It shouldapply the law to the facts or given scenario rather than describeit. The primary purpose of a legal opinion is communication ofadvice to either a lay or professional client. It is therefore ofthe utmost importance that it is clear and in plain, understandableEnglish. Every word of the legal opinion should be chosen by the

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writer because it communicates precisely the advice which thewriter intends to covey.

every word countsEvery word of the legal opinion should be chosen by the writer because

it communicates precisely the advice which the writer intends tocovey.

write in plain English A good legal opinion will avoid archaic language and legalese. Use of

legalese will create a barrier between lawyer and client and divertthe main purpose of the legal opinion; to communicate. The legalopinion should be over simplified. It will no doubt be conveyingspecialised legal advice and must therefore be as detailed as thewriter thinks necessary. The use of plain English simply involvessaying what needs to be said in the clearest way possible andavoiding unnecessary verbosity.

clarity is keyClarity defines good writing. A legal opinion will often contain a

complicated set of facts which will have to be sorted into specificlegal issues and defined in legal terms. Clarity of expression istherefore vital. Clarity of expression can only be achieved throughthorough planning and thought. Clarity of legal writing alsorequires conciseness. This does not necessarily imply brevity, butonce the point has been made, nothing more need be said. Havingsaid that, completeness and total accuracy is vital and concisenessshould not come above giving full and precise advice.

law and jurisprudence (Legal Opinion)There is need to set out basic principles of law with which the reader

will be familiar. Authorities should be cited to supportpropositions of laws and when doing so a full citation should begiven.

title of the caseIf the case is already before court, then I should make the home page

to have the title of the court, the case no, the parties, and thename of the judge.

summary of the case statusThis section should list the case facts, and teh status of the case,

for instance:Ojijo Pascal is charged with racially aggravated affray, two counts of

robbery, having an offensive weapon, possessing a controlled drug, and possessing a

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controlled drug with intent to supply. He faces trial at Gillingham Crown Court. Thepreliminary hearing was heard on 8 th February 2008 and the Plea and Case ManagementHearing is listed for the 21st March 2008.

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JUDICIAL OPINIONS

definition and scope of Judicial OpinionA judicial opinion informs parties of the outcome of their case and

articulates the legal principles on which the decision is based inorder to guide the bench, the bar, academia, and the public.Because written decisions serve both case-deciding and law-makingfunctions, they range in form from one-sentence, unpublishedsummary orders to formally structured, citation-laden, full-dressopinions. An opinion that is intended only to inform the parties ofthe outcome of their dispute should not be as elaborate as oneintended to serve as a precedent.

The complexity of the facts and the nature of the legal issues are theprincipal factors that determine the kind of opinion required. Ifthe precedents are clear and the material facts are notcomplicated, the scope of the opinion will be limited. If thecontrolling law is uncertain or the material facts are complex,exposition and analysis are needed to explain the reasons for thecourt’s decision. Some cases that present complex fact patterns mayrequire lengthy discussion of the facts even though the applicablelaw may be simple.

purpose of judicial opinionJudicial opinions serve three functions. First, written opinions

communicate a court’s conclusions and the reasons for them to theparties and their lawyers. Second, when published, opinionsannounce the law to judges, academics, other lawyers, and theinterested public. Finally, the preparation of a written opinionimposes intellectual discipline on the author, requiring the judgeto clarify his or her reasoning and assess the sufficiency ofprecedential support for it.

statement of facts (judicial opinion)The opinion should fairly, clearly, and accurately state the

significant facts and relevant rules of law and demonstrate by itsanalysis the reasonableness of its conclusions. Misstatingsignificant facts or authorities is a mark of carelessness, and itundermines the opinion’s authority and integrity. Unclear orambiguous writing reflects the author’s lack of clear thinking anddefeats the opinion’s purpose83.

83 William Strunk, Jr., & E. B. White, The Elements of Style xvii (4th ed. 2000).

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Pride in work well done is a proper incident of good craftsmanship inany field of work, including law. An opinion in which the authortakes no pride is not likely to be much good.84 Judges should askthemselves: Am I writing this way because this is how I’ve alwaysdone it, or is there a better way? Is there a reason for organizingthe opinion this way? For including these particular facts? Fordiscussing this issue at length? For citing this case? Is thissentence clear? Are all the words in it necessary?

full-dress opinionsFull-dress opinions are those that present a structured discussion of

the facts, legal principles, and governing authorities involved ina case. The significance or number of the issues presented in acase, the novelty of the question it poses, and the complexity ofthe facts are among the factors that determine whether an opinionrequires fulldress treatment.

Memorandum opinions Memorandum opinions are appropriate if the decision does not require a

comprehensive, structured explanation but still needs someexplanation of the rationale. They are generally brief and informaland may or may not be published. Per curiam opinions are generallyincluded in this category. Appendix A contains an example of amemorandum opinion.

Summary orders Summary orders simply state the disposition of the case. They

sometimes include a brief statement of findings and conclusions,but often provide little or no explanation. Summary orders areusually unpublished. A summary order may be sufficient if clearexisting law is simply being applied to facts that are undisputedor that are made indisputable on appeal because, for example, theyare jury findings supported by substantial evidence.

statement of the facts (judicial opinion)Even if it appears that the litigants do not need a detailed statement

of the facts, the opinion should present sufficient facts to definefor other readers the precedent it creates and to delineate itsboundaries.

statement of the law (judicial opinion)The relevant precedents—and the relevant policies—should be analyzed

in sufficient detail to establish the rationale for the holding.

84 Robert Leflar, Some Observations Concerning Judicial Opinions, 61 Colum. L. Rev.810, 813 (1961).

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Audience (judicial opinion)Opinions are written primarily for the litigants and their lawyers,

and for the lower courts or agencies whose decisions they review.If an opinion is addressed to the parties, it should provide themwith a fair and accurate statement of what was before the court fordecision, what the court decided, and what the reasons for thedecision were.

rationale (judicial opinions)An opinion remanding a case must tell the lower court what is expected

on remand. An opinion that sets guidelines for trial courts tofollow must state the factual basis, legal rationale, and policyfoundation of the guidelines sufficiently so that trial judges canapply them correctly.

publication of judicial opinionThe courts of appeals have adopted rules, internal operating

procedures, and other policies concerning publication and non-publication of opinions. Some of the policies specify criteria fordeterminingwhether an opinion should be published. Generally, anopinion, memorandum, or other statement explaining the basis forthis court’s action in issuing an order or judgment will bepublished if it meets one or more of the following criteria:

1. with regard to a substantial issue it resolves, it is a case of first impression or the first caseto present the issue in this court;

2. it alters, modifies, or significantly clarifies a rule of law previously announced by the court;3. it calls attention to an existing rule of law that appears to have been generally overlooked;4. it criticizes or questions existing law;5. it resolves an apparent conflict in decisions within the courts ;6. it reverses a published agency or district court decision, or affirms a decision of the district

court upon grounds different from those set forth in the district court’s published opinion;7. it warrants publication in light of other factors that give it general public interest.

precedential opinions, non-precedential opinionsPrecedential opinions are those which cause a change in the law, and

hence, can be quoted in the other cases. Non precedential opinionsare “not for publication” or “not to be cited.” The publishers basetheir decision on whether they think that the order or opinion issignificant or otherwise of interest. Because decisions of mostjudges are merely persuasive authority—that is, they are notbinding precedent even in their own districts—publication of suchdecisions should be the exception. In addition, time constraintsargue against writing formal opinions unless the decision involvesa novel or complex issue or a matter of public importance and thus

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may be useful to attorneys and judges or be of interest to thepublic.

clarity (judicial pinion)If a judge wants to write clearly and cogently, with words parading

before the reader in logical order, the judge must first thinkclearly and cogently, with thoughts laid out in neat rows.85

law clerks (judicial opinions)In the writing process itself, judges use their law clerks in

different ways. Some limit the clerk’s work to performing research;preparing bench memos; and editing, cite-checking, and commentingon the judge’s drafts. Some assign the writing of the first draftto a law clerk in routine cases only; others have clerks writefirst drafts in even the most complex cases, having found thatworking from a draft makes the task of writing the opinion easier.Many judges, having found that it takes more time to work with aclerk’s draft, write their own draft, then polish it into the finalproduct. Some judges invite the law clerk to rewrite the judge’sfirst draft before the judge returns to it for preparation of thefinal version

role of judicial opinionA judicial opinion should identify the issues presented, set out the

relevant facts, and apply the governing law to produce a clear,wellreasoned decision of the issues that must be resolved.

judicial opinion structureA full-dress opinion should contain five elements:1. an introductory statement of the nature, procedural posture, and result of the case;2. a statement of the material facts;3. a statement of the issues to be decided;4. a discussion of the governing legal principles and resolution of the issues; and5. the disposition and necessary instructions.

Clear and logical organization of the opinion will help the readerunderstand it.

headings and subheadings (judicial opinion)The use of headings and subheadings or Roman numerals, or other means

of disclosing the organization to the reader, is always helpful,particularly when the opinion is long and the subject mattercomplex. Headings, subheadings, and subdivisions not only provideroad signs for the reader, they also help the writer organize hisor her thoughts and test the logic of the opinion. They also enable

85 Ruggero J. Aldisert, Opinion Writing 11 (2d ed. 2009).

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a judge who wishes not to join some part of the opinion to identifyit. Further, they assist in the indexing and classification ofopinions and their retrieval by researchers.

Introduction (judicial opinion)The purpose of the Introduction is to orient the reader to the case.

It should state briefly what the case is about, the legal subjectmatter, and the result. It may also cover some or all of thefollowing:

1. The parties: The parties should be identified, if not in theIntroduction, then early in the opinion, preferably by name, andnames should be used consistently throughout. (The use of legaldescriptions, such as “appellant” and “appellee,” tends to beconfusing, especially in multi-party cases.)

2. The procedural and jurisdictional status: The basis forjurisdiction, relevant prior proceedings, and how the case gotbefore the court should be outlined.

3. The issue: The issue or issues to be decided should be identified,unless they are so complex that they are better treated in aseparate section.

Summarizing the holding at the outset can save time for readers,particularly researchers who will be able to determine immediatelywhether to read the rest of the opinion. Providing a terse summaryof the holding at the start of the opinion also helps the judgestate it precisely and succinctly. The final version of theIntroduction may be best written after the opinion is completed,when the judge has refined the issues, the conclusions, and thesupporting analysis. Some judges prefer to place the holding at theend, believing that an opinion will be more persuasive if thereader must read through it before learning the outcome.

Statement of issues (judicial opinion)The statement of issues is the cornerstone of the opinion; how the

issues are formulated determines which facts are material and whatlegal principles govern. Judges should not be bound by theattorneys’ analyses; they should state the issues as they see them,even if this differs from how the lawyers state them. That an issuehas been raised by the parties does not mean that it must beaddressed in the opinion if it is not material to the outcome ofthe case.

The statement of issues should not be confused with recitals of theparties’ contentions. Lengthy statements of the parties’

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contentions, occasionally found in opinions, are not a substitutefor analysis and reasoning, and they should be avoided.

Statement of facts (judicial opinion)In a single-issue case, the facts can be set forth in one statement

early in the opinion. But when a case raises a series of issues,some facts may not be relevant to all of the issues. This situationconfronts the judge with the difficult task of presenting enoughfacts at the outset to make the opinion understandable withoutlater repeating facts when discussing particular issues thatrequire further elaboration. In such a case, the initial statementof facts can be limited to necessary historical background, and thespecific decisional facts can be incorporated in the analysis ofthe issues they concern. Although brevity and simplicity are alwaysdesirable, they are secondary to the need for a full and fair factstatement. Facts significant to the losing side should not beomitted. It is also important to include facts that, although notmaterial to the decision, add color. This is a mark of the author’sflair and improves readability. However, colourful writing may beseen by the parties as trivializing the case. It must therefore beused with caution. Further, the facts must be accurate, and thefacts on record should be the same as the facts in the briefs.

Discussion of legal principles (judicial opinion)The discussion of legal principles is the heart of the opinion. It

must demonstrate that the court’s conclusion is based on reasonand logic. It should convince the reader of the correctness of thedecision by the power of its reasoning, not by advocacy orargument. The judge must deal with arguably contrary authoritiesand opposing arguments, and must confront the issues squarely anddeal with them forthrightly. The discussion of legal principlesmust be sufficient to demonstrate to the losing party that thecourt has fully considered the essentials of its position.

Standard of review (judicial opinion)The opinion should specify the controlling standard of review at the

outset of the discussion of legal principles. Unless the reader istold whether review is under the de novo, the clearly erroneous, orthe abuse of discretion standard, the meaning of the decision maybe obscure. Moreover, specifying the standard of review helps thejudge discipline the analysis.

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Issues to address (judicial opinion)As a general proposition, an opinion should address only the issues

that need to be resolved to decide the case. If the courtdetermines that an issue not raised by the parties is dispositiveand should be addressed—even though the parties have not properlypreserved and presented it—the court should notify counsel andprovide them with the opportunity to brief it. Issues not necessaryto the decision but seriously raised by the losing party should bediscussed only to the extent necessary to show that they have beenconsidered. However, judges must be careful not to decide issuesthat are not before them and to avoid advisory opinions andunnecessary expressions of views that may tie the court’s hands ina future case.

Alternative holdingsStating separate and independent grounds for a decision adds strength

to the decision. Statements such as “even if the facts wereotherwise” or “assuming arguendo that we had not concluded thus andso” strengthen the authority of the holding. The opinion should bephrased in such a manner that the alternative ground is disposed offirst and the substantial ground of the opinion is stated last.

Case citations (judicial opinion)Most points of law are adequately supported by citation of the latest

decision on point in the court’s circuit or the watershed case, ifthere is one. String citations and dissertations on the history ofthe legal principle add nothing when the matter is settled in thecourt. Judges should resist the temptation of trying to impresspeople with their (or their law clerks’) erudition. If there is noauthority in the court, it is appropriate to cite authority onpoint from other circuits. If an opinion breaks new ground,however, the judge should marshal existing authority and analyzethe evolution of the law sufficiently to support the new rule.

Secondary sources (judicial opinion)Because law review articles, treatises and texts, and non-legal

sources are not primary authorities, they should be cited sparinglyand only to serve support the reasoning of the opinion. Someauthors are so well respected in their fields that, in the absenceof a case on point, their word is persuasive. Occasionally, publicdocuments or other published works will shed light on relevanthistorical or policy considerations.

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Quotations (judicial opinions)If something important to the opinion has been said well in an earlier

case, quoting relevant language from the case can be morepersuasive and informative than merely citing or paraphrasing it.The impact of a quote, however, is inversely proportional to itslength. Judges should quote briefly, and only when the languagemakes an important point.

Avoiding advocacy (judicial opinion)Justifying a decision will sometimes require explaining why contrary

arguments were rejected. In addressing the main contentions of thelosing side, however, an opinion should not become an argumentbetween the judge and the lawyers, other judges on the court, orthe court below. If the losing side has raised substantialcontentions, the opinion should explain why they were rejected. Butthe opinion need not refute the losing party’s arguments point bypoint or adopt a contentious or adversarial tone. Judges should putaside emotion and personal feelings, and avoid using adjectives andadverbs unless they convey information material to the decision.

clear instructions to court below (judicial opinion)Appellate opinions can and should correct trial court errors and

provide guidance on remand, with clear instructions and guidelines.Appellate courts should not speak in riddles. Simply to remand acase “for further proceedings consistent with the opinion” mayleave the court below at sea. Opinions must spell out clearly whatthe lower courts or agencies are expected to do, withouttrespassing on what remains entrusted to their discretion. Thus,even if an abuse of discretion is found, the appellate court’sdecision is on the law, and the lower court or agency on remandretains the authority to exercise its discretion properly.

precision and clarity (judicial opinion)Precision and clarity are the main concerns of good writing. Precision

in judicial writing is important because judges write forposterity. Once an opinion is filed, lawyers and others will readit with an eye to how they can use it to serve their particularpurpose, no matter how different that may be from what the judgehad in mind. Painstaking and thoughtful editing is essential forprecise writing. Electronic word processing software is a boon towriters and editors. But proofreading text on a computer screen isdemanding, and without careful and repeated checking of a printedcopy, typographical and other errors can be easily missed, even ifautomated spelling and grammar features are used. This means goingover the opinion, sentence by sentence, and asking: What do I mean

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to say here, and have I said it and no more? Be succinct anddirect. Brevity promotes clarity. Writing that makes its pointbriefly is more likely to be understood than writing that islengthy. Writing succinctly also forces the writer to think clearlyand focus on what he or she is trying to say. Further, judicialwriting should be direct. Judicial writers should use simple,declarative sentences and short paragraphs most of the time, butvary sentence length and structure where necessary for emphasis orcontrast. They should also use the active voice and avoid suchconstructions as “it is said,” “it is argued,” and “it is wellfounded.” They should weed out gratuitous adjectives and eliminateunnecessary adverbs such as “clearly,” “plainly,” and “merely.”

plain English (judicial opinions)Even complex ideas can be expressed in simple language that the lay

reader can understand. To express an idea in simple languagerequires that the writer understand the idea fully, enabling him orher to break it down into its essential components. For example,although electricity is a complex scientific phenomenon, it can beexplained in terms laypersons understand. So can tax, antitrust,and patent law. Judges should avoid using clichés, hackneyedphrases (“as hereinabove set forth,” for example), Latinexpressions (“vel non,” for example), and legal jargon.

Footnotes (judicial opinion)The purpose of a footnote is to convey information that would disrupt

the flow of the opinion if included in the text. The first questiona judge should ask about a prospective footnote is whether itscontent is appropriate for inclusion in the opinion. If it is notimportant enough to go into the text, the judge must have somejustification for including it in the opinion at all. Footnotes canalso be used to acknowledge and briefly dispose of tangentialissues. Some judges place all citations in footnotes, leaving thetext entirely for discussion.

Concurrences (judicial opinion)Appellate opinions represent the collective decision of several

judges. The judge who writes the opinion must take into account thethinking of the other judges on the panel court or en banc court andincorporate it into the opinion’s rationale. Sometimes severaljudges participate in preparing an opinion, for example, when anopinion is written jointly or when judges comment on draftsprepared by the judge assigned to write the opinion. When theopinion does not represent the thinking of all of the members of

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the court, some judges may choose to prepare concurring ordissenting opinions. This part discusses some of the collegialconsiderations in opinion writing.

Joint opinions (judicial opinion)In some circuits, the complexity and number of issues involved in a

single case have resulted in jointly written opinions. Sometimesthe opinion is designated as per curiam; at other times the authorsof the different sections are identified. When a panel chooses toissue a joint opinion, considerable planning and coordination byboth judges and law clerks are necessary to ensure a readable andcoherent final opinion. It is desirable for the judges to hold alonger-than-usual post-argument conference to discuss theassignment of opinion sections, their interdependence, and jointassumptions or factual predicates. The panel may need to determinethe sequence of sections to avoid confusion and repetition of basicfacts or legal analyses. Generally, one judge on the panel mustassume coordinating authority and circulate an outline and summaryof the proposed sections before writing begins. One judge, usuallythe coordinating judge, must also take responsibility for writingthe Introduction and Conclusion, which cover all sections.

Dissenting opinions (judicial opinion)Dissenting opinions can serve useful functions in communicating

important information to an opinion’s audiences and furthering thegrowth of the law. They may help to encourage en banc or certiorarireview and to isolate and refine the issues for further appeal.They may promote legislative action to correct possibleshortcomings in the law. Dissenting opinions may also help tonarrow the scope of a decision by pointing out the possible dangersof the position the majority has taken or by indicating to otherjudges and the bar the limits of a particular decision and itseffect on similar cases in the future. Dissenting opinions arewritten at a potential cost, however. A dissent that soundsstrident or preachy may contribute to divisiveness and ill feelingsin the court, may undermine the authority of the majority opinionand of the court as an institution, and may create confusion.Whether judges should dissent depends on the nature of the case andthe principle at issue. Judges generally should not writedissenting opinions when the principle at issue is settled and thedecision has little significance outside the specific case. Casesthat involve emerging legal principles or statutory interpretationin areas that will affect future activities of the bar, the public,and the government are more likely to warrant dissenting opinionsthan cases of limited application. The dissenting judge should

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state the points of disagreement forcefully and effectively withoutengaging in argument or advocacy.

Concurring opinions (judicial opinion)Most of the considerations applicable to dissenting opinions also

apply to concurrences. Concurring opinions are appropriate wherethey are intended to define with greater precision the scope of themajority opinion or otherwise inform the parties and otheraudiences of what the writer believes are important points. Thus,judges may issue concurrences when there are two argued grounds fora decision, the majority justifies its decision on one of thosegrounds, and other judges believe the alternative ground should bestated. Concurrences may also serve to indicate to parties infuture cases how far the court is willing to go down a particularroad. Judges should include in their concurring opinions astatement of reasons why they are concurring. The point is not topresent an alternative opinion of the court, but to indicate thepoint of departure from the majority and to further define thecontours of the majority opinion. Concurrences should also notrehash the facts and legal principles on which the majority basedits decision, unless the judge has interpreted the facts andprinciples in a different way.

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ADVISORY OPINIONS

An advisory opinion is an opinion issued by a court or a commissionlike an election commission that does not have the effect ofadjudicating a specific legal case, but merely advises on theconstitutionality or interpretation of a law. Some countries haveprocedures by which the executive or legislative branches maycertify important questions to the judiciary and obtain an advisoryopinion. In other countries or specific jurisdictions, courts maybe prohibited from issuing advisory opinions.

International Court of Justice advisory opinionsThe International Court of Justice is empowered to give advisory

opinions under Chapter IV of its Statute (an annex to the UnitedNations Charter) when requested to do so by certain organs oragencies of the United Nations. These opinions are non-binding, butPieter H.F. Bekker has argued that this non-binding character doesnot mean that advisory opinions are without legal effect, becausethe legal reasoning embodied in them reflects the Court'sauthoritative views on important issues of international law and,in arriving at them, the Court follows essentially the same rulesand procedures that govern its binding judgments delivered incontentious cases submitted to it by sovereign states. In his view,an advisory opinion derives its status and authority from the factthat it is the official pronouncement of the principal judicialorgan of the United Nations.

Advisory Opinions have often been controversial, either because thequestions asked were controversial, or because the case was pursuedas a "backdoor" way of bringing what is really a contentious casebefore the Court. The full list of the court's advisory opinionscan be found in the section advisory opinions in the List ofInternational Court of Justice cases article.

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Legal Essays

WHAT IS A LEGAL ESSAY?An academic essay aims to persuade readers of an idea based on

evidence. The academic essay is merely a specific writing genre–asis the love letter, newspaper editorial, or pop-fiction. As agenre, it functions within a set of norms, rules, and conventions.The purpose of this discussion is to make clear to you what thoserules and norms are, and how to use them to express your argumentclearly.

The purpose of the academic essay is to persuade by reasoneddiscourse. Scholars use the essay amongst themselves to advanceideas. Its value as an instructional tool is to assist students indeveloping their critical thinking skills. As you recall, criticalthinking is defined as: the ability to read theory accurately,appropriate it meaningfully, apply it independently, generateresults based on that application, analyze the results, and form aclear argument based on those results that can be defended with aspecific line of reasoning.

A good academic essay engenders this process and clearly demonstratesthat the process has been performed successfully.

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CONTENTS OF LEGAL ESSAY?An academic essay has three parts:¯ Introduction¯ Content/body¯ Conclusion

However, these parts are sometimes not indicated, and the essay is formost parts, a flowing prose.

The Introduction

A powerful introduction is invaluable. It can engage your readers, andcan give them confidence that you have thought carefully about thetitle, and about how you are going to address it. A useful genericstructure is to:

1. begin with a general point about the central issue;2. show your understanding of the task that has been set;3. show how you plan to address the title in your essay structure;4. make a link to the first point.

It may be possible to use only one paragraph for your introduction,but it may fall more easily into two or more. You will need toadapt and extend this basic structure to fit with your owndiscipline and the precise task set.

A proper introduction should:

Introduce main argumentsHave an attention grabbing first sentence Provide concise information about broader significance of topicLead in to the body of the essay.

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The Body

The middle part of the essay must fulfil the promises made in yourintroduction, and must support your final conclusions. Failure tomeet either or both of these requirements will irritate yourreader, and will demonstrate a lack of self-critique and ofediting.

The central part of your essay is where the structure needs to do itswork, however explicit or implicit your chosen structure may be.The structure you choose needs to be one that will be most helpfulto you in addressing the essay title.

The content of this central part will probably contain: ideas;explanations; evidence; relevant referencing; and relevantexamples.

The body of your essay should:

Address one idea per paragraphSupport arguments with scholarly references or evidenceContextualise any case studies or examples Style

Use correct punctuation and proofread your workKeep writing impersonal (do not use 'I', 'we', 'me')Be concise and simple Be confident ("The evidence suggests..." rather than "this could be

because...")Connect paragraphs so they flow and are logicalIntroduce primary and secondary sources appropriatelyAvoid using too many quotations or using quotes that are too longDo not use contractions (you’re, they’d)Do not use emotive language ("the horrific and extremely sad scene is

evidence of...")

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This example illustrates how to keep an essay succinct and focused, bytaking the time to define the topic:

The following paragraphs demonstrate how to engage with a variety of scholarly material including primary sources, scholarly theories and formal statistics:

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Lastly, this paragraph illustrates how to engage with opposing arguments and refute them:

Conclusion

A powerful conclusion is a valuable tool. The aim is to leave yourreader feeling that you have done a good job. A generic structurethat you may find useful is:

¯ brief recap of what you have covered in relation to the essay title;

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¯ reference to the larger issue;¯ evaluation of the main arguments;¯ highlighting the most important aspects.

A proper conclusion should:Sum up argumentsProvide relevance to overall topic and unit themesNot introduce new ideas Here are two examples of conclusion paragraphs which have been re-

written several times to illustrate the difference betweenexcellent, good and poor answers.

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TIPS FOR LEGAL ESSAYSProvide ContextYou may be keen to begin outlining your points in the first sentence

of your essay, but it’s good practice to open your paper with one to three sentences of background information that provides context for the argument that follows. For example:

In 2009, the […..] Act was introduced to remedy problems of […..] However, from its inception it has been criticised for [.....].

Essay questions in law tend to be on one big topic, from which you areasked to discuss/analyse/critically evaluate/review (etc) one smallpart. While your answer will have to focus on the sub-topic, you can grab the reader’s attention by giving context to the wider topic, by showing why what you are talking about is interesting or important or significant.

Refer To The QuestionIt’s good to have some brief background information in your

introduction, but this is worthless if it is not related back to the question. Make sure you clearly refer to the question in your introduction by using its key terms throughout. For example, if thequestion is: “What has been the impact of the […] amendments?” you could refer to the question in the following way:

This essay will examine recent amendments to the [.....] Act and explore their effect upon […..].

Read the question carefully to make sure you understand what is required. Look carefully at the key words and phrases, which indicate the sort of answer you are expected to give in your law essay. For example:

Discuss - Give facts and their interpretation from all sides of the argument. Try to arrive at a conclusion.

Evaluate - Give your opinion of the worth of something in the light ofits truth and usefulness.

Analyse - Examine the topic in question; find or show the essence or structure of the topic.

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Assess - Judge the worth or importance, etc of something; evaluate thesubject in question.

Use Authority!You are studying law. You are writing a law essay. So please include

some law. Please include authority (statute law, case law, academiccommentary, policy documents etc) whenever you givea proposition oflaw or an argument not of your own creation.

Some examples

“Mellish J stated that the articles of association are simply a contract between the shareholders in respect of their rights as shareholders”

WHERE

did he say this?

[Pritchard’s Case]

“The corporate constitution has been referred to as a relational contract”

By you? Your mum? Mayson?

As a quick guide, try and have authority for every sentence where yousay something about the law.

"X is the standard of care expected of learner drivers (CASE)". "YYY argues that promissory estoppel should be abolished". etc etc

Cite CasesCases

Students always ask "Do I need to know the full name of every case?" and "How many cases should I know per topic?"

The answers are:

(a) If you can, remember the full name (i.e. "Steven v Vaughan"), but don't burst into tears if all you can remember is "Vaughan". Your examiners are semi intelligent and will probably be able to guess "Vaughan" is "Steven v Vaughan"

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and;

(b) Know as many cases as possible. From your lectures, seminars/tutorials and reading, it will be obvious what cases are KEY and what cases are interesting to know if you have the memory to recall them Underline Case Names. You won't get any marks for doing this. But it does make your answer a bit neater. Similarly, use HEADINGS where you can (for example, for different sections of the main body)

What is it that you need to know from the case law you have studied? That is, what do you need to evidence in your law essays? For example, do you think anyone wants to read "In this case in 1822 this happened and then this happened and then this happened and then this and then this and then this..."?

No!

For each case, know the KEY facts (ie the basics), know the ratio and some of the more interesting dicta. Where there are multiple judgments given, it would be useful if you knew how the different judges differed in their judgments.

Where the case has been overruled or distinguished, know this too. If the case is "bad law", then know why it is "bad law". Are there anyacademic commentaries on the case that have come up from your reading?

Quoting AcademicsI see this all the time:

“a lot of academic debate”

“some academics”

“many academics”

“Some say that...”

Who are these mysterious people? And, what have they done to merit youprotecting their identities? Are they in witness protection schemesperhaps? When it comes to using academic commentaries or critiques,please try

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(a) to remember the name of the academic ("Vaughan argues...")

(b) to give them the correct sex ("Vaughan argues X. She says...")

When you read an article by an academic, try and distill it into a small number of key propositions, comments or arguments.

Let's be realistic. If you have 10 articles to read for Topic X, how many points will you be able to get down in 45 minutes? Know what the academic argues. And also try and form your own view. Can you see any flaws in their logic? Have they missed something? Or has the law changed since their article?

Critique an OpinionIf you just describe the law, if you just regurgitate what you have

been told in lectures and what you took from your tutorials, you will be unlikely to get more than a low 2:1 (60%). You might only get a 2:2 (50-59%). To do well, you have to show that you can (a) evaluate the law and (b) be critical of it. What does this mean? Inshort, it means "asking questions". It means doing more than simply"describing".

Be broad in your thinking. Don't necessarily limit yourself to law. Think of related subjects

such as politics, economics, psychology etc., that may have extra insights into the subject-matter on which you're writing that will give you a special angle that other students may not have considered (or are too disorganised to obtain!).

Be SpecificBe specific about where your essay will go. Which reforms or

mechanisms will you focus on? Which one(s) will you avoid? Why? Will you draw on any comparative jurisdictions? Theories?

This essay will examine the effectiveness of civil litigation rules inrelation to Summary Judgments only. Summary judgments have been chosen as the key area of inquiry because they are the major mechanism a judge can use to filter out cases that should not go totrial. This essay will draw upon the American experience to suggestthat a higher threshold test is preferable to NSW’s current standard…

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Provide A RoadmapAfter you outline the scope of your argument, you should provide a

brief outline of your essay’s structure to assist the reader:

In section I, this essay will outline the key recommendations of the […..] Report. Section II will examine the implementation of these recommendations in the current [……] Amendment Act. In section III, the effectiveness of this amending instrument will be critiqued, before possibilities for reform outlined in Section IV.

Finish With Your Conclusion(S)Students are often quite shy about putting their conclusion(s) into

their introduction, but this comes across as polished and professional:

This essay will ultimately conclude that the threshold test for obtaining a default judgment is inappropriate and unfair, and should be raised to reflect the standard in [jurisdiction].

clear line of argumentHave a clear line of argument. The reader needs to know, in broad

terms, what you are going to say to know whether it is worthreading on. Telling them what you will be arguing also helps themunderstand whether you are saying something persuasive and, at amore basic level, helps them understand what it is you are tryingto say. As a colleague once said, writing a law essay is not likewriting a detective novel. No one wants to wait until the last linefor the big reveal, to find out “whodunit”. Instead, you need to betelling your reader, in your introduction, exactly what yourconclusion is going to be.

What to AvoidAcademic essays should be written in a formal style. Avoid:

clichés ("the flaws in this argument stand out like a sore thumb")contractions ("don't", "aren't", "it's")phrases that sound like speech ("well, this bit is really

fascinating")subjective descriptions ("this beautiful sculpture")

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Use Third PersonUse the first person "I" only where appropriate (e.g. when writing up

your own experience or professional case study). Where possible usethe third person, for example "It can be argued "instead of "Ithink"

Use Plain Language You don't have to search for a more "academic-sounding" word when a

simple one will do. Markers are looking for clear and accurateexpression of ideas, not jargon or confusing language. Shortersentences are usually clearer than long complex ones, but make sureit is a whole sentence and not just a clause or phrase.

Integrate Evidence

Your argument is your reasoned answer to the essay question, supportedby evidence. The books, articles, and research material that youread for your essay provide this evidence to back up your points.The way in which you select and interpret the evidence, and explainwhy it answers the question, is where you demonstrate your ownthinking.

For each point that you make in your essay, you need to support itwith evidence. There are many different kinds of evidence, and thetype you use will depend on what is suitable for your subject andwhat the essay question is asking you to do. An academic essayshould include relevant examples, supporting evidence andinformation from academic texts or credible sources.

For example, you might back up a point using a theory (one kind ofevidence) then show how this theory applies to a specific examplein real life (another kind of evidence).

A model for a paragraph that includes evidence and your own ideas: ¯ Introduce your point (your own words)¯ Add the evidence to support your point (quoted or paraphrased evidence that needs to be

referenced)

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¯ Explain how and why this evidence supports your point and what you think of it (your owninterpretation and critical thinking)

¯ Explain how the point helps answer the question (your own argument)

Critically Analyse

Critical analysis is a key skill for writing essays at university; itallows you to assess the various ideas and information that youread, and decide whether you want to use them to support yourpoints.

Critical analysis is about responding to an argument, by addressingthe biases, audience, the evidence, the examples, and thediscrepancies in argument.

Critical analysis involves:

¯ Carefully considering an idea and weighing up the evidence supporting it to see if it isconvincing.

¯ Then being able to explain why you find the evidence convincing or unconvincing.

It helps if you ask yourself a series of questions about the materialyou are reading. Try using these questions to help you thinkcritically:

¯ Who is the author and what is their viewpoint or bias?¯ Who is the audience and how does that influence the way information is presented?¯ What is the main message of the text?¯ What evidence has been used to support this main message?¯ Is the evidence convincing; are there any counter-arguments?¯ Do I agree with the text and why do I agree or disagree?

Avoid Unnecessary Description Only include general background details and history when they add to

your argument, e.g. to show a crucial cause and effect. Practicedistinguishing between description (telling what happened) andanalysis (judging why something happened). This is important at thestart, but also throughout your writing, as it can be easy to driftaway and waste valuable words from your word limit by writingmaterial that may be interesting, but which is not relevant to thetitle set.

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Interpret Your Evidence Explain how and why your evidence supports your point. Interpretation

is an important part of critical analysis, and you should not justrely on the evidence "speaking for itself".

Be Specific Avoid making sweeping generalisations or points that are difficult to

support with specific evidence. It is better to be more measuredand tie your argument to precise examples or case studies.

Use Counter-Arguments To Your Advantage If you find viewpoints that go against your own argument, don't ignore

them. It strengthens an argument to include an opposing viewpointand explain why it is not as convincing as your own line ofreasoning.

Editing

Editing involves checking whether all your points are in the rightorder and that they are all relevant to the question. Be ruthlessat this stage – if the information isn't directly answering thequestion, cut it out! You will get many more marks for showing youcan answer the question than you will for an unordered list ofeverything you know about a topic. Put yourself in the reader'sposition – can they follow the points you are making clearly? Youknow what you are trying to say, but will your reader? Are theregaps in your reasoning to be explained or filled?

Proofreading

Identifying your own mistakes and correcting them is an important partof academic writing: this is what you do when you proofread.Ideally leave a day between finishing your essay and proofreadingit. You won't be so close to your work, so you will see your errorsmore easily. Try reading your essay aloud, as this will slow youdown, make you focus on each word, and show you when your sentencesare too long.

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Answer The Right Question/The Title

Before you begin your answer, you should be sure what the question isasking. I often grade a university composition competency test, andsometimes have to fail well-written papers that fail to address theassigned topic.

If the question asks you to “explain” a topic, then a paragraph thatpresents your personal opinion won’t be of much help. If thequestion asks you to present a specific example, then a paragraphthat summarizes what “some people say” about the topic won’t bevery useful.

The most important starting point is to listen carefully to what theessay title is telling you.

You need to read every single word of it, and to squeeze out as muchguidance you can from the title. Then you need to plan how you willrespond to every single element of the title. The guidance given toyou by the title is freely available, and is your best clue to whatis required in your essay.

There are three main pieces of advice for essays. One, answer thequestion. Two, answer the question. Three, answer the question.’

The title is the most important guidance you have. The task ahead isnothing more and nothing less than is stated in the title. When indoubt about any aspect of your reading for the essay, or about yourwriting, the first step is to go back and consult the essay title.This can be surprisingly helpful. It informs directly: the choiceof reading; the structure you choose for the essay; which materialto include and exclude; what to do with the material you use; andhow to introduce and conclude.

Writing as if Speaking

A very important cue to writing essays s to write as if I am speaking.I should imagine myself, infront of an audience, conference, orworkshop, presenting my paper infront of fellow experts,colleagues, and academia.

Short and Straightforward

In general, think ‘short and straightforward’. Shorter words are oftenpreferable to longer words, unless there is some specificvocabulary that you need to include to demonstrate your skill.

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Short to middle length sentences are almost always preferable tolonger ones. And over-long paragraphs tend to demonstrate that youare not clear about the specific points you are making. Of course,these are general points, and there may be some occasions, or somesubject areas, where long paragraphs are appropriate. The lengthsof paragraphs; the lengths of sentences; the neatness of thereference list; the balance of length between different sections;all offer insight into the kind of essay they are about to read.

Grammar and Spelling

Accurate grammar and spelling are important. Consistently poor grammaror spelling can give the impression of lack of care, and lack ofclarity of thought. Careless use of commas can actually change themeaning of a sentence. And inaccurate spelling and poor grammar canmake for very irritating reading for the person marking it. Theprevious sentence began with ‘And’. This practice is now widelyaccepted where it makes good sense. It is however possible thatsome tutors may still prefer not to see it. I need to effectivelyuse punctuation marks; conjunctions; prepositions; nouns; verbs;adjectives; etc. Grammar is key.

Quotes

A great essay should have quotes from key personnel, authorities inthat field, major political leaders, policy makers, and industryexperts. I should also consider quoting experts from keyphilosophers, theorists, and inventors. Such quotes show that myopinion is not only mine, but is supported by other great people.

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REFERENCING AND FOOTNOTING OF LEGAL ESSAYS

Referencing is a way of acknowledging the sources of information thatyou use to research your assignments. You need to provide areference whenever you draw on someone else's words, ideas orresearch. You should also provide references for any graphicinformation you use. Films, television programs, personalcommunications and online sources also need to be referenced. Notreferencing other people's work can constitute plagiarism.

Preferred referencing styles vary between schools (or even courses.Harvard Referencing/The 'In-Text' System

The Harvard System requires two elements: in-text citations throughoutyour assignment, and a list of references at the end.

In-text citations include three pieces of information about a sourcewithin the text of your work:

1. the name of the author or authors2. the year of publication3. the page number (when the information/idea can be located on a particular page, or when

directly quoted)

Citations may be placed at the end of a sentence (before theconcluding punctuation) in brackets:

The theory was first developed by Browne (Gibbs 1981, p. 89).

Another way of citing in-text is to integrate the author's surnameinto the sentence, followed by the year of publication and pagenumber, in parentheses:

Gibbs (1981, p. 89) states that Browne was the first to develop thetheory of...

The following is an example of a paragraph using the Harvard system:

Criticisms aside, Durkheim's work was an extraordinary contribution tothe sociology of religion, perhaps more specifically to a greaterunderstanding of the origins of collective morality. Gardner (1987,

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p. 74) makes an extremely important point about Durkheim when hewrites “Durkheim had a lifelong interest in morality . . . ForDurkheim morality was the centre and end of his work and societyitself was the end and source of morality” . For Durkheim, thenature of morality was the nature of social solidarity. In TheElementary Forms Durkheim defined religion as the main expressionof the deep moral sentiments inspired by society in individuals.His interest in the moral substratum of the modern social orderexpressed concern with the moral consequences of modernisation(Toles 1993).

To cite a direct quotation, reproduce the source word for word andplace quotation marks at the beginning and end. The author, dateand page number must be included.

"Australia is a settler society" (Hudson & Bolton 1997, p. 9).

To cite a paraphrase or a short summary of an author's words or ideas

Restate the original in your own words. The author, date and pagenumber(s) must be included.

Wartime textile rationing was imposed through a coupon system, whichmeant garments now had two costs: their value in monetary units andin coupons (McKernan 1995, p. 152).

To reference the overall content of a work

No need to include page numbers because it is the entire work you arereferring to:

Larsen and Greene (1989) studied the effects of pollution in threemajor cities...

The Footnote / Bibliography or 'Oxford' Referencing System

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The Footnote/ Bibliography method requires two elements: footnotesthroughout your assignment, and a bibliography or list ofreferences at the end.

Footnotes (sometimes just called ‘notes’) are what they sound like—anote (or a reference to a source of information) which appears atthe foot (bottom) of a page. In a footnote referencing system, youindicate a reference by:

putting a small number above the line of type directly following thesource material. This number is called a note identifier. It sitsslightly above the line of text.

It looks like this.1

putting the same number, followed by a citation of your source, at thebottom of the page. Footnoting should be numerical andchronological: the first reference is 1, the second is 2, and soon. The advantage of footnoting is that the reader can simply casttheir eyes down the page to discover the source of a referencewhich interests them.

Note identifiers should be placed at the end of a sentence, and followany punctuation marks (but precede a dash). If you use a longquotation (more than three lines of text), the note identifiershould be placed at the end of the quotation.

Lake points out that a division began in the latter half of thenineteenth century with the doctrine of ‘separate spheres’.1

At the foot of the page

When you reference a source for the first time, you must provide fullbibliographic information (information about the source). Thisincludes:

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author(s) initial(s) and surname(s)

name of the article, book or journal

editors (if applicable)

publisher name and location

year published

2. You should give exact page numbers if your reference is a directquotation, a paraphrase, an idea, or is otherwise directly drawnfrom the source.

1 M Lake, ‘Intimate strangers’ in Making a Life: a People’s History ofAustralia Since 1788, V. Burgman and J. Lee (eds), Penguin,Victoria, 1988, p. 155.

Footnote formatting

Titles of publications should be italicised.

Use minimum capitalisation for publication titles.

Use minimal capitalisation for journal or book article titles.

Article titles should be enclosed between single quotation marks.

Use commas to separate each item of the citation and end with a fullstop.

Second and subsequent footnotes

Second and subsequent references to the same source don’t need to beas detailed as the first note—they just need the minimuminformation to clearly indicate which text is being referred to.

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With a single author

Provide all the necessary information in the first footnote. If youwant to refer to the same source again, a simple method is to givethe author’s name, the year of publication and the page number. Forexample:

1 K Reid, Higher Education or Education for Hire? Language and Valuesin Australian Universities, CQU Press, Rockhampton, 1996, p. 87.

2...

3 Reid, p. 98.

If two or more works by the same author are referred to in the text,include the title:

1 E Gaskell, North and South, Penguin, Harmondsworth, 1970, p. 228.

2 E Gaskell, The Life of Charlotte Brontë, Penguin, Harmondsworth,1975, p. 53.

3 Gaskell, North and South, p. 222.

Subsequent references to articles are done in a similar way:

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17 M Doyle, ‘Captain Mbaye Diagne’, Granta, vol. 48, August 1994, pp.99-103.

18 ...

19 Doyle, Granta, p. 101.

Another way to shorten second or subsequent references is with Latinabbreviations. For example:

ibid = same as last entry

Use ibid when two references in a row are from the same source.

op. cit.= as previously cited

Use op. cit. when you have already given full details of that sourcein an earlier note. When using op. cit. you still need to provideinformation such as the author’s name to make the source clear.These abbreviations should be in lowercase, even when they appearat the beginning of a note. For further information, see p. 214- 5of the Style Manual.

Examples

11 K Reid, Higher Education or Education for Hire? Language and Valuesin Australian Universities, CQU Press, Rockhampton, 1996, p. 87.

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12 ibid., p. 26.

13 M Doyle, ‘Captain Mbaye Diagne’, Granta, vol. 48, August 1994, p.99.

14 Reid, op. cit., p. 147.

List of ReferencesAt the end of your text, you must include a List of References, a list

of all the sources of information you have used to research yourassignment.

A list of references should be laid out alphabetically by authorsurname.

If bibliographic information exceeds one line of text, then thefollowing lines should have a hanging indent.

The title of a book should be in italics. Minimal capitalisation isrecommended (e.g. only capitalise the first word of a title’sheading/subheading and any proper nouns).

A list of references should consist only of the sources cited in thebody of the assignment.

The essay should have a list of references, arranged in the form of:¯ Books¯ Journal Articles¯ Reports¯ Website Articles/Posts

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CITATIONS OF LEGAL AUTHORITIES/ CITATION RULES

Citation rules will be easier to understand and remember if you keepthe following principles in mind.

A citation should enable you to find the document easily. A case citation should indicate not only the name of the decision

and where it can be found, but also its year, the jurisdiction, andthe court. This provides important information for assessing therelevance and weight of a case.

A citation should not contain more information than is necessary.For example, since a neutral citation already indicates thejurisdiction and court, it is not necessary to add this informationagain at the end of the citation. Similarly, since the SupremeCourt Reports only publishes decisions of the Supreme Court ofCanada, it is not necessary to add (S.C.C.) at the end of thecitation.

Neutral citationNeutral citation has been adopted by superior courts, and by

tribunals. The citation and the paragraph numbering is assigned bythe court rather than by a private publisher. It is thereforeconsistent across all published versions of the decision. A neutralcitation can be used to “find by citation” in electronic services.

Examples of neutral citations are as follows:

Neutral citation

style of causeyea

r

court

number

pinpoint

Leith v. Stockdill,200

0BCC

A 263

atpara. 5

297


Laflamme v. Forrest,200

0BCS

C 617

atpara. 12

Sansalone v. Wawanesa Mutual InsuranceCo.,

2000 SCC 25

atpara. 18

Other than the comma separating the style of cause from the citation,there is no punctuation in the neutral citation form.

If there is no neutral citation for the decision, then the BritishColumbia courts permit either a print reporter citation, orcitation to an electronic source. The following examples, in theorder listed, are from Quicklaw, CanLII and WestlawNext Canada.Note that each citation indicates the year, jurisdiction and court.

Lougheed Enterprises Ltd. v. Armbruster, [1992] B.C.J. No. 712 (C.A.)Lougheed Enterprises Ltd. v. Armbruster, 1992 CanLII 1742 (B.C.C.A.)Lougheed Enterprises Ltd. v. Armbruster, 1992 CarswellBC 20 (C.A.)

Parallel citationsA parallel citation lists another source, either print or electronic,

where the case has been published. An example of a neutral citationwith a parallel citation to a reporter series is:

Sharab Developments Ltd. v. Zellers Inc., 1999 BCCA 39, 65 B.C.L.R. (3d) 67In the British Columbia courts, parallel citations are optional for

Canadian cases. However, the 7th edition of the McGill Guide requiresa parallel citation in addition to the neutral citation if the casehas been reported. Many courts follow a similar rule.

citing Electronic source informationThe 7th edition of the McGill Guide requires a citation to an electronic

version of a judgment to include a reference to the electronicdatabase from which the judgment was obtained. For example, if thejudgment referred to above was reproduced from CanLII, the citationwould be as follows:

Sharab Developments Ltd. v. Zellers Inc., 1999 BCCA 39, 65 B.C.L.R. (3d) 67(CanLII)

This additional electronic source information is no longer required bythe British Columbia courts. The Alberta practice is that despite

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differences between paragraph numbering in the electronic sourceand in the print reporter, the electronic source can be used.However, if the electronic source is non-obvious from the citationthen the source should be identified by adding “QL”, “WL” or“CanLII” at the end of the citation.

The most common electronic sources, with abbreviations, are asfollows:

Australian Legal InformationInstitute

AustLII

British and Irish LegalInformation Institute

BAILII

Canadian Legal InformationInstitute

CanLII

WestlawNext Canada WLNC

LexisNexis Lexis

Quicklaw QL

Westlaw WL

citing Pinpoint referencesA pinpoint reference refers to a paragraph number or page number.

Since paragraph numbers are more precise, you should cite to themwherever possible.

Citation problems can arise where paragraph numbering has beenassigned by a publisher, and a pinpoint reference is made to thatparagraph numbering, but a different version of the case is citedor reproduced. Make sure that any pinpoint references you make areconsistent with the electronic or print version of the case thatyou are citing to and providing to the court.

This problem should not arise for cases with a neutral citation, asthe paragraph numbering will have been assigned by the court and

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should be consistent in all versions of the case. The date on whicha court started to assign its own paragraph numbers variesconsiderably depending on the court:

The B.C. Court of Appeal was using paragraph numbering in itsjudgments as early as 1993.

The B.C. Supreme Court and the Supreme Court of Canada did not usenumbered paragraphs until 1995.

The Ontario Court of Appeal did not introduce numbered paragraphsin its judgments until May 1997.

citing Print reporter citationsExample: Lougheed Enterprises Ltd. v. Armbruster, [1992] 2 W.W.R. 657, 63

B.C.L.R. (2d) 316 (C.A.)

Lougheed Enterprises Ltd. v.Armbruster

(1992) 63

B.C.L.R. (2d) 316 (C.A.)

[1992] 2 W.W.R. - 657

(B.C.C.A.)

style of cause yearvolum

ereport

er

series

page court

This table shows the case with citations to two different reporters,broken down into the various elements that comprise a traditionallegal citation. Some of these elements are reviewed in more detailbelow.

styleofcause This is italicised or underlined.

year Round brackets are used if the reporter seriesis not organised by year. Square brackets are used if the

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reporter series is organised by year, such as the SupremeCourt Reports, and the Western Weekly Reports. A commafollows round brackets, and precedes square brackets.

reporter Use the abbreviation for the reporter.

series

Include the series number for reporters published in series,such as the British Columbia Law Reports and the DominionLaw Reports.

page

The page number may be followed by a pinpoint reference to aparticular page in the decision. For example, a pinpointreference to page 320 in the B.C.L.R. citation above wouldbe (1992), 63 B.C.L.R. (2d) 316 at 320 (C.A.).

court

If the jurisdiction or court level are apparent from the nameof the reporter, you do not need a full reference to thecourt. The B.C. Court of Appeal requires the citation toindicate if the appellate decision was made in Chambers.For example, 2011 BCCA 19 (in Chambers).

citing Unreported decisionsSometimes you must cite to a case that has no neutral citation, is not

reported in print, and is not available electronically. The correctcitation would be:

Lougheed Enterprises Ltd. v. Armbruster (31 January 1992), Vancouver CA012380(B.C.C.A.).

If a decision has been assigned a neutral citation, then instead ofusing the unreported citation format you should cite the case usingthe neutral citation.

citing Treatises and loose-leafsThe standard format for treatises isAuthor, Title (Place of publication: Publisher, Year)The year is the date shown on the copyright page.

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This must be modified for loose-leaf publications to show the date ofthe most recent release in the publication that was consulted. Anexample is:

S.M. Waddams, The Law of Damages (Toronto: Thomson Reuters, 2011) (loose-leaf updated 2011, release 20)

The 7th edition of the Canadian Guide to Uniform Legal Citation states that thecitation should refer to the date on which the loose-leaf wasconsulted. However, this has been changed in the 8th edition, whichrequires the citation to include the Update Release information, asin the example above. The Supreme Court of Canada and the BritishColumbia courts have also adopted the citation style shown in theexample above. This style is preferable because many loose-leafpublications are not consistently updated, making the date the bookwas consulted an unreliable indicator of its contents.

citing Journals and seminarsThe standard format for journal articles isAuthor, “Title of article” (Year) Volume Journal PageAn example is:Natasha Affolder, “Why study large projects: environmental

regulation’s neglected frontier” (2011) 44 U.B.C. L. Rev. 521Different information needs to be included for seminar papers:Fisher, “Forest & Range Agreements and the Provincial Crown’s Duty to

Accommodate”, Aboriginal Law Conference 2004 (Vancouver: Continuing LegalEducation Society of B.C., June 2004)

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LAW REVIEW (LAW JOURNALS)

definition of law review A law review (or law journal) is a scholarly journal focusing on legal

issues, normally published by an organization of students at a lawschool or through a bar association. The term is also used todescribe the extracurricular activity at law schools of publishingthe journal.

law publicationsLaw reviews should not be confused with non-scholarly publications

such as the New York Law Journal or The American Lawyer, which areindependent, professional newspapers and news-magazines that coverthe daily practice of law (see legal periodical).

function of a law review The primary function of a law review is to publish scholarship in the

field of law. Law reviews publish lengthy, comprehensive treatmentsof subjects ("articles"), generally written by law professors,judges, or legal practitioners, as well as shorter pieces, commonlycalled "notes" and "comments," written by law student "members" ofthe law review.

Law review articles often express the thinking of specialists orexperts with regard to problems with current law and potentialsolutions to those problems. Historically, law review articles havebeen influential in the development of the law; they have beenfrequently cited as persuasive authority by the courts in theUnited States. For example, Justice Stanley Mosk of the SupremeCourt of California admitted that he got the idea for market shareliability from the Fordham Law Review article cited extensively inthe Court's landmark decision in Sindell v. Abbott Laboratories(1980).[1] However, in recent years, some have claimed that thetraditional influence of law reviews is declining.

Most major law schools publish a law review (or "law journal"),generally dealing with all areas of law and named after the school,and some publish specialized reviews, dealing with a particulararea of the law, in addition to or in place of the general lawreview, such as civil rights and civil liberties, internationallaw, environmental law, or human rights (e.g., Harvard CivilRights-Civil Liberties Law Review, Duke Journal of Gender Law &Policy, the NYU Journal of Law & Business, the CornellInternational Law Journal, the North Carolina Journal of Law &Technology, or the Lewis & Clark Environmental Law Review).

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There are also a small number of journals focusing on statutory,regulatory, and public policy issues (e.g., the Journal ofLegislation or the NYU Journal of Legislation & Public Policy).

In recent years, many law reviews have started to publish online-onlycontent in addition to their respective print issues. For instance,the Harvard Law Review Forum, the Stanford Law Review Online, andthe Columbia Law Review Sidebar all offer freely available piecesof short-form legal scholarship, analysis, and commentary. Further,some law journals have abandoned print entirely, instead choosingto publish all of their content only on the Internet.

law review Editorial staffEditorial staff for law reviews are always students. As law professor

Erwin N. Griswold wrote of the Harvard Law Review: "Some people areconcerned that a major legal periodical in the United States is edited and managed bystudents. It is an unusual situation, but it started that way, and it developed mightily fromits own strength"

In Canada, the fully student-run law reviews (without a Facultyeditor-in-chief) are frequently cited by the Supreme Court ofCanada.Membership requires demanding time commitments, and manyeditors move on to top clerkships, top articling or first yearassociate positions both inside and outside of courts, oreventually join the legal professoriate.

The staff is headed by an editor in chief, usually a senior student,final year student, assisted by managing editor, and associateeditors, or editors.

law review contributionsOccasionally, law reviews feature peer-reviewed articles, as well as

book reviews, case discussions, as well as topical issues in law.

Articles are mainly related to the curriculum at the universities.

academic staff reviews, peer-reviewed journalsIn most countries, almost all law reviews are run by publishing houses

or law professors. In both cases, the involvement of students in

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the day to day creation of these reviews is fully narrowed.Academics and official rankings usually refuse to evaluate studentlaw reviews as "equals". To pursue academic recognition by theMinistry of Education, review bodies must include post-graduatedand ranked academics, which prevents students law reviews to evenbe recognized or compared to other similar legal periodicals.

Such reviews edited by professors are therefore a closer cousin topeer-reviewed social science journals than to typical student-runlaw journals.

Online legal research providers journalsOnline legal research providers such as Westlaw, Lawpronto and

LexisNexis give users access to the complete text of most lawreviews published beginning from the late 1980s. Another suchservice, Heinonline, provides actual scans of the pages of lawreviews going back to the 1850s.

Student activityMembership on the law review staff is highly sought after by some law

students, as it often has a significant impact on their subsequentcareers as attorneys. Many judges and partners at the mostprestigious law firms were members or editors of their school's lawreview. There are a number of reasons why journal membership isdesired by some students :

¯ some see the intense writing, research and editing experience as invaluable to the student'sdevelopment as an attorney;

¯ others see the selection process as helping differentiate the best and the brightest from analready strong group of law students.

general jouranls vis-a-vis speciality journalsAt schools with more than one law review, membership on the main or

flagship journal is normally considered more prestigious thanmembership on a specialty law journal. This is not the case at allschools, however. At many schools, the more prestigious journal isthe specialty journal; a low-ranked general journal will rarelyattract as much attention as a category-leading specializedjournal. Often the best indicator is the age of the journal; anewer journal will rarely have the same clout with employers thatthe older journal has, even when the older journal is specialized.In any case, membership on any such journal is a valuablecredential when searching out employment after law school.

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law journal membershipThe paths to membership vary from law school to law school, and also

from journal to journal, but generally contain a few of the samebasic elements. Most law reviews select members after their firstyear of studies either through a writing competition (oftenreferred to as "writing on" to the law review), their first-yeargrades (referred to as "grading on" to the law review) or somecombination thereof. A number of schools will also grant membershipto students who independently submit a publishable article. Thewrite-on competition usually requires applicants to compose awritten analysis of a specific legal topic, often a recent SupremeCourt decision.

The written submissions are often of a set length, and applicants aresometimes provided with some or all of the background research.Submissions normally are graded blindly, with submissionsidentified only by a number which the graders will not be able toconnect to a particular applicant. A student who has been selectedfor law review membership is said to have "made the law review."

Secondary journals vary widely in their membership process. Forexample, at Yale Law School, the only one of its nine journals thathas a competitive membership process is the flagship Yale LawJournal – all others are open to any Yale Law student who wishes tojoin. By contrast, other secondary journals may have their ownseparate membership competition, or may hold a joint competitionwith the main law review.

A law review's membership is normally divided into staff members andeditors. On most law reviews, all 2Ls (second-year students) arestaff members while some or all 3Ls (third-year students) serve aseditors. 3Ls also typically fill the senior editorial staffpositions, including senior articles editor, senior note & commenteditor, senior managing editor, and, the most prestigious of all,editor-in-chief of the law review. (Upon graduation, the editor-in-chief of the law review can often expect to be highly recruited bythe most prestigious law firms.) As members, students are normallyexpected to :

¯ write a note or comment of publishable quality (although it need not actually bepublished), and to

¯ edit and cite-check the articles that are being published by the law review, ensuring thatreferences support what the author claims they support and that footnotes are in properBluebook format, depending on the publication's preference.

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editorial staff responsibilityThe editorial staff is normally responsible for reviewing and

selecting articles for publication, managing the editing process,and assisting members in writing their notes and comments.Depending on the law school, students may receive academic creditfor their work on the law review, although some journals areentirely extracurricular.

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Legal Memorandum

DEFINITION AND SCOPE OF LEGAL MEMORANDUM

legal memorandum definition and scope, Legal memorandum, Memorandum ofadvice

legal memorandum is a document prepared by one party, to another, toinform on legal issues. Legal memoranda are used in connection withmotions, both pre-trial and post-trial. Occasionally, during trial,the court may ask for a memorandum on a particular legal issue. Thecourtroom, however, is not the only arena in which legal memorandacan be involved. Attorneys will often ask clerks (or associates) toprepare a legal memorandum about a particular legal issue. Thismemorandum is used within the law firm and serves to inform theattorney about the legal issue, and includes citations to legalauthorities. It will also point out a split of authorities orambiguities in the law, if applicable. It is important that theattorney to whom the memo is addressed is informed of all aspectsthat are relevant to the issue, not just information that isfavorable to your side of the case. Legal memoranda are sometimescalled “briefs”.

COMPARING MEMOS TO BRIEFS

The chart below provides a comparison of how these elementschange when you move from the memo to the brief.

Memo Briefs

Purpose: Memos discuss, recommend,and advise. Thememo objectively informs thereader about what the law is.It also helps develop a legalstrategy with other atorneys.Although it is not a guaranteeof a case’s outcome, it is an atempt to il ustrate what the outcome wil probably be whenthe law is applied to aparticular set of facts.

Purpose of Briefs argue. The briefseeks to persuade the reader that your application of the law to thefacts is the correct one. Althougha brief cannot be dishonest ormisleading, it should emphasizefavorable arguments and minimize theforce of opposing arguments. Thepurpose is to win the case, usingthe law in the way most favorable toyour client.

Audience of memo is: Anotherlawyer, supervising atorney,your client.

Audience of briefs is Opposing lawyer,judge, judicial clerk, your client.

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Stance: Objectivity in research is necessary when writing a memo.Memo writers can then use theoutcome of that research topresent their client’s cases most favorably. However, memo writers are clear about boththe weaknesses and strengths ofa client’s case.

Objectivity in research is necessary when writing a brief. A briefwriter, however, strives to usethat research to create legal arguments and offer legalconclusions that cast his client’s case favorably. A briefwriter emphasizes the strengths ofhis client’s case,while minimizing the weaknesses ofhis client’s case. Briefs aresingle minded. To pin point thestrength of the clients case, whileshowing the weakness of theopponents case.

Scope: The specific question, timeand financial constraints wildictate how broad the scope ofyour memo wil be. Remember,however, that memos form thebasis for legal decisions.Accordingly, you should behonest about the strengths andweaknesses of your client’s case and what the law does anddoes not alow beforemaking yourrecommendation.

The specific question, timeand financial constraints wildictate how wide the scope of yourbrief wil be. However, a briefwriter usual y knows the desiredoutcome. Accordingly, ensure that you search for al the legalarguments and materials that support your conclusion andprove that your client should prevail. Briefs are ruled bythe timeline, and dates set by thecourt, and hence, must bestreamlined to the courts calendar.

Caption: informs the reader who wrote it, for whom the memo was writen, what the memo is about, and the date.

Title page or caption: identifies thecourt, docket number, name of the case, side represented and names andaddresses of counsel.

Question(s) Presented: presents anobjective statement of thelegal questions to beanswered in the memo.It is often one sentence that alerts the reader to threethings: the jurisdiction and controling law, the scope ofthe question, and the mostlegaly significant facts.

Statement of Issue(s) Presented forReview: states the legalquestions addressed in the brief.It also invokes the applicablelaw and the most legalysignificant facts. This section,however, uses the facts of the caseand the applicable law to elicit answers that affirm the analytical reasoning of the brief.

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310


MEMORANDUM FORMAT

legal memorandum Opening/title

There should be a file number (usually on the interview record or filenote) so that all records on this case are kept together. Use thisnumber at the start.

Your headings will usually be: Recipient: ______________________ Sender: ______________________ Date: ______________________You may then have Re: ______________________ (ie short for

‘Regarding’ which would be the client or organisation concerned inthe legal matter)

or, if necessary: Context or background – be brief!This last heading may be done as an executive summary.This sets out the main issues, the main areas under dispute or those

that require most analytical depth and discussion, especially ifthe research indicates this is a contentious area of law. Thisshould suffice to provide enough context for the reader. Thissection may include the main recommendation.

legal memorandum structureA legal memorandum is comprised of certain standard elements: the heading a summary of the relevant facts succinct identification of the legal issues a discussion of the law relevant to the legal issues, and

application of that law to the facts a conclusion that is responsive to the legal issues.

legal memorandum headingThe heading should identify the author and recipient of the

memorandum, and include the date, client identification, andsubject matter.

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legal memorandum statement of factsThe Facts portion should list the relevant facts on which you have

relied in researching and preparing the memorandum. If you havemade assumptions, indicate this. State the facts objectively andclearly. Usually, the order is chronological. Use definitions tostandardize terminology for persons and things that will bereferred to frequently in the memorandum. This prevents clutter andinconsistent references to the same thing. The Facts portion caneither precede or follow the Issues and Conclusions portions of thememorandum. If the Issues and Conclusions will not make sensewithout reference to the Facts, then put the Facts first. Alternatively, if the Facts portion of the memorandum is quitelengthy, your reader may want to see the Issues and Conclusionsfirst.

legal memorandum statement of IssuesThe Issues portion of the memorandum is crucial. You must succinctly

identify the correct legal issues, within the context of the factsof your case. Include legal elements that are essential toresolution of the issues.

The more narrow and descriptive your issue statement is, the moreeffective it will be. Compare these three issue statementsbelow:

#1 Is the security enforceable?

#2

Will security documents signed and registered using the debtor’scommon law name be enforceable against the debtor and thedebtor’s creditors if the debtor later changes to using hislegal name?

#3

Will personal property security documents granted in favour of theBank, signed and registered in British Columbia using theDebtor’s common law name David Black, be enforceable against theDebtor and the Debtor’s creditors now that the Debtor haschanged to using his legal name David Brown?

#1 asks the basic question that needs to be answered. However, whencompared to #2 and #3, it is clearly inadequate.

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#2 is a good issue statement. It provides a concise summary of thelegal issue, and includes the essential elements. It is less wordythan #3, making it easier to read and understand. However, it isless complete than #3, because it does not incorporate the specificfacts of the case.

#3 is an excellent issue statement. It sets out the precise legalissue to be resolved. Just as each legal case is decided withinthe confines of the facts of that case, a legal memorandum isintended to address the narrow legal issue raised by a particularproblem.

legal memorandum ConclusionsWhen preparing a legal memorandum, remember that your reader does not

want to be kept in suspense. A crisp, clear, responsive answermust be provided as near the beginning of your memorandum aspossible.

There are various ways of dealing with conclusions in a legalmemorandum:

Equivocation (legal opinion),One of the hardest parts of writing a legal memorandum is to reach a

defensible conclusion when the law is uncertain generally, or as itapplies to your facts. Since the purpose of the memorandum is toanswer the legal question posed, you cannot simply say that the lawis unclear and leave it at that. In some circumstances there maybe a practical solution that enables you to avoid confronting theuncertainty in the law. Try to avoid using equivocal language inyour memorandum. This is particularly important in the Conclusionsection. The Discussion portion of the memorandum should also bereviewed for equivocal language. Sentences that begin with thephrase “It would appear that” or “It seems that” should alert youto equivocation. By all means indicate where the law is unclear.But also state what you think is the better view or probableoutcome.

legal memorandum-DiscussionThe Discussion section is the heart of the memorandum. It provides the

venue for explaining and analysing the law, and applying it to yourfacts. The Discussion section should be broken down into a separatepart for each discrete legal issue covered in the memorandum. Thediscussion of each issue should include an introduction, anexplanation of the applicable legal rule, an application of the

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rule to the legal problem, and a conclusion in respect of thatissue. The classic formulation for this is known as IRAC.

I

The first step is to state the legal issue. This can be done in acouple of ways. You can summarize the issue in the form of atopic sentence or question. The most effective style is to use athesis sentence or paragraph that not only indicates what theissue is, but tells the reader briefly what your conclusion ison the issue. The issue can also be referred to in the headingfor this part of the Discussion section.

R

The second step is to determine the applicable legal rule. Thisinvolves a review and analysis of the relevant cases, statutes,and secondary sources. It is sometimes referred to as ruleexplanation. Depending on the nature of the legal rule, you mayneed to review the history of the rule and consider the policyrationale for the rule. You may find there are different linesof cases, each resulting in a different formulation of the rule.Try to approach this section using rules synthesized from thecases, rather than simply listing a series of individual cases.Avoid lengthy quotations from cases. This section includesanalysis of the rule, but does not include application of therule to your facts.

A

The third step is to apply the legal rule to your facts. Thisinvolves further analysis and weighing of individual cases,distinguishing cases, making counter-arguments, and consideringpolicy issues.

C

The last step is to state your conclusion on the legal issue beingdiscussed. Although you will include an overall conclusionelsewhere in your memorandum, it is also important to reach aconclusion on each legal issue as it is dealt with in turn.

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THE TWO TYPES OF MEMORANDA

Courtroom Legal MemorandumThis particular memorandum is a persuasive document. The memorandum must

include a legal argument and should contain legal citations thatsupport the legal arguments being put forward in the memorandum.However, it should be noted that attorneys have an ethical duty todisclose any and all binding legal authority that is contrary totheir position in their documents. Of course, it will often be thetask of the drafter of the memorandum to try to convince the courtthat the contrary case should not be applied to the facts of thiscase.

The top of the first page of a memorandum being submitted to the courtshould have the proper caption as required by the local rules ofthe court, followed by the proper title of the memorandum.

It is always a good idea to start the memo with an introductoryparagraph so that the court is instantly attuned to what issue thememorandum addresses. Similarly, it is always a good idea toinclude a brief statement of the facts of the case. The reason whya statement of the facts is essential is because the judge who isfamiliar with your case may not be the person reading the memo andwriting the resulting decision. Always assume that the reader islearning about the case for the first time. The statement of thefacts should not be convoluted – it should offer a clear, concisedescription of the circumstances giving rise to and surrounding thecase. Within the statement of the facts should be a few sentencesconcerning the procedural history of the case. For example:

Julie represents the plaintiff in a motor vehicle accident. In supportof her motion for summary judgment, Julie includes in hermemorandum the following: “On the evening of January 3, 1992, theplaintiff was traveling in her automobile in a westerly directionon Main Street in the city of Myertown, when her car was suddenlyand violently struck by the defendant’s automobile, which was beingoperated by the defendant. As a result, the plaintiff sustainedserious physical injuries for which she has brought this action torecover damages. It is the plaintiff’s contention that thedefendant negligently failed to stop at the stop sign as requiredby law. The plaintiff has respectfully moved this court for summaryjudgment on the ground that there is no genuine issue of materialfact and that the plaintiff is entitled to judgment as a matter oflaw.”

To focus the reader’s attention, the memo should always include astatement of the issue addressed. For example:

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Following her statement of the facts, Julie includes the followingissue: “This memorandum addresses the issue of whether an operatorof a motor vehicle who fails to stop for a pedestrian in acrosswalk is inherently liable for negligence.”

The longest, and most important, part of the memo isthe discussion section. This is the section in which the party’sargument is maintained, legal authority is cited, and conclusionsof law are drawn.

Finally, the last section in the memo is the conclusion, whichsummarizes the arguments contained within the memo.

Another type of legal memorandum is the appellate brief. Appellatebriefs will be discussed in the last chapter, which concernsappellate practice.

Internal Legal MemorandumThe first part of the internal legal memo is the heading, which

usually looks like this:DEWEY, CHEATUM & HOWE, LLP

MEMORANDUMTO: [name of recipient]

FROM: [name of author]DATE: [date]RE: [subject of memo]

Within the heading, the two most important parts are the date and thesubject, or "re:" (pronounced “ray” or “ree”) line. The date isimportant because it lets the reader, who may not be the originalrecipient, know when the memorandum was written. It is assumed thatall of the law cited within the memo is current as of that date.The "re:" line is important because it instantly focuses thereader’s attention. Often, internal memoranda are kept in researchfiles for future reference – and thus, the "re:" line offers aquick guide to the memo’s contents.

The memo should begin with a statement of the issue, which is thelegal question that the memorandum addresses. For example:

“The issue addressed by the memo is whether the operator of a motorvehicle is inherently liable for negligence for striking apedestrian in a crosswalk.” OR

“This memo addresses the issue of whether a corporation thatdistributes shares in its organization must register with theUnited States Securities and Exchange Commission.”

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The next paragraph, or series of paragraphs, should offer a briefanswer to the issue. The purpose of this brief answer is so thatthe reader does not have to read the entire memorandum tounderstand the resolution of the issue. Citation to authority isnot absolutely necessary in this section, but it may be included ifdeemed appropriate.

It is not essential to include a brief statement of the facts givingrise to the issue, but it is rarely a bad idea to do so. If thememo specifically discusses the pertinent law and then applies itto the facts giving rise to the issue, it must also discuss thefacts, or the memo will not be as effective. If the memo is astrict discussion of law, the facts may not be important; they willalways provide, however, a frame of reference. Because theresolution of a legal issue can turn on one seemingly minute fact,the inclusion of facts is often useful.

The largest portion of the memo is the discussion section. It is inthis section that all legal analysis occurs, as well as anyapplication of the law to the facts giving rise to the issue. Asexplained above, all attorneys have an ethical duty to inform thecourt of authority contrary to their position; therefore, it isessential that the internal legal memorandum discuss all aspects ofan issue, including contradictory authority.

Finally, the last section of the memorandum is the conclusion, inwhich a brief summary of the memorandum is offered.

Open MemoAn open memo is an objective office memorandum that law firm

associates arefrequently asked to provide to senior attorneys. Based on a set of

facts involving aparticular client, you’ll be expected to thoroughly research the

relevant law, objectively analyze the facts under that law, andaccurately assess how your client will fare based on the state ofthe law.

understand the recordRead the entire record (the pleadings filed with the court prior to

the memo’s completion) and then read it again. When researching thelaw later, you may discover that seemingly unimportant facts are

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essential. If you do not have a full comprehension of the substanceof the record, you may miss a key element of the case.

Outline the factsWrite down the facts. Provide the page number in the record or file of

each fact so you can refer back when necessary.understand the legal issuesTo write a satisfactory open memo, you must first understand the legal

issues involved. When you are given an assignment, be sure to takenotes. Don’t hesitate to askquestions of the person who assignedthe memorandum to help you narrow the issues involved.

Research the lawResearch the law using every source at your disposal (e.g., books, the

Internet, law reviews, treatises). Once you begin your substantiveresearch, start with the most important sources (e.g., statutes andSupreme Court decisions). These sources will provide the foundationfor your argument.

researching Primary SourcesPrimary research sources include case law, statutes, regulations, and

administrative decisions. Editorial enhancements typically includethe following:

• synopsis—a paragraph-length summary of the facts, proceduralposture, and main holdings of an

opinion.• headnotes—sentence-length summaries, each condensing a point of law

discussed in the case.• key number classifications—assignment of each point of law to one or

more West topics, subtopics, and classification numbers (keynumbers).

researching Secondary Sources Secondary research sources (e.g., legal encyclopedias, annotations,

hornbooks, treatises, and law reviews) are vital legal researchtools, even though courts aren’t obligated to follow them. Theseresources can provide you with several major benefits:

• Starting point: If you know very little about a subject area,secondary sources can

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quickly reveal the major concepts, terms, and procedures used bypractitioners in

that area. As a result, you will be better equipped to search theindexes and tables

of contents of digests and primary sources.• Citations: These materials are good preliminary sources of citations

to cases,statutes, and administrative materials.• Authority: Some secondary sources are considered sufficiently

authoritative by thecourts that they can be cited themselves to persuade a court of your

position.lawschool.westlaw.com

Find favorable law and unfavorable lawDo not just search for law that supports the client’s position. You

must address law that is helpful and harmful to the client’s case.OutlineUsing the elements of the law, create an outline of the memo. The

outline should provide an explanation of how each element will beapplied to each fact.

legal memorandum formatAt the time you receive the memo assignment, ask whether the person

assigning it has a particular format or organizational scheme inmind. Also inquire as to where you can find samples of similarmemos. One possible format is described below:86

1. a caption identifying the author, recipient, date, and subject ofthe memo;

2. a statement of the issue or question presented, including therelevant facts and legal rule;

3. an answer or conclusion that states your assessment of a likelyruling on the question presented, with a short explanation;

4. a statement of facts that sets out the legally relevant facts aswell as important background information; and

5. a discussion or analysis section that sets out a detailed analysisof the legal issue.

86 * From Fay Rosenfeld, Summer Associates: How to Ace Those Writing Assignments, N.Y.L.J., June 4, 2001, §10, at col. 1.

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6. conclusion of the issue, facts, the law, and the finding.

Write the memorandum

Edit, edit, editA memo is not complete until it has been edited and reedited. Have

someone assist you in editing. If no one is available to assist,try spending some time away from the memo before returning to readit over and edit it.

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MEMORANDUM WRITING TIPSHeading(memorandum)The typical memorandum begins with a “TO:”, “FROM:”, “DATE:”, and

“RE:” heading. Although the heading may seem unimportant, it isessential for record keeping that the heading be properly andthroughly completed.

Sample HeadingMemorandum of LawTO: John W. LincolnFROM: Abraham BoothDATE: January 3, 2004RE: Applicability of Wilks v. Ford to a defendant with prior convictions. Questions Presented (memorandum)The Questions Presented section frames the entire memorandum. It

should encompass both the legal and factual elements that must beanalyzed.

Statement of the issue (memorandum)The issue presented should be stated in terms specific to the case,

including both the legal and factual elements at issue. Incorporatelegal and factual components into the issue

o Incorrect: Was the defendant denied effective assistance ofcounsel?

o Correct: Did an attorney’s failure to file a timely appealconstitute ineffective assistance ofcounsel?

Numbering: Each question should be numbered in the same order that itwill be addressed in the memo.

Statement of Answers(memorandum)The Answers section should consist of brief answers to the Questions

Presented. They should be answered in the same order they appear inthe Questions Presented.

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Statement of Facts (memorandum)The Statement of Facts should tell the story that gave rise to the

legal question. The Facts should have a tone and structure that iseasy to read and that makes the issues understandable.

A. Avoid unnecessary factsInclude only those facts that are necessary for the legal analysis.

The job of the writer is to sift through all of the information andpull out what is needed.

B. Do not state legal conclusionsDo not incorporate legal terms or legal conclusions in the facts.o Incorrect: Mr. Rice negligently failed to stop at the red light.o Correct: Mr. Rice failed to stop at the red light.C. Note disputed factsIf there are facts that are in dispute, they should be clearly

identified with modifying terms such as “alleged,” “stated,”“testified.”

D. Only one key fact per sentenceAvoid sentences that include more than one essential fact. If you

follow this rule, you will make it easier to apply the law to thefacts in the Discussion section.

E. Avoid bias or distortionMention facts that are both favorable and unfavorable.

Sample Statement of Facts:

In 1981, our client, Alan Adams, purchased a 1OO'-by-1OO' parcel of property (“ParcelA”), which included a brick house. Mr. Adams purchased the Grafton County, NH,property from Jason Johnson. Mr. Adams did not properly record the deed to ParcelA and has no separate records of the sale, as they were destroyed in a fire in 1995.

In 1982, Robert Rogers purchased the adjoining 100'-by-150' empty lot (“Parcel B”), aswell as Parcel A, from Jason Johnson. Mr. Rogers properly recorded the deed to bothproperties in 1982.

Mr. Adams and his family have lived in the house since the year of the purchase, withthe exception of an annual two-month vacation during the summer. They did notmake any structural or exterior improvements to the house. However, theymaintained flower gardens originally planted by Jason Johnson, mowed the lawn inthe late spring, raked the leaves in the fall, and planted four trees in 1983.

Robert Rogers, a resident of Florida, did not visit the property after purchasing it untilJuly 1982. He stated that he “saw no signs of life,” and that the house “looked as if it

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could have used some grooming,” as ivy was growing on the side.

The Adams family widened the driveway by five feet in 1985 and placed their name onthe mailbox located at the foot of the driveway in 1986. in 1990, they constructed afour-foot-high chain link fence around the backyard.

In August 1991, Mr. Rogers visited the property for a second time. He stated that it stilllooked abandoned, as the lawn was overgrown and the garden contained only deadflowers. He said that he did not see the trees the Adams family planted, the name onthe mailbox, the fence in the backyard, or the wider driveway.

The Adams family has paid taxes for Parcel A every year. Mr. Rogers only paid taxes onParcel B, but only discovered so in December of 1999. Upon his realization that hewas only paying taxes on one parcel, he visited the property and discovered that theAdams family was residing on Parcel A.

Upon this discovery, Mr. Rogers initiated an action of ejectment against the Adamsfamily. Mr. Adams has asked us to assess whether he has gained title of Parcel Athrough adverse possession, and thus is protected from this action by Mr. Rogers.

Discussion (memorandum)The Discussion section, which is considered the heart of the

memorandum, must provide objective yet convincing support for theconclusion.

A. BalanceUnlike an appellate brief, a legal memorandum usually is not an

advocacy paper. Although the purpose is to reach a legalconclusion, the arguments presented must be objective. The writershould explain why favorable law applies and why unfavorable lawmost likely does not apply; however, the writer must not attempt toconvince the reader of the absolute correctness of the conclusion.Instead, the writer should acknowledge the weaknesses of theargument.

B. Synthesize law with factsThe writer must give an explanation as to how each fact relates to the

law.C. AIRACEvery section of the Discussion must contain five elements:

Answer, Issue,Rule, Analysis, and Conclusion (“AIRAC”).Sample Discussion:

Mr. Rogers’s action of ejectment most likely will fall. Whether Mr. Rogers’s action ofejectment will succeed depends upon whether Mr. Adams obtained title to Parcel Athrough adverse possession.

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When a party is seeking to obtain title through adverse possession on a claim not basedupon a written instrument, they must prove both the statutory and common lawrequirements. Halley v. Winnicki, 255 A.D.2d 489,491 (2d Dep’t 1998). Furthermore,because courts look dlsfavorably upon claims of adverse possession, the proof mustbe “clear and convincing” Anderson v. Mazza, 258 A.D.2d 726 (3d Dep’t 1999). Here,a court reviewing the facts of Mr. Adams’s case would most likely agree that he hasclearly and convincingly satisfied both the common law and statutory requirements.

1. Mr. Adams cultivated and improved the land sufficiently to give him title bywidening the driveway, planting trees, maintaining the garden, mowing thelawn, and raking the leaves.

Mr. Adams met the statutory requirements to obtain title to the property. Whenclaiming title to property not based upon a written instrument, the claimant mustshow that the land has been “usually cultivated or improved.”N.Y. Real Prop.Acts. §522. The possession must be for a minimum of ten years. N.Y. Real Prop.Acts. § 501 (McKlnney 1998). Here, Mr. Adams usually cultivated or improved theproperty, and thus a court would most likely find that the statutory elements havebeen met.

In Birnbaum v. Brody, the Appellate Court for the Second Department held that mowinggrass, maintaining shrubbery, planting flowers, and installing playgroundequipment in the backyard of a house was sufficient to establish usual cultivation.548 N.Y.S.2d 691 (2d Dep’t 1989). Similar to Birnbaum,the Adams family mowed thegrass and maintained flowers. They did plant four trees, although they did notmaintain the shrubbery. Moreover, while they did not have a playground set, theydid widen the driveway. Although each determination is very fact-specific, whichmakes it impossible to determine with certainty the outcome, the facts areanalogous enough to predict that a court would probably reach the conclusion thatthe cultivations and improvements were sufficient so as to satisfy the statutoryrequirements.

2. Mr. Adams met the common law requirements because his possession wasopen and notorious, actual, hostile, and exclusive and continuous.

Mr. Adams probably has fulfilled the common law requirements for obtaining title toParcel A through adverse possession. To obtain title through adverse possession,the possession be (1) open and notorious, (2) actual, (3) hostile, and (4) exclusiveand continuous Brand v. Price, 324 N.E.2d 314, 316 (1974).

A. Mr. Adams’s possession was open and notorious.

The question of whether the Adams family’s occupancy was open and notorious issomewhat mixed, but the evidence probably is sufficient to meet this requirement,in order to establish that the possession of the property was open and notorious, itmust be shown that the possession was “sufficiently visible such that a casualinspection by the owner of the property would reveal the adverse possessor’soccupation and use thereof.” Weinstein v. Pesso, 237 A.D.2d 516 (2d Dep’t 1996).

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A court probably would find that a casual inspection of Parcel A would reveal theoccupancy of the Adams family. In West v. Tilley, 33 A.D.2d 228, 230 (4th Dep’t1970), the owner of the property contended that the occupation was not open andnotorious because the land was “wild, overgrown and lettle [sic] used.” Id. However,the court disagreed, holding that if the owner had made a “casual inspection” hewould have noticed the changes, improvements, and other signs of occupancy.Similar to the Westcase, a casual inspection of the land here probably would haverevealed open and notorious signs of occupancy. The name on the mailbox, thewidening of a driveway, the erection of a chain-link fence, and the planting of treesall appear to be discoverable upon inspection.

The fact that Mr. Rogers did not see the signs of occupancy probably is irrelevant. Thetiming of Mr. Rogers’s visits coincided with times when signs of occupancy were lessapparent, thus making the element of open and notorious more difficult to prove.Since Mr. Rogers’s two visits occurred when the Adams family was on vacation, thusthe maintenance of the garden, mowing of the grass, and raking of the leaves werenot apparent to the owner of the parcel. How a court would deal with this issue isdifficult to predict; however, the holding in Beacon v. Garner, 88 N.Y.2d 154 (1930)does provide some insight. That court applied a standard of reasonableness whendetermining whether the common law requirements have been met, by asking ifowners of properties of similar character, condition, and location would have donethe same as the claimant. Id. at 159. Since it is common for homeowners to takesummer vacations, a court might find that the condition of the property during thevacation was reasonable and still open and notorious signs of occupancy. The factthat there were more permanent indications of occupancy, such as the widening ofthe driveway and chain-link fence, will provide additional support for this argument.

B. Mr. Adams had actual possession.

The fact that the Adams family lived on the property is sufficient to establish actualpossession. Courts consistently have held that “acts of dominion and control overthe premises are indicative of actual possession.” Miller v. Rau,793 A.D.2d 868, 869(3d Dep’t 1979). A court unquestionably would find that the acts of Mr. Adams, suchas mowing the lawn and widening the driveway, are ones of dominion and control.Furthermore, Parcel A was the place of residency for Adams family; thus it can besaid that they actually possessed the property on which they lived.

C. Mr. Adams’s possession was hostile title.

The facts conclusively establish hostility toward the title of Mr. Rogers, it is wellestablished that a plaintiff is required to show only that the possession constitutesan invasion of the owner’s rights to establish hostility. Katona v. Low, 226 A.D.2d433, 434 (2d Dep’t 1996). Payment of taxes “coupled with other acts” can alsoevidence hostility toward title. New York v. Wilson, 15 N.E.2d 408, 412 (1938).Because the Adams family entered the property in violation of Mr. Rogers’s rights,paid taxes, and evidenced “other acts” of hostility it is doubtful, if not impossible,that a court would view the Adams family’s possession of Parcel A as anything buthostile toward the title of Mr. Rogers.

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D. Mr. Adams exclusively and constinuously occcupied.

There is sufficient evidence that the Adams family occupied the property exclusively andcontinuously in determining whether the element of continuity has been met, courtsconsider not only the adverse possessor’s physical presence on the land, but also theother acts by the possessor that would appropriately be reasonable of an owner inthe same position. Id. It is common that homeowners take vacations, and thus anannual trip unquestionably would not constitute a break in the continuity of thepossession. Because there were no other residents on the property and thus theoccupancy was exclusive, a court could not disagree that this element is satisfied.

Conclusion (memorandum)The Conclusion section should provide a brief summary of the facts and

law reviewed in the Discussion section. It should be no more than5–10 sentences long.

Sample Conclusion:

In light of all of the facts, a court most likely would rule that Mr. Adams has gained titleto Parcel A through adverse possession; thus Mr. Rogers’s action of ejectment wouldbe barred. Mr. Adams most likely has satisfied both the statutory and common lawelements of adverse possession as required to gain title. While he has notsubstantially enclosed his property, he did improve or cultivate the land for tenyears, and thus he has satisfiedN.Y. Real Prop. Acts. § 501. Furthermore, Mr. Adamshas satisfied the common law elements that the possession be (1) actual; (2) openand notorious; (3) hostile; and (4) exclusive and continuous. While the greatestchallenge lies in clearly and convincingly proving open and notorious possession,Mr. Adams will probably prevail in this action.

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Contract DraftingDEFINITION AND SCOPE OF CONTRACT DRAFTING

defining a contractA written or spoken agreement, especially one concerning employment,

sales, or tenancy, that is intended to be enforceable by law.

precedents (plagiarism)Plagiarism is allowed in legal drafting; unlike in most other legal

writing categories, plagiarism is accepted, because of the highvalue of precedent. As noted, lawyers extensively use formats(contracts, wills, etc.) in drafting documents; borrowing fromprevious documents is common. A good lawyer may frequently copy,verbatim, well-written clauses from a contract, a will, or astatute to serve his or her client's legal interests.

legalese Legalese is an English term first used in 1914 for legal writing that

is very difficult for laymen to read and understand, theimplication being that this abstruseness is deliberate forexcluding the legally untrained and to justify high fees. Legalese,as a term, has been adopted in other languages. Legalese ischaracterized by long sentences, many modifying clauses, complexvocabulary, high abstraction, and insensitivity to the layman'sneed to understand the document's gist. Legalese arises mostcommonly in legal drafting, yet appears in both types of legalanalysis.

six (6) elements of a contractUnder the formalist theory of contract87, every contract must have six

elements:

1) Legality2) Offer3) Acceptance4) Consideration5) Meeting of the minds6) Capacity

Many other contracts, but not all types of contracts, also must be inwriting and be signed by the responsible party, in an elementcalled form. (Legal formalists argue that judges and other public officials should beconstrained in their interpretation of legal texts, suggesting that investing the judiciary with

87 Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)

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the power to say what the law should be, rather than confining them to expositing what thelaw does say, violates the separation of powers.)88

legality (contract)An underlying principle of the law of contract (pacta sunt servanda or

sanctity of contract) is that agreements seriously concluded should beenforced, but agreements that are clearly detrimental to theinterests of the community as a whole, whether they are contrary tolaw or morality (contra bonos mores), or if they run counter to socialor economic expedience, will not be enforced. These contracts areillegal on the grounds of public policy. The law regards illegal orunlawful contracts either as void and thus unenforceable, or asvalid but unenforceable.

intention to be legally boundThere is a presumption for commercial agreements that parties intend

to be legally bound (unless the parties expressly state that theydo not want to be bound, like in heads of agreement). On the otherhand, many kinds of domestic and social agreements areunenforceable on the basis of public policy, for instance betweenchildren and parents. One early example is found in Balfour v Balfour89is a leading English contract law case. It held that there is a rebuttable presumptionagainst an intention to create a legally enforceable agreement when the agreement isdomestic in nature. Using contract-like terms, Mr. Balfour had agreed togive his wife £30 a month as maintenance while he was living inCeylon (Sri Lanka). Once he left, they separated and Mr. Balfourstopped payments. Mrs. Balfour brought an action to enforce thepayments. At the Court of Appeal, the Court held that there was noenforceable agreement as there was not enough evidence to suggestthat they were intending to be legally bound by the promise.

The case is often cited in conjunction with Merritt v Merritt90 Here thecourt distinguished the case from Balfour91 because Mr. and Mrs.Merritt, although married again, were estranged at the time theagreement was made. Therefore any agreement between them was madewith the intention to create legal relations.

offer and acceptanceThe most important feature of a contract is that one party makes an

offer for an arrangement that another accepts. This can be called aconcurrence of wills or consensus ad idem (meeting of the minds) of

88 See Frederick Schauer, Formalism, 97(4) Yale L. J. 19-58 (1988)89 [1919] 2 KB 57190 [1970] EWCA Civ 691 Id

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two or more parties. The concept is somewhat contested. The obviousobjection is that a court cannot read minds and the existence orotherwise of agreement is judged objectively, with only limitedroom for questioning subjective intention.92 There must be evidencethat the parties had each, from an objective perspective, engagedin conduct manifesting their assent, and a contract will be formedwhen the parties have met such a requirement.93 An objectiveperspective means that it is only necessary that somebody gives theimpression of offering or accepting contractual terms in the eyesof a reasonable person, not that they actually did want to form acontract.

The case of Carlill v Carbolic Smoke Ball Company94 is an example of a'unilateral contract'. Obligations are only imposed upon one partyupon acceptance by performance of a condition.

Offer and acceptance does not always need to be expressed orally or inwriting. An implied contract is one in which some of the terms arenot expressed in words. This can take two forms. A contract whichis implied in fact is one in which the circumstances imply thatparties have reached an agreement even though they have not done soexpressly. For example, by going to a doctor for a checkup, apatient agrees that he will pay a fair price for the service. Ifone refuses to pay after being examined, the patient has breached acontract implied in fact. A contract which is implied in law isalso called a quasi-contract, because it is not in fact a contract;rather, it is a means for the courts to remedy situations in whichone party would be unjustly enriched were he or she not required tocompensate the other. For example, a plumber accidentally installsa sprinkler system in the lawn of the wrong house. The owner of thehouse had learned the previous day that his neighbor was gettingnew sprinklers. That morning, he sees the plumber installing themin his lawn. Pleased at the mistake, he says nothing, and thenrefuses to pay when the plumber delivers the bill. Will the man beheld liable for payment? Yes, if it could be proven that the manknew that the sprinklers were being installed mistakenly, the courtwould make him pay because of a quasi-contract. If that knowledgecould not be proven, he would not be liable. Such a claim is alsoreferred to as ‘quantum meruit ‘.95

92 See Smith v. Hughes (1870-71) LR 6 QB 59793 Willmott, L, Christensen, S, Butler, D, & Dixon, B 2009 Contract Law, Third

Edition, Oxford University Press, North Melbourne94 [1893] 1 QB 25695 see A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit,

(Oxford University Press: Oxford, 1975).

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consensus ad idem, intention to contract Meeting of the minds (also referred to as mutual agreement, mutual

assent or consensus ad idem) is a phrase in contract law used todescribe the intentions of the parties forming the contract. Inparticular it refers to the situation where there is a commonunderstanding in the formation of the contract. This condition orelement is often considered a necessary requirement to theformation of a contract. German jurist, Friedrich Carl von Savignyis credited with developing this will theory of contract.96

In Carlill v Carbolic Smoke Ball Company97, Bowen LJ said,‘One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be

notified to the person who makes the offer, in order that the two minds may come together.Unless this is done the two minds may be apart, and there is not that consensus which isnecessary according to the Common law- I say nothing about the laws of other countries -to make a contract.’

Mutual assent or meeting of the minds is destroyed by such actions asfraud, undue influence, duress (see per minas), mutual mistake, ormisrepresentation.

considerationConsideration is something of value given by a promissor to a promisee

in exchange for something of value given by a promisee to apromissor. Typically, the thing of value is a payment, although itmay be an act, or forbearance to act, when one is privileged to doso, such as an adult refraining from smoking.

Consideration consists of a legal detriment and a bargain. A legaldetriment is a promise to do something or refrain from doingsomething that you have the legal right to do, or voluntarily doingor refraining from doing something, in the context of an agreement.A bargain is something the promisor (the party making promise oroffer) wants, usually being one of the legal detriments. The legaldetriment and bargain principles come together in consideration andcreate an exchange relationship, where both parties agree toexchange something that the other wishes to have.

The emphasis is on the bargaining process, not an inquiry into therelative value of consideration. This principle was articulated inHamer v. Sidway. Yet in cases of ambiguity, courts will occasionallyturn to the common law benefit/detriment analysis to aid in thedetermination of the enforceability of a contract.

96 Savigny, System des heutigen Römischen Rechts (1840) online, in German97 [1893] 1 QB 256

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Consideration must be sufficient, but courts will not weight the adequacyof consideration. For instance, agreeing to sell a car for a pennymay constitute a binding contract.98 All that must be shown is thatthe seller actually wanted the penny. This is known as the peppercornrule. Otherwise, the penny would constitute nominal consideration, whichis insufficient. Parties may do this for tax purposes, attemptingto disguise gift transactions as contracts.

Past consideration is not sufficient. Indeed, it is an oxymoron. Forinstance, in Eastwood v. Kenyon,99 the guardian of a young girlobtained a loan to educate the girl and to improve her marriageprospects. After her marriage, her husband promised to pay off theloan. It was held that the guardian could not enforce the promisebecause taking out the loan to raise and educate the girl was pastconsideration—it was completed before the husband promised to repayit.

The idea is that both parties to a contract must bring something tothe bargain. This can be either conferring an advantage on theother party, or incurring some kind of detriment or inconvenience.Three rules govern consideration.

1) Consideration must be sufficient, but need not be adequate. For instance, agreeing tobuy a car for a penny may constitute a binding contract.100 While consideration need not beadequate, contracts in which the consideration of one party greatly exceeds that of anothermay nevertheless be held invalid for lack of sufficient consideration. In such cases, the factthat the consideration is exceedingly unequal can be evidence that there was noconsideration at all. Such contracts may also be held invalid for other reasons such asfraud, duress, unequal bargaining power, or being contrary to public policy. In somesituations, a collateral contract may exist, whereby the existence of one contract providesconsideration for another. Critics say consideration can be so small as to make therequirement of any consideration meaningless.

2) Consideration must not be from the past. For instance, in Eastwood v. Kenyon,101 theguardian of a young girl raised a loan to educate the girl and to improve her marriageprospects. After her marriage, her husband promised to pay off the loan. It was held thatthe guardian could not enforce the promise as taking out the loan to raise and educate thegirl was past consideration, because it was completed before the husband promised torepay it.

3) Consideration must move from the promisee. For instance, it is good consideration forperson A to pay person C in return for services rendered by person B. If there are joint

98 Chappell & Co Ltd v. Nestle Co Ltd [1959] 2 All ER 701 in which the wrappers from three chocolate bars was held to be part of the consideration for the sale and purchase of a musical recording.

99 Eastwood v. Kenyon (1840) 11 Ad&E 438100 q.v. Chappell & Co Ltd v Nestle Co Ltd [1959] 2 All ER 701101 (1840) 11 A & E 438; 113 ER 482

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promisees, then consideration need only to move from one of the promisees.

In Shadwell v Shadwell102 the court held that it would be a validconsideration if a pre-existing duty was performed, so long as itwas for a third party.

capacity to contractThe capacity of both natural and legal persons determines whether they

may make binding amendments to their rights, duties andobligations, such as getting married or merging, entering intocontracts, making gifts, or writing a valid will. Capacity is anaspect of status and both are defined by a person's personal law:

و for natural persons, the law of domicile or lex domicilii in common lawjurisdictions, and either the law of nationality or lex patriae, orof habitual residence in civil law states;

و for legal persons, the law of the place of incorporation, the lexincorporationis for companies while other forms of business entityderive their capacity either from the law of the place in whichthey were formed or the laws of the states in which they establisha presence for trading purposes depending on the nature of theentity and the transactions entered into.

When the law limits or bars a person from engaging in specifiedactivities, any agreements or contracts to do so are eithervoidable or void for incapacity. Sometimes such legal incapacity isreferred to as incompetence.

Most states consider persons under the age of 18 to be minors. Theyhave the right to cancel the contract at any time before and evenafter reaching the age of 18. If, however, a minor cancels thecontract, the benefits that he or she received must be returned.Contracts entered into by a minor as one party and an adult as theother party are enforceable if the adult breaches the contract. Theminor can enforce the contract and collect damages by the adult'sbreach. However, if the minor breaches the contract, the adult doesnot have the legal authority to enforce the contract and cannotcollect damages under the bargain principle. Promissory estoppel orunjust enrichment may be available, but generally are not.

privity The doctrine of privity of contract means that only those involved in

striking a bargain would have standing to enforce it. In generalthis is still the case, only parties to a contract may sue for the

102 [1860] EWHC CP J88

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breach of a contract, although in recent years the rule of privityhas eroded somewhat and third party beneficiaries have been allowedto recover damages for breaches of contracts they were not partyto]. In cases where facts involve third party beneficiaries ordebtors to the original contracting party have been allowed to beconsidered parties for purposes of enforcement of the contract. Arecent advance has been seen in the case law as well as statutoryrecognition to the dilution of the doctrine of privity of contract.The recent tests applied by courts have been the test of benefitand the duty owed test. The duty owed test looks to see if thethird party was agreeing to pay a debt for the original party[needselaboration] and whereas the benefit test looks to see ifcircumstances indicate that the promisee intends to give thebeneficiary the benefit of the promised performance. Any defenseallowed to parties of the original contract extend to third partybeneficiaries.

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CONTRACT CLAUSES

termination clauseProvision in a contract which allows for its termination under

specified circumstances. Also called termination provision.duration of conract clauseProvision in a contract provides the start, and end, of the contract,

in dates, and if possible time.integration clause or merger clause or entire agreement clauseIn contract law, an integration clause, or merger clause (sometimes,

particularly in the United Kingdom, referred to as an entire agreementclause) is a term in the language of the contract that declares itto be the complete and final agreement between the parties. It isoften placed at or towards the end of the contract. A contract thathas such a clause may be deemed an integrated contract, and any previousnegotiations in which the parties to the contract had considereddifferent terms will be deemed superseded by the final writing.However, many modern cases have found merger clauses to be only arebuttable presumption.

‘This Agreement, along with any exhibits, appendices, addendums, schedules, andamendments hereto, encompasses the entire agreement of the parties, and supersedes allprevious understandings and agreements between the parties, whether oral or written. Theparties hereby acknowledge and represent, by affixing their hands and seals hereto, thatsaid parties have not relied on any representation, assertion, guarantee, warranty,collateral contract or other assurance, except those set out in this Agreement, made by oron behalf of any other party or any other person or entity whatsoever, prior to theexecution of this Agreement. The parties hereby waive all rights and remedies, at law or inequity, arising or which may arise as the result of a party’s reliance on such representation,assertion, guarantee, warranty, collateral contract or other assurance, provided thatnothing herein contained shall be construed as a restriction or limitation of said party’sright to remedies associated with the gross negligence, willful misconduct or fraud of anyperson or party taking place prior to, or contemporaneously with, the execution of thisAgreement.’

escape clause A provision in a contract which allows one of the parties to be

relieved from (get out of) any obligation if a certain eventoccurs. A "Subject to a builder's inspection to purchaser's fullsatisfaction" clause is one example of an escape clause. Thisclause effectively allows the purchaser to "escape" from thecontract if an inspection reveals any irregularities or defects.Another example is the "Subject to 30-day due diligence" clause,which effectively gives the purchaser a 30-day buffer period to

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inspect any and all aspects of the property before having to committo the purchase. A 72-hour clause is an example of a seller'sescape clause that frequently appears in real estate contracts.

72-hour clause A 72-hour clause, typically inserted in real estate sale contracts, is

also known as an escape clause, release clause, kick-out clause,hedge clause or right of first refusal clause. The 72-hour clauseis a seller contingency which allows the seller to accept a buyer'scontingent offer to purchase his/her property, while allowing theseller to continue to market the property. If the seller nowreceives another (better) offer to purchase the same property,he/she can also accept this offer, as a back-up offer. The sellercan then activate the escape clause by notifying the original buyerabout the back-up offer. The first buyer now has a specified periodof time to fulfil all the buyer contingencies in the contract ofsale, or cancel the contract and lose the property. If the buyercannot fulfil the contingencies in time, the original contract willcancel and the back-up offer will move into first position.

evergreen clauseAn evergreen clause is a statement within a contract, that says

something to the effect of “this agreement shall automaticallyrenew for another one (1) year term, unless either party providesnotice to the other of its intent to terminate this agreement notless than thirty (30) days before the end of the then currentterm.” There are many ways to word an evergreen clause, but theyall have the same common characteristics: If triggered, they act tokeep alive the contract for longer (hence the name, “evergreen,”since they keep the contract ever green). And, they have somemechanism to end the contract (otherwise, the contract would beperpetual and therefore invalid). Evergreen clauses can otherwisevary drastically: They vary in how much time needs to act, to endthe contract. They can create a window sometime before the termends, or a window sometime within the end of the term. They cancreate quite onerous hurdles to “get out of” a contract, if onewanted to prevent it from automatically renewing. Evergreen clausesare okay if you’re providing a service, but work against you ifyou’re receiving a service. Two common types of evergreen clauses:– Automatic renewal for additional term(s) unless a party providesnotice of non-renewal prior to end of initial or renewal term. vs.– Agreement continues indefinitely after initial term unless aparty provides notice of termination.

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dispute resolution clauseThis is a clause in the contract providing for means of resolvign

disputes. It also indicates the venue, pertaining laws, and methodof appointing the arbiter, unless the arbiter is a court of law, inmatters of litigation.

Expedited ArbitrationThis is a provision for quick resolution of disputes via arbitration

in cases of small disputes and/or where quantum is limited orrestricted. It usually provides taht in such cases, thearbitration shall take place using the submission of documentsalone unless both parties agree otherwise.’

"Catch All" Dispute Resolution ClauseA provision in a contract that provides for both alternative dispute

resolution, as well as litigation, as means of disputre resolution,in a single clause, with the ADR preceeding the litigation. Suchclauses provide for negotiation, mediation,adjudication,arbitration, and finally, litigation.

arbitration clauseProvision in a contrant stating that any dispute or difference arising

out of or in connection with the contract shall be determined bythe appointment of an arbitrator (s). The clause must also providefor single arbitrator to be agreed between the parties, or failingagreement within fourteen days, after either party has given to theother a written request to concur in the appointment of anarbitrator, by an arbitrator to be appointed by the President or aDeputy President of the Chartered Institute of Arbitrators."

confidentiality clauseA clause, especially in a contract of employment, that says you must

not give other people or companies private information about youremployer's activities.

scope work, dutiesThe Scope of Work (SOW) is the area in an agreement where the work to

be performed is described. The SOW should contain any milestones, reports, deliverables, and end products that are expected to be provided by the performing party. The SOW should also contain a time line for all deliverables.

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warrantiesIn contract law, a warranty has various meanings but generally means a

guarantee or promise[1] which provides assurance by one party to the other party that specific facts or conditions are true or will happen. This factual guarantee may be enforced regardless of materiality[2] which allows for a legal remedy if that promise is not true or followed.

Although a warranty is in its simplest form an element of a contract, some warranties run with a product so that a manufacturer makes thewarranty to a consumer with which the manufacturer has no direct contractual relationship.

A warranty may be express or implied, depending on whether the warranty is explicitly provided (typically written) and the jurisdiction. Warranties may also state that a particular fact is true at one point in time or that the fact will be continue into the future (a "promissory" or continuing warranty).

Warranties provided in the sale of goods (tangible products) vary according to jurisdiction, but commonly new goods are sold with implied warranty that the goods are as advertised. Used products, however, may be sold "as is" with no warranties.

In the United States, various laws apply, including provisions in the Uniform Commercial Code which provide for implied warranties. However, these implied warranties were often limited by disclaimers. In 1975 the Magnuson–Moss Warranty Act was passed to strengthen warranties on consumer goods. Among other things, under the law implied warranties cannot be disclaimed if an express warranty is offered, and attorney fees may be recovered. In some states statutory warranties are required on new home construction, and "lemon laws" apply to motor vehicles.

Implied warranty

Implied warranties are unwritten promises that arise from the nature of the transaction, and the inherent understanding by the buyer, rather than from the express representations of the seller. In the United States, Article 2 of the Uniform Commercial Code (which has been adopted with variations in each state) provides that the

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following two warranties are implied unless they are explicitly disclaimed (such as an "as is" statement):

The warranty of merchantability is implied unless expressly disclaimedby name, or the sale is identified with the phrase "as is" or "withall faults." To be "merchantable", the goods must reasonably conform to an ordinary buyer's expectations. For example, a fruit that looks and smells good but has hidden defects may violate the warranty if its quality does not meet the standards for such fruit "as passes ordinarily in the trade". In Massachusetts consumer protection law, it is illegal to disclaim this warranty on household goods sold to consumers.

The warranty of fitness for a particular purpose is implied unless disclaimed when a buyer relies upon the seller to select the goods to fit a specific request. For example, this warranty is violated when a buyer asks a mechanic to provide tires for use on snowy roads and receives tires that are unsafe to use in snow.

Defects In Materials and Workmanship

The most common kind of warranty on goods is a warranty that the product is free from defects in materials and workmanship. This simply promises that the manufacturer properly constructed the product, out of proper materials. This implies that the product will perform as well as such products customarily do.

It is common for these to be limited warranties, limiting the time thebuyer has to make a claim. For example, a typical 90 day warranty on a television gives the buyer 90 days from the date of purchase to claim that the television was improperly constructed. Should thetelevision fail after 91 days of normal usage, which because televisions customarily last longer than 91 days means there was a defect in the materials or workmanship of the television, the buyernonetheless may not collect on the warranty because it is too late to file a claim.

Time limited warranties are often confused with performance warranties. A 90 day performance warranty would promise that the television would work for 90 days, which is fundamentally differentfrom promising that it was delivered free of defects and limiting

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the time the buyer has to prove otherwise. But because the usual evidence that a product was delivered defective is that it later breaks, the effect is very similar.

One situation in which the effect of a time limited warranty is different from the effect of a performance warranty is where the time limit exceeds to normal lifetime of the product. If a coat is designed to last two years, but has a 10 year limited warranty against defects in materials and workmanship, a buyer who wears thecoat for 3 years and then finds it worn out would not be able to collect on the warranty. But it is different from a 2 year warrantybecause if the buyer starts wearing the coat 5 years after buying it, and finds it wears out a year later, the buyer would have a warranty claim in Year 6. On the other hand, a 10 year performance warranty would promise that the coat would last 10 years.

Satisfaction guarantee

In the United States, the Magnuson–Moss Warranty Act of 1976 provides for enforcement of a satisfaction guarantee warranty. In these cases, the advertiser must refund the full purchase price regardless of the reason for dissatisfaction.

Lifetime warranty

A lifetime warranty is usually a warranty against defects in materialsand workmanship that has no time limit to make a claim, rather thana warranty that the product will perform for the lifetime of the buyer. The actual time that product can be expected to perform is normally determined by the custom for products of its kind used theway the buyer uses it.

Breach of warranty

Warranties are violated when the promise is broken or the goods are not as expected. The seller may honor the warranty by making a refund or a replacement. The statute of limitations depends on the jurisdiction and contractual agreements. Refusing to honor the warranty may be an unfair business practice. In the United States, breach of warranty lawsuits may be distinct from revocation of contract suits; in the case of the breach of warranty, the buyer's

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item is repaired or replaced while breach of contract involves returning the item to the seller.

Some warranties require that repairs be undertaken by an authorized service provider. In such cases, service by non-authorized personnel or company may void (nullify) the warranty.

Extended warranty

In addition to standard warranties on new items, third parties or manufacturers may sell extended warranties (also called service contracts). These extend the warranty for a further length of time.However, these warranties have terms and conditions which may not match the original terms and conditions. For example, these may notcover anything other than mechanical failure from normal usage. Exclusions may include commercial use, "acts of God", owner abuse, and malicious destruction. They may also exclude parts that normally wear out such as tires and lubrication on a vehicle.

These types of warranties are provided for various products, but automobiles and electronics are common examples. Warranties which are sold through retailers such as Best Buy may include significantcommission for the retailer as a result of reverse competition.[10]For instance, an auto warranty from a car dealership may be subcontracted and vehicle repairs may be at a lower rate which could compromise the quality of service. At the time of repair, out-of-pocket expenses may be charged for unexpected services provided outside of the warranty terms or uncovered parts.

Representations versus warranties

Statements of fact in a contract or in obtaining the contract are considered to be either warranties or representations. Traditionally, warranties are factual promises which are enforced through a contract legal action, regardless of materiality, intent,or reliance. Representations are traditionally precontractual statements which allow for a tort-based action if the misrepresentation is negligent or fraudulent.

terms and conditions Contracts will always contain different types of terms (said or

written), some more important than others. The more important terms

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are called “conditions”, the less important terms are called “warranties”.

Conditions are so important that without them one or other of the parties would not enter into the contract. Consequently, to make a condition falsely, or to breach a condition, is viewed so seriouslythat the wronged party will be entitled to treat the contract as void, voidable or at least rescinded.

Where the term is a warranty, the wronged party will only be able to seek monetary damages for any loss suffered. The contract itself will remain binding on both parties.

The court looks at each case on its own merits. In making a decision as to whether a term is a condition or a warranty, the court will consider all the surrounding circumstances, including the seriousness of the consequences if the contract is held to be non-binding, and the intentions of the parties at the time they made the contract.

sole agreement clause, integration clause, merger clause, entireagreement clause, whole agreement clause

In contract law, an integration clause, merger clause, (sometimes, particularly in the United Kingdom, referred to as an entire agreement clause) is a clause in a written contract that declares that contract to be the complete and final agreement between the parties. It is often placed at or towards the end of the contract. A contract that has such a clause may be deemed an integrated contract, and any previous negotiations in which the parties to thecontract had considered different terms will be deemed superseded by the final writing. However, many modern cases have found merger clauses to be only a rebuttable presumption.

escape clause A provision in a contract which allows one of the parties to be

relieved from (get out of) any obligation if a certain eventoccurs. A "Subject to a builder's inspection to purchaser's fullsatisfaction" clause is one example of an escape clause. Thisclause effectively allows the purchaser to "escape" from thecontract if an inspection reveals any irregularities or defects.Another example is the "Subject to 30-day due diligence" clause,

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which effectively gives the purchaser a 30-day buffer period toinspect any and all aspects of the property before having to committo the purchase. A 72-hour clause is an example of a seller'sescape clause that frequently appears in real estate contracts.

72-hour clause , escape clause, release clause, kick-out clause,hedge clause or right of first refusal clause

A 72-hour clause, typically inserted in real estate sale contracts, isalso known as an escape clause, release clause, kick-out clause,hedge clause or right of first refusal clause. The 72-hour clauseis a seller contingency which allows the seller to accept a buyer'scontingent offer to purchase his/her property, while allowing theseller to continue to market the property. If the seller nowreceives another (better) offer to purchase the same property,he/she can also accept this offer, as a back-up offer. The sellercan then activate the escape clause by notifying the original buyerabout the back-up offer. The first buyer now has a specified periodof time to fulfil all the buyer contingencies in the contract ofsale, or cancel the contract and lose the property. If the buyercannot fulfil the contingencies in time, the original contract willcancel and the back-up offer will move into first position.

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TIPS TO EFFECTIVE CONTRACT DRAFTING

Mandatory Clauses

There are certain clauses that are important tto have in every contract, as below:

Authorization: This indicates that one party has engaged the other party for the provision of goods or services.

Scope of Work. This indicates the deliverables of the work.

Parties: This describes the parties to the contract.

Obligations: This indicates obligations of both, or all parties.

Permits and licenses. This indicates which party has the responsibility to ensure requisite licenses, permits, etc, are acquired.

Indemnity: This indicates that parites shall each make good any loses they cause to the other party.

Consideration for the Services: This indicares the amount of contract,or contract price. Consideration should separate consultancy costs from direct costs.

Default: This should indicate the recourse by parties of one or other parties default on their obligations.

Period of Contract: This should indicate the start, and end date of the contract.

Termination: This should indicate the factors that will cause the contract to terminate.

Warranties: This is a list of guarantees given by parties.

Confidentiality: This is a clear statement that the parties shall treat the information shared with confidence and secrecy.

Rights upon Termination of Agreement. This indicates what happens to materials, and other documents, upon termination.

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Intellectual property: This indicates who owns the intellectual properties in the duration of the contract.

Notices: This indicates the notice address for all partis, and mode ofservice.

Dispute Resolution: This provides clear forum, jurisdiction, and procedure and means of dispute resolution.

Entire agreement: This indicates that the agreement is final, and excludes other agreements.

Attachments: This lists any other documents, for instance, proposals, which are part of the contract, but as appendices.

signature: This provides for signing by the parties,

Do NOT use “shall

Do NOT use “shall” for rhetorical emphasis, i.e., do NOT use “shall” as a proxy for “I really mean it!” Example: There is no need to say“This Agreement shall be governed by New York law.” The Agreement simply “is” governed by New York law. As I discuss in this post, use “shall” only to convey an obligation.

Do NOT use WITNESSETH

Do NOT use WITNESSETH anywhere in your contract. That goes equally forW I T N E S S E T H.

Be Cear

Do NOT write: “Party X may give notice to Party Y…” or “Party X may notify Party Y….” Was Party X otherwise prohibited from giving notice? This is an example of my general rule against conveying “naked discretion”: giving a party “permission” to do something that it isn’t explicitly or implicitly prohibited from doing.

Obey Rule Of Privity

Do NOT purport to obligate anyone who did not sign on the dotted line,as in “Party X’s affiliates shall not sell any Goods.”

Use Bold For Emphasis

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If you want someone to read text that is really really important, thendo not use all caps. Consider using bold font. It is very difficultto read all caps. In fact, when i encounter a paragraph in all caps, my first instinct is to skip over it (or to perhaps read it in my robot voice). Also, you lose the benefit of any defined termsin the paragraph; you can’t distinguish between the lowercase “security” and the defined term “security.” Finally, there is a greater change that you will miss errors of you use all caps.

Now, Therefore

Do NOT write “NOW, THEREFORE [blah, blah]” in the lead-in to your contract, whether or not in ALL CAPS. “The Parties hereby agree as follows:” will suffice.

Deemed Rule

Do NOT state “not be deemed to be” when you really mean “be deemed notto be.” The former negates a “deemed rule”; the latter creates a “deemed rule.” For example, if you want to make clear that a certain action will not be considered “material,” then do not write: “[Action] will not be deemed to be material.” The action could still in fact be material. Instead: “[Action] will be deemed not to be material.”

recitals Recitals typically appear at the beginning of a contract, and provide

context for the agreement. They often begin with the word “whereas”(i.e. Whereas, Buyer seeks to purchase real property from Seller…”). Although the recitals aren’t required, they provide enough background that an outside party (such as a judge or jury) can quickly understand the parties’ intent.

Do NOT incorporate recitals into the operative portion of the contractby reference. The recitals are mere precatory language. They set forth background and are often loosely drafted. Do not place or purport to place operative language in the recitals. If you want toinclude an operative provision, then just write that provision in the operative portion of the document.

using shall

The word shall should be used to convey an obligation, and should not be used otherwise in contract drafting. See my prior post on this: The Contract Drafter Shall Not Use “Shall” (Except to Convey

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Obligations). Definitions employ language of policy, not obligations. And please don’t use shall as a proxy for I really mean it. Rhetoric has no place in clear contract drafting. So don’twrite:

Define Important Terms and Parties

It’s a good idea to define all important terms as you use them. For example, if your contract specifies that “profits” are to be split between the parties, then it’s also a good idea to specify whether you are referring to gross profits or net profits. Similarly, the contract should clearly specify what sales or proceeds will be deemed “profits” in the first place. Likewise, if your contract involves the buying and selling of property, define the property clearly enough that it could be identified by a third party otherwise unfamiliar with the deal. The same is true when identifying the parties to the contract.

Define words when first used. Instead of writing a section of definitions at the beginning or end of a contract, consider defining terms and concepts as they appear in the contract. This will make it easier for the reader to follow.

Explain technical terms and concepts. Remember that the parties might understand technical jargon, but the judge and jury who interpret and apply the contract do not. Therefore, explain the contract's terms and concepts within the contract itself.

for the avoidance of doubt

If you need to include these words, it means that there’s some doubt about the sentence that precedes them. Resist this urge and insteadjust remove the doubt in the prior sentence.

unless the context otherwise requires

This begs the question: when does the context otherwise require? This phrase is a time bomb in waiting because, if it needs to be invokedin a given instance, then there’s a decent likelihood of reasonabledisagreement as to whether invoking it in that instance is proper. So avoid taking this drafting shortcut.

reference dates in an ordinary manner.

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Reference dates as you would customarily say them orally: January 14, 2013 rather than the 14th of January, 2013. (You could also follow the date reference with A.D. to avoid any possible interpretation that the contract is meant to be seriously retroactive.) The caveaton this is that it is somewhat of a US-centric rule. I often come across non-US contracts in which it is customary to express dates in the [day] of [month], [year] format.

PerformanceWhen it comes to performance, be sure to specify exactly what each

party is to do and when. If there is what might be an open-ended commitment (for example, a flat-fee per month consulting arrangement), specify the maximum number of hours that will be provided.

Be sure to state exactly when payment is due and what happens if payment is not made on time. If you are the party receiving payment, you may well want to add a late charge or interest for overdue payments. In situations where you are receiving a percentage, it is generally wise to include a provision allowing anaudit of the books. If sales or other taxes are involved, be sure to specify who pays the taxes.

Competition

Where you are concerned about the other side having access to your confidential information, you will likely want to include confidentiality provisions that prohibit the other party not only from transmitting the information to others, but also from using that information for purposes other than those set out in the agreement. Be careful, though, of provisions that prohibit competition: in California many of these are void.

Termination

For the party purchasing goods or services, a termination provision can often be the best protection when a contractual relationship isnot working well. Ideally, termination should be allowed at any time upon giving the required notice (e.g., 90 days). Be wary of provisions that allow termination only once a year during a "window" period. Finally, you may well want to state that certain provisions–confidentiality, outstanding payments etc.–remain in effect despite any termination of the main agreement.

Exposure

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Any party providing goods or services needs to consider adding provisions that limit warranties. With contracts involving goods, the Uniform Commercial Code automatically creates certain warranties unless there are specific disclaimers of those warranties. Some of these warranties– such as the warranty of fitness for the buyer's purpose–may be difficult for the seller to meet. Warranties can also be a problem for parties providing services. In addition, a party providing services or goods may wantto include a provision limiting liability so that there is no exposure for the other side's lost profits etc. in the event of a problem.

Changes

Certain provisions limiting changes in an agreement can be extremely useful. For example, unless the contract states otherwise, either side has the right to assign the contract. You may want to prevent assignment to a competitor or prevent all assignment so that you are assured of who you will be dealing with. (On the other hand, itis common to allow assignment to parent or sister companies or to anew version of the same entity, for example when a partnership becomes a corporation.)

Generally, any ambiguity in an agreement is construed against the party drafting it. One possible solution is to add a provision stating that the agreement will be interpreted as if drafted by both parties equally. The recitals at the beginning of an agreement(often the "whereas" clauses), are usually deemed under California law to be correct and binding, so be careful what things are listedthere.

Another useful provision is an "integration" clause. This type of clause states that the contract sets out the entire agreement between the parties and that no oral representations or earlier versions of the contract apply. Obviously, this can eliminate a great deal of argument by limiting the agreement to the terms of the contract itself. (Of course, you have to make sure that everything important to you is included in the final contract.) Similarly, you may want to include a provision stating that any modifications of the agreement must be in writing and signed by both parties, to eliminate any future claim that there was an oral modification to the agreement that you dispute.

Enforcement

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If you believe it is more likely that you would sue (rather than be sued) over the contract, you may well want to include a provision allowing recovery of attorneys' fees. (Generally, attorneys' fees cannot be recovered unless the contract specifically provides for them.) Recognize, however, that under California law an attorneys' fees provision running in favor of just one party will be interpreted to award attorneys' fees to whichever party is the "prevailing party" in any litigation. Also, it is unusual to recover ALL of one's attorneys' fees even when one is the prevailing party.

Particularly where the two parties are from different states, it is important to specify which state's law will apply and where any litigation will be held. Smaller parties in particular will want litigation brought where they are located because of the expense ofout-of-state litigation. Obviously, this type of provision can generate some argument. One way to resolve disputes over it is to state that the party suing has to sue where the defendant is located. However, this is not appropriate for all agreements.

Arbitration clauses are something else to keep in mind. Arbitration isgenerally cheaper and faster than litigation. On the other hand, arbitration awards tend to be smaller than jury awards, so one consideration is whether you are more likely to be a plaintiff or defendant. Arbitration is particularly useful in a relatively smallindustry or where the parties are likely to be doing business againin the future.

Mediation is another option that can be used with or without an arbitration clause. The advantage is that perhaps 75% of all mediated cases settle. The disadvantage is that if the matter does not settle, you still have the cost of arbitration or litigation.

Be Clear

Ambiguity has been the cause of death for many contracts throughout history. To avoid that fate, it’s incredibly important that the language you use in your contract is—above all else—clear. Avoid ambiguous terms and flowery language. Many experienced transactional attorneys I’ve spoken with recommend that your contract be clear enough that a layperson will understand the termsof the deal. In this case, it’s good to think like an attorney but not sound like one.

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Similarly, you should be clear in your use and placement of conjunctions (i.e. “and,” “or,” and “but”) and modifiers (i.e. “actively,” “knowingly,” and so forth). For example, if a contract states that a party is required to “actively market and sell” a product, it’s not entirely clear whether the party must be activelyselling the product throughout the term of the contract, or if a plan to sell in the future would be acceptable so long as the partywas actively marketing the product from the start. If both were required, the contract should state that the party is required to “actively promote and actively sell” the product. Conversely, if only active marketing—and not active selling—is required, the contract would be better written in reverse (i.e. “sell and actively market”) so that it’s clear that the modifier only appliesto the final term.

Be Concise

Cut unnecessary words or phrases. This helps ensure not only that the contract is straight-forward, but also that the contract isn’t creating any inadvertent obligations, conditions, distinctions, andso forth.

Be Consistent

Once you’ve defined a party or term, be consistent in your use of it. For example, if you define one party as “Buyer” early in the contract, don’t refer to them by other names later in the contract.Instead, continue to refer to that individual as “Buyer” throughout. After all, your goal when drafting a contract isn’t to make it interesting. Unlike in creative writing, repetition in contracts is not a sin, it’s a virtue. Be consistent in using words. If you refer to the subject matter of a sales contract as "goods" use that term throughout the contract; do not alternate calling them "goods" and "items". Maintaining consistency is more important than avoiding repetition.

Be consistent in grammar and punctuation. The rules of grammar and punctuation you learned may differ from others, but you had better be consistent in your use of them. Be aware of such things as whereyou put ending quote marks, whether you place commas after years and states, and similar variations in style.

Avoid Words With Legal Significance

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Some words have greater significance to a lawyer than they might to a layperson. While this may be obvious, it’s an essential point to remember when drafting a contract. After all, the difference in legal meaning and standard usage of a word can lead to confusion ina contract. For example, labeling an individual as an “agent” can carry specific legal significance in terms of the individual’s legal authority to act on a party’s behalf. For this reason, you should be very careful any time you use a word that you recognize as possessing a specific legal meaning. If you don’t intend to apply that specific legal meaning, choose another word.

Write Numbers in Both Words and Numerals

When you’re reviewing your contract, it’s incredibly easy to make small errors like misplacing a comma, dropping a zero, or omitting a decimal point. But when those decimal points, zeroes, or commas are important aspects of the contract (such as when they define theamounts of cash or stock exchanged), it’s important to avoid mistakes. By providing numbers as both numerals and words, such as writing “one thousand (1,000)” in this format, you decrease both the risk of making a costly error.

Plan for Litigation

The goal of drafting a good contract is to avoid ending up in court. Nonetheless, you should draft a contract as if you are expecting every term in it to be fully litigated. If a term is important to your client, make sure there is no ambiguity as to what is required, when it is required, who it is required of, and so forth.

Moreover, consider issues such as where you’d like the contract to be litigated (i.e. which venue would be the best choice for your client?); which law will govern the contract; and whether your client prefers mandatory arbitration or mediation. Include provisions that address each of these issues.

Misusing conjunctions and plural nouns.

In his book “A Manual of Style for Contract Drafting,” drafting expertKenneth Adams cautions against using terms that might lead to ambiguity — in fact, he devotes an entire chapter to the “ambiguityof the part versus the whole.” Adams is referring to words like and, or, every, each and any, as well as plural nouns. Using these terms in contracts raises the question of whether the drafter is

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referring to an entire group or just a single member of the group. These ambiguities can open the door to legal challenges.

Key Details.

A contract must accomplish the objectives of the parties even while itprotects the client’s interests. Occasionally, clients want to omitmaterial information from the contract and rely on vague descriptions to be determined later. For example, it’s not uncommonto see contracts for “consulting services” that do not specify the nature and type of services. Unfortunately, these contracts leave the door open to disputes. To ensure precision and completeness, review a checklist with your client to flesh out the material terms. For example, to add precision to the broad term “consulting services,” it is a good idea to attach an annex that lists the specific consulting activities, service levels, and other details. Clients will appreciate the clarity that results from this process,and the contract will better reflect the parties’ bargain.

Choice Of Law, Forum, Dispute Resolution, Damages, And Limitation Of Liability.

Litigators frequently scrutinize choice of law, forum, and other selection provisions to find potential advantages in a contract dispute. It is worth investing time to develop a solid standard form covering these provisions – and sticking to it as much as possible. These provisions can give your client significant leverage and are worth extra time and care.

Consider including choice of law, venue selection, and attorneys fee clauses. If your contract gets litigated, you might as well give your client some "ammunition" for the fight. Examples of these clauses appear in Appendices A and C.

Title it "Contract."

Do not leave this one to chance. If your client wants a contract, call it a contract. A judge now sitting on the federal bench once ruled that a document entitled "Proposal" was not a contract even though signed by both parties. The lesson learned is, "Say what youmean." If you intend the document to be a legally binding contract,use the word "Contract" in the title.

Short Sentences

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Write in short sentences. Short sentences are easier to understand than long ones.

Active Tense

Write in active tense, rather than passive. Active tense sentences areshorter and use words more efficiently, and their meaning is more apparent.

Biweekly

Don't use the word "biweekly." It has two meanings: twice a week and every other week. The same applies to "bimonthly." Instead, write "every other week" or "twice a week."

Herein

Watch out when using "herein." Does "wherever used herein" mean anywhere in the contract or anywhere in the paragraph? Clarify thisambiguity if it matters.

Including" Consider Adding "But Not Limited To

When you write "including" consider adding "but not limited to." Unless you intend the list to be all-inclusive, you had better clarify your intent that it is merely an example.

Cover Letter

All contracts should come with a cover letter. This gives you a place to instruct your client on how to use and sign the contract.

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Legislative Drafting

DEFINITION AND SCOPE OF LEGISLATIVE DRAFTING The purpose of this secion of the book is to assist persons who have

had little or no drafting experience as well as to provide areference and explanatory material to more sophisticatedlegislative drafters.

Legislative Research, pending billSeldom does a drafting task involve issues that are completely novel,

or ideas never before incorporated into a law or a bill, so somepreliminary research is always helpful, if only to provide somedirection as to how to start. If a law or laws already exist onthe topic to be addressed, you may achieve the desired goal byamending a current law rather than writing an entirely new law.

If you cannot locate a similar law or a law addressing a similartopic, try checking whether the legislation contemplated, or asimilar proposal, has been drafted previously. A pending bill orpreviously filed bill, while imperfect, still may provide a goodstarting point.

Statutory citation researchTo determine whether a statute or special act has been amended or

repealed or a court has interpreted the law, overturned it, limitedit, or questioned it you must research the same.

General Law or a Special LawFirst, determine whether the bill is a General Law or a Special Law.

A General Law is one that applies to everyone (unless specificallyexcluding or citing a person or place). A Special Law has limitedapplication. It will reference one town or one person or somethingthat will occur one time or for a limited amount of time.

Legislative SummaryEach standing, joint and conference committee reporting a bill should

prepare a detailed section-by-section summary. The summary portionshould include a summary of the current law and a summary of theproposed change to the law.

Your legislative summary should also include a detailed analysis ofthe legislation that provides the following information:

What is the history of the legislation?What are the legal implications of the legislation?

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What are the political implications of the legislation (whosupports/opposes)?

What are the fiscal implications of the legislation for the state andfor municipalities (revenue neutral, spending or revenueenhancing)?

Would enacting the legislation establish a dangerous or costlyprecedent?

Are there any drafting issues with the legislation?Is it technically flawed?Would it accomplish what its proponents intend?Are there any unintended consequences to the legislation?Does the legislation need to be enacted by a date certain (are there

any legal requirements like a federal mandate or federal or statecourt order)?

Does the legislation need a roll call vote?statute organisation, bill organisation, law organisationAll laws are organized by chapters and then sections of those

chapters. The sections may be further broken down by subsections,clauses, paragraphs, subparagraphs, divisions, subdivisions and,ultimately, sentences and words.

purpose of billsThe most common bills submitted are related to existing laws and

require 1 of 5 actions: (1) Add an additional section to an existing law;(2) Insert something into an existing law;(3) Repeal an existing law;(4) Delete a portion of an existing law;(5) Delete and replace part of an existing law.

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COMMON DEFINITIONS IN LEGISALTIVE DRAFTINGActLegislation that has become law, either by the Governor’s signature,

the Governor’s inaction within 10 days of receiving the bill or bylegislative override of a Governor’s veto. Each act has a chapternumber indicating the order in which it became law during the thencurrent year.

Acts and ResolvesA compilation of the bills and resolves that become law that are bound

in a volume on a yearly basis. AmendmentA proposed modification to a legislative document that is submitted by

or on behalf of a committee or a legislator to a clerk and isconsidered on the floor. An amendment may be in the form of aredraft or a substitute.

BillDocument accompanying a petition, usually asking for legislative

action on a particular matter. CalendarAn agenda for each day of formal session; also called the orders of

the day. There are 3 different calendars, a House calendar, aSenate calendar, and a Joint Session calendar. Calendars areavailable to legislative users and to the public on the GeneralCourt website.

CommitteeOne of joint standing committees, one of House standing committees, or

one of Senate standing committees. Committees and their membershipsizes are set forth in the Rules and may be changed periodically.

Committee on Bills in the Third Reading

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A committee which is empowered to examine and make technicalcorrections to bills and resolves prior to their final reading inthe Senate or House, to resolutions prior to their adoption and toamendments to bills, resolves and resolutions adopted by the otherbranch and which is before the body for concurrence. The Senate andHouse committees work closely with their respective counsels toprepare the legislative documents for floor action.

ConcurrenceAgreement by one branch with an action originating in the other

branch. Conference CommitteeCommittee consisting of 3 members from each body appointed by the

legislative leaders to resolve differences between the 2 bodieswith regard to specific matter, with one senator and onerepresentative acting as chairmen. Failure of the committee toagree or failure of 1 body to accept the committee's recommendationresults in the appointment of a new conference committee. Usuallythe committees are made up of 2 members of the majority party and 1member of the minority party from each body.

Emergency PreambleA preamble to a bill setting forth the facts constituting an

emergency, and the statement that the law is necessary for theimmediate preservation of the public peace, health, safety orconvenience. Matters with emergency preambles become lawimmediately upon approval by the Governor. To make a mattereffective immediately or upon a date certain less than 90 dayseither the Governor may attach an emergency letter or thelegislature may attach a preamble. The legislature must adopt anemergency preamble “on enactment”, i.e., after the bill isengrossed in both branches, by a two-thirds vote.

EnactmentFinal passage of a bill by the House or Senate. All bills must be

enacted in the House first. After a bill is enacted by the Senateit is “laid before the Governor”.

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Engrossed Bill or ResolveFinal version of a bill or resolve before the House or Senate for

final action after being prepared on special parchment by theLegislative Engrossing Division and certified by the clerk.

Formal SessionMeeting to consider and act upon reports of committees, messages from

the Governor, petitions, orders, enactments, papers from the otherbranch, matters in the Orders of the Day (calendar) which aregenerally required to be made available for formal sessions andvarious other matters which may be controversial in nature andduring which roll call votes may be taken.

General LawsLegislative acts applying generally to the Commonwealth and its

citizens. House and Senate RulesRules of order and procedure adopted by that branch at the beginning

of each biennial session. Informal SessionsMeetings designated by the Speaker of the House and Senate President

to consider reports of committees, enactments, papers from theother branch, amendments and various other matters which are of anoncontroversial nature. Any session may be declared an informalsession with prior notice given or in cases of an emergency.

Initiative PetitionRequest by a specified number of voters to submit a constitutional

amendment or law to the General Court and, if not approved, to thepeople for approval or rejection. The petition is introduced intothe General Court if signed by a number of citizens equaling 3 percent of the entire vote for Governor in the preceding gubernatorialelection. If a proposed initiative law fails to pass the GeneralCourt, additional signatures are required to place it on theballot. A proposed initiative constitutional amendment approved byat least one quarter of the General Court, sitting in joint

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sessions by 2 consecutively-elected General Courts, can be placedon the ballot.

Joint CommitteesTwenty-seven committees, generally consisting of 6 senators and 11

representatives, responsible for holding public hearings andreporting on all legislative matters referred to them.

Joint Rule 10Rule ordering that all matters referred to joint committees (except

for the Joint Committee on Health Care Financing) be reported outof committees by the third Wednesday in March of the second annualsession and within 30 days on all matters referred to them on orafter the third Wednesday in February of the second annual sessionof the General Court.

Joint RulesRules for the governing of the 2 bodies that are adopted by both

branches. Laid before the GovernorPresentment of a bill before the Governor for his action after the

bill has been engrossed and enacted or reenacted by both braches.The Governor has 10 days beginning on the day after presentment toeither sign the bill, let it become law without his signature,return the bill to its branch of origin with a recommendedamendment (except for reenacted bills) or veto the bill.

Lay on TableTo temporarily lay aside the consideration of a specific bill,

resolve, report, amendment or motion. If laid on the table,consideration is postponed until a subsequent motion taking theitem off the table succeeds. A motion to lay on the table can bemade only in the Senate.

Massachusetts General Laws

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All of the laws of Massachusetts of a general and permanent nature asembodied in the Official Edition of the Massachusetts General Laws(which are updated on a monthly basis), together with all amendingand related general statutes subsequently enacted through thecurrent session of the General Court.

Money BillA bill that transfers money or property from the people to the

Commonwealth, i.e., a bill that imposes a tax. These bills must betaken up in the House first.

OrderFormal motion in writing, not requiring the Governor's signature,

which is temporary in nature and is used to establish investigativecommittees, to change rules and for other parliamentary actions.

Orders of the Day (Calendar)Listing of most matters to be considered by the Senate and the House

at each formal sitting. Outside SectionA section of an appropriation bill that may deal with an existing line

item in an appropriation, but may also amend an existing law orcreate a new law

OverrideTo overturn the Governor's veto by a two-thirds vote of the members

present in both the House and Senate. Pass a ResolveFinal passage of a resolve by the House or Senate. PetitionA request describing the nature of the proposed legislation and the

objects sought by it, signed by the primary sponsor and a

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petitioner or multiple petitioners, and accompanied by a draft ofthe bill or resolve embodying the legislation proposed.

Pocket VetoA veto resulting from the Governor's failure to sign a bill following

prorogation or dissolution of the General Court. Because thesession has ended, the bill will not automatically become law after10 days and the General Court has no opportunity to override theveto.

Point of OrderChallenge to the breach of order or rule. ProposalDocument accompanying a petition or a committee redraft introducing

legislative amendments to the Constitution of the Commonwealth.ProrogationTermination of a legislative year by agreement of the Governor and

both legislative bodies. QuorumTwenty-one members in the Senate; 81 members in the House. Quorum is

established by the Constitution. RecessTemporary delay in proceedings. ReconsiderationMotion to reconsider a vote on action previously taken. Any member may

propose reconsideration and, if the motion prevails, the matter isvoted on again. A motion to reconsider must be moved prior toentering upon the Orders of the Day on the next legislativesession.

Referendum Petition

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A petition signed by a specified number of voters to repeal a lawenacted by the legislature and requesting that the legislation besuspended until the vote is taken.

Report of CommitteesRecommendation on a legislative matter by the committee to which it

was referred. ResolutionDocuments which may or may not accompany a petition expressing an

opinion of the sentiment of one or both branches of the GeneralCourt, used for congratulations, for memorializing the Congress ofthe United States regarding public questions, etc. Resolutions donot require the Governor's signature.

ResolveDocument accompanying a petition, usually asking for legislative

action of a temporary or immediate nature; e.g., establishingtemporary investigative commissions. Resolves do require theGovernor’s signature to the same extent as an act.

Senate and House JournalsRecords of proceedings in each chamber for each legislative day,

including matters considered, amendments offered and votes taken. Special LawLegislative act applying to a particular county, city, town or

district, individual or group of individuals and not general innature.

VetoGovernor's objection in writing to legislation enacted by the General

Court. The legislation is returned to its branch of origin.

Title Rule

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The subject of the bill must be stated in the title of the bill. Thetitle is the part of the bill that begins with "AN ACT Relating to.. ." and ends before the phrase "BE IT ENACTED. . ."

CONTENTS OF A BILL/STATUTE/CONSTITUTION

SECTION 1. (“SECTION” for 1st section and “SEC.” for subsequentsections, followed by Arabic numeral)

(a) (Subsection) (lower-case letter)

(1) (Paragraph) (Arabic numeral)

(A) (Subparagraph) (upper-case letter)

(i) (Clause) (lower-case Romannumeral)

(I) (Subclause)(upper-case Roman numeral)

In larger bills, sections may be organized into higher-level units.The terminology for such units varies from bill to bill, but thefollowing terms are often used (from the highest level to the levelimmediately above a section): title I, subtitle A, chapter 1,subchapter A, part I, subpart 1.

Deciding whether a bill should be freestanding or amendatoryMany considerations go into deciding whether a bill should be a

“freestanding” statement of law that is not incorporated as part ofanother statute or should amend an existing statute. They includethe following:

¯ Is there an existing statute pertaining to the agencies, persons, or subject matterinvolved?

¯ If there is such a statute, is the new policy temporary or permanent? It may be better toavoid cluttering up the existing statute with temporary provisions, despite the relatedcontent.

¯ Would it be helpful for the definitions, enforcement provisions, rules of construction, orother general provisions of any such statute to apply in the case of the new policy?

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Title (act of parliament), statutory title, bill title Use a short, descriptive title for every bill, to help the House and

Senate Clerk refer the bill to the proper joint committee.

Examples:

An Act regulating firearms.

An Act establishing the department of social services.

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PUNCTUATION AND GRAMMARCommas. "It is urged that the comma is the lowest and least significant of all

punctuation marks. . . We must confess, however, to a very highregard for the lowly comma." Peters v. Watson Co., 40 Wn.2d 121(1952). The comma is to be used only if required. The mostimportant uses of the comma are described in the following:

(i) In a series of three or more words or phrases, a comma is usedafter each item except the last, as in "officers, deputies, andemployees." This rule applies to both conjunctive, "and," anddisjunctive, "or," series.

(ii) A nonrestrictive clause is set off by commas, but a restrictiveclause, which is essential to the meaning of the word beingmodified, should not be set off by commas. Compare the followingtwo sentences, which illustrate a restrictive clause and anonrestrictive clause, respectively:

Men who hate football should stay home.Men, who hate football, should stay home.(iii) A comma is used to separate the independent clauses of a

compound sentence, but it should not be used to separate the nounfrom the verb in a simple sentence. The following examplesillustrate the proper use and omission of commas in a simplesentence and a compound sentence, respectively:

The board may adopt rules to implement this chapter and shall reportannually to the governor.

The board may adopt rules to implement this chapter, and the boardshall report annually to the governor.

(iv) Always place commas around the year when used in a date,thus: For the period from December 1, 2013, through December 1,2015, the rate must . . .

(v) If a qualifying phrase applies to all antecedents instead of onlyto the immediately preceding one, separate the qualifying phrasefrom the antecedents with a comma. Judson v. Associated Meats and Seafoods,32 Wn. App. 794, 801 (1982). See Part II (12)(v) of this guideabout the last antecedent rule.

Semicolons A semicolon is not used where a comma will suffice, but is to be used

to separate phrases already containing commas. A semicolon, not a

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period, is used following each item in a series listing that isintroduced by a colon, thus:

The board has the following powers and duties:(1) Inspection of all dental appliances for safety, durability, and

ease of operation;(2) Licensing of all dental appliance manufacturers; and(3) Regulation of dental appliance retailers.

Tabulation.(i) Break a sentence into its parts and present them in tabular form

only if this makes the meaning substantially clearer.(ii) Use a single "or" to indicate the disjunctive and a single "and"

to indicate the conjunctive at the end of the next to last item ina series. Use a semicolon at the end of each item in the series.

(iii) As an alternative to using "or" or "and" to indicate thedisjunctive or conjunctive in a series, use a phrase in theintroductory clause of the series that clearly expresses how manyof the following items are to be included, such as, "any of thefollowing," "one of the following," "all of the following," or "anyone or more of the following."

(iv) Language that qualifies all of the items should not be includedin the last item of the tabulation.

(v) Do not place a sentence or paragraph after a tabulation. If thesentence or paragraph is not part of the tabulated series, draft itas a separate subsection or paragraph.

Provisos. Provisos should not be used. See discussion in Part II (12)(i) of this

guide. If used, the proviso should be preceded by a colon. Thewords "PROVIDED," or "PROVIDED FURTHER," are written in capitalsfollowed by the word "That," thus: "PROVIDED, That . . ."

Colons. A colon is used to introduce a list or a proviso, as shown in (1)(b)

and (d) of this subsection.

Quotation marks.

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Quotation marks are used to set off a particular word or phrase underdiscussion, as in a definition of a term.

If the end of a quotation coincides with another punctuation mark,several rules should be observed. Periods and commas are alwaysplaced inside the quotation marks. All other punctuation marks,such as colons, semicolons, question marks, and exclamation pointsare placed inside the quotation marks only if they are part of thematerial being quoted.

"Shall," "may," and "must."(i) A statute should be drafted in the present tense because it speaks

at the time it is read. Thus, the word "shall" should not be usedto state a proposition in the future tense. "Evidence isadmissible . . ." is preferable to "Evidence shall beadmissible . . ." See Sutherland § 21.10; 4 John Marshall L.Q. 204.

(ii) "Shall" should only be used to mean "has a duty to." That is, torequire the performance of an act. For example, "the governor shallappoint a director . . ."

Avoid using a negative subject with an affirmative shall, "A personmay not . . ." is preferable to "No person shall . . ." The lattermeans that no one is required to act. So read, it negates theobligation, but not the permission, to act. On the other hand, "Aperson may not . . ." negates also the permission and is,therefore, the stronger prohibition. To avoid confusion, thedrafter should use the affirmative form, "A person may not . . . ,"rather than negative forms such as "No person may . . ." or "Noperson shall . . ." "Shall not" should only be used to mean "has aduty not to."

"May" indicates discretion and is used to confer a right, privilege,or power. Faunce v. Carter, 26 Wn.2d 211, 215 (1946); but cf. Buell v. Cityof Toppenish, 174 Wash. 79 (1933).

Do not confuse the words "may" and "might." "May" confers authority,as in "A person may file a petition." "Might" describes apossibility, as in "They might want coffee."

For a discussion of "may," "shall," and "must," see Garner.(iii) To determine whether the use of "shall" or "may" is correct, a

helpful test is to mentally substitute for the word "may" the words"has the authority to" and substitute for the word "shall" thewords "has the duty to." This reading will make it readily apparentwhether the usage is correct.

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(iv) "Must" creates a condition precedent. Use "must" if the verb itqualifies is an inactive verb or an active verb in the passivevoice. Examples: The applicant "must be" (inactive verb) anadult. Prior convictions "must be set forth" (active verb inpassive voice) in the application.

Use "must not" if the verb it qualifies is an inactive verb or anactive verb in the passive voice. Example: The applicant "must notbe" (inactive verb) a convicted felon. The application "must not befiled" before the end of the reporting period.

Active voice is preferable to passive voice. If the word "must" seemsappropriate because of passive voice, the drafter should improvethe phrase to avoid ambiguity. See (h)(iii) of this subsection.

Tense, mood, and voice.(i) Use the present tense instead of the future tense. "A person who

violates this section . . ." is preferable to "A person who shallviolate this section . . ." Similarly, use the present perfecttense instead of the future perfect tense. "After apprehending aperson who has violated this section . . ." is preferable to "Afterapprehending a person who shall have violated this section . . ."

(ii) Proper drafting uses both the indicative mood and the imperativemood, but the uses of the two moods are distinct. The proper roleof the imperative mood is to create a legal duty or prescribe arule of conduct, as in, "The department shall adopt rules." Theimperative mood should not be used merely to state a legalresult. "This chapter shall not apply to . . ." and "'Vehicle'shall mean . . ." are both "false imperatives" because the purposeof the provision is achieved by the very act of declaring the legalresult. As self-executing provisions, the indicative mood isproper. Thus, "This chapter applies to . . ." and "'Vehicle'means . . ." In neither situation is the subjunctive moodappropriate, as in "If the director shall decidethat . . ." See Dickerson § 6.6.

(iii) The active voice is preferable to the passive voice. The activevoice forces the drafter to identify the party who is required orauthorized to act. Thus, "The commission shall adopt rules . . ."is less ambiguous than "Rules shall be adopted . . ." or "Rulesmust be adopted . . ."

Fewer, less.

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"Fewer" refers to number, individual countable items. "Less" refersto degree or quantity, general amounts. Examples: "Nonfat milk hasfewer calories than whole milk." "We have less milk than Ithought."

Words and phrases to avoid. Ambiguity, wordiness, and legalese can be eliminated by using the

suggested substitutes for the following words or phrases.Avoid Useand/or "either A or B, or both"any and all (either word)at such time as whenat the time of whencommence begindeal with "address" or "conduct"deemed to be isdispersal (when

referring to thedistribution ofmoneys)

disbursement

during such time as whileduring the course of duringeach and all (either word)either directly or

indirectly(delete)

employ (meaning to use) useetc. (delete)every person, all

personsa person

except when otherwiseprovided

(delete)

expend spendfollowing section section (fill in number)for the duration of duringforthwith immediatelyfrom and after after

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from July 1st after June 30thfull and complete fullgive consideration to considergreater than more thanhas the duty to shallhereafter after the effective date of this sectionhereby (delete)herein, hereinafter,hereinbefore,hereinabove, above,below, following,preceding

(These are objectionable if referring to theposition of a section or other position; ifreference is necessary, specify the title,chapter, section, or subsection by number.)

heretofore before the effective date of this sectionin case ifin order to toinstitute (verb) "begin" or "start"in the event that ifin the interests of foris able to canis applicable appliesis authorized to mayis binding upon bindsis directed to shall or mustis empowered to mayis entitled to mayis required to "shall" (if action) or "must" (if condition)is unable to cannotit is lawful to maymake application applymake payment paymake provision for provide formeans and includes "means" or "includes" as requirednecessitate requireno later than June 30th by July 1st

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not later than bynull and void voidoccasion (verb) causeon and after July 1st after June 30thon or after July 1st after June 30thon or before July 1st by July 1stoperable operativeor, in the alternative orper annum per yearper centum percentperiod of time "period" or "time" as requiredprior to beforepromulgate adoptprovided (conjunction) "if" or "but"provided, however that "except," "but," or "however," or start a new

sentenceregulations use the term "rules" when referring to state

administrative rules; use "regulations" forfederal regulations

render (meaning "togive")

give

rules and regulations rules, unless you are referring to both state rulesand federal regulations

said "the," "that," or "those"same (appropriate pronoun)shall be isshall be construed to

meanmeans

shall constitute isshall have the power to mayshall mean meanssubject to the

provisions ofunder

subsequent to aftersuch the

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the provisions ofsection 5

section 5

under the provisions of underunless and until "unless" or "until" as requireduntil such time as untilutilize use

Do not use made-up words ending in "ize" or "ization," such as"prioritize" or "prioritization."

Avoid adjectives such as "real," "true," and "actual" and adverbs suchas "duly" and "properly." Since these ideas are normally implied,expressing them in some instances creates doubt that they areimplied elsewhere.

Avoid the use of "such." Substitute "the," "that," or anotherpronoun. Ordinarily, "such" requires the addition of "a" before atrue singular noun; for example, "such a person."

(k) Italics. Italics are used in these instances:(i) Case names. The case name is italicized, but the location

information is not. For example: Citizens Council v. Bjork, 84 Wn.2d 891(1975); and

(ii) Scientific names. For example, the state fossil is the Columbianmammoth of North America (Mammuthus columbi). The scientific name isalways italicized, with the first word capitalized and the secondand subsequent words, no matter what their derivation, notcapitalized. If only the genus name is used (in thiscase, Mammuthus), it is still capitalized and italicized. Thescientific name is placed in parentheses after the popular name, ifused, but may also be referred to alone. Groups of higher ranks,such as phyla, classes, or orders, such as in "the phylumBrachiopoda," are not italicized.

Numbers (Quantities and amounts )Quantities and amounts should be written in words, not figures, as:one and one-halftwo and one-tenth percenttwenty-seven one-thousandthsfour hundred sixty-seven feet

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population of twenty thousandone hundred sixteen dollarsnine hundred dollars and sixty-three centssix percentThe omnibus appropriations act, other appropriations, tax rates, and

tables are exceptions to this rule.Do not repeat numbers in bracketed numerals.Compound numbers from twenty-one to ninety-nine are

hyphenated. Fractions are also hyphenated unless the numerator ordenominator is a compound number that also requires a hyphen.

Examples:two-thirdstwo thirty-thirdstwenty-three one-hundredths

Dates.April 1, 2015,April 1stfirst day of Aprilfirst of AprilApril 2ndMarch 31stSeptember 30ththe 2015-16 academic yearthe 2015-16 school yearthe 2015-2017 bienniumJanuary 2015 (no commas)January 2015 through June 2015 (no commas)January 1, 2015, through June 1, 2015,(commas on each side of year)2010sCapitalization

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Observe the following capitalization in drafting bills. Note thatresolutions, memorials, and amendment headings require more liberalcapitalization. See examples in Part II (13) of this guide.

Do not capitalize Capitalizechapter Cascade mountainschapter Columbia rivercity First word after a coloncivil rule 60 Geographical namescongresscounty

Names of colleges anduniversities

federalhouse of

representativesinternet

Names of nations, states,cities, towns, and counties

legislatureline

Northwest power planningcouncil

medicaid Pacific Northwestnames of boards,

bureaus,Puget Sound

departments, orofficers thereof

Revised Code of Washington

names of state funds Thurston countypage Title 67 RCWsectionsenate

Washington Administrative Code

state Washington State Registersuperior court X ray (noun)supreme court X-ray (adjective)title

Spelling

(a) Write:a.m. kidnappingattorneys' fees master's degree

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attorneys general moneysbenefited p.m.benefiting rescissioncanceled therefor (for)canceling thereforecancellation (only if meaningcapital consequently)(meaning city or money) totalingcapitol traveled(meaning buildings) travelingcommitment veterans' administrationfulfill willfulkidnapped

(b) The following are written as one word:

aircraft, air... inpatient rearviewantifreeze insofar recordkeepingbiweekly landowner runoffboldface layoff (noun) safekeepingbylaw letterhead secondhand

(adjective)cleanup (noun) marketplace semiannualcochair motorboat setoff (noun)coextensive nationwide shellfishcollocate nighttime shorelands(place in nonjudicial statewideproximity, esp. (most words streamflowreferring to containing subcommitteewords) "non") supersedecolocate ongoing streetcar(share common online textbooksfacilities) parimutuel tidelandscouncilmember payoff (noun) timeline

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counterclaim percent timetablecountywide policyholder trademarkcoursework policymaker wastewatercourthouse posttrial watercoursecrosswalk (most words watercraftcutoff containing waterworks(noun or "post") workforceadjective) presession workloaddatabase (most words workplacedropout containing worksiteemail "pre") worldwidefirefighter punchboard floodplain quitclaimgroundwater ratepayerhandbill

Note: All "multi" words, except those beginning with an "i," arewritten as one word.

The following are written as two words:

air space per capitaat large post officebona fide pro rata (but prorated)child care punch cardcut off (verb) ride sharingday care rule making (noun)decision making (noun) storm waterex officio time framefact finder to witfirst aid traffic controlfirst class (noun) vice chairfood fish vice presidencyfull time (adverb) vice president

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health care web sitehorse racing work groupinstream flow X ray (noun)park ownerpart time (adverb)pay off (verb)per annum

Note: Some of these two-word phrases should be hyphenated if used ascompound adjectives. For examples, see (e) of this subsection.

The following are written as three words:

miles per hour (except mph if in a table)reduction in forceThe following are written as hyphenated words:

attorney-at-law odd-numberedattorney-in-fact one-halfbefore-and-after-school on-siteby-product out-of-stateclean-up (adjective) pull-tabsco-owner quasi-judicialcost-effective quasi-municipalcourt-martial ride-sharing

(adjective)cross-examined right-of-waycross-pollination rule-making

(adjective)cross-reference self-esteemdecision-making (adjective) self-

incrimination(Except for "email," words when the

"e-" prefix is an abbreviationfor "electronic")

so-called

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even-numbered trade-offfact-finding Tri-Citiesfirst-class (adjective) up-to-datefull-time (adjective) well-beingfund-raiser X-ray (adjective)fund-raising in-servicein-statelimited-access (highway)long-rangenon-Indian

Adjectives composed of two or more words are usually hyphenated whenthey precede a noun, even though the phrase would not be hyphenatedif standing alone, such as "low income," "one year," "full time,"and "part time." Example:

Low-income persons may serve three-year terms.This is necessary to avoid ambiguity. Compare the following sentences:A patron may purchase two dollar tickets.A patron may purchase two-dollar tickets.The ill educated man sold a little used car.The ill-educated man sold a little-used car.He came across a man eating tiger.He came across a man-eating tiger.Do not hyphenate between an adverb ending in "ly" and the adjective it

modifies. For example, "substantially new construction" does notneed a hyphen.

“means” and “includes”The basic distinction between these two terms is that “means” is

exclusive while “includes” is not. If a definition says that “theterm ‘X’ means A, B, and C”, then X means only A, B, and C andcannot also mean D or E. If a definition says that “the term ‘X’includes A, B, and C”, then X must include A, B, and C, but it mayalso include D or E, or both. Thus, the phrase “includes, but isnot limited to” is redundant. In fact, using it in some places out

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of an abundance of caution could cause a limitation to be read intoplaces where it is not used.

“shall” and “may”The term “shall” means that an action is required; the term “may”

means that it is permitted but not required. While this might seemobvious, a common misconception concerns the phrase “may not”,which is mandatory and is the preferred language for denying aright, power, or privilege (e.g., “The Secretary may not accept anapplication after April 1, 2011.”). “Shall not” perhaps soundsstronger and is usually construed to have the same meaning, but itis subject to some (rather arcane) interpretations that are bestavoided.

Use of the singular preferredIn general, provisions should be drafted in the singular to avoid the

ambiguity that plural constructions can create. Take, for example,this provision: “Drivers may not run red lights.”. It is ambiguousas to whether there is any violation unless multiple driversrun multiple red lights. This problem can be avoided by rewritingthe provision as follows: “A driver may not run a red light.”.

Section 1 of title 1, United States Code, provides that in determiningthe meaning of any statute, unless the context indicates otherwise,singular terms include the plural and plural terms include thesingular. In the simple example above, this rule of constructionwould eliminate the ambiguity by instructing that the readersubstitute “driver” for “drivers” and “red light” for “redlights”. But it is preferable for a provision to be clear on itsface, and the rule of construction also works in the otherdirection to foreclose any argument (however tenuous) that theredrafted provision applies to only one driver.

numerical instead of wordsUse numerals rather than words for numbers in the text of bills and

resolutions. This includes dates, times, dollar amounts,percentages and citations to the chapter and section numbers ofstatutes.

For example:

· “This act shall take effect on July 1, 1997.”

· “Violation of section 23 or of this section shall be punishedby a fine of not more than $500.”

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· “The document shall be filed not later than 5:00 p.m.”

· “Section 2 of chapter 123 of the General Laws is herebyrepealed.”

· “The amount shall increase by 3 per cent annually.”

Use numerals even for numbers from 1 to 10 (this is for consistencyand is the practice followed in the United States Code). The onlyexceptions, consistent with ordinary English usage, are to usewords for numbers that begin a sentence, and for “ordinal” numbers(like “fiftieth” and “eighty-fourth”).

For example:

· “The board shall consist of 9 members.”

· “Twelve members of the board shall constitute a quorum.”

· “They shall conduct a census every tenth year.”Gender Neutral DraftingA drafter, whenever possible, should avoid using the terms “he” or

“she” or “him” or “her,” etc. in drafting, except in those rareinstances when the topic is gender specific, e.g., a bill dealingwith ovarian cancer may, by necessity, include the word “she” or“her” and, similarly, a bill regarding prostate cancer may, bynecessity, include “he” or “his.” Otherwise, whenever reasonable,nouns rather than pronouns should be used to refer to persons inorder to avoid gender identification.

A drafter may also find the following techniques useful to comply withthis policy:

• Use an article such as “the,” “a,” “an” or “that” to

replace the personal pronoun.

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Example: An applicant must include with the (rather than“his”) application….

• Use a possessive noun: Example: The comptroller shall issue an annual report and

the comptroller’s (rather that “his”) recommendations…. • Repeat the name of the actor: Example: A person is entitled to a license if the person

(not “he”) has …. • Use an adjective instead of a pronoun to modify a noun: Example: A judge shall not lend the prestige of judicial

(rather than “his”) office to private interests. • Use a subordinate clause that operates as an adjective: Example: An attorney who shows disrespect to the court

will be held in contempt. (instead of “If an attorney showsdisrespect, he will be held in contempt”).

Capital Letters (drafting)The normal rules of capitalization do not necessarily apply to

language in the statutes. Traditionally, Massachusetts statutoryusage requires lower case whenever possible. Avoid using capitalsexcept for proper names. If an agency or entity is created bystatute, all references to that agency or entity should follow thesame capitalization or lack thereof as the statute that created it.A drafter should use the examples below to help them withcapitalization.

Spelling of Particular Words.Use the following uniform spellings:By-law

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Full-time (use the hyphen when the word is used as an adjective, i.e.full-time employee, but when it is used as a noun, there should beno hyphen, i.e. the employee works full time.)

Firefighter Part-time (use the hyphen when the word is used as an adjective, i.e.

part-time employee, but when it is used as a noun, there should beno hyphen, i.e. the employee works part time.)

Per cent

Punctuation (drafting)a. Punctuate carefully. Changing a comma can change the entire

meaning of a sentence.

b. Ordinarily, do not use a comma before "and" or “or” to separate thelast of a conjunctive series of three or more words, phrases orclauses in a sentence. Example: “men, women and children.”

c. Use a colon to introduce a list of items.

d. Try to avoid using parentheses except in the designating of sectiondivisions. Example: "subsection (a)”.

e. Do not use brackets as punctuation.

f. Use quotation marks when defining a word or phrase.

Example: In this section, “cost of construction” shall mean....

g. Use commas for clarity, especially to set off an introductoryphrase or clause, or to separate independent clauses.

Example: “The committee shall have several responsibilities,including, but not limited to, analyzing cases and recommendingpossible reforms.”

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Use of Particular Words

1. “And” and “or.” “And” means all of a list of items. “Or” means any one

or more of a list of items. Do not use “and/or”; use “or” instead.

2. “Said” and “such.” In general, avoid use of “said” and “such.” (“Said” may

be used to refer to a previously cited statute.) Instead, use“the” if the reference is unambiguous. Otherwise, use “this,”“that,” “these” or “those.”

3. “Shall” and “may”.a. A duty, mandate, obligation, requirement or condition precedent is

expressed by "shall."

b. Use "shall" if the verb it qualifies is in the active voice.Example: "The aggrieved party shall file (active verb in activevoice) the application."

c. Use "may" to confer a power, privilege, or right.

Examples: "The applicant may demand (power) an extension of time."

"The applicant may appeal (right) the decision."

d. Use "shall not" to express a prohibition.

e. Do not use qualifiers, such as "will,” "should" and "ought,” in thetext of a bill.

4. “Which” and “that”.a. Use "which" to introduce a nonrestrictive clause.

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Example: "An applicant shall sign the application, which need not beverified.”

b. Use "that" to introduce a restrictive clause modifying the nearestantecedent. Example: "An applicant may apply to renew a licensethat has been revoked.”

5. Avoid “the provisions of.”Instead of the wordy “in accordance with the provisions of this

section,” say “under this section.”

6. Use of the Phrase “of the General Laws." Do not use the phrase "of the General Laws" in the text of the General

Laws. In those parts of the acts and resolves that will not beincorporated into the General Laws, when you wish to refer to asection of the statutes, the reference should read, for example,"as required by chapter 6 of the General Laws” or "subject toreview under chapter 227 of the General Laws."

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GENERAL DRAFTING PRINCIPLESLength of sections. In creating new legislation, divide the material into short, concise

sections. Short sections facilitate future amendment. As a rule ofthumb, if the content of a section cannot be described in a one-line caption, the section should be divided into two or moresections. Short sentences are likewise preferable. Designation ofsections has implications for vetoes. See Washington State Legislature v.Lowry, 131 Wn.2d 309 (1997).

Internal references in a bill. In referring to other parts of a bill, the drafter should refer to

specific sections. Avoid references such as "herein,""hereinbefore," "hereinafter," "preceding," "above," and"following," since these references are ambiguous, and the relativeposition of the material referred to may be changed by legislativeamendment of the bill or may subsequently be changed incodification.

Avoid through references. New sections might be placed within thebeginning and ending references that may be contrary to the intentof the through reference citation.

Keep the reference as concise as possible, as in "under section 21(2)(b) of this act," not "subparagraph (b) of subsection (2) ofsection 21 of this act." See Part IV (5)(b) of this guide forexamples.

When referring to an amendatory section in the bill, use the RCWcitation and not the section number.

If referring to a codified section, always refer to it by the RCWnumber, and not by reference to its session law or bill sectionnumber counterpart. A session law or bill number reference placesan overly restrictive construction on the section. A reference toan amendatory section by its bill section number ("section 5 ofthis act"), and not its RCW number, may be construed as a referenceto only the amendatory portions of the section and not the entiresection.

Reference to "this act." Avoid using a general reference to "this act." Reference to a specific

section of the act is preferable to reduce ambiguity and so thatthere are no translation problems in the codification process.

If the act or the part referred to will become a new chapter in thecode, refer to "this chapter." If the act consists of amendments or

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repeal of codified material, as well as new material either addedto an existing chapter or material to be codified as a new chapter,consider carefully the use of "this act" or "this chapter." Use"this act" only if reference to every individual provision of thecurrent act is intended. Use "this chapter" if reference to aparticular chapter of the RCW is intended. Reference to certainsections of the act may also be appropriate, such as "undersections 10 through 15 of this act." If a portion of a billconstitutes a new chapter and reference is made to that chapter inother sections of the bill, the drafter should cite to the chapterin the form, "chapter 77.-- RCW (the new chapter created in section. . . of this act)," leaving only the chapter number blank, tobe filled in during codification. Within the chapter itself,reference should be made to "this chapter."

References to other bills. If reference is made to a bill currently before the legislature, use

the form "chapter ([House] [Senate] Bill No. ), Laws of "filling in as many parts of the citation as are known at thetime. A section may also be referred to in a similar manner.

To reference the omnibus operating budget in legislation, the draftershould refer to the "omnibus appropriations act." If the drafterneeds to identify a specific budget bill, the proper reference isto the "omnibus operating appropriations act" for the operatingbudget, "omnibus capital appropriations act" for the capitalbudget, and "omnibus transportation appropriations act" for thetransportation budget.

Reference to Washington statutes. Reference in a bill to an RCW section, chapter, or title incorporates

future changes in that law.Reference to a specific Washington statute incorporates future changes

in that statute unless a contrary intent is clearly expressed, andthe phrase "as now or hereafter amended" should not beused. However, if it is intended that the referring statute shouldinvoke the statute to which reference is made only as it exists atthe time the referring statute is enacted, the citation shouldinclude the limiting phrase "as existing on the effective date ofthis section." For example:

The tax imposed in this section does not apply to motor vehicle fuel,as defined in RCW 82.36.010, as existing on the effective date ofthis section.

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Before June 10, 1982, the presumption was that reference to a specificstatute only incorporated the statute as it existed on the date thebill was enacted, unless a contrary intent was evidenced. City ofSeattle v. Green, 51 Wn.2d 871 (1958). In referring to other Washingtonstatutes by reference, if it were intended that the referringstatute should invoke the statute to which reference is made as itthen existed and as it was subsequently amended, the citationusually included the phrase "as now or hereafter amended."

Incorporation by reference. Incorporation by reference of statutes from other jurisdictions or of

other materials, such as building or fire codes, should be draftedto refer to a specific statute or edition as it existed at aparticular point in time. The state supreme court has indicatedthat an attempt to incorporate future changes in federal laws orregulations would be an invalid delegation of legislativepower. See State v. Dougall, 89 Wn.2d 118 (1977). Also see: State ex rel.Kirschner v. Urquhart, 50 Wn.2d 131, 137 (1957); Yelle v. Bishop, 55 Wn.2d286, 303 (1959); State v. Reader's Digest, 81 Wn.2d 259, 275 (1972). Thesame rationale would apply to other source material.

To incorporate later versions without making an invalid delegation oflegislative power, the following is suggested:

Applicants must meet the requirements of the federal internal revenuecode as it existed on the effective date of this section, or suchsubsequent date as may be provided by the board by rule, consistentwith the purposes of this section.

Also see the discussion of delegation of legislative authority in (h)of this subsection.

Gender. All statutes, memorials, and resolutions enacted, adopted, or amended

by the legislature shall be written in gender-neutral terms unlessa specification of gender is intended.

However, no statute, memorial, or resolution is invalid because itdoes not comply with this section.

In construing statutes, terms in the code referring to the masculinegender, such as "he," "his," or "workmen," also extend to thefeminine gender. Instead of the cumbersome disjunctive "he or she"or "his or her," it is best to avoid all personal pronounsreflecting gender, as shown in the following example: "The directoror the director's designee shall deposit in the workers'compensation fund such moneys as the director deems necessary."

Delegation of legislative authority.

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The delegation of legislative power, such as rule-making authority, toa person or agency must satisfy certain standards, as outlinedin Barry & Barry, Inc. v. Dept. of Motor Vehicles, 81 Wn.2d 155, 159 (1972):

. . . the delegation of legislative power is justified andconstitutional, and the requirements of the standards doctrine aresatisfied, when it can be shown (1) that the legislature has provided standards or guidelineswhich define in general terms what is to be done and the instrumentality or administrativebody which is to accomplish it; and (2) that procedural safeguards exist to control arbitraryadministrative action and any administrative abuse of discretionary power.

In adopting this test, the court overruled earlier decisions holdingthat legislative authority may not be delegated unless accompaniedby specific or precise standards. In Barry, the court shifted itsfocus from statutory standards to the need for proceduralsafeguards, which the court held was satisfied by the proceduralrequirements of the administrative procedure act. See also In rePowell, 92 Wn.2d 882 (1979).

In United Chiropractors of Washington, Inc. v. Washington, 90 Wn.2d 1 (1978), thecourt held invalid statutes authorizing private professionalassociations to appoint members of the professional examining anddisciplinary boards, even though in the case of one of the boardsthe governor was permitted to make the actual appointments fromamong nominations submitted by the private associations. The courtused the second component of the Barry test to conclude, on dueprocess grounds, that the "procedural safeguards which exist inthis scheme are inadequate to control arbitrary administrativeaction and abuse of discretion in licensing and disciplining ofchiropractors not belonging to the favored groups." Also see State v.Dougall, 89 Wn.2d 118 (1977), and the discussion of incorporation byreference in (f) of this subsection.

Provisos. Provisos should not be used. It is often difficult to determine

precisely what a proviso is attempting to modify, particularlywhere several provisos are used in a string. See limitations,exceptions, and conditions in (s) of this subsection and the lastantecedent rule in (v) of this subsection.

A proviso should be avoided entirely by setting out the exception inan independent sentence following the general provisions. Themeaning is the same, and structure is simplified.

If a proviso must be used, its function should be to except somethingfrom the general clause immediately preceding it, or otherwisequalify or restrain it. See Part IV (1)(d) of this guide forexamples. Usually, the use of "but . . ." "except . . ." or

389


"however . . ." will accomplish the same purpose. A proviso isalways strictly construed, and any doubts will be resolved in favorof the general provisions rather than the proviso. See State v.Wright, 84 Wn.2d 645 (1974). A proviso should only be used tointroduce an exception and not merely as a conjunction between twounrelated clauses.

The "one subject" rule. No bill shall embrace more than one subject, and that shall be

expressed in the title. A bill may violate the "one subject" ruleeven though the title of the bill is broad enough to cover allaspects of the bill. The state supreme court has in recent yearsbeen applying a "rational unity" test in determining whether a billcontains more than one subject:

. . . where the title embraces a general subject it is not violative of the Constitution even thoughthe general subject contains incidental subjects. All that is required is that there be some"rational unity" between the general subject and the incidental subdivisions. Fritz v.Gorton, 83 Wn.2d 275, 290 (1974).

For initiatives, the "title" in question has been interpreted by thecourts to mean the ballot title, not the title on the initiativeitself.103

Enrolled bill doctrine. The constitutional principle upon which this doctrine is based is

that the three branches of state government are co-equal in dignityand that none of them is entitled to look behind the properlycertified record of another to determine whether that branch hasfollowed the procedures prescribed by the constitution, but rathereach is responsible and answerable only to the people for itsproper performance of the function for which it isconstituted." Citizens Council v. Bjork, 84 Wn.2d 891, 898 (1975). Seealso Roehl v. P.U.D. No. 1, 43 Wn.2d 214 (1953)

In the Roehl case, the court held that the enrolled bill doctrineprevents the court from looking beyond the face of the enrolledbill to determine if an amendment to the bill was beyond the scopeand object of the bill in violation of Article II, section 38 ofthe state Constitution. The court considered and rejected the"journal entry rule," which allows the constitutional validity ofan enrolled bill to be rebutted by the legislative history of thebill as recorded in the official legislative journals.

103 See Fed'n of Employees v. State, 127 Wn.2d 544 (1995), State v. Thorne, 129 Wn.2d 736 (1996),and State v. Manussier, 129 Wn.2d 652 (1996).

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Amending without setting forth in full—Amendments to sections byreference.

No act shall ever be revised or amended by mere reference to itstitle, but the act revised or the section amended shall be setforth at full length. The purpose of this constitutional provisionis to inform the legislature and the public as to the nature andeffect of proposed and enacted statutes. It is not intended torestrict or hamper the legislature, but to regulate the method ofenactment.

(ii) This is an example of amending a section by mere reference:NEW SECTION. Sec. 1. A new section is added to chapter 43.21A RCW to

read as follows:Notwithstanding the provisions of RCW 15.54.480, fertilizer inspection fees must be deposited

into the water quality account.

Generally, this requirement does not apply to supplemental acts thatdo not modify or alter the original act in any way, to acts thatmerely add new sections to an existing act, or to acts complete inthemselves, not purporting to be amendatory, but that byimplication amend other legislation on the same subject. On theother hand, the courts are equally emphatic that if an act is notcomplete in itself and is clearly amendatory of a former statute,it falls within the constitutional inhibition whether it purportson its face to be amendatory or an independent act. State v. Thompson,95 Wn.2d 753 (1981).

In certain instances the legislature must place conditions andlimitations on the expenditures of monies, but to the extent thatsuch conditions or limitations have the effect of modifying oramending the general law they are unconstitutional enactments. Anappropriations bill may not constitutionally be used for theenactment of substantive law which is in conflict with the generallaw as codified.

The test to be applied, as stated above, is whether it changes theprior act in scope and effect. The court expresses the issue interms of two questions:

(A) Is the new enactment such a complete act that the scope of therights or duties created or affected by the legislative action canbe determined without referring to any other statute or enactment?

(B) Would a straight-forward determination of the scope of rights orduties under the existing statutes be rendered erroneous by the newenactment?


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If an amendment is a "complete act" under the first question and willbe codified within the same RCW chapter that is being modified bythe new enactment, the supreme court may find the violation ofArticle II, section 37 of the state Constitution to be a meretechnicality that does not invalidate the enactment. InWashingtonEducation Assoc. v. State, 97 Wn.2d 899 (1982), the court dealt with aHouse Bill that modified, without amending, chapter 28B.50 RCW. Thecourt declared:

Undoubtedly, modification of existing laws by a complete statuterenders the existing law by itself "erroneous" in a certainsense. Here SHB 782 "restricts the operation" of the existingprovisions of RCW 28B.50. . . Nonetheless, SHB 782 will becodified within RCW 28B.50 and its modification of the existingstatute should be apparent. Article II, section 37 was designed toprotect the members of the legislature and the public against fraudand deception; not to trammel or hamper the legislature in theenactment of laws. . . The purpose of SHB 782 is not hidden and,to the extent it fails to articulate how it relates to the rest ofRCW 28B.50, its infirmities are not of constitutional magnitude.

For a discussion of this issue and its application to criminal lawsand initiatives, see State v. Manussier, 129 Wn.2d 652 (1996).

Articles. Do not use "each," "any," "every," "all," and the like, if an article

such as "a," "an," or "the" can be used with the same result.Grammatical changes. Correct grammar and clear expression should be used in all new

sections and in new language added to existing sections. In billsamending existing code sections, the drafter should focus on thepolicy change desired by the requester. Other changes that areintended solely to achieve improved grammar, sentence structure,punctuation, or clear expression and that are not intended toachieve a change in meaning should be made only at the expressdirection of the bill requester. Avoid voluntary changes inexisting code language even to correct grammatical deficiencies.These changes can divert attention from substantive policy changesand can create confusion and added burdens for the proponents ofthe bill.

Changing existing code language can have unintended substantiveramifications. Changes to achieve fine grammatical improvements toexisting language may not be recognized as such and may even bedebated by experts. Even to resolve an existing ambiguity, thedrafter must choose between two plausible interpretations and, in

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the process of doing so, a meaning contrary to the requester'sintent may be imparted. It is preferable to tolerate a degree ofgrammatical imperfection in existing code.

Captions. Section captions appearing in the code as published do not constitute

any part of the law and are not included in a bill drafted for thelegislature. Section captions, part headings, subheadings, tablesof content, and indexes appearing in legislative bills are notconsidered any part of the law. See RCW 1.08.017.

Bond bills. Chapter 39.42 RCW authorizes the state finance committee to set such

things as terms and issue anticipation notes for all bonds, notes,and other evidences of indebtedness of the state. It is unnecessaryto repeat this authorization in each bond bill. In addition,RCW 43.83.160 creates a state general obligation bond retirementfund. The fund may be used to retire a general obligation bondissue that "designates the . . . fund for this purpose." It istherefore unnecessary to create a new retirement fund in each bondbill.

Because of the proliferation of bond bills and the decreasing supplyof numbers available for codification of RCW chapters, bond billsshould not create new RCW chapters.

Limitations, exceptions, and conditions.If limitations or exceptions to the coverage of a statute are

numerous, notice of their existence should be given in the firstpart of the statute and they should be stated separately later inthe statute.

If a provision is limited in its application or is subject to anexception or condition, it promotes clarity to begin the provisionwith a statement of the limitation, exception, or condition or witha notice of its existence. Example: "(a) Except as provided in (b)of this subsection, . . ." Avoid using "notwithstanding" to expressa limitation of a general provision of the same act.

"If," "when," "where." If the application of a provision is limited by the occurrence of a

condition that may never occur, use "if" to introduce thecondition, not "when" or "where." Use "when" to indicate aparticular time for an event that is assumed will occur. Example:"When the parties have completed their closing arguments, the judgeshall instruct the jury." Use "where" to indicate a particularplace.


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Do not use "provided that" or "provided however that," or similarproviso language. Use "except" to create an exception, not todescribe an entire category. Instead of saying "a person except onewho is sixty years old or older," say "a person who is less thansixty years old." See (s)(i) of this subsection.

Special legislation. The Constitution lists specifically the circumstances in which the

legislature is prohibited from enacting private or special laws. Corporations for municipal purposes shall not be created by special

laws.Corporations may be formed under general laws, but shall not be

created by special acts. Special privileges and immunities are prohibited. "No law shall be

passed granting to any citizen, class of citizens, or corporationother than municipal, privileges or immunities which upon the sameterms shall not equally belong to all citizens, or corporation.

Time. If a date is mentioned, time is generally counted from the first

moment of that day. For example, "this act takes effect July 1,2015," means that the act has effect at the first moment of July 1,2015 (midnight June 30, 2015). It is possible that a contraryintent might be implied in a phrase such as "expires December 31,2015." For clarity and consistency, the first moment should beused, as in "expires January 1, 2016." See subsection (11)(j) and(l) of this part for more information on effective dates andexpiration dates. The time of the day should be written in figures,not words, as: 8:00 a.m.; 12:00 p.m.

Last antecedent rule. The last antecedent rule provides that, unless contrary intention

appears in statute, qualifying words and phrases refer to the lastantecedent. However, the presence of a comma before a qualifyingphrase is evidence that the qualifier is intended to apply to allantecedents instead of only the immediately preceding one. See In reSehome Park Care Center, Inc., 127 Wn.2d 774 (1995). Also see Part IV (1)(a)(v) of this guide.

This rule illustrates that long lists of modifiers, especially astring of provisos, can result in interpretation problems. Simpledeclarative sentences help to avoid these problems.

Respectful language. The law and regulations requires drafting using respectful language.

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The legislature recognizes that language used in reference toindividuals with disabilities shapes and reflects society'sattitudes towards people with disabilities. Many of the termscurrently used diminish the humanity and natural condition ofhaving a disability. Certain terms are demeaning and create aninvisible barrier to inclusion as equal community members. Thelegislature finds it necessary to clarify preferred language fornew and revised laws by requiring the use of terminology that putsthe person before the disability.

The code reviser is directed to avoid all references to: Disabled,developmentally disabled, mentally disabled, mentally ill, mentallyretarded, handicapped, cripple, and crippled, in any new statute,memorial, or resolution, and to change such references in anyexisting statute, memorial, or resolution as sections includingthese references are otherwise amended by law.

The code reviser is directed to replace terms referenced in (a) ofthis subsection as appropriate with the following revisedterminology: "Individuals with disabilities," "individuals withdevelopmental disabilities," "individuals with mental illness," and"individuals with intellectual disabilities."

No statute, memorial, or resolution is invalid because it does notcomply with this section.

The replacement of outmoded terminology with more appropriatereferences may not be construed as changing the application of anyprovision of this code to any person.

Avoiding Unintended Liability

Some legislation unintentionally creates new liability for thestate. This happens especially when the law establishes newprograms or imposes new duties on state agencies but is unclearabout who is to do what or which members of the public willbenefit. In drafting, it is helpful to consider whether or not youintend to allow the state to be sued for damages for failing toperform some obligation. By following a few guidelines you can makeit less likely that liability issues will be left to the courts tosort out.

The best way to avoid creating new liability is to expressly deny it.Example: "This act does not create a private right of action."Example: "The department and its employees and agents are not liable

for X."

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The best way to create new liability is to say so expressly. If you dothis, you should be clear about its limits. State exactly who bearswhich new duty; what standard of care applies (negligence, grossnegligence, recklessness, or intent); what kind of relief isavailable to the aggrieved person (compensatory or other damages,injunctive relief, declaratory relief, some administrative remedy,or a combination of these); and in what forum.

Circumstances may compel you to be less direct. Even then, followingthe guidelines below will help you avoid creating unintended tortliability.

Be ClearDo not say "subject to available funds..." or "within available

funds...". These phrases leave it unclear whether the legislatureintends to: (A) Limit a function to amounts that are explicitlyappropriated for that purpose, (B) require that a function beperformed within the agency's overall appropriation whether or notfunds are explicitly appropriated for that purpose, or (C) providethe agency with discretion to determine whether it has sufficientfunding to perform the function.

To require an agency to perform a function whether or notappropriations are explicitly provided for that purpose, usemandatory language to direct the agency to perform the functionwithout placing further conditions on the duty. Adding a referenceto "available" appropriations may appear to make the dutyconditional or otherwise subject to discretion. If a reference tofunding is necessary, say "The department shall operate the programwithin the department's appropriations."

Do not use ambiguous or "springing" null and void clauses. A null andvoid clause allows a bill to continue through the legislativeprocess even when it is unclear whether that year's budget billwill provide funding. The clause makes the bill "null and void"unless it is specifically funded or otherwise referenced in thebudget bill by a certain date. "Springing" null and void clausespurport to render the bill null and void at some future date iffunding is not provided in later biennia, thus creating atroublesome scenario in which some laws would "spring" in and outof effect. If you want the bill to take effect, but you want tolimit the required or authorized actions to fiscal periods in whichthe program is funded, then use the "subject to the availability ofamounts appropriated" language in subsection (2)(b)(iii) of thispart.

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Bad: "Section 7 of this act is null and void into the future if nofunds are appropriated."

Good: "If specific funding for the purposes of this act [orsection ... of this act], referencing this act [or section ... ofthis act] by bill or chapter number [or section number], is notprovided by June 30, 2015, in the omnibus appropriations act, thisact [or section ... of this act] is null and void."

(v) Do not use definitions that include the term you aredefining. These circular definitions create uncertainty about whois covered or exempted, or what obligations are owed by the state.

Bad: "'Manager' means any manager regardless of status."Good: "'Manager' means a state employee who directly supervises at

least one other state employee."State limits and scope State precisely who is covered by a program, whether the program is an

entitlement, who is excluded, and how the program is to operate.apportion responsibilityIdentify which state agency or official is responsible for carrying

out what duties.However, do not codify unnecessarily. In describing agency actions:(A) Ask whether the activity needs to be codified at all. Codifying

agency activities carries a risk: Someone aggrieved by a failure tofollow procedures may claim a cause of action against the agency.

Bad: "The deputy director's duties include answering mail fromconstituents."

Better: "The deputy director should answer mail from constituents butno remedy is available if he or she fails to do so."

Best: Do not put this into statute at all.(B) If the activity does need to be codified, avoid describing

existing practice in a way that sounds prescriptive: "Thedepartment will respond to petitions within five days." Better tosimply authorize actions that are likely to be needed: "Thedepartment may respond to petitions." If a time limit must beimposed, say what consequences, if any, will occur if the agencydoes not meet the statutory deadline.

(C) Do not tie an agency's exercise of discretion to long lists ofcriteria the agency must apply. These can be read as providingopportunities for challenging the exercise of discretion. Instead,

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list factors to consider or, better yet, just grant the agencydiscretion.

explain processesExplain what process, if any, is available to an aggrieved applicant

or beneficiary. Do not make residents turn to the courts to findout what their rights are. If legislation provides instruction toan agency, state clearly (A) whether it mandates a particularaction or merely authorizes it; and (B) who is to exercise any newauthority.

When mandates are imposed on public agencies, identify theconsequences if the agency does not fulfill those mandates.

Bad: "The department shall record the deed within three days" (with noreference to what happens if it does not).

Good: "The department shall record the deed within threedays. However, its failure to do so within this period does notinvalidate the transfer."

no rights without remediesDo not refer to "rights" unless you intend the courts to provide a

remedy. By discussing "rights" while creating a social welfare orlicensing program, you might unintentionally make the state legallyobligated to an individual who believes he or she should benefit,rather than simply creating the program to improve the lot of stateresidents generally. If you do list some rights, but do not intendto create a cause of action, then state that no cause of action iscreated.

do not ensure without guaranteeDo not say "ensure" unless you mean "guarantee." If you intend to

guarantee something, say what will happen if the guaranteefails. If you do not, the courts may fill that vacuum by rulingthat a cause of action for damages was implied.

Do not use the passive voice. If something must be done, state clearly who must do it.Bad: "Penalties shall be imposed."Good: "The director shall impose penalties."Intent SectionsIntent sections are important. They influence how an act will be

interpreted. If you are considering an intent section, follow these

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guidelines.(a) Ask whether you really need an intent section. An intent section

may be used, for example, to direct the courts to "construe thisact liberally so as to effectuate its broad remedial purposes" or,just the opposite, to tell them that "this act should be construednarrowly to protect the civil liberties of those affected byit." It may guide courts or administrative agencies by explainingthe bill's core purposes. But when an intent section is used toclarify an ambiguity that could be solved by editing, or worse,just to explain why the bill is good, you run the risk of creatingambiguities that in turn may be interpreted as granting causes ofaction that the drafter never intended.

(b) Do not describe the law's goal in terms that make it sound like aguarantee. Stating that "the legislature intends that members ofthe public have a right to prompt police response in an emergency"is appropriate only if you intend that people can sue the police ifthey do not respond on time.

(c) Do not use terms of art that carry legal baggage ("unfundedmandate," "basic education") unless the baggage is intended.

(d)(i) In a regulatory or social welfare bill, do use "public duty"language:

"The legislature declares that this act to [insert statementdescribing legislation, e.g., improve training for home health careworkers] constitutes an exercise of the state's police power toprotect and promote the health, safety, and welfare of theresidents of the state in general. Accordingly, while this act isintended to protect the public generally, it does not create a dutyowed to any individual or entity on the part of the state [or itsinstrumentalities]."

(ii) This indicates the intent is to authorize the state to exerciseits police power, not to create a private right of action.

(iii) If circumstances permit, you may strengthen this by adding anexpress disclaimer. Examples include:

(A) "This act does not create an entitlement to services."(B) "This act does not create a private right of action."(C) "Nothing in this act may be construed to create:(1) An entitlement to services; or(2) A private right of action or claim on the part of any individual,

entity, or agency against the [department of social and healthservices] or any contractor of the [department]."

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(e) If the act is intended to override a judicial interpretation of astatute, say so clearly. Identify the ruling and exactly whatresult the act is intended to achieve in relation to that ruling.

Bad: "This act is intended to reaffirm and protect the rights of seaurchin farmers and their families."

Good: "This act is intended to reverse the result of Snerd v.Department by mandating that the department has sixty days torespond to a request to transfer a sea urchin harvesting license toa family member."

Creating Immunity Or Imposing A Higher Standard Of Culpability(a) The following is suggested language for creating immunity and

eliminating liability for the state and its officers and employees:"This [act or section] does not create any civil liability on the part

of the state or any state agency, officer, employee, or agent."(b) Liability is typically established by proving negligence. To

require a higher standard of culpability before liability may beimposed upon the state, the following is suggested language:

"No civil liability may be imposed by any court on the state or itsofficers and employees [or instrumentalities] under this [sectionor act or chapter] except upon proof of [bad faith or willfulmisconduct or wanton misconduct or willful or wanton misconduct orgross negligence]."

The right to cancel benefits.In some instances, a drafter may seek to preserve the legislature’s

ability to reserve the right to cancel or change certain benefitenhancements at the time of enactment. In Washington Education Associationv. Washington Department of Retirement Systems, 181 Wn.2d 212, 332 P.3d 428(2014), the Washington state supreme court upheld the legislature'srepeal of a pension benefit known as "gain sharing." In this case,the legislature expressly reserved its right to amend or repealgain sharing with the following language:

"The legislature reserves the right to amend or repeal this chapter inthe future and no member or beneficiary has a contractual right toreceive this postretirement adjustment not granted prior to thatamendment or repeal." Former RCW 41.31.030(2006).

Similarly, in Washington Education Association v. Washington Department of RetirementSystems, 181 Wn.2d 233, 332 P.3d 439 (2014), the court followed thesame reasoning when the legislature repealed legislation grantingfuture uniform cost of living adjustments (UCOLA) for certainmembers of a pension plan based on the legislature’s reservation of


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its right to modify or repeal the UCOLA scheme in the future andspecified that it was not creating any contract rights:

"The legislature reserves the right to amend or repeal this section inthe future and no member or beneficiary has a contractual right toreceive this postretirement adjustment not granted prior to thattime." Former RCW 41.32.489(6).

Presumably, other nonpension benefits are subject to modification orrepeal as long as the legislature expressly reserves the right todo so at the time of enactment.

SAMPLE DRAFTING PROVISIONS

Statutes in the General Laws.Try to avoid putting effective dates and other “transitional”

provisions in the text of the General Laws; instead put them in aseparate, non-codified section at the end of the bill.

Transition.An essential step in the preparation of a bill is to determine the

effect the bill would have on existing rights, liabilities andproceedings. Draft any savings clauses and transitional provisionsthat are necessary to provide appropriate rules governing thesematters. If existing rights are preserved, it may be desirable torequire that they be asserted within a short, specified periodafter the effective date of the bill. For an example of atransition provision when new agencies replace old ones.

Appropriate savings clauses and transitional provisions make itpossible for a bill to take effect with minimal disruption ofexisting expectations and liabilities. Great care must beexercised in drafting these clauses. Again, these transitionsections do not belong in the text of a General Law, but shouldappear in a bill or session law at the end but always before theeffective date sections. The transition sections remain non-codified.

Effect on Present Relationships.Give consideration to the effect of a bill on existing relationships,

whether they are business, personal or governmental. "Grandfather"provisions are commonly used to resolve similar conflicts. Make acareful check of current laws.


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Severability.Avoid using a severability clause. Further use of severability clauses

in some acts but not others may create a negative implication thatseverability is not intended in acts where the language does notappear.

Establishing an Agency.Use simple language in the present tense to create or establish an

agency, commission, or office. Example: "There shall be a division of patient protection in the

department of public health."

Inserting a New Chapter:

SECTION 1. The General Laws are hereby amended by inserting afterchapter 156 the following chapter:-

CHAPTER 156A. BUSINESS VENTURES.Section 1. No person shall ..................

Inserting a Section:

SECTION 2. Chapter 156A of the General Laws is hereby amended byinserting after section 1 the following section:-

Section 1A. After a hearing ............... [Note: You do not need to use the phrases “as appearing in the 2008

Official Edition” or “as so appearing” if you are inserting oradding a new section in an existing chapter of the General Laws.]

Striking Out or Repealing a Section:

SECTION 3. Section 2 of chapter 156A of the General Laws is herebyrepealed.

[Note: You do not need to use the phrases “as appearing in the 2008Official Edition” or “as so appearing” if you are repealing a

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section of the General Laws.]

Revising or Replacing a Section:SECTION 4. Said chapter 156A is hereby further amended by striking out

section 3, as appearing in the 2008 Official Edition, andinserting in place thereof the following section:-

Section 3. In a city or town with a population ...........Inserting a Paragraph:SECTION 5. Section 4 of said chapter 156A, as so appearing, is hereby

amended by inserting after the first paragraph the followingparagraph:-

If a firefighter injured while ..........Revising or Replacing a Paragraph:SECTION 6. Section 5 of said chapter 156A, as so appearing, is hereby

amended by striking out the third paragraph and inserting in placethereof the following paragraph:-

A person who violates this section ...........Inserting a Word:SECTION 7. The first sentence of section 1 of chapter 189 of the

General Laws, as appearing in section 2 of chapter 341 of the actsof 2008, is hereby amended by inserting after the word "travel” the following words:- to or from the area of ................

[Note: If you are inserting a word or words with a reference to aword and a line number in a statute, the actual line number is setoff by commas after the word being cited as a reference point.]

Striking Out Words:SECTION 8. Section 108 of chapter 175 of the General Laws, as

appearing in the 2008 Official Edition, is hereby amended bystriking out, in line 469, the words “for any claim relating todental services”.

[Note: If you are striking out words in a statute with reference to aline number, the line number is set off by commas before the wordsbeing stricken.]

ResolvesA resolve is a legislative mandate to undertake certain actions,

usually in the form of special commissions to study legislative or

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executive branch issues or to discharge moral obligations. It hasthe same force and effect as a general or special law.

Effective DateThe effective date of a bill depends upon whether it is subject to the

Referendum under Article 48 of the Constitution (local bills thatare restricted in their operation to a particular town, city orother political division or to particular districts or localitiesof the commonwealth) and is normally effective 30 days after itbecomes law. In order to make a local bill effective immediately adrafter should put, as the last section of the bill, the followinglanguage.

“SECTION X. This act shall take effect upon its passage.” The effect of this section would be to make the bill effective the

same day it becomes law.ENACTING CLAUSEThe enacting clause is found immediately following the title of the

bill and before the first section. In a bill, the enacting clause appears in capital letters, followed by

a colon. The style of the laws of the state shall be: "BE IT ENACTED BY THE

LEGISLATURE OF THE STATE OF WASHINGTON:" Initiatives to the legislature and initiatives to the people both

begin with "BE IT ENACTED BY THE PEOPLE OF UGANDA:"Advisory committeesAvoid placing advisory committees in statutes permanently. Use

temporary sections or authorize the agency involved to have acommittee or solicit input.

AgeBe as concise and precise as possible. Examples:Ten years old.At least ten years old.

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Alternative initiative clausesThe legislature may reject a measure proposed by initiative petition

and propose a different act dealing with the same subject. This act constitutes an alternative to Initiative . The secretary

of state shall place this act on the ballot in conjunction withInitiative at the next regular general election.

Emergency clauseThe following standard emergency clause is frequently used:This act is necessary for the immediate preservation of the public

peace, health, or safety, or support of the state government andits existing public institutions, and takes effect (immediately ora specific date).

Expiration date clauses. To expire a specific section in a bill, the following sentence should

be inserted at the end of the section:This section expires (date).Public funds. The moneys of the state are divided among various funds such as the

general fund, the motor vehicle fund, and the wildlife fund. Thesefunds, in turn, are divided into various accounts. If a fund oraccount is located in the treasury, it is subject to appropriationby the legislature. Being "subject to appropriation" means thatmoney may not be used from the fund or account without legislativedirective.

Gifts or grants to an agency Example:The (commission, board, etc.) may receive gifts, grants, or endowments

from public or private sources that are made from time to time, intrust or otherwise, for the use and benefit of the purposes of the(commission, board, etc.) and spend gifts, grants, or endowments orincome from the public or private sources according to their terms,unless the receipt of the gifts, grants, or endowments violates thelaw.

Joint select committees or legislative task forces. The following is suggested language to use when creating a joint

select committee or legislative task force1:

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NEW SECTION. Sec. . (1)(a) A joint select committee/legislativetask force on is established, with members as provided inthis subsection.

(i) The president of the senate shall appoint member[s] from eachof the two largest caucuses of the senate.2

(ii) The speaker of the house of representatives shallappoint member[s] from each of the two largest caucuses of thehouse of representatives.2

(iii) The president of the senate and the speaker of the house ofrepresentatives jointly shall appoint membersrepresenting [local government or private sector interests].

(iv) The [governor or other named elected official] shallappoint members representing [state agencies].3

(b) The committee/task force shall choose its chair/cochairs fromamong its [legislative] membership. [legislator/official] shallconvene the initial meeting of the committee/task force.

(2) The committee/task force shall review the following issues:(a) ...(b) ...(c) ...(3) Staff support for the committee/task force must be provided by the

senate committee services and the house of representatives officeof program research.4

(4) Legislative members of the committee/task force must be reimbursedfor travel expenses in accordance with

Nonlegislative members, except those representing an employer ororganization, are entitled to be reimbursed for travel expenses inaccordance with the law.

(5) The expenses of the committee/task force must be paid jointly bythe senate and the house of representatives.4 Committee/task forceexpenditures are subject to approval by the senate facilities andoperations committee and the house of representatives executiverules committee, or their successor committees.

(6) The committee/task force shall report its findings andrecommendations to the [governor, named elected official, and the]appropriate committees of the legislature by [date].

(7) This section expires [date].Licensing scheme

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In order to comply with federal temporary assistance for needyfamilies (TANF) requirements, the following language should beincluded, and modified as necessary, when creating a licensingscheme.

(i) If you are creating a new section:The secretary shall immediately suspend the license of any person

subject to this chapter who has been certified by the department ofsocial and health services as a person who is not in compliancewith a support order as provided.

(ii) If there is an existing section that has grounds for licensedenial, suspension, or revocation, the following language may beadded rather than creating a new section:

The director may deny, suspend, revoke, or refuse to issue a licenseto any person who has been certified by the department of socialand health services as a person who is not in compliance with achild support order as provided.

Null and void clausesNull and void clauses are used to prevent an act or a section of an

act from becoming law if funds for the act or section of an act arenot provided in the budget. The code reviser's office does not addthis clause without specific direction.

(A) Example of a null and void clause for an entire act:If specific funding for the purposes of this act, referencing this act

by bill or chapter number, is not provided by June 30, 2015, in theomnibus appropriations act, this act is null and void.

Example of a null and void clause for a specific section or sectionsof an act:

If specific funding for the purposes of section ... of this act,referencing section ... of this act by bill or chapter number andsection number, is not provided by June 30, 2015, in the omnibusappropriations act, section ... of this act is null and void.

A null and void clause should not be used to terminate or expire theapplication of an act or section after it has already becomelaw. If the act or section has already become law, an applicationsection or contingent expiration section should be used to preventthe continued application of the act or section or to expire theact or section if a stated contingency occurs.

Penalty clauses—Sentencing

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For the punishment of misdemeanors, gross misdemeanors, and feloniesif not fixed by statute. Note that the performance of an actprohibited by statute for which there is no specified penalty is amisdemeanor.

Examples:A person violating this (section/chapter) is guilty of a misdemeanor

and is subject to the penalties in RCW .A violation of or a failure to comply with this (section/chapter) is a

misdemeanor. Each day upon which a violation occurs constitutes aseparate violation. A person violating this (section/chapter) maybe enjoined from continuing the violation.

A person violating this (section/chapter) is guilty of a misdemeanor.A person convicted of negligent homicide by means of a motor vehicle

shall be punished by imprisonment in the state penitentiary for notmore than twenty years, or by imprisonment in the county jail fornot more than one year, or by a fine of not more than one thousanddollars, or by both fine and imprisonment.

The following form should be used only within sections codified inTitle 9A RCW:

(Name of crime) is a class (A/B/C) felony.A violation of this (section/chapter) is punishable as a class C

felony.However, under the equal protection clause, it is important that

actiosn constituting a misdemeanor be separated form those whichconstitue a felony, otherwise, purporting authorize prosecutingofficials to charge violations of the uniform firearms act eitheras a gross misdemeanor or as a felony is unconstitutional.104

SentencingAn act that alters a sentencing scheme should include a clause that

indicates at what point in time a person is subject to the newscheme. Examples:

(i) This act applies to crimes committed on or after July 1, 2015.(ii) Sections 601 through 605 of this act, for purposes of sentencing

adult or juvenile offenders, take effect July 1, 2015, and apply tocrimes or offenses committed on or after July 1, 2015.

Prospective clases or retroactive effect clauses.

104 In re Olsen v. Delmore, 48 Wn.2d 545 (1956).

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A statute is given prospective effect only, unless the statuteindicates that it is to be applied retroactively. If it is intendedthat a bill should be applied retroactively, a section of the billshould clearly express that intent. The court is reluctant to implyretroactive application.105

Occasionally a court will apply a statute retroactively even though itcontains no provision directing such an application. This is mostoften true with statutes relating to practice, procedure, andremedies. 106 In that case, the newly enacted comparative negligencestatute was applied to lawsuits that were commenced after thestatute's effective date but whose operative facts occurredearlier; that is, the accident or other cause of the disputehappened before the statute took effect.

The drafter can indicate a retroactive effect by including anothersection as follows:

New Section. Sec. 4. This act applies to all causes of actioncommenced on or after the effective date of this section,regardless of when the cause of action arose. To this extent, thisact applies retroactively, but in all other respects it appliesprospectively.

A prospective application may be indicated as follows:NEW SECTION. Sec. 4. This act applies prospectively only and not

retroactively. It applies only to causes of action that arise (ifchange is substantive) or that are commenced (if change isprocedural) on or after the effective date of this section.

Clarification of intent can avoid a lawsuit. If there is doubt on thequestion of prospective or retroactive application, the draftershould spell out what is intended.

Referendum clauses.(i) Referral under initiative and referendum provisions:The secretary of state shall submit this act to the people for their

adoption and ratification, or rejection, at the next generalelection to be held in this state, in accordance with the stateConstitution and the laws adopted to facilitate its operation.

(ii) Referral required because of constitutional debt limitation(Article VIII of the state Constitution):

The secretary of state shall submit this act to the people for theiradoption and ratification, or rejection, at the next general

105 Everett v. State of Washington, 99 Wn.2d 264 (1983).106 See Godfrey v. State, 84 Wn.2d 959 (1975).

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election to be held in this state, in accordance with Article VIII,section 3 of the state Constitution and the laws adopted tofacilitate its operation.

referendum measure A bill referred to the people by petition is designated a "referendum

measure." referendum bill A bill referred to the people by the legislature is designated a

"referendum bill." In the latter case, the legislature mayprescribe the ballot title.

Savings clausesThe general rule is that repealing acts terminate all rights dependent

upon the repealed statute and all proceedings based upon it.107 Anamendatory act constitutes a repeal of the amended act to theextent the two acts are inconsistent. To preserve existing rightsand obligations, a savings clause should be used, especially if thestatute could be applied retroactively. Seattle-King County Council of CampFire v. Dept. of Revenue, 105 Wn.2d 55 (1985). Examples:

(i) This act does not affect any existing right acquired or liabilityor obligation incurred under the sections amended or repealed inthis act or under any rule or order adopted under those sections,nor does it affect any proceeding instituted under those sections.

(ii) (Sections through of this act/this chapter) do/does notterminate or modify any civil or criminal liability that exists onthe effective date of this section/act.

(iii) (Sections through of this act/this chapter/this section)are/is cumulative and nonexclusive and do/does not affect any otherremedy.

(iv) This act does not repeal, amend, or modify any law providing forwater supply for any city or town but is an additional andconcurrent method providing for this purpose.

Severability clauses.If any provision of this act or its application to any person or

circumstance is held invalid, the remainder of the act or theapplication of the provision to other persons or circumstances isnot affected.

"An act of the legislature is not unconstitutional in its entiretybecause one or more of its provisions are unconstitutional unless

107 Lau v. Nelson, 89 Wn.2d 772 (1978).

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the invalid provisions are unseverable and it cannot reasonably bebelieved that the legislature would have passed the one without theother, or unless the elimination of the invalid part would renderthe remainder of the act incapable of accomplishing the legislativepurpose." State v. Anderson, 81 Wn.2d 234, 236 (1972). A severabilityclause is viewed by the court as a persuasive indication oflegislative intent offering ". . . to the courts the necessaryassurance that the remaining provisions would have been enactedwithout the portions which are contrary to the Constitution." Id.at 236.

Alternatively, if the drafter anticipates the receipt of federal fundsunder the act, the use of a "federal severability" clause may bedesirable:

If any part of this act is found to be in conflict with federalrequirements that are a prescribed condition to the allocation offederal funds to the state, the conflicting part of this act isinoperative solely to the extent of the conflict and with respectto the agencies directly affected, and this finding does not affectthe operation of the remainder of this act in its application tothe agencies concerned. Rules adopted under this act must meetfederal requirements that are a necessary condition to the receiptof federal funds by the state.

Substantially similar language was held valid against a challenge thatit unlawfully delegates legislative power to the federalgovernment. The court held that the delegation was proper and thatthere was no attempt to adopt or incorporate future changes infederal statutes or regulations. Yelle v. Bishop, 55 Wn.2d 286, 303(1959). See discussions of incorporation and delegation insubsection (12)(f) and (h) of this part.

Short title.This (act/chapter) may be known and cited as the Dental Appliances

Act.Avoid including a year in the name of the act.Staggered terms. In creating new boards, committees, or other entities, staggered terms

are often used for the initial appointments to create a changingmembership throughout the life of the entity.

Example:The members shall serve five-year terms. Of the initial members, one must be appointed for a

one-year term, one must be appointed for a two-year term, one must be appointed for a

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three-year term, and the remainder must be appointed for five-year terms. Thereafter,members must be appointed for five-year terms.

Sunset and termination clauses. The sunset process involves a review by the joint legislative audit

and review committee and is intended to terminate an agency orprogram in a given year and repeal the underlying statutes in thefollowing year.

The sunset process is not the same as a termination or anexpiration. Do not use those terms synonymously.

The following is a suggested termination clause:The (board, commission, etc.) terminates (date).Tax-exempt entities. When referring to charitable entities that are exempt from federal

income tax, the drafter should use the following language: ". . .an entity that is exempt from taxation under Title …. Sec. … of theincome tax act of [insert year), as amended, as of [insert desireddate] . . . . ."

Tax preference legislation—Performance statements. The law requires the inclusion of performance statements in

legislation that establishes, expands, or extends a tax preference.

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Effective Legal Arguments21 GENERAL RULES OF EFFECTIVE LEGAL ARGUMENTS

PreparePreparation is the key to making a winning presentation, and this

applies to all forms of communication, legal or otherwise. Thepurpose of preparation is three-fold:

1. Confidence: I write in my public speaking book, “Cause Action: PublicSpeaking Handbook”, that, “preparation is the mother of confidence”. Nothingcan be closer to the truth. When I am prepared, I speak withauthority, belief, and surety, and this exudes a level ofconfidence that makes the audience to like me, love me, and believeme.

2. Perfection: Whereas no one can be perfect, when i prepare, i eliminatesome basic mistake,s like typos, qrogn citations, omitted rules, orsuch other common errors to do with formating, the law, or thefacts, which could prove dtrimetnal to my case and argument.

3. Memory: Practice also aids in memory, and when i memorise mypresentation, it becomes more effective, rather than constantlyrefering to my statutes, notes, and citations.

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Three Parts of a Legal Argument A legal argument, like any other form of public speech, is divided

into three parts: the introduction, which is the opening statement’the body, which is the arguments; and the conclusion, which is theclosing statement.

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Summarize the CaseIn one or two paragraphs, I will provide a concise summary of the

incident that brought the case before the court. This will includea description of the crime and the circumstances causing theearlier court’s decision to be appealed. This is actually one ofthe more difficult parts of the brief since requires I to clearlyidentify and concisely state ONLY that information needed tounderstand the case. The decision itself usually includes a lotmore information than is needed for the brief.

The Statement of the Issues serves the same purpose as the QuestionsPresented in the legal memorandum. Therefore, use the same rulesand take the same approaches in framing the issues. It is alsocalled Questions Presented.

The Questions Presented section is likely a judge’s first exposure tomy side of the case. It is a place to provide a concise overallview of what is at stake. It is not a place to bury a judge indetail. If judges must wade through facts, the significance ofwhich is not immediately apparent, they may have a hard timegrasping what my arguments are about.

This is a very short introductory statement of the legal issues orpoints of law involved in the case. It tells the Justices preciselywhat legal issues the attorney team wants the Court to decide.These statements should be phrased to help one argue FOR aparticular conclusion rather than simply against the other side.These issues are stated in question form and should be phrased insuch a way that a "yes" answer will support one's position. Thesestatements are very short, generally no more that one sentence perissue, and are generally placed just before the Statement of theFacts.

The appellant may phrase an issue this way:"Did the trial court err in holding that...?"

The respondent may phrase the issue in the same case this way:"Did the trial court correctly conclude that...?"

I will address the same issues the appellant addresses. Raise newissues only if the appellant so fundamentally misunderstands thecase or misrepresents the issues that I cannot brief the casewithout raising new issues.

As I research (in fact, throughout the briefing process), analyze theissues. I will not just I will read the legal authorities—absorbthem. Try to learn not only the rule of law, but its underlyingprinciple or reason. Think about how the underlying principles and

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reasons apply to my case and whether they support my position. If Ido this, and later base my argument on the underlying principles, Iwill convey the impression of having justice and fairness on myside, not just legal technicalities. Talk about the issues withothers. Explaining the arguments should deepen my understanding ofmy position. And I can test the persuasiveness of the arguments byfinding out whether they persuade objective people. As I analyzethe issues, keep in mind the harmless error rule. An error by thetrial court is not grounds for reversal unless the effort couldhave made a difference in the outcome of the trial. For example, anerroneous evidentiary ruling is generally not grounds for reversalif the record contains other evidence proving the same fact forwhich the erroneously included or excluded evidence was offered.Ask myself whether the error in question truly affected my client’srights. If I can answer that question “yes” with conviction, then Ijust might have a winnable issue on appeal. If not, considerdiscarding the issue. I must also eliminate any issue or argumentthat is weak. My goal is to select just a few strong issues onwhich I can make compelling arguments and with which I can win thecase. How few issues? Experienced appellate judges and advocatesagree that a good rule of thumb is a maximum of three, or perhapsfour, issues on appeal—the fewer, the better108. Why no more thanthree or four issues? First, if I can’t convince the court with mythree or four strongest arguments, I am not likely to convince thecourt with my weaker arguments. Second, if I mix weak argumentswith strong ones, I run the risk of burying my good arguments inexcess verbiage. Third, offering up numerous arguments gives theimpression that I don’t have confidence in any one. Fourth, sincemost appellate courts impose page limits on briefs, I probablydon’t have the space to adequately brief more than three or fourissues.109

108 See, e.g., Ruggero J. Aldisert, Winning on Appeal §8.6 (rev. 1st ed. 1999)109 See Jones v. Barnes, 463 U.S. 745, 751-53 (1983) (citing several experienced

appellate judges and advocates who unanimously agree that only a few issues shouldbe argued on appeal).

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Phrase The Legal QuestionI will phrase, in my own words, the legal question the court has tried

to answer in this case. State the issue as a question (e.g., “Can apolice officer. . .?”). Sometimes the issue is made very clear inthe opinion (e.g., “This case presents the question. . .”, “Theissue in this case is . . .”) but at other times it is not quite so“in my face.” Even when the issue is blatantly presented in theopinion, I should still phrase it in my own words. There areseveral reasons for this. First, court opinions often addressseveral legal issues. In this class we are concentrating onprocedural issues so I need to identify the specific issue relatedto the procedure followed by the police (in most of my cases).Second, court opinions are often long, wordy, and filled with termsunfamiliar to undergraduates. As a result, putting the issue in myown words (use the Ferdico’s glossary to help understand some ofthe court’s legal terminology) will help all of us understand itbetter.

An important tactical question that often confronts the drafter of anappellant’s opening brief is the extent to which the brief shouldprovide responses, then and there, to arguments the other side maymake in its brief. Anticipating arguments entails some risk,especially if opposing counsel are weak; I may put ideas into theirheads that they would not otherwise discover or articulatecoherently. In general, however, an appellate brief that tries tohide from the adversary’s best arguments is less effective than onethat confronts them. And, when the point has already been made bythe trial court or argued by my adversary at earlier stages of theproceeding, I cannot expect to hide. I will almost surely want toaddress such hard points in the opening brief, stating the issue inmy terms rather than letting my opponent set the agenda.

question of law, point of lawIn jurisprudence, a question of law (also known as a point of law) is

a question which must be answered by applying relevant legalprinciples, by an interpretation of the law.110 Such a question isdistinct from a question of fact, which must be answered byreference to facts and evidence, and inferences arising from thosefacts. Answers to questions of law are generally expressed in termsof broad legal principles, and are capable of being applied to manysituations, rather than being dependent on particular circumstancesor factual situations. An answer to a question of law as applied to

110 Treatise on Trial by Jury: Including Question of Law and Fact By John ProffattPublished 1986 Wm. S. Hein Publishing Jury 608 pages ISBN 0837725062

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the particular facts of a case is often referred to as a"conclusion of law".

To illustrate the difference:Question of fact: Did Mr. and Mrs. Jones leave their 10 year-old child

home alone with their baby for 4 days?Question of law: Does leaving a baby with a 10-year old child for 4

days fit the legal definition of child neglect?While questions of fact are resolved by a trier of fact, which in the

common law system is often a jury, questions of law are alwaysresolved by a judge, or an equivalent. Whereas findings of fact ina common law legal system will rarely be overturned by an appellatecourt, conclusions of law will be more readily reconsidered.

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Define Legal TermsThe rich lawyers know, and define legal terms in any argument,

writing, or interpretation.Defining a word, phrase, or term, puts it in context, and allows

arguments, presumptions, and suppositions, to be built around it.Every rich lawyers knows that the authority of his argument depends on

ability to quote the section of the law, the case law, or thejurisprude/author/legist, that is, a reknown scholar’s opinion onthat matter.

For instance, if a rich lawyer is arguing about constitutionality ofprivacy; he has to quote:

¯ the section of the constititution, statute, or by law (statutory law) that defines the word;¯ the precedent or case law that defines the term;¯ the author, or legist, who, in his book, has defined the term.

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Understand The Audience!Effective legal rhetoric draws upon an understanding of the shared

moral judgments of the audience. A speaker who has supplied himselfwith an accurate stock of the values and beliefs which reflect andexpress those shared judgments can marshal them to suit thepersuasive purposes of the moment.111 I will assess and know myaudience before treading forth. If they are likely to take a dimview of my argument under any circumstances, I will know thisbeforehand!

111 David J. Cohen; Law, Violence, and Community in Classical Athens

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Start From Agreeable, To Disagreeable-Pereman’s Theory!The starting points of an argument include the analysis of the

audience and the points of departure.112 In Perelman's theory, theremust be some initial common ground between those involved in anargument before it can proceed. Arguments must be based on premisesthat the audience accepts, or considers reasonable, because theadherence of the audience is the measure of validity.113

These premises, sometimes referred to as the ‘starting points,’ aredivided into two classes: the real and the preferable.114 Facts, truths,and presumptions make up the real; values, hierarchies, and lines ofargument relate to the preferable.115 As to the starting points of thereal, a fact achieves its status as a fact on the basis of audienceconsent. Truths are larger principles, theories, or conceptionsmade up of linked facts.116 Presumptions retain their status aspresumptions if they are not successfully challenged.117 Bycontrast, the starting points bearing on the preferable includeabstract values (such as truth, faith, or justice); hierarchies of value,where one value is described as superior to another (such asfreedom over fairness, justice over usefulness, honesty overbenevolence); and the locme, or headings under which arguments may beclassified.118

For the lawyer, the starting point of a dispute is always an issue offact or law. The starting points of the real, as they relate tofact and presumption, help us to understand the sometimes subtledistinctions between a legally relevant fact and a legalpresumption. Recall that a proposition achieves its status as afact on the basis of audience consent. Similarly, the role of the

112 See Perelman, supra note 23, at 21. Perelman identifies universal and particular audiences including the specialized, elite, single interlocutor, and self. Id. at 30.

113 Id. at 21.114 Id. at 23.115 Id. at 16. Finally, he hints that certain theses and beliefs are specific to

particular disciplines and fields of discourse. These theses, beliefs, and values constitute the points of departure. Id.; see also Id. at 23.

116 Id. at 23-24.117 Id. at 25.118 Perelman & Olbrechts-Tyteca, supra note 22, at 80-85. Perelman's loci of the

preferable include: quantity, quality, order, cause, essence, autonomy, among others. The loci of argument resemble Aristotle's topoi. He notes that ‘[l]oci have accordingly been defined as storehouses for arguments. Aristotle made a distinction between the loci communes, or 'commonplaces,' which can be used indiscriminately for any science and do not depend on any, and the special topics,which belong to a particular science or a particular type of oratory.’ Id. at 83. The loci are sometimes referred to as lines of argument.

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lawyer at trial is to persuade the fact finder, whether judge orjury, to accept the client's evidence as fact in order to find inthe client's favor. Legal presumptions are conclusions of law drawnfrom facts that relate to liability.

The most immediate effect of a presumption is to impose the burden ofproof upon the person who wants to oppose its application.’119 Thestarting points of the preferable refer to the way that values arearranged according to their order of importance.120 Perelmanidentifies abstract and concrete hierarchies, as well ashomogeneous and heterogeneous hierarchies. In homogeneoushierarchies, similar values such as mildness and severity arecompared, making measures of degree and intensity crucial factors.In heterogeneous hierarchies, different values come into conflict;for example, honesty may conflict with kindness, or goodness mayconflict with truth.121 Most often in legal argumentation, policyarguments involve the use of hierarchies and debates about thearrangement of values within those hierarchies. Examples of such policyarguments include individual rights does not directly address how

this occurs. He observes: ‘Someone who prophesies without troubling himself with thereactions of those who hear him is quickly regarded as a fanatic, the prey of interiordemons, rather than as a reasonable person seeking to share his convictions.’

119 Perelman, supra note 23, at 25.120 Id. at 26.121 Id. at 29.

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Connect the Argument (Applying Liaison)I will provide an introductory or topic sentence that paraphrases or

amplifies the heading.122 Then follow the introductory sentenceprogressively with more specific statements that support my headinguntil I make my case. In this way, 'a clear progression of ideas from theoverall heading down to the smallest supporting particular will be available. In addition,when a case is cited, it will appear in context'.123

I will start each succeeding paragraph with an introductory or topicsentence that propels the discussion forward to the conclusion inmy heading or subheading.124 End my paragraphs in such a way as topoint to the next paragraph's topic sentence.125 Make sure eachparagraph concerns 1 thing only, which I explain in eachparagraph's topic sentence.126

I will connect each sentence and paragraph to enable the reader tomove along smoothly.127 Use 'transitional' techniques,128 such as:

ق open with words like 'But', 'Also', and 'Moreover'

ق open with words like 'This', 'That', 'These', and 'Those'

ق echo the last words of the preceding paragraph

122 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 90.

123 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 90–91. See also Jonathan K Van Patten, 'Twenty-Five Propositions On Writing and Persuasion' (2004) 49 South Dakota Law Review 250, 252.

124 Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 170. See also Jonathan K Van Patten, 'Twenty-Five Propositions On Writing and Persuasion' (2004)49 South Dakota Law Review 250, 251, 254, 256.

125 Jonathan K Van Patten, 'Twenty-Five Propositions On Writing and Persuasion' (2004) 49 South Dakota Law Review 250, 252.

126 Jonathan K Van Patten, 'Twenty-Five Propositions On Writing and Persuasion' (2004) 49 South Dakota Law Review 250, 252. Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 115–18.

127 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81, 91; Lucille R Kaplan, 'Writing that Persuades: No Quick Fix for the Advocate' (1984) 20 Trial 44, 49; Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 179; Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 119–20, 126–8.

128 For a fuller list of these techniques, see, for example, Edwin Abbott, How to Write Clearly (1883) 36–7; Neil James, Writing at Work (2007) 132; Deborah E Bouchoux, Aspen Handbook for Legal Writers

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In citing and discussing cases, put the best cases first.129

Once a claim has been identified through use of the starting points,the claim can be systematically developed by liaison. The conceptof liaison is characterized by the creation of association or dissociationamong premises.

Three techniques are used to create association: quasi-logicalargument, argument based on the structure of reality, and argumentbased on establishing the structure of reality.130

In legal argument, inference can make a liaison between facts and aconclusion of law, as illustrated by the following example. Assumethat the victim of an automobile accident consults a lawyer about apossible lawsuit against the driver of the other car. He explainsthat a witness to the accident observed that the other driver wastilting his head back to drink a beverage immediately before thecollision. Using the technique of liaison, the lawyer can inferthat the driver was not observing the road and was thereforenegligent, and can create an argument of succession (of cause andeffect). In addition, this argument also suggests an association ofcoexistence, as it establishes a bond between an act (of lookingaway from the road) and an essence (of negligence).

While arguments by association create successive or coexistent linksbetween the starting point and proposition, the technique ofdissociation seeks to drive a wedge between ideas. Usuallyarguments by dissociation divide a concept into two parts in orderto resolve an incompatibility. ‘This dissociation into phenomenal reality (realityas it appears) and into nominal reality (of things in themselves) is a typical instance ofusing the pair appearance/ reality . . . .’131

In the following illustration, Perelman clarifies: ‘At first sight, appearance is nothing but a manifestation of reality: it is reality as it appears, as

it presents itself to immediate experience. But when appearances are incompatible-when,for example, the oar is plunged into the water and appears broken to our sight andstraight when we touch it they cannot represent reality as it is, since reality is governed bythe principle of non-contradiction and cannot simultaneously, and in the samerelationship, have and not have a given property. It is therefore essential to distinguish

129 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 91. Unless you have historical or specific reasons for a different treatment. See also Joseph P Napoli, 'Forceful Brief Writing and Oral Argument' (1977) 12 Trial Lawyers' Quarterly 82, 85.

130 See Levine & Saunders, supra note 2, at 112, 114-16, see also Perelman & OIbrechts- Tyteca, supra note 22, at 83.

131 Perelman, supra note 23, at 126.




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between appearances which correspond to reality and those which do not and aredeceptive.’132

The process of dissociation is often invoked in arguments of statutoryinterpretation, where the literal text of a statute is asserted tobe incompatible with its legislative purpose. Consider for instancea possible argument for a client who has been charged withviolating a statute that reads: ‘No vehicle may be driven on thecurb of a sidewalk.’ Assume that the legislative purpose behind thestatute was to insure pedestrian safety. Assume further that theclient drove her vehicle onto the curb to avoid hitting a child whohad dashed into the street. While the client has violated the textof the statute, the argument can be made that its purpose was notviolated because pedestrian safety was actually insured by herdriving over the curb. Such an argument makes dissociation betweenthe letter and the spirit of the law in order to urge a fairinterpretation of the statute and to justify a finding of noliability.

The technique of dissociation offers a mechanism for understanding andresolving incompatibilities between notions of reality.133 It isuseful in training students to analyze and construct argumentswhere two competing but tenable interpretations of reality exist.That reality may involve either an interpretation of a rule or aninterpretation of a set of facts. In Cardozo's words: ‘The reconciliationof the irreconcilable, the merger of antitheses, the synthesis of opposites, these are thegreat problems of the law.’134

As Perelman explains:‘The effort to resolve incompatibilities is carried on at every level of legal activity. It is pursued

by the legislator, the legal theorist, and the judge. When a judge encounters a juridicalantinomy in a case he is hearing, he cannot entirely neglect one of the two rules at theexpense of the other. He must justify his course of action by delimiting the sphere ofapplication of each rule through interpretations that restore coherence to the juridicalsystem. He will introduce distinctions for the purpose of reconciling what, without them,would be irreconcilable.’135

132 Id. at 126-27.133 See Perelman & Olbrechts-Tyteca, supra note 22, at 4. The technique of

dissociation is not limited to distinctions between appearance and reality. The technique can also be used to distinguish between other philosophical pairs, including act and person, theory and practice, individual and universal, and subjective and objective. For further discussion, see id. at 420-26.

134 Benjamin N. Cardozo, The Paradoxes of Legal Science 4 (New York, 1928).135 Perelman & Olbrechts-Tyteca, supra note 22, at 414-15.

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Support Conclusion With Reasons: Make Logical Arguments I will make sure I support my conclusion with reasons. John M. Lannon

provides a formula: 'My answer is … because …' and my reasons follow the 'because'. Bryan A Garner suggests

reversing the formula: 'Because of …, my position is …'136 I will use a 'cable-like' argument rather than a 'chain' argument, as

described above.Aristotle stresses that rhetoric is a ‘counterpart’ (antistrophos) to

dialectic137. In Plato's Gorgias138, Plato uses the word ‘antistrophos’ todesignate an analogy: what dialectic is for the (private oracademic) practice of attacking and maintaining an argument,rhetoric is for the (public) practice of defending oneself oraccusing an opponent.

Legal reasoning is . . . but an argumentation aiming to persuade and convince those whom itaddresses, that such a choice, decision or attitude is preferable to concurrent choices,decisions and attitudes.139

For the most part, normative theories of argument are treated in thearea of formal logic and are concerned with internal correctnessand validity.140

Legal arguments are logical arguments. Logical arguments arespecifically designed to produce conclusions that are universal andabsolute in their proof; practical arguments are designed toestablish one claim as more probable or reasonable than another.Likewise, legal argumentation is not concerned with proof ofabsolute truths, but acknowledges that it is always possible toargue for or against a particular claim.141

This is why the old adage is true; a lawyer only needs me to tell him which side of the argumentyou are on, and he will argue for you!

Arguments that support one claim never entirely exclude thosesupporting the opposing claim. Strict logical consequence and

136 Peter Thompson, Persuading Aristotle: The Timeless Art of Persuasion in Business, Negotiation, and the Media (1999) 34.

137 Rhet. I.1, 1354a1138 Plato (1987). Gorgias. Donald J. Zeyl translation. Indianapolis: Hackett.139 Chaim Perelman, Justice, Law, and Argument 129 (Dordrecht, Neth., 1980).140 For further discussion of normative theories, see e.g., E. M. Barth & E. C. W.

Krabbe. From Axiom to Dialogue (Berlin, 1982); Rupert Crawshay-Williams, Methods and Criteria of Reasoning: An Inquiry into the Structure of Controversy (New York,1957); Arne Naess, Communication and Argument: Elements of Applied Semantics, trans. Alastair Hannay (London, 1966). For a more general overview, see F. Van Eemeren et. al. , The Study of Argumentation (New York, 1984).

141 See id. at 150.

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certainty are never the result, because arguments depend uponlanguage, and language always admits of ambiguity, equivocality,and multiple interpretations.142

A legal argument is resolved when the audience, whether judge or jury,accepts one claim as more reasonable than another rather than asobjectively and inherently valid. The persuasiveness of an argumentalways depends upon what the relevant audience regards aspersuasive.

To construct a logical legal argument, I need to justify my claims.Legal persuasion is based on justification. The audience decides whenand to what extent a claim has been justified by the arguments.143

Justification, according to John Rawls, ‘seeks to convince others, orourselves, of the reasonableness of the principles upon which our claims and judgmentsare founded.’144 Justification involves a heuristic search; that is, thearguer searches among the many available arguments to find thosethat will most likely persuade the audience to accept the claim.Justification provides reasons for accepting the claim. Similarly,a lawyer must justify a claim by generating arguments based on theevidence and available legal authority.145 Rhetorical argumentmotivates the justification of legal decisions and judicialreasoning. In reaching legal conclusions, the judge must chooseamong probabilities, not certainties. According to Toulmin, thelayout of argument is field invariant but the criteria by whicharguments are evaluated are field dependent. Field-dependentfeatures include degree of precision, degree of formality, and modeof resolution. 146 Universal principles alone cannot be used tojudge arguments. Instead, we must use the criteria from theparticular field in which the argument is made to judge the partsof the argument. Though the subject matter of the argument maydiffer from field to field, its structure remains the same. Theseprobabilities clarify the role of rhetoric in law.147 The role ofrhetoric in the classical tradition, he maintains, is to instill

142 Consider, for instance, that the literal interpretation of a statutory or common law rule may beat variance with notions of equity and fairness. Contrast this witha theorem of mathematics or an axiom of logic, which has a certain or conclusive meaning.

143 Demonstration, by contrast, transcends its immediate social and cultural context and is therefore field invariant. The conclusions of demonstration are objectivelyvalid independent of their acceptance by any audience whatsoever.

144 A Theory of Justice 580 (Cambridge, Mass., 1971).145 See Neil MacCormick, Legal Reasoning and Legal Theory 14-15 (Oxford, 1978).146 Toulmin et al., supra note 14, at 271-74.147 Perelman, supra note 23, at 9-11.

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the abstract standards of law within the public ‘mind’ or audiencein order to insure that it reasons correctly.148

148 Id.

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groundsFurther, a logical legal argument is based on grounds. I will remember

that effective legal persuasion is based on grounds. The grounds ofthe argument are the facts or other information on which theargument is based. Grounds provide the answer to the question, ‘Whatdo we have to go on?’ Grounds in legal arguments are the elements of theoffence, or cause of action. If I do not know the grounds orelements constituting the cause of action or crime, then I will notmake a very logical argument; and I will not win. In a legalargument, both parties have the facts, and the law, and it is onlythe identification of how the two (facts and law), apply to thegrounds/elements of the case, that will determine winning, orlosing, the argument and or case.

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Presence (Legal Rhetoric)In justifying a claim, the arguer must determine how to give

significance to the premises and relationships expressed in theargument. Choosing to single out or to emphasize certaincharacteristics in an argument draws the attention of the audienceto those characteristics and thereby gives them a presence thatprevents them from being overlooked. Presence acts directly on thesensibility of the audience through the selection of features forboth inclusion and exclusion in an argument. Presence has apositive as well as a negative dimension: the de-emphasis ofinformation can also be used strategically.149 In the context of thelaw, presence can be exhibited in the forms of proof introducedinto evidence at trial and in the statement-of-facts section of abrief.

The material facts in the trial of a lawsuit are determined by variousforms of proof presented to the Trier of fact. One form of proof,known as real proof, is specifically directed to the senses andperceptions of the fact finder as a basis for reaching aconclusion. For instance, the exhibition of a photograph of thevictim's body in a murder prosecution, or the child in a paternitysuit, or the plaintiffs disfigured limb in a personal injuryaction, can effectively create a presence that moves the finder offact.

149 Perelman, supra note 23, at 35.

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Argue Strongest Points Only; Do Not Flog Dead Horses!I will limit myself to my strongest arguments.150

The 'essence of winning in court is to pick the real point of the caseand not flog the ones which have no legs'.151 By limiting myargument to the strongest points, I add:

'emphasis to those points and avoid the danger of diverting the court's attention. Moreover,the lesser arguments, when unacceptable to the court, may create the erroneousimpression that the case depends on an argument which is intended only as an addedbuttress. Finally, a judge's rejection of a subsidiary argument may color his impression ofthe soundness of the whole brief.'152

In law school examinations, my teacher has a set of legal issues inmind, and I get points for every legal issue that I spot; but I donot necessarily lose points for making arguments that would fail inreal life.153 At law school, if I do not raise every conceivableargument, then I risk missing out on marks. But, in real life,'failing to toss out the arguments that would not fly ultimately runs a bigger risk: creating amishmash of legal theories that produces lumpy, sodden writing'.154

I will put my strongest arguments first. Some researchers have founda 'primacy effect'. Arguments that appear at the beginning of a

150 See Ruggero J Aldisert quoted in Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 158 ('When faced with a brief that raises no more than threepoints, I breathe a sigh of satisfaction and conclude that the brief writer reallymay have something to say'); Patricia M Wald, '19 Tips from 19 Years on the Appellate Bench' (1999) 1 Journal of Appellate Practice and Process 7, 11 ('Judges become euphoric on encountering a brief that begins, ‘The onlyissue in this case is …’ On the other hand, with the top 10-type brief, the presumption in favor of the decision below kicks in when you reach Nos 3 or 4 and with each succeeding argument, you have a higher psychological threshold to surmount'); Robert H Jackson, 'Advocacy Before the United States Supreme Court' (2003) 5 Journal of AppellatePractice and Process 219, 224 ('receptiveness declines as the number of assigned errorsincreases. Multiplicity hints at lack of confidence in any one'). See also Jason LHonigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1060, 1063; Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 401–4; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 96; Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 56; Neil James, Writing at Work (2007) 109; Ruggero J Aldisert,Winning on Appeal: Better Briefs and Oral Argument(2nd ed, 2003) 127–8.

151 Peter Thompson, Persuading Aristotle: The Timeless Art of Persuasion in Business, Negotiation, and the Media (1999) 33.

152 Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1060, 1063.

153 But see Harry McVea and Peter Cumper, Learning Exam Skills (1996, 2002 reprint) 12.154 James W McElhaney, 'Legal Writing That Works' (2007) 93(7) ABA Journal 30. See also

Steven D Stark, Writing to Win: The Legal Writer (1999) 64–6; Bryan A Garner, The Redbook: A Manual on Legal Style (2002) 333.

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message persuade more than arguments that appear later.155 Somepersuasion theorists, and lawyers, also suggest putting my secondstrongest argument last, because of a 'recency' effect: argumentsthat appear at the end of a message persuade more than those madeearlier.156

But this persuasion theory may not apply so well to written advocacy.Judges expect to see my best arguments first, so 'When judges cometo the weak points in a brief, they may assume that I will notraise anything else of importance'.157 If I leave my secondstrongest argument last, the judge might never get to one of mystrongest points.158

In Aristotle's view an orator will be even more successful when hejust picks up the convincing aspects of a given issue, therebyusing commonly-held opinions as premises.

i. Since people have a natural disposition for the true 159 and every man has somecontribution to make to the truth,160 there is no unbridgeable gap between the commonly-held opinions and what is true. The subject that is treated in a speech has the highestpriority161. Thus, it is not surprising that there are even passages that regard the non-argumentative tools as a sort of accidental contribution to the process of persuasion, whichessentially proceeds in the manner of dialectic.162

155 See Paul T Wangerin, 'A Multidisciplinary Analysis of the Structure of PersuasiveArguments' (1993) 16 Harvard Journal of Law and Public Policy 195, 201. See also F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 88; Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1060 ('This primary position assures greater likelihood of attention and emphasizes the importance of the major points. The arguments establishing fairnessshould have priority of presentation. If one can initially demonstrate the justiceof his cause, the likelihood of acceptance of the supporting legal arguments will be greatly enhanced'); Joseph P Napoli, 'Forceful Brief Writing and Oral Argument'(1977) 12 Trial Lawyers' Quarterly 82, 85; Michelle Pan, 'Strategy or Stratagem: The Use of Improper Psychological Tactics by Trial Attorneys to Persuade Jurors' (2005) 74University of Cincinnati Law Review 259, 269; Jonathan K Van Patten, 'Twenty-Five Propositions on Writing and Persuasion' (2004) 49 South Dakota Law Review 250, 261 ('You begin to build or lose credibility with your first argument'); Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 49.

156 See Paul T Wangerin, 'A Multidisciplinary Analysis of the Structure of PersuasiveArguments' (1993) 16 Harvard Journal of Law and Public Policy195, 201, fn 33. See also Deborah E Bouchoux, Aspen Handbook for Legal Writers.

157 Bryan A Garner, The Elements of Legal Style (2nd ed, 2002) 60. See also Steven D Stark, Writing to Win: The Legal Writer (1999) 144 ('by the time judges get to the last page of your brief, they're not paying much attention').

158 But compare Deborah E Bouchoux, Aspen Handbook for Legal Writers.159 Rhet. I.1, 1355a15f160 Eudemian Ethics I.6, 1216b31161 e.g. Rhet. III.1, 1403b18–27162 cp. Rhet. I.1, 1354a15

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ii. There are methods that are not right, but necessary because of certain deficiencies of theaudience. His point seems to be that the argumentative method becomes less effective, theworse the condition of the audience is. 163

iii. In dealing with methods of traditional rhetoric, Aristotle obviously assumes that evenmethods that have traditionally been used instead of argumentation can be refined so thatthey support the aim of an argumentative style of rhetoric.

163 III.1, 1404a2f.

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Use IRAC to organize my argumentsAudiences trust people who make organized arguments more than people

who make disorganized arguments. Further, audiences react morefavorably to arguments organized in familiar forms than toarguments organized in unfamiliar forms.164 Although IRAC does nothelp much to solve my legal problem, IRAC provides one of the mostfamiliar forms of organizing my answer.165

Under IRAC,

ق the introductory paragraph identifies the Issue;

ق the argument should then set out and fully develop the 'Rule' that applies in the case,

ق I then Apply that rule to the facts; and finally,

ق I set out the reasons supporting the Conclusion I advocate.166

I will organize my argument into compartments, introduced by headingsand subheadings.167 Headings and subheadings make my writing easierto follow.168

I will use argumentative headings and subheadings. For example, I writemore informatively when I say 'The Buyer Waived the Delivery Dateby Continuing to Encourage Performance' than merely 'The DeliverySchedule' or 'Waiver'. The longer heading informs the judgequickly, saving them time.169

164 See Paul T Wangerin, 'A Multidisciplinary Analysis of the Structure of PersuasiveArguments' (1993) 16 Harvard Journal of Law and Public Policy 195, 201.

165 For 4 ways of persuasively organising an argument or presentation, depending on your audience, see Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 151–3. See also Bryan A Garner, The Elements of Legal Style (2nd ed, 2002) 58–9.

166 See further, for example, Andrew H Baida, 'Writing a Better Brief: A Useful Guideto Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 168.

167 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81, 86. See also Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1062–3; Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 171.

168 Bryan A Garner, The Elements of Legal Style (2nd ed, 2002) 77.169 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81,

86–7. See also Jason L Honigman, 'The Art of Appellate Advocacy' (1966) 64(6) Michigan Law Review 1055, 1062–3; Lucille R Kaplan, 'Writing that Persuades: No QuickFix for the Advocate' (1984) 20 Trial 44, 45; Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 171; Neil James, Writing at Work (2007) 67; Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 300;











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Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 67; Bryan A Garner, The Elements of Legal Style (2nd ed, 2002) 77; Steven D Stark, Writing to Win: The Legal Writer (1999) 146–7. But compare Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 22, 50–51.







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Back-Up Arguments by Case Law Next remember that EVERY argument MUST be backed-up by case law that

is on point supporting that argument. I should 'Shephardize' mycases. That means see if there is a more recent case that overturnsor that supports the decision in the case I am looking up. This ishow I verify the validity of the authority (case law) that I quote.

If I state an argument but fail to develop it and back it up with caselaw, the court can THROW OUT that argument for ‘failure to developit.’

If I have an argument where there is NO case law available and this isthe FIRST time it is being argued in any court, then this is an‘issue of first impression.’ I still have to develop it or thecourt may throw it out for failure to develop it. I need to reviewthe historical ‘common law’ and then explain the ‘line ofreasoning’ including quoting any cases that have a similar line ofreasoning although about a different issue. If I say: ‘I am rightbecause the statute says this,’ I will likely lose because I didnot develop my argument.

doctrine of stare decisisThe operation of the doctrine of stare decisis is best explained by

reference to the English translation of the Latin phrase. “Staredecisis” literally translates as “to stand by decided matters”. Thephrase “stare decisis” is itself an abbreviation of the Latinphrase “stare decisis et non quieta movere” which translates as “tostand by decisions and not to disturb settled matters”.

Basically, under the doctrine of stare decisis, the decision of ahigher court within the same provincial jurisdiction acts asbinding authority on a lower court within that same jurisdiction.The decision of a court of another jurisdiction only acts aspersuasive authority. The degree of persuasiveness is dependentupon various factors, including, first, the nature of the otherjurisdiction. Second, the degree of persuasiveness is dependentupon the level of court which decided the precedent case in theother jurisdiction. Other factors include the date of the precedentcase, on the assumption that the more recent the case, the morereliable it will be as authority for a given proposition, althoughthis is not necessarily so. And on some occasions, the judge’sreputation may affect the degree of persuasiveness of theauthority.170

170 Gerald L. Gall, The Canadian Legal System, 2nd ed. (Toronto: Carswell LegalPublications, 1983) at 220. This text includes an excellent bibliography on thissubject including a lengthy list of cases and articles.

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In Learning the Law (9th ed. 1973), Glanville Williams describes thedoctrine in practical terms:

What the doctrine of precedent declares is that cases must be decidedthe same way when their material facts are the same. Obviously itdoes not require that all the facts should be the same. We knowthat in the flux of life all the facts of a case will never recur,but the legally material facts may recur and it is with these thatthe doctrine is concerned.

ratio decidendi (reason of deciding) The ratio decidendi [reason of deciding] of a case can be defined as

the material facts of the case plus the decision thereon. The samelearned author2 who advanced this definition went on to suggest ahelpful formula. Suppose that in a certain case facts A, B and Cexist, and suppose that the court finds that facts B and C arematerial and fact A immaterial, and then reaches conclusion X (e.g.judgment for the plaintiff, or judgment for the defendant). Thenthe doctrine of precedent enables us to say that in any future casein which facts B and C exist, or in which facts A and B and C existthe conclusion must be X. If in a future case A, B, C, and D exist,and the fact D is held to be material, the first case will not be adirect authority, though it may be of value as an analogy.171

There is considerable literature about whether the doctrine of staredecisis is a good or bad one4 but, the doctrine is usually justifiedby arguments which focus on the desirability of stability andcertainty in the law and also by notions of justice and fairness.Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set oflitigants and the opposite way between another. “If a group ofcases involves the same point, the parties expect the samedecision. It would be a gross injustice to decide alternate caseson opposite principles. If a case was decided against me yesterdaywhen I was a defendant, I shall look for the same judgment today ifI am plaintiff. To decide differently would raise a feeling ofresentment and wrong in my breast; it would be an infringement,material and moral, of my rights.”172 Adherence to precedent mustthen be the rule rather than the exception if litigants are to havefaith in the even-handed administration of justice in the courts.173

171 Glanville Williams, Learning the Law, 9th ed. (1973) at 67-68. See also S.M.Waddams, Introduction to the Study of Law, 2nd ed. (Toronto: Carswell, 1983) at 102-118.

172 The quote is from W.G. Miller, The Data of Jurisprudence, at 335.173 See Cardozo, supra, note 4 at 33-34.

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Stare decisis and the hierarchy of the courtsThe doctrine of stare decisis is one long recognized as a principle of

our law. Sir Frederick Pollock, in his First Book of Jurisprudence, 6thed., p. 321: “The decisions of an ordinary superior court arebinding on all courts of inferior rank within the samejurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, will be followed in theabsence of strong reason to the contrary…”. I think that “strongreason to the contrary” does not mean a strong argumentative reasonappealing to the particular judge, but something that may indicatethat the prior decision was given without consideration of astatute or some authority that ought to have been followed. I donot think “strong reason to the contrary” is to be construedaccording to the flexibility of the mind of the particular judge.

Legal argument when there is a precedentUsually, the best position for the lawyer occurs when there is a

precedent case supporting the client’s case. The lawyer will thenargue that the court is either bound, or that the court, if notactually bound, ought to be persuaded by the precedent case to findin the client’s favour. In his or her research, the lawyer willtherefore look for cases with results which support the client’sposition and the lawyer will prepare to argue that the ratiodecidendi of those precedent cases covers the facts of the case atbar. However, just locating and evaluating the prospects ofprecedent cases is not easy since it is often difficult todetermine and articulate the authority of a case. Moreover, skillis necessary to analyze and organize the material facts of both theprecedent case and the case at bar. That said, more difficultproblems of legal reasoning and legal argument occur when thelawyer is unable to find a close case or any case at all or, worseyet, when a case presents itself which appears to be unfavourable.How does the lawyer deal with these problems?

To get around an apparently unfavourable case, there are a number oftools and techniques available to the lawyer. The lawyer may notsimply ignore the unfavourable case and hope that the other sidedoes not discover the authority. This is unethical174 and withrespect it may be submitted that it is also unethical andintellectually dishonest for a judge in deciding a case to simplyignore a precedent case which stands in the way of the decisionthat the judge wants to make. This is not to say that lawyers and

174 Law Society of Upper Canada, Professional Conduct Handbook, Rule 8, Commentary 1(h)and authorities there cited.

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judges must deal with every case that remotely touches on a subjectbut only that there should be an honest effort to play by therules.

The techniques that are available follow as a consequence of acceptingand then manipulating the doctrine of stare decisis. The techniquesstructure and direct the lawyer’s legal reasoning and argument. Thefollowing are generally recognized:

The lawyer can argue that the precedent case does not stand for thelegal proposition for which it has been cited. In other words, thelawyer articulates the ratio decidendi of the case differently. Anexample of this may be found in the treatment of the case of RivtowMarine Ltd. v. Washington Iron Works.175 In The Attorney General for the Province ofOntario v. Fatehi,176 Estey J. without resolving the difficultiesassociated with this case observed: Nonetheless it must be acknowledgedthat Rivtow has been variously applied or rejected by the courts of this country, some ofwhom find in the majority judgment recognition of economic loss and some of whom havefound the opposite.177

The lawyer can argue that while the precedent case does articulatethe legal proposition for which it has been cited, nevertheless theproposition was obiter dicta (things said by the way). Subject toan exception for considered pronouncements of the law by appellatecourts, comments by the judge which are not part of the ratiodecidendi are obiter dicta and are theoretically not binding in asubsequent case.178 The exception is that where an appellate courtexpresses a considered opinion on a point of law then such rulingis binding on the lower courts notwithstanding that it was notabsolutely necessary to rule on the point in order to dispose ofthe appeal.179 It should be noted that if a judge rests hisdecision on two different grounds neither can be characterized asobiter dictum.180

The lawyer can argue that while the precedent case does stand forthe legal proposition for which it has been cited, the case hasbeen effectively overruled by a decision of a high court or by theintroduction of a new statute. Examples of this kind of legalargument will obviously occur after significant decisions of theSupreme Court of Canada. For instance that Court’s decisionin Kamloops v. Nielsen181 did away with the distinction between non-

175 [1974] S.C.R. 1189.176 (1985), 15 D.L.R. (4th) 132 (S.C.C.).177 Ibid. at 139.178 Landreville v. Gouin (1884), 6 O.R. 455.179 [1955] O.R. 431.180 [1984] 5 W.W.R. 1 (S.C.C.).181 [1984] 5 W.W.R. 1 (S.C.C.).

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feasance and misfeasance in negligence actions againstmunicipalities and many old cases which turned on that distinctioncan no longer be relied upon.

The lawyer can argue that while the precedent case does stand forthe legal proposition for which it has been cited, the case at baris different; that is, the cases are factually distinguishable.Glanville Williams suggests that there are two kinds of“distinguishing”: restrictive and non-restrictive and states:

Non-restrictive distinguishing occurs where a court accepts theexpressed ratio decidendi of the earlier case, and does not seek tocurtail it, but finds that the case before it does not fall withinthis ratio decidendi because of some material difference of fact.Restrictive distinguishing cuts down the expressed ratio decidendiof the earlier case by treating as material to the earlier decisionsome fact, present in the earlier case, which the earlier courtregarded as immaterial.

An example of restrictive distinguishing may be noted in the House ofLords decision in Peabody Fund v. Sir Lindsay Parkinson Ltd.,182 where theCourt restricted the application of Anns v. Merton LondonBorough.183 The Anns case is cited as authority for the propositionthat a municipality may be liable in negligence where it fails toproperly inspect building plans. In the Peabody Fund case, bydefining the duty of the municipality as being owed to owners andoccupiers threatened with the possibility of injury to safety orhealth, the House of Lords specified and made less general, thescope of the municipality’s responsibility as it had been definedin the Anns case. In the result, the Court did not allow a claim bythe developer of a housing project who suffered damages when themunicipality’s drainage inspector failed to point out that thedrainage system was not being installed in accordance with theapproved design.184 Thus, in Peabody Fund the element of restrictivedistinguishing is the introduction of the requirement of thepossibility of injury to safety or health.

An example of non-restrictive distinguishing may be noted in theSupreme Court of Canada decision in Town of the Pas v. Porky PackersLtd.185 In this case, the Court noted that the authority of Hedley Byrne

182 [1984] 2 W.L.R. 953 (H.L.).183 [1978] A.C. 728 (H.L.).184 The law in Canada may be different. See an article by the writer published in

the Advocates’ Quarterly: “Common Law Negligence and the Liability of Governments andPublic Authorities”.

185 (1976), 65 D.L.R. 1 (S.C.C.).

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Co. Ltd. v. Heller186 required the plaintiff in a negligentmisrepresentation claim to show that he relied on the skill andjudgment of the party from whom he had received incorrectinformation. In the Porky Packers case the plaintiff had receivedincorrect zoning advice from municipal officials but theplaintiff’s representative was a former municipal council memberwho had more expertise in planning matters than the officials. Inthese circumstances, there could be no reliance and the doctrine orauthority of Hedley Byrne by its own criteria was not available. Theplaintiff’s claim was dismissed. The material fact of theplaintiff’s lack of reliance provided the element for non-restrictive distinguishing of Hedley Byrne.

Where the case being relied upon has a built in public policy factor,the lawyer who wishes to distinguish the case may argue that publicpolicy has changed and while the legal principle of the precedentcase is still good law, it is distinguishable because of the changeof circumstances. The possibility of this type of argument wasnoted in the case of Nordenfelt v. Maxim Nordenfelt Guns and AmmunitionCo.,187 an important case with respect to the principle thatcontracts in restraint of trade may be voidable on grounds ofpublic policy. In his judgment in this case, Lord Watson noted: Aseries of decisions based upon grounds of public policy, however eminent the judges bywhom they were delivered, cannot possess the same binding authority as decisions whichdeal with and formulate principles which are purely legal.188

The lawyer can argue that while the precedent case does stand for thelegal proposition for which it has been cited, there is anotherprecedent of equal weight which stands for the oppositeproposition. The lawyer then goes on to argue that it is that othercase which the court should follow. This type of argument isrelated to but in the end result different from the “per incuriamargument” because it does not necessarily challenge either decisionas having been given per incuriam. The rule is rather that thecourt may decide which one of the conflicting decisions to follow.However, in Hamilton v. Hamilton189 Middleton J., sitting as a lowercourt judge, said that where there are conflicting decisions, thelower court judge may follow the decision which commends itselfmost to him. Unfortunately, Middelton J. does not citethe Fisken case and the Hamilton v. Hamilton decision may thus be saidto have been given per incuriam. But, in 1958 the Court of Appeal

186 [1963] 2 All E.R. 575.187 [1894] A.C. 535, and see the discussion in Friedman, supra, note 4 at 736-737.188 [1894] A.C. 535 at 553.189 [1943] O.R. 406.

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decided Woolfrey v. Piche.190 In that case, LeBel J.A. stated: …but Iam now faced with two conflicting decisions in this Court on thesame point, and in that unfortunate state of things I apprehendthat I must choose between them as I have done. That is what wasdone in Young v. Bristol Aeroplane Co., [1944] 1 K.B. 718, where threeexceptions to the application of the rule in Velazquez [the staredecisis rule] were stated. One of these (the first incidentally) isthat “the court is entitled and bound to decide which of twoconflicting decisions of its own it will follow”. [p. 729] There isauthority also for the proposition that where two cases cannot bereconciled, the more recent and the more consistent with general principlesought to prevail. See Campbell v. Campbell (1880), 5 App. Cas. 787 at p.798.191 [emphasis added]

Legal argument when there is no binding precedentThe above seven types of legal argument are the principle techniques

used to get around an apparently binding precedent and we can turnnext to the problem of not being able to find a precedent case.Because there is considerable room for imagination and creativityin responding to this problem, it is more difficult to identify themain techniques. Nevertheless, some typical responses may beidentified. Below we will consider three classical types of legalreasoning used in these circumstances. Again the doctrine of staredecisis, this time in spirit, may be noted.

Where a lawyer cannot find a binding precedent, he or she may relyon a non-binding precedent from another jurisdiction. While notobliged to do so, the court may be impressed with or be persuadedby the reasoning and be prepared to adopt the rule established bythe foreign case. However, care must be taken in employing thistechnique because it often necessitates reviewing the foreign lawto determine whether there may be underlying differences inprinciples which qualify or which may diminish the persuasivenessof the foreign case. For example, decisions on the American Bill ofRights will obviously be important and helpful in interpreting ourown Charter of Rights and Freedoms. However, it must not be lost sight ofthat there is no provision in the American Constitution comparable tothe provision in our Charter that the rights set out “are guaranteedsubject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society”.192

190 (1876), 40 U.C.Q.B. 146.191 (1958), 13 D.L.R. (2d) 608.192 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B

of the Canada Act 1982 (U.K.), 1982, c. 11, s. 1.

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Where a lawyer cannot find a binding precedent, he or she may forma legal argument from first principles. This approach identifieslegal principles from decided cases and argues that while thefactual circumstances of the cases may appear different,analytically they are the same. This kind of legal argument isoften used with respect to determining the measure of damages. Forexample, without any reference to its particularfacts, Wertheim v. Chicoutimi Pulp Co.193 is often cited as authority forthe legal principle that where there is a breach of contract thenas far as money can do so, the injured party is to be placed in asgood a position as if the contract had been performed. The generalprinciple is then applied to the particular facts of the immediatecase.This type of approach may be noted also with respect to theissue of liability; for example, Hedley Byrne & Co. Ltd. v. Heller, supra,has frequently been cited as applying to fact situations which donot remotely resemble the facts of that case. This kind of argumentdoes not purport to extend or develop the law; rather, the sense ofit is just the opposite. The underlying premise is that the judgewill be applying and will not be departing from decided law. Thespirit of stare decisis may be noted here.

Where a lawyer cannot find a precedent he or she can go beyondfirst principles and instead develop an argument that the decidedcases have evolved to a general principle which covers theimmediate case. This is a very sophisticated and creative type ofargument. It is the kind of argument in which common law lawyersand judges take particular pride. It is this type of argument thatcan be identified in the majority judgment of Lord Atkin in McAlister(or Donoghue) v. Stevenson.52 In that case, there were two strongdissenting judgments of Lord Buckmaster and Lord Tomlin and theirlegal argument was that the plaintiff’s claim did not come withinthe reach of the established authorities but represented a new typeof claim. Lord Atkin’s response was that while the decided casesmight each examine particular types of liability, there must be acommon rationale. His Lordship stated: At present I content myself withpointing out that in English law there must be, and is, some general conception of relationsgiving rise to a duty of care, of which the particular cases found in the books are butinstances.194

His Lordship then went on to complete his famous speech which is thefoundation of the modern law of negligence. In his approach, we can

193 [1911] A.C. 301 (P.C.).194 R. v. Sellars, [1980] 1 S.C.R. 527; Ottawa v. Nepean, [1943] 3 D.L.R. 802 (Ont.

C.A.); Re McKibbon and R. (1981), 34 O.R. (2d) 185, aff’d 35 O.R. (2d) 124 aff’d onother grounds (sub nom. R. v. McKibbon, [1984] 1 S.C.R.133; Woloszcuk v. Onyszczak (1976), 1 C.P.C. 129 (Ont.).


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again note the spirit of stare decisis. Lord Atkin did not ignorethe precedents. Instead he found within them an underlyingprinciple which he then applied. In a sense, Lord Atkin lookedbackward before he moved the law forward. Further, his argument wasnot based on any assertion that the principle he was articulatingwas the next logical step in the law. Indeed, an appeal to purelogic is difficult because established precedents may prevent thelaw from developing as a matter of logical progression. LordHalsbury in Quinn v. Leathen195 stated:

A case is only an authority for what it actually decides. I entirelydeny that it can be quoted for a proposition that may seem tologically follow from it. Such a mode of reasoning assumes that thelaw is necessarily a logical code, whereas every lawyer mustacknowledge that the law is not always logical at all.196

Thus, McAlister (or Donoghue) v. Stevenson does not offend the letter orspirit of the doctrine of stare decisis and provides a classicexample of legal reasoning and legal argument in circumstanceswhere there was no near precedent for the case.

195 Stuart v. Bank of Montreal (1909), 41 S.C.R. 516, rev’g 17 O.L.R. 436, aff’d [1911]A.C. 120 (P.C.); 6C.E.D. (Ont. 3rd) Courts, para. 389.

196 R. v. Sellars, [1980] 1 S.C.R. 527; Ottawa v. Nepean, [1943] 3 D.L.R. 802 (Ont.C.A.); Re McKibbon and R. (1981), 34 O.R. (2d) 185, aff’d 35 O.R. (2d) 124 aff’d onother grounds (sub nom. R. v. McKibbon, [1984] 1 S.C.R.133; Woloszcuk v. Onyszczak (1976), 1 C.P.C. 129 (Ont.).

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Do not provide 'naked citations''A naked citation leaves it to the judge to figure out how the cited

case bears on the issue to be resolved. Give the judge a nakedcitation and I have been discourteous, imposing on the judge's timeand energy.'197

Rather, present the cases fully enough that the judge does not feelthey must read the case to understand it.198

And show how the cases fit into my argument, so that the judgeunderstands their significance.199

197 Irving Younger, 'Citing Cases for Maximum Impact' (1986) 72(10) ABA Journal 110.198 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81,

91; Joseph P Napoli, 'Forceful Brief Writing and Oral Argument' (1977) 12 Trial Lawyers' Quarterly 82, 85.

199 Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 175; Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 53; Irving Younger, 'Citing Cases for Maximum Impact' (1986) 72(10) ABA Journal 110; Deborah E Bouchoux, Aspen Handbook for Legal Writers (2005) 161.








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Cite Persuasive Cases OnlyA further common mistake is to cite cases which are not persuasive to

the particular court which is hearing the appeal. If the case isbriefed in the Supreme Court, the only case law cited should befrom the Supreme Court. If the case is briefed in a state supremecourt, the only caselaw cited should be from the Supreme Court,from the Supreme Court of that state, or from the supreme court ofanother state. Cases from lower courts should only be cited when noSupreme Court cases are available. If a case is briefed in afederal appellate court, the writer should try to cite cases fromthe Supreme Court or from the appellate circuit where the case ispresently at. If the case is briefed in a state appellate court,the writer should try to cite cases from the Supreme Court, thestate supreme court, or from the appellate court where the case ispresently at. Only if no such case law is available, should casesfrom other appellate jurisdictions be cited. A fifth common mistakemade in appellate brief writing is to string cite cases. Citing acase from the Supreme Court along with a case out of the particularcourt which is hearing the appeal is sufficient. If the appeal isbeing heard in an intermediate appellate court and no higher courtcases are available, one case out of the court where the appeal isbeing heard is sufficient. Only if no such cases are availableshould other cases be cited. The only time that string citationsare appropriate is when a party wishes to demonstrate the wideacceptance of a legal proposition. In such circumstances, thestring citation should go in a footnote. However, I will remindmyself that,

‘anyone can argue the law, since the law is known to all, and so, it is smart to argue the facts.’

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Cite Most Recent CasesAnother common mistake in legal rhetoric is to cite cases which are

still good law but which are stale. The most recent cases shouldalways be cited. These will provide the most recent interpretationof the applicable law. Only cite older cases when there are nonewer cases to rely on.

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No String of Citations I will not overload my brief with case citations.200 I should 'give the

court the necessary cases and not one more. No citations just to show off'.201 If I havea particularly strong citation on point, I risk diluting the strongcitation by adding a lot of other citations that bear onlytangentially on the issue.202 And if I overload my argument withcitations, I might discourage 'if not … disgust the mostindustrious judge'203 who must read the brief. Yet I might want toadd citations to supplement an old citation, where sheer weight ofprecedent forms part of the case, and when synthesizing a confusingarea of law.204 The less contentious a proposition, the lessauthority I need.205

I will not provide string citations:'A string citation is several cases cited one after another, each separated from the next only by

a semicolon. It is hideous on the page and useless to the judge reading it. A good case in astring citation just gets lost.'206

200 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 208, 210–12, 213–22; Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice(2006) 22, 52–3; Steven D Stark, Writing to Win: The Legal Writer (1999) 132.

201 Irving Younger, 'Citing Cases for Maximum Impact' (1986) 72(10) ABA Journal 110.202 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 208.203 John W Davis, quoted in Irving Younger, 'Citing Cases for Maximum Impact' (1986)

72(10) ABA Journal 110.204 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 210–

12, 213–22.205 See further Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice

(2006) 22, 52–3.206 Irving Younger, 'Citing Cases for Maximum Impact' (1986) 72(10) ABA Journal 110.

Compare Steven D Stark, Writing to Win: The Legal Writer (1999) 132.











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Be the Devil’s Advocate, Argue Counter Issues, PrecedentsDo not ignore issues or precedents that harm my case; rather,

confront, explain, distinguish, or accommodate them.207 Do thisbecause:

ق 'there's nothing unlawyerlike in losing my share of cases'; but 'there's a great deal that'sunlawyerlike in trying to flimflam a court'208

ق giving the judge the full picture shows candor and 'bolsters my credibility by enhancing thesense that I am handling the facts fairly' and respecting my opponent's intelligence209

ق most persuasion theorists believe that 2-sided arguments persuade highly educated peoplemore than 1-sided arguments210

ق under 'inoculation' theory, audiences pre-exposed to weakened counter-arguments will findthose counter-arguments less persuasive when my opponent comes to present thosecounter-arguments211

ق the court will have to address my opponent's argument anyway for I to win

207 See, for example, Deborah E Bouchoux, Aspen Handbook for Legal Writers (2005) 159.208 Irving Younger, 'Citing Cases for Maximum Impact' (1986) 72(10) ABA Journal 111.209 Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written

Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 160. See also Michael Kirby, 'Ten Rules of Appellate Advocacy' (1995) 64 Victorian Bar News 47, 54; (1995) 69 Australian Law Journal 964, 973 ('Advocates who do this faithfully are much valued by the judges. Their honesty is remembered. It adds to the most priceless possession of an advocate—reputation'); Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 150; James W McElhaney, 'Balanced Persuasion' (2002) 88(3) ABA Journal 60, 61 ('Don't hide your warts. If you look likeyou're concealing something or creating a false impression, your credibility—and your argument—will be destroyed').

210 See Paul T Wangerin, 'A Multidisciplinary Analysis of the Structure of PersuasiveArguments' (1993) 16 Harvard Journal of Law and Public Policy 195, 202, 209. See also F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 92; Lucille R Kaplan, 'Writing that Persuades: No Quick Fix for the Advocate' (1984) 20 Trial 44, 45. For techniques on handling adverse authority, see Step 8. See more generally Robert J Condlin, '‘Cases on Both Sides’—Patterns of Argument in Legal Dispute Negotiation' (1985) 44 Maryland Law Review 65 at, for example, 86–7; PatriciaM Wald, '19 Tips from 19 Years on the Appellate Bench' (1999) 1 Journal of Appellate Practice and Process 7, 11; Robert H Jackson, 'Advocacy Before the United States Supreme Court' (2003) 5 Journal of Appellate Practice and Process 219, 224; Frederick BernaysWiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 104; Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 147, 149, 150.

211 See Paul T Wangerin, 'A Multidisciplinary Analysis of the Structure of PersuasiveArguments' (1993) 16 Harvard Journal of Law and Public Policy 195, 208–9; Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 151.







http://www.law.umaryland.edu/journal/mdlr/index.asp









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But I will put my argument before answering the other side's points.212

Know and Distinguish the Other Side's Cases- probability and counterarguments

According to Aristophanes, his play The Clouds, rhetoric is pillared onthe axiom that, ‘every argument could be countered with an opposing argument’,an argument's effectiveness derived from how ‘likely’ it appearedto the audience (its probability of seeming true), and that anyprobability argument could be countered with an invertedprobability argument. Thus, if it seemed likely that a strong, poorman were guilty of robbing a rich, weak man, the strong poor mancould argue, on the contrary, that this very likelihood (that hewould be a suspect) makes it unlikely that he committed the crime,since he would most likely be apprehended for the crime. They alsotaught and were known for their ability to make the weaker (orworse) argument the stronger (or better). This is the doctrine ofprobability and counter arguments.

I need to know and distinguish the other side's cases briefly:I will elaborate analysis and rebuttal of every case cited in an

opponent's brief, or too lengthy or too numerous references to hisprincipal cases, may show over-concern about their importance. Oneshould dispose of them as ably and as pungently as one can—and moveon.'213

I will then end with:

و a concise statement of why I should win the case—for example, the injustice or poor policythat will occur if the court rules against I or the justice that will be served if the court saysyes to my client214

212 Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 172. ('Brief writers … frequently get sucked into the other's side's argument by setting up a counter-argument that simply reacts to points made by opposing counsel. These approaches result in a disjointed product lacking a coherent theme, and worse, highlighting the opponent's position rather than the writer's own'); Jonathan K Van Patten, 'Twenty-Five Propositions On Writing and Persuasion' (2004) 49 South Dakota Law Review 250, 261 ('Do the affirmative side of your argument first, then counter punch. It sets up the response so much better. The response is always better after dealing with why you win'); for qualifications and exceptions, see Baida, above, 172–3; Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 405–6; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 137; Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 34.

213 H Weihofen, Legal Writing Style (2nd ed, 1980) 297 quoted in Andrew H Baida, 'Writing a Better Brief: A Useful Guide to Better Written Submissions in Appellate Advocacy' (2002) 22 Australian Bar Review 149, 176.







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و a specific statement on what I want the court to do215

This may seem repetitive, but repetition like this can itselfsometimes help to persuade.216After all, Albert Einstein was right,‘repetition is the mother of learning.’

214 Jonathan K Van Patten, 'Twenty-Five Propositions On Writing and Persuasion' (2004) 49 South Dakota Law Review 250, 270. For other tips on how to end a brief, see Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 414–20, 446–7.

215 Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 444; Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 57.

216 See footnote accompanying last tip, below, 'Avoid unnecessary repetition'. Organized simply and logically, The Five Types of Legal Argument shows readers howto identify, create, attack, and evaluate the five types of legal arguments (text,intent, precedent, tradition and policy). It also describes how to weave the arguments together to make them more persuasive and how to attack legal arguments.In this book, Huhn demonstrates exactly why the legal reasoning in a case is difficult to analyze. Each type of legal argument has a different structure and draws upon different evidence of what the law is. Thus this book does not merely introduce readers to law and legal reasoning, but shows how the five different legal arguments are constructed so that various strategies can be developed for attacking each one.




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Get Facts RightA well written Statement of the Facts, especially for the Appellant,

will lay the groundwork for the rest of the brief. The first commonmistake in appellate brief writing is for Appellant to write anincomplete Statement of the Facts or to write a Statement of theFacts which is slanted towards Appellant. A proper Statement of theFacts must state the facts accurately, it must state the factsfavorable and unfavorable to the party, and it must identifyinferences drawn from the facts.

question of fact, point of fact

In law, a question of fact, also known as a point of fact, is aquestion which must be answered by reference to facts and evidence,and inferences arising from those facts. Such a question isdistinct from a question of law, which must be answered by applyingrelevant legal principles. The answer to a question of fact (a"finding of fact") is usually dependent on particular circumstancesor factual situations.

To illustrate the difference:

Question of fact: Did Mr. and Mrs. Jones leave their 10-year-old childhome alone with their baby for 4 days?

Question of law: Does leaving a baby with a 10-year old child for 4days fit the legal definition of child neglect?

All questions of fact are capable of proof or disproof, by referenceto a certain standard of proof. Depending on the nature of thematter, the standard of proof may require that a fact be proven tobe "more likely than not", that is there is barely more evidencefor the fact than against, as established by a preponderance of theevidence; or true beyond reasonable doubt.

Answers to questions of fact are determined by a trier of fact, suchas a jury, or a judge. In many jurisdictions, such as the UnitedKingdom, appellate courts generally do not consider appeals basedon errors of fact (errors in answering a question of fact). Rather,the findings of fact of the first venue are usually given greatdeference by appellate courts.

trier of fact, finder of fact

A trier of fact, or finder of fact, is a person, or group of persons,who determines facts in a legal proceeding, usually a trial. To

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determine a fact is to decide, from the evidence, whether somethingexisted or some event occurred. 217 Various aspects of a case thatare not in controversy may be the "facts of the case" and aredetermined by the agreement of the separate parties; the trier offact need not decide such issues.

jury trial , jury

In a jury trial, a jury is the trier of fact. The jury finds the factsand applies them to the relevant statute or law it is instructed bythe judge to use in order to reach its verdict. Thus, in a jurytrial, the findings of fact are made by the jury while the judgemakes legal rulings as to what evidence will be heard by the juryand what legal framework governs the case. Jurors are instructed tostrictly follow the law as given by the judge, but are in no wayobligated to do so. In some cases this amounts to jurynullification, e.g. the jury effectively re-writing the law orblatantly ignoring it in a particular case.

In Anglo-American–based legal systems, finding of fact made by thejury are not appealable unless clearly wrong to any reasonableperson. This principle is enshrined in the Seventh Amendment to theUnited States Constitution, which provides that "... no fact triedby a jury, shall be otherwise re-examined in any Court of theUnited States, than according to the rules of the common law."

bench trial, judge

In a bench trial, judges are professional triers of fact. In a benchtrial, the judge makes both findings of fact and rulings of law. 218

The findings of a judge of first instance are not normally disturbedby an appellate court. 219

217 W A Wilson, 'A Note on Fact and Law' (1963) 26 MLR 609, at p 613.218 W A Wilson, 'A Note on Fact and Law' (1963) 26 MLR 609 – For discussion of

affirmation of propositions to establish a legal conclusion – "Truth-questions","Description- / Linguistic-questions", and "Probability-questions"

219 Lord Shaw of Dunfermline, Clarke v. Edinburgh and District Tramways Co., 1919S.C.(H.L.) 35, at p 36.

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Embrace Ambiguity! I will remind myself that legal argumentation proceeds informally

rather than according to logical forms and theorems makes theoryparticularly well suited to the study of legal argument. Most legalclaims cannot be formally or empirically proved. Instead, they mustbe judged to be reasonable by the adjudicator; the lawyer must gainthe adherence of the audience to the client's position. Ambiguityin law typically arises in four contexts:

1. when there is no applicable rule because the case is one of first impression;220 2. when the applicable rule is subject to more than one meaning; 3. when an otherwise applicable rule is claimed to be invalid;221 and, finally, 4. when a conflict exists between two potentially applicable rules.222

Because legal reasoning is largely rule-based and rule-directed, mostissues of law involve the interpretation of legal rules.223

220 See Perelman & Olbrechts-Tyteca, supra note 22, at 59-60, 131.221 Id. at 59.222 Id. at 196-97, 200, 414-15.223 See Chaim Perelman, The Idea of Justice and the Problem of Argument, trans. John

Petrie, 61-65 (New York, 1963). This statement is not meant to exclude the importance of case-based arguments founded on analogy. Rather, I use the term ‘rule’ in the broad sense to include the interpretation or application that follows the choice of an analogous case.

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Logic Of judgementEvery legal argument can be distilled to the same simple structure, a

variation of the classic categorical syllogism: These facts (narratefacts) . . .viewed in the context of this law/contract/regulation/precedent/section of the Constitution/principal of equity (chooseone) ….lead to the conclusion (relief sought).

The logic never varies. At trial the judge’s job is to discover thispattern of thought in the morass of facts, distortions, outrightlies, genuine issues, and spurious arguments that the contendingparties allege. And the attorney’s job is to assist the judge inreducing the facts and evidence to this pattern.

legal arguments (three patterns)In jurisprudence, only three arguments can occur: one about facts, the

other two about the law: 1. The litigants may contest factual allegations. 2. Or they may claim that the other side has cited the wrong law.3. Or they may concede that the other side has cited the right

law, but misinterpreted it. Every case boils down to some combination of these three basic

disputes. There are no others. Even when some procedural issue isargued (venue, for example, or timeliness), the argument willalways be the same. One side will allege certain facts in thecontext of a controlling law, or principle, or standard, and theother side will either dispute the facts, or argue that the wronglaw has been cited, or that the right law been misinterpreted.

When several issues are involved, each must be resolved with the samelogic: certain facts considered in the context of a particular law,lead to an ineluctable conclusion.

learn what to argue, the fact, or the lawThe logic of jurisprudence is the same in trial courts and courts of

appeal. The only difference is that at trial, litigants are likelyto argue about both facts and law, whereas in courts of appealarguments tend to focus on the law—the appellant arguing that thecourt below has applied the wrong law or misinterpreted the rightone. Appellate courts are not equipped to examine the quality orquantity of the evidence itself. They cannot call in witnesses orexamine exhibits or indulge litigants in the lengthy,unpredictable, and often disorderly proceedings that arecharacteristic of a trial. Courts of appeal may hear argumentsabout the admissibility or sufficiency of certain evidence, but

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except in rare circumstances they will not second-guess trialcourts on the inferences drawn from whatever evidence they deemadmissible.

argument to be logicalThe good lawyers have logical arguments. Their arguments follow from

one level to the next, logically, predictably. They produce anorderly sequence, a diary of dawning awareness in which a resultemerges from an application of law to fact. They remember that thegoal of jurisprudence is to pluck the essential issues, therelevant facts, and controlling laws from the maelstrom ofarguments, allegations, precedents, principles, and pretensionsthat rage about during a trial.

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Use RhetoricFundamental for prose speech is the use of usual and therefore clear

words. In order to make the speech pleasant and dignified and inorder to avoid banality the orator must make moderate use of non-familiar elements. Metaphor plays an important role for prosestyle, since metaphors contribute, as Aristotle says, clarity aswell as the unfamiliar, surprising effect that avoids banality andtediousness.

Learning ready samples of arguments would not impart the art itself tothem, but only the products of this art, just as if someoneacquiring ready made shoes in the pretence of learning the art ofshoe making224.

The techniques of presentation can be used to create presence in thestatement of the facts in a brief to the court. Although the courtwill ultimately decide the case on the basis of the law, thestatement of the facts can engender a sense of fairness or sympathyabout which party ought to prevail. The careful choice ofdescriptive terms, the arrangement of words and dependent clauses,the use of active and passive voice, and the degree of detail andabstraction can lend presence to facts that are favorable to aclient's position. For example, the statements ‘Plaintiff wasinjured while using the machine’ and ‘The defendant was inpossession of less than an ounce of a controlled substance’ areimbued with a presence that is different from that effected by thestatements ‘Plaintiff injured himself while using the machine’ and‘Twenty-five grams of crack cocaine was discovered on thedefendant's person.’ As these examples suggest, the impact andconnotation of facts can be enhanced by characterization andarrangement that is mindful of the element of presence.

Originally the discussion of style belongs to the art of poetry ratherthan to rhetoric; the poets were the first, as Aristotle observes,to give an impulse for the study of style. Nevertheless he admitsthat questions of style or, more precisely, of different ways toformulate the same subject, may have an impact on the degree ofclarity: ‘What concerns the topic of lexis, however, has some small necessary place inall teaching; for to speak in one way rather than another makes some difference in regardto clarity; although not a great difference…’225. Clarity again matters forcomprehension and comprehensibility contributes to persuasiveness.Indeed Aristotle even claims that the virtue or excellence (aretê)

224 see Sophistical Refutations 183b36ff225 Rhet. III.1, 1404a8–10

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of prose style ultimately depends on clarity, because it is thegenuine purpose of a speech is to make something clear. In prosespeeches, the good formulation of a state of affairs must thereforebe a clear one. However, saying this is not yet enough to accountfor the best or excellent prose style, since clear linguisticexpressions tend to be banal or flat, while good style should avoidsuch banality.

Aristotle distinguishes between the kuria onamata, the standardexpressions, and the glôtta, the borrowed words, idioms or vernacularexpressions. The best established words, the kuria, make theirsubject clear, but do not excite the audience's curiosity. Sinceremote things are admirable and the admirable is pleasant,Aristotle says, one should make the speech admirable and pleasantby the use of such unfamiliar words (glôtta). However one has to becareful not to use inappropriately dignified or poetic words inprose speech. Thus the virtue of style is accomplished by theselection and balanced use of these various rhetorical devices.

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TRIAL ADVOCACY

Trial advocacy Trial advocacy is the branch of knowledge concerned with making

attorneys and other advocates more effective in trial proceedings. Trial advocacy is taught in primary, secondary, and undergraduate schools (usually associated with a mock trial elective).226 It is taught as an essential trade skill for litigators in law schools and in continuing legal education programs.

The skills of trial advocacy can be broken into two categories: skillsthat accomplish individual tasks (tactical skills) such as selecting jurors, delivering opening statements and closing arguments, and examining witnesses, and those skills that integratethe individual actions to achieve greater effects and to drive unfolding events toward the advocate’s desired outcome (strategy).227

Most law school trial advocacy courses focus on tactical skills, though some integrate basic methods of strategic planning. Some academics have expressed disfavor with advanced strategic techniques because of the imbalance they create, especially againstattorneys who are unaware of them. Proponents of advanced strategictechniques argue that these methods are the only effective means tocounter the already-existing imbalances in the system, as between indigent defendants and the state, and between working-class plaintiffs and well-resourced, wealthy corporations.228

Trial advocacy originally focused on individual actions within the trial, proposing methods for improved selection of jurors, deliveryof argument, and direct and cross examination. However, in the 1970s, NITA advanced the concepts of theme and theory as methods ofintegrating the various components into a cohesive whole.229 More recently, litigation strategy has blossomed with the importation ofconcepts from economic game theory, complexity theory, Gestalt psychology, and the application of maneuver warfare as a means not only of integrating the various actions within the trial into a

226 Adamson, John E. Law for Business and Personal Use p. 104227 Dreier, A.S., Strategy, Planning & Litigating to Win, pp. 1–2228 Selby-Dreier Debate on Advocacy Teaching229 Lubet, Steven (2004) Modern Trial Advocacy

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comprehensive case, but also as a means of gaining a decisive advantage over opposing counsel.230

Jury selection and Voir direThe selection of jurors that will be receptive to the argument the

attorney intends to make.231

Opening statementPresenting a non-argumentative overview of what the jury will see,

often in the context of the attorney’s theme, theory and story.232

Direct examinationEliciting evidence from one’s own witnesses through non-leading

questions. Because studies have shown that people best remember thefirst and the most recent (last) information heard (methods referred to as primacy and recency), the preferred method is to start with an engaging and favorable topic, move through more mundane matters, and to finish on a strong, favorable point.233

Cross examinationWorking with witnesses offered by the opposing party who may be

hostile or uncooperative.234

Closing argumentUsing argument to create within the jurors a perception of what they

have seen and heard that influences them to find in favor of the attorney’s client.235

PersuasionThe general principles that enable an advocate to make the jurors more

receptive to his claims.236

Mock trialIn mock trial, students take responsibility for the

prosecution/plaintiff or defense case in a trial presented using

230 Dreier, A.S. (2012) Strategy, Planning & Litigating to Win231 see e.g. Lubet, p. 529 et. Seq.232 see e.g. Lubet, p. 8 et. Seq.233 see e.g. Lubet, p. 45 et. Seq.234 see e.g. Lubet, p. 83 et. Seq.235 Dreier, A.S. (2012) Strategy, Planning & Litigating to Win p. 79236 See e.g. Lubet, p. 16, 32 et. Seq.

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fabricated evidence, and role-players as witnesses and faculty or volunteers as judge or jury. It evaluates the participants’ skills in argument, evidence handling, and examination of witnesses, but omits jury selection and strategic matters. Mock trial differs frommoot court in that moot court practices appellate argument, and so involves no handling of witnesses or evidence, but rather is an exercise in legal research and oral advocacy.237

Litigation strategyThe means of organizing a case into a clear and complete presentation.

Case Diagrams

In which the attorney charts the elements he / she intends to prove (or attack) and the evidence that will support each. These ensures the case is comprehensively addressed.

Theme and TheoryThe theme is a sound bite that captures the emotional appeal of the

case, and the theory is an explanation of events. These serve as strategic focal points, allowing individual actions (opening, examination of each witness, etc.) to be united with a common focus, and in a way that clarifies and reinforces the perception ofthe case the attorney wants the jury or judge to adopt.238

trial strategy, Litigation strategyThe means of organizing the case to maximize the combined impact of

every element, and to overwhelm or outmaneuver the opposing counselwhile presenting a clear, decisive argument to the jury (or judge, in the case of bench trials).239

Advanced strategic skills, based upon psychology and military maneuverphilosophy, are generally learned outside the classroom, as few lawschools teach them. In fact, academics have criticized advanced strategic techniques for tipping verdicts through means unrelated to the merits of the case. For example, these techniques may be used to cause an advocate unfamiliar with them to take actions thatunwittingly undermine his client’s interests. There is particular

237 Korzen, John (2010) Make Your Argument: Succeeding in Moot Court and Mock Trial238 see e.g. Lubet, p. 411 et. Seq.239 Dreier, A.S. (2012) Strategy, Planning & Litigating to Win pp. 1–7

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concern regarding the use of advanced strategic techniques by prosecutors, who already wield the substantial power of the State against often poorly-resourced defendants.

The counterargument is that strategy can correct already-existing imbalances in the justice system, such as when inexperienced advocates must face highly experienced ones, when small firms oppose large ones, and when poor clients must litigate their rightsagainst wealthy ones. Under the current system, without a well-developed strategy, a small firm with a poor client stands almost no chance of success against a large firm with its greater resources, regardless of the merits of the case.

Maneuver strategy An alternative to arguing the evidence or the law, maneuver strategies

pursue solutions such as redirecting the focus of the trial, reshaping the way events are perceived, or disrupting or surprisingthe opposing counsel, rendering him ineffective at responding to unfolding events.240 While these methods are practiced widely, even by advocates not educated in strategy, some object to this as improper even when practiced ethically, as it subordinates the importance of the evidence and the law in determining a trial's outcome. One proponent of maneuver strategy, however, has noted that regardless of whether the attorney intends to leverage the tools of maneuver strategy, the attorney must understand the methods or she will be ill-equipped to identify and counter them.241

Gestalt psychology This branch of psychology focuses on how things are perceived in whole

as opposed to how individual components appear. It aids in ensuringthe jury (or judge, in bench trials) perceives events as the attorney desires, and it offers a means of shaping the way witnesses and opposing counsel will perceive the problems an attorney raises for them during trial. When coupled with game theory, shaping perception allows an attorney to influence or shapethe actions the hostile witness or counsel take.242

240 Dreier p. 20241 Dreier, pp. 86–8242 Dreier pp. 37–40, 83–4

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Game theory Game theory offers models of how people make decisions. In trial

practice, game theory is useful in predicting the likely actions witnesses will take when presented with a decision. Because decisions are framed according to how they perceive a situation, when game theory is coupled with Gestalt psychology, attorneys can present problems to witnesses or opposing counsel in a way that increases the likelihood of them making decisions about their responses that improve the attorney's strategic position.243

Lines of effort In the way a case diagram matches evidence to elements, the line of effort matches actions to specific effects the attorney intends to the various results that achieve her or hisgoal.244

243 Dreier pp. 62–8244 Dreier pp. 47–65

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MOOT COURTS

mootness doctrine In American law, a matter is moot if further legal proceedings with

regard to it can have no effect, or events have placed it beyondthe reach of the law. Thereby the matter has been deprived ofpractical significance or rendered purely academic.

This is different from the ordinary British meaning of "moot", whichmeans "debatable". The shift in usage was first observed in theUnited States. The U.S. development of this word stems from thepractice of moot courts, in which hypothetical or fictional caseswere argued as a part of legal education. These purely academicissues led the U.S. courts to describe cases where developingcircumstances made any judgment ineffective as "moot". The doctrinecan be compared to the ripeness doctrine, another judge-made rule,that holds that judges should not rule on cases based entirely onanticipated disputes or hypothetical facts. Similar doctrinesprevent the federal courts of the United States from issuingadvisory opinions.

moot courts A moot court is an extracurricular activity at many law schools in

which participants take part in simulated court proceedings, whichusually involves drafting briefs (or memorials) and participatingin oral argument. The term derives from Anglo-Saxon times, when amoot (gmot or emot) was a gathering of prominent men in a localityto discuss matters of local importance. The modern activity differsfrom a mock trial, as moot court usually refers to a simulatedappellate court or arbitral case, while a mock trial usually refersto a simulated jury trial or bench trial. Moot court does notinvolve actual testimony by witnesses, cross-examination, or thepresentation of evidence, but is focused solely on the applicationof the law to a common set of evidentiary assumptions to which thecompetitors must be introduced. In most countries, the phrase "amoot court" may be shortened to simply "a moot" and the activitymay be called "mooting".

Moot court and law review are the two key extracurricular activitiesin many law schools. Students typically spend a semesterresearching and writing the memorials, and another semesterpracticing their oral arguments. Whereas domestic moot courtcompetitions tend to focus on municipal law, regional and

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international moot competitions tend to focus on subjects such aspublic international law, international human rights law,international humanitarian law, international trade law,international maritime law, international commercial arbitration,and foreign direct investment arbitration. Procedural issuespertaining to jurisdiction and choice of law are also occasionallyengaged, especially in the arbitration moots.

moot courts OperationLaw schools structure their moot court programs differently. Some moot

court organizations accept a small group of people for membership,and those members each participate in a number of national orregional moot court competitions. Other schools accept a largernumber of members, and each member is matched with one competition.A few schools conduct moot court entirely intramurally. Moot courtcompetitions are typically sponsored by organizations with interestin one particular area of law, and the moot court problems addressan issue in that field. Competitions are often judged by legalpractitioners with expertise in the particular area of law, orsometimes by sitting judges.

The basic structure of a moot court competition roughly parallels whatwould happen in actual appellate practice. Participants willtypically receive a problem ahead of time, which includes the factsof the underlying case, and often an opinion from a lower courtthat is being challenged in the problem. Students must thenresearch and prepare for that case as if they were lawyers oradvocates for one or sometimes both of the parties. Depending onthe competition, participants will be required to submit writtenbriefs, participate in oral argument, or both. The case or problemis often one of current interest, sometimes mimicking an actualcase, and sometimes fabricated to address difficult legal issues.

A number of moot court competitions focus on specific areas of law. moot court Case Undergraduate moot court cases pose two certified questions. The case

(known as the “record”) includes an appellate majority opinion anda dissent. The “library” is a closed one. Typically, the recordincludes twenty opinions that students can rely upon for theirarguments. Rules allow them to refer to cases cited in the casesdirectly included in the record. However, they can only rely onthese cases within cases to the degree that they were used by theauthorities directly in the record. All teams competing in ACMA-sponsored events will argue the same case. ACMA students haveengaged in oral argument on issues such as same-sex marriage,

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national health care, privacy under the 4th Amendment, life termsfor minors who are not guilty of murder or attempted murder,freedom of religion, a federal ban on firearms on school grounds,and warrantless domestic wiretapping of suspected terrorists. Casesare written by the ACMA. The case problem is released on the ACMAwebsite by May 1 of each year.

moot court Teams Undergraduate moot court teams consist of two oral advocates. The

advocates are responsible for knowing both issues – but typicallyare only asked about one certified question. Each team will receive20 minutes to argue its case, and each advocate must speak for aminimum of seven minutes. Teams are judged on their forensics,knowledge of the law, demeanor, and ability to answer questionsfrom the bench.

moot court Judges Good judges are the key to a good moot court hearing. Judges are

typically lawyers or members of the state or federal bench. Attimes, law students (especially those with past undergraduate mootcourt experience) are asked to judge.

moot court procedureA few days before the moot takes place each team will prepare and

exchange their skeleton arguments or brief. Copies will also beprovided to the judge along with the moot problem. The judge isnormally an academic or practising solicitor or barrister. The mootitself takes the form of an oral argument. The order in which theadvocates will speak mirrors that of the actual courts the exerciseis based upon. In England and Wales the order would be as follows:

senior counsel for the appellantsenior counsel for the respondentjunior counsel for the appellantjunior counsel for the respondentThe competition may also allow the appellants an additional few

minutes in order to reply to the respondents arguments.After the presentation of arguments has concluded, the judge will

retire to deliberate on both the law and the overall winning of themoot. A moot is not won and lost on the legal argument, but on theadvocacy skills of the participants. It is often the case that the

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team that has the weaker legal argument is in a better position asthey have to argue that much more persuasively.

MOCK TRIALS

defining mock trailA mock trial is an act or imitation trial. It is similar to a moot

court, but mock trials simulate lower-court trials, while mootcourt simulates appellate court hearings. Attorneys preparing for areal trial might use a mock trial consisting of volunteers as roleplayers to test theories or experiment with each other. Mock trialis also the name of an extracurricular program in which studentsparticipate in rehearsed trials to learn about the legal system ina competitive manner. Interscholastic mock trials take place on alllevels including primary school, middle school, high school,college, and law school. Mock trial is often taught in conjunctionwith a course in

Litigation related mock trialsLitigators may use mock trials to assist with trial preparation and

settlement negotiations of actual cases. Unlike school-related mocktrials, these mock trials can take numerous forms depending on theinformation sought. For example, when faced with complex factissues in a particular case, attorneys might convene a mini mocktrial to try different methods of presenting their evidence,sometimes before a mock jury. The structure is such that maximumlaw students from the host institution) participate by enacting therole of witnesses for the oral rounds. The students and facultywelcome this, as it provides a unique opportunity to learnpractical aspects of a trial, first hand.

Bar Mock TrialThe Bar National Mock Trial Competition involves students to take on

the roles of barristers and witnesses and present their caseagainst teams from other schools. It has been running annuallysince 1991 with regional tournaments and the national final. Thereare 2,000 students in years 10 to 13, 300 barristers and advocates,and 90 judges involved in this competition.

case packet The case packet is a series of documents including the charges, penal

code, stipulations, case law, and jury instructions as well as allexhibits and affidavits relevant to the case. During a mock trial,

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competitors are restricted to only the materials provided in thecase packet and may not reference any outside sources. In order toprepare for competition, teams thoroughly read and analyze the casepacket.

Mock trial teams Mock trial teams consist of a minimum of six and a maximum of twelve

official members.[8] Each team prepares both sides of the case:prosecution and defense in a criminal trial, plaintiff and defensein a civil action. Each side is composed of three attorneys (or incertain cases, two attorneys) and three witnesses, all played bymembers of the team. Therefore, the team's twelve members must beorganized into two teams of five-six for the prosecution/plaintiffand defense sides. It is important to note that high school mocktrial is governed by state bar associations, meaning that cases,rules, and competition structure vary from state to state whereasall of college mock trial is governed by the American Mock TrialAssociation, meaning that every school uses the same case and issubject to the same rules.

Mock trial Procedure

The mock trial begins with the judge entering the courtroom. The judgethen gives out the instructions to the jury (about what they are tolisten to). Then if there is a pretrial motion, the defense andprosecution give their respective pretrial arguments. The judgethen lets the prosecution or plaintiff give an opening statementfollowed by the opening statement of the defense. After the openingstatements, examination of the witnesses begins. Theprosecution/plaintiff calls their witnesses first. A studentcompetitor attorney for the prosecution/plaintiff does a directexamination of the witness. Once the direct examination iscomplete, the opposing team may cross-examine the witness. Afterthe cross-examination, if the first team chooses, they may redirectthe witness and, likewise, the other team may do a re-cross afterthis. This process is repeated for the two remaining plaintiffwitnesses. Once the prosecution/plaintiff has finished with theirwitnesses, the process is repeated with the defense witnesses,having the defense attorneys direct and the plaintiff attorneyscross-examine.

Once all of the witnesses have been examined, the trial moves toclosing arguments. The prosecutor/plaintiff again goes first. Afterthe defense finishes their closing argument, the plaintiff may givea rebuttal argument if they still have time remaining. In some

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competitions, the rebuttal is limited to the scope of the defense’sclosing argument.[9] Time limits are set at each level ofcompetition to prevent the trials from running too long and to keeprounds of competition running smoothly.

Mock trial Judging

Attorney evaluators give critique at the end of a mock trialcompetition.

There are several different ways that a mock trial can be judged. Inone, the judges for scoring the mock trial consist of the presidingjudge and two scoring judges, all of whom score the teams. In asecond method, there are two scoring judges and the presidingjudge, as in the first method, but the presiding judge does notscore the teams, rather the judge simply votes or casts a ballotfor one team or another. In yet another method of judging, thereare three scoring judges and the presiding judge is not involved inthe scoring of the teams. Often at college invitationals, there aretwo scoring judges, one of whom doubles as the presiding judge.Since enticing attorneys to judge is notoriously difficult (asjudges are rarely compensated with more than a free lunch), it israre to see more than two judges in a round at most competitions.

Unlike real law, the victorious team does not necessarily have to winon the merits of the case. Instead, evaluators score individualattorneys and witnesses on a 1-10 scale based on each stage of thetrial. These consist of the opening statements for the plaintiffand defense, each of the witnesses’ testimony, direct and cross-examination by attorneys, and the closing statements for bothsides. The team with the highest total number of points is often,but not always, the team that wins the judge's verdict. Given thismethod of scoring, it is possible for the defendant to be foundguilty or lose the case but for the defense team to still win theround.

In some competitions, points can be deducted from a team’s score fortestifying with information outside the scope of the mock trialmaterials and for unsportsmanlike conduct or abuse of objections.However, scores are completely at a judge's discretion, meaningthat scores are arbitrary.

Mock trial Power matching In the first round of the tournament, all of the teams are randomly

matched to compete with each other. After the first round of sometournaments, teams are “power matched” to go up against other teams

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with similar records (e.g. in the second round, a 1-0 team will bematched with another 1-0 team).[9] If there is a tie in record, thejudges will use the number of ballots and total points earned todecide the matching. This allows for teams to compete with otherteams of similar skill.

high school mock trialsThe mock trial program was started to allow high school students to

experience the courtroom in a hands-on role. The mock trials areset up and structured just like a real court, bound by the samerules.[30] This can help the students to know exactly what roleeach of the different people in a court (judges, lawyers,witnesses, etc.) do in the judicial system. Cases typically have todo with problems faced by teens, and will usually involve teenagersas witnesses.

interscholastic mock trial/trial advocacy Law schools participate in interscholastic mock trial/trial advocacy.

Teams typically consist of several "attorneys" and several"witnesses" on each side. A round consists of two law studentsacting as "attorneys" for each side.

The trial typically, although not always, begins with motions inlimine and housekeeping matters, then moves through openingstatements, witness testimony (both direct examination and crossexamination), and finishes with a closing argument, sometimescalled a summation. Throughout the trial, rules of evidence apply,typically the Federal Rules of Evidence, and objections are madeapplying these rules.

Every team in a tournament is given the same "problem" or "case",typically several months in advance, but for some tournaments onlya few weeks ahead of the tournament's start. The problems can becriminal or civil, which affects many procedural aspects of thetrial, for instance the increased rights of a criminal defendantnot to testify against himself. The cases are written in an attemptto create an equal chance of either side prevailing, since the mainobjective is not to identify the winner of the case, but rather theteam with superior advocacy skills.

Occasionally the winners of mock trial tournaments receive specialawards such as money or invitations to special events, but thestatus of winning a tournament is significant in and of itself.

1.

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OPENING STATEMENTS

The purpose of making these statements is to give the judge a road mapof my side of the case. In the opening statement, statespecifically what I want and why I want it. For example in acustody case, I may ask for primary physical custody because it isin the children's best interest to live with you. I make my case bysummarizing the evidence and explaining how this evidence supportsmy case.

state the legal issue in the opening paragragh I will state the legal issue in the opening paragraph. Bryan A Garner provides a useful formula:

'In deciding this [case, appeal, etc], the court need address only the following [2, 3, or whatevernumber] issues …' 245

I will partition my thoughts like Caesar’s Gaul, divided into threeparts. I will break the issues into 3 sentences:246

1. state the law (for example, 'The Constitution disqualifies parliamentary candidates if thecandidate owes a foreign allegiance');

2. summarize the facts of your case that tie into your legal statement (for example, 'In thiscase, the Defendant has dual citizenship');

3. put the issue as a question (for example, 'Should the court disqualify the Defendant?').Introducing the issue as a question sounds more objective than 'pushing my answer'.247

state conclusion upfront –crac theory!I will give my answer to the question (my conclusion) upfront:'All legal writing is more easily understood if the conclusion is stated before the reasoning is

provided.'248And if I force my audience to wait for my conclusions,then I tempt my audience to turn off before I reach my mainpoint.249

245 Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 56. See also Andrew Goodman, Influencing the Judicial Mind—Effective Written Advocacy in Practice (2006) 48.

246 Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 55, 87, 88. See also Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 73; Andrew Goodman, Influencing the Judicial Mind—Effective WrittenAdvocacy in Practice (2006) 48.

247 See Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 86.

248 F Trowbridge Vom Baur, 'The Art of Brief Writing' (1976) 22 The Practical Lawyer 81, 91. See also Joseph P Napoli, 'Forceful Brief Writing and Oral Argument' (1977) 12Trial Lawyers' Quarterly 82, 85; Harry Mills, Artful Persuasion: How to Command Attention, Change Minds, and Influence People (1999) 139, 143.














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I will use a version of CRAC to discuss cases.250 I will State thecase's Conclusion, the Rule applied, how the rule was Applied, andrepeat the Conclusion. Specifically, I will summarize what thecase holds before turning to its details. When I give the holdingfirst, 'the reader can test that conclusion against each nut and bolt of the reasoningthat follows'.251 An effective treatment [of cases] states the form ofaction, the relevant facts, the holding of the case, and one ormore apt quotations. This comprehensiveness gives the case a moresolid appearance than a sketchy summary.252

249 Bryan A Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2nd ed, 2004) 105–6.

250 See also F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 91

251 F Trowbridge Vom Baur, 'The Art of Brief Writing'(1976) 22 The Practical Lawyer 81, 91. See also Michael Kirby, 'Ten Rules of Appellate Advocacy' (1995) 64 Victorian Bar News 47, 53; (1995) 69 Australian Law Journal 964, 972–3.

252 Joseph P Napoli, 'Forceful Brief Writing and Oral Argument' (1977) 12 Trial Lawyers' Quarterly 82, 85; Deborah E Bouchoux, Aspen Handbook for Legal Writers (2005) 160.





http://www.vicbar.com.au/d.2.aspx

http://www.vicbar.com.au/d.2.aspx





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MOTIONS

motionIn law, a motion is a procedural device to bring a limited, contested

issue before a court for decision. A motion may be thought of as arequest to the judge (or judges) to make a decision about the case.Motions may be made at any point in administrative, criminal orcivil proceedings, although that right is regulated by court ruleswhich vary from place to place. The party requesting the motion maybe called the movant, or may simply be the moving party. The partyopposing the motion is the nonmovant or nonmoving party. Motionsmay be made in the form of an oral request in open court, which isthen summarily granted or denied orally. But today, most motions(especially on dispositive issues that could decide the entirecase) are decided after oral argument preceded by the filing andservice of legal papers. That is, the movant is usually required toserve advance written notice along with some kind of written legalargument justifying the motion. The legal argument may come in theform of a memorandum of points and authorities supported byaffidavits or declarations.

A motion is an application for an order. The granting or denying of amotion is a matter of judicial discretion. When a motion isgranted, the moving party (the party who requests the motion) isordinarily limited to the relief requested in the application.Although no particular form is required, a court order granting amotion should be sufficiently explicit to enable the parties to dowhatever is directed. Though a court is not obligated to issue anopinion, in most cases a party is entitled to have the reasons forthe decision of the court stated in the order. The order must beconsistent with the relief requested in the motion, and it shouldset forth any conditions on which relief is awarded.

There are numerous motions that either party can file throughout thelawsuit to terminate it ‘prematurely’—before submission to thejudge or jury for final consideration. These motions attempt topersuade the judge, through legal argument and sometimesaccompanying evidence, that because there is no reasonable way thatthe other party could legally win, there is no sense in continuingwith the trial. Motions for summary judgment, for example, canusually be brought before, after, or during the actual presentationof the case. Motions can also be brought after the close of a trialto undo a jury verdict that is contrary to law or against theweight of the evidence, or to convince the judge that she or heshould change his decision or grant a new trial.

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discovery motions Discovery motions relate to the necessary exchange of information

between the parties. In the common law system, these motionscapture an irreducible tension in the legal system between theright of discovery and a duty to disclose information to another.

motion for summary judgmentA ‘motion for summary judgment’ asks the court to decide that the

available evidence, even if taken in the light most favorable tothe non-moving party, supports a ruling in favor of the movingparty. This motion is usually only made when sufficient time fordiscovering all evidence has expired.253

For summary judgment to be granted in most jurisdictions, a two-partstandard must be satisfied:

(i) no genuine issue of material fact can be in dispute between the parties, and (ii) the moving party must be entitled to judgment as a matter of law.

For example, a claim that a doctor engaged in malpractice byprescribing a drug could result in summary judgment if theplaintiff failed to obtain expert testimony indicating that thedrug was improperly prescribed. Motions to dismiss and motions forsummary judgment are types of dispositive motions.

motion in limineA ‘motion in limine’ asks the court to decide that certain evidence

may or may not be presented to the jury/judge at the trial. Amotion in limine generally addresses issues which would beprejudicial for the jury to hear in open court, even if the otherside makes a timely objection which is sustained, and the judgeinstructs the jury to disregard the evidence. For example, thedefendant may ask the court to rule that evidence of a priorconviction that occurred a long time ago should not be allowed intoevidence at the trial because it would be more prejudicial thanprobative. If the motion is granted, then evidence regarding theconviction could not be mentioned in front of the jury, withoutfirst approaching the judge outside of the hearing of the jury andobtaining permission. The violation of a motion in limine canresult in the court declaring a mistrial.

There are three types of Motions in Limine:1. Inclusionary - A motion asking the court to have something included in

the trial.

253 Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.

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2. Exclusionary - A motion asking the court to have something excluded inthe trial.

3. Preclusionary - A motion asking the court to have something precludedin the trial

motion for a directed verdictA ‘motion for a directed verdict’ asks the court to rule that the

plaintiff or prosecutor has not proven the case, and there is noneed for the defense to attempt to present evidence. This motion ismade after the plaintiff has rested its case, and prior to thedefense presenting any evidence. If granted, the court woulddismiss the case.

motion for judgment n.o.v.A ‘motion for judgment n.o.v.’ (non obstante veredicto, or

notwithstanding the verdict) asks the court to reverse the jury'sverdict on the grounds that the jury could not reasonably havereached such a verdict. This motion is made after the jury'sverdict. If granted, the court enters a new verdict. This motioncan be used in a criminal case only to reverse a guilty verdict;not guilty verdicts are immune to reversal by the court.

motion for new trialA motion for new trial asks to overturn or set aside a court's

decision or jury verdict. Such a motion is proposed by a party whois dissatisfied with the end result of a case. This motion must bebased on some vital error in the court's handling of the trial,such as the admission or exclusion of key evidence, or an incorrectinstruction to the jury. Generally the motion is filed within ashort time after the trial (7–30 days) and is decided prior to thelodging of an appeal. In some jurisdictions, a motion for new trialwhich is not ruled upon by a set period of time automatically isdeemed to be denied.

motion to set aside judgmentA ‘motion to set aside judgment’ asks the court to vacate or nullify a

judgment and/or verdict. Motions may be made at any time afterentry of judgment, and in some circumstances years after the casehas been closed by the courts. Generally the grounds for the motioncannot be ones which were previously considered when deciding amotion for new trial or on an appeal of the judgment.

motion for nolle prosequiA ‘motion for nolle prosequi’ (‘not prosecuting’) is a motion by a

prosecutor or other plaintiff to drop legal charges. n. Latin for‘we do not wish to prosecute,’ which is a declaration made to the

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judge by a prosecutor in a criminal case (or by a plaintiff in acivil lawsuit) either before or during trial, meaning the caseagainst the defendant is being dropped. The statement is anadmission that the charges cannot be proved, that evidence hasdemonstrated either innocence or a fatal flaw in the prosecution'sclaim, or the district attorney has become convinced the accused isinnocent.

motion to compelA ‘motion to compel’ asks the court to order either the opposing party

or a third party to take some action. This sort of motion mostcommonly deals with discovery disputes, when a party who haspropounded discovery to either the opposing party or a third partybelieves that the discovery responses are insufficient. The motionto compel is used to ask the court to order the non-complying partyto produce the documentation or information requested, and/or tosanction the non-complying party for their failure to comply withthe discovery requests.

motion for leaveA motion for leave is a request for permission to file something that

is not allowed as a matter of right under law. It is often arequest for an extension of time to file something past a filingdeadline. Rules of procedure and court rules, which vary by court,govern the methods and timelines of filings. When a deviation issought from such rules, it is a matter of discretion for the courtto grant the request for leave. The most common use of a motion forleave is to seek an extension to an already-passed timeframe.

motion for leave to proceed in forma pauperisA motion for leave to proceed in forma pauperis (Latin: in the form of

a pauper) is notice to the court that the petitioner has limitedfunds and is asking the justices to use their discretion to reducethe financial demands on the party by waiving docketing fees,requiring fewer copies of briefs, etc.

motion to dismissA ‘motion to dismiss’ asks the court to decide that a claim, even if

true as stated, is not one for which the law offers a legal remedy.As an example, a claim that the defendant failed to greet theplaintiff while passing the latter on the street, insofar as nolegal duty to do so may exist, would be dismissed for failure tostate a valid claim: the court must assume the truth of the factualallegations, but may hold that the claim states no cause of actionunder the applicable substantive law. A claim that has been

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presented after the statute of limitations has expired is alsosubject to dismissal. If granted, the claim is dismissed withoutany evidence being presented by the other side. A motion to dismisshas taken the place of the common law demurrer in most modern civilpractice. When a court dismisses a case, many lay persons state thecase was ‘thrown out.’

motion to compelA "motion to compel" asks the court to order either the opposing party

or a third party to take some action. This sort of motion mostcommonly deals with discovery disputes, when a party who haspropounded discovery to either the opposing party or a third partybelieves that the discovery responses are insufficient. The motionto compel is used to ask the court to order the non-complying partyto produce the documentation or information requested, and/or tosanction the non-complying party for their failure to comply withthe discovery requests.

motion for further and better particularsWhere the Statement of Claim or any cross-claim does not plead all

material facts founding the cause of action or the necessaryparticulars, it is open to the defendant to request further andbetter particulars. A request for further and better particularsshould not be a request that the other side tell you what theirevidence is in support of the claim; rather, particulars go to thebasis of the claim. Frequently, the defendant will seek further andbetter particulars and also ask that there be a reasonable timeafter answers are received before a defence needs to be filed.

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EVIDENTIARY OBJECTIONS

objections or evidentiairy objectionsObjection is asking court not to allow a particular question asked of

a witness by the opposing lawyer on the basis that it is eitherlegally not permitted, confusing in its wording or improper in its "form."An attorney may also object to an answer to the question on thebasis that it is not "responsive" since a witness is limited toanswering a question as asked and is not allowed to makeunsolicited comments. I must be alert and quick in order to objectbefore the witness answers. This is called an "objection" and mustbe based on a specific list of legal restrictions on questions.

In an adversarial system, the defense attorney is responsible formaking oral or written objections to evidence that the prosecutoroffers at trial. A proper objection is both 1) timely and 2)specific enough that the judge can understand the grounds for theobjection.

If a defense attorney fails to make a timely and specific objection,the trial court (and subsequent appeals courts) will have deemedthe issue waived by the defendant. The rationale behind the theoryof waiver is that a defense attorney's failure to object should bedeemed strategic and a defense attorney should not be able to take"two bites" at a trial by intentionally failing to object to apiece of evidence and then raising the issue on appeals.

Defense attorney should object immediately after a prosecutor or judgeasks a question. Do not wait until the answer has been given. If ananswer is given which is objectionable, the defense attorney mayrequest that the judge strike the answer from the record. Inaddition, the defense attorney should demand that the judge informthe jury to disregard the answer. If the error is particularlyegregious, the defense attorney may ask the judge to declare amistrial.

I have the right to tell the court that I think the other side issomehow violating the Rules of Evidence by objecting. The Rules ofEvidence set out the reasons to object, which are very complicated.If I do not feel comfortable with objecting, I should consult withan attorney.

As soon as I hear something (usually a question but it could be anexhibit) that I think violates the rules, say "objection!" Thejudge may ask me why, or may simply decide by saying either"Sustained" (which means the judge agrees with me and the otherside must stop that question and the witness shouldn't answer) or

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"Overruled" (which means the question or exhibit is allowed andother side can continue).

The judge will not object for me. The judge is not like a referee, whocalls a foul when he sees one. I need to let the judge know that Ithink the evidence that the other side is trying to admit is notallowed by saying "I object!" The judge will then rule on whetherthe objection is correct and if evidence can be admitted or not.

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objecting to a questionMany seasoned litigators will confess that the easiest way to unnerve

an inexperienced litigator is to immediately and consistentlyobject to the attorney's questions before the witness has theopportunity to answer. The following is a list of the mostfrequently used objections to a lawyer's questioning of a witness:

leading questionA leading question puts into a witness's mouth the words that areto be echoed back, or plainly suggests the answer which the lawyerwishes to receive. Although leading questions can be freely used oncross-examination, they may, in the discretion of the court, beused on one's own witness if he turns hostile, his recollection isexhausted and needs refreshing, or when examining a child. 254

compound questionA compound question is one in which more than one question isasked, e.g., "What is your employment and how old are you?"

argumentative questionThe court also can preclude questions which tend to harass, annoy,or humiliate a witness. This objection is generally used when theattorney's question does not seek any new facts, but merely seeksto argue with the witness about his previous testimony.

overly broad questions"Often this objection is in reality an objection of lack ofrelevancy." McCormick on Evidence,

§8 at p. 23 (Strong, 4th ed. 1992). Overly broad questions permit a witness togive an open narrative answer that may contain objectionabletestimony (irrelevant, hearsay or opinion). What counsel is reallysaying when such an objection is made is, "judge, can we narrow andcompartmentalize the questioning so that I may have an opportunityto object to improper portions of a witness' answer."

EXAMPLE:"How did the accident happen?""Tell me everything that was said at the meeting?"

254 Rotolo v. United States, 404 F.2d 316 (5th Cir. 1968); Fed. R. Evid. §611(c).

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re-asking a question that has been "asked and answered"Although the repetition of a question which has gone unanswered is

permissible, "[R]epeating an allowable question, already onceasked, on the direct examination is ordinarily superfluous andtherefore improper..."255. Note that on cross examination, repeatingthe same question is clearly permissible.

assuming a fact not in evidence"What happened when you entered the College of Insurance theater at

6:00 P.M.?" This is objectionable if the witness has not yettestified that he entered "the theater" at 6:00 P.M. The questionassumes a fact not in evidence.

argumentative (objection)A lawyer is not permitted to be argumentative with a witness in any

given trial. This means that a lawyer is not permitted torepeatedly ask the same question of a witness, nor is the lawyerallowed to directly dispute what the witness says in the manner ofan argument. Any such questions might be objected to on the groundsthat they are argumentative.

ambiguous questionIt is susceptible to more than one meaning because of a vague wording

or phraseology.misquoting a witness or exhibit

This occurs when the attorney incorrectly incorporates thesubstance of a witness's answer in asking his question.

A: "I was surprised when he fired me."Q: did you tell anyone about your anger when you were fired?"Here, he did not testify that he was angry and his question should be

objected to on the ground (1) that the questioner has misstated awitness response, or (2) that he has assumed a fact not in therecord.

255 Wigmore on Evidence, §782 (2). (Chadbourne, rev. 1979)

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Calls for an irrelevant answer (objection)The answer to the question would not make the existence of any

consequential fact more or less probable.Calls for an immaterial answer(objection)

The answer to the question would have no logical bearing on anissue in the case.

Is asked of an incompetent witnessThe witness is disqualified by statute from testifying, owing to age,

lack of knowledge, or mental illness.Violates the best evidence ruleThe original document, rather than testimony, contains the best

evidence.Calls for privileged communicationThe information sought is Privileged Communication, such as that

between attorney and client, physician and patient, or husband andwife, and is barred from disclosure.

Calls for a conclusion(objection)The question improperly asks the witness to reach a legalconclusion, which is a job reserved for the judge or jury.

Calls for an opinion. (objection)Generally, only expert witnesses may render their opinions; laywitnesses must testify only regarding their observations.

Calls for a narrative answer. (objection)Witnesses must respond concisely to individual questions, not givea long, rambling explanation.

Calls for hearsay(objection)The answer would be inadmissible hearsay.

repetitive objection, asked and answered) (objection)The question has already been asked and answered.

beyond the scope(objection)On cross-examination, questions normally may not address mattersnot covered on direct examination.

Assumes facts not in evidence(objection)Part of the question assumes that certain facts are true, when suchfacts have not been admitted into evidence or their existence is in

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dispute.confusing (objection) , misleading (objection), ambiguous(objection)

or vague (objection)or unintelligible (objection)A question must be posed in a manner that is specific and clearenough that the witness reasonably knows what information theexaminer seeks.

speculation(objection)Questions that ask the witness to guess or speculate are improper.

Is compound(objection)The question brings up two or more separate facts, and any simpleanswer would be unclear.

argumentative(objection)The question is essentially an argument to the judge or jury; itelicits no new information but rather states a conclusion and asksthe witness to agree with it.

improper characterization (objection)

For example, the question calls the defendant a spoiled brat, greedypig, or frenzied dog; characterization is something the jury orjudge, not a witness or attorney, should infer.

Mistakes evidence (or misquotes the witness)Misstating or distorting evidence, or misquoting a witness, is

improper.cumulative(objection)When numerous witnesses testify to the same facts or numerous exhibits

demonstrate the same things, without adding anything new, theevidence is objectionable.

improper impeachment (objection)Rules surrounding the impeachment of a person's character or

credibility are highly technical. For example, evidence of a priorinconsistent statement made by a witness may be used only if thestatement is materially inconsistent and is offered in the propercontext.

Violates parol evidence rule (objection)The Parol Evidence rule bars evidence of oral, or verbal,

modifications or contradictions of a written contract that iscomplete and clear on its face.

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unresponsive (objection), volunteered (objection)An answer that does not directly respond to a question is

objectionable as unresponsive; an answer that goes beyond what isnecessary to answer the question is objectionable as volunteered.Only the attorney who called the witness may object on thesegrounds.

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objections to answersIs irrelevant

Is immaterial

Is privileged

Is a conclusion

Is improper opinion

Is hearsay

Is narrative

Is improper characterization incompetent (objection)An attorney might raise an objection based on grounds of incompetence

if a witness were not considered to be competent for providinganswers to questions. A witness might be considered incompetent ifhe or she were not mentally competent and stable, or if he or shewere particularly young, for example.

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objections to exhibits, objecting to material evidence

no foundation evidence (objection) Before exhibits can be admitted into evidence, attorneys must

establish the necessary foundation, or the facts that indicate theexhibit is what it purports to be. For a photograph of a crimescene, this might include calling the person who took the pictureas a witness and asking whether she was at the crime scene, had acamera, and took a picture, and whether the exhibit is thatpicture.

no authentication evidence (objection)Writings and conversations must be authenticated, or shown to have

been executed by a party or that party's agent. For example, beforetestifying about a telephone conversation, a witness mustdemonstrate his knowledge of who was speaking on the other end ofthe telephone.

prejudicial evidence (objection)The exhibit's prejudicial effect outweighs its probative value. This

objection is often raised with photo exhibits. A color photo of amurder victim may so prejudice the jury, without adding informationhelpful to determining the murderer, that the judge may disallowthe photo as evidence. A judge has the discretion to excludeevidence if "its probative value is substantially outweighed by thedanger of unfair prejudice, confusion of the issues, or misleadingthe jury."

inadmissible evidence (objection)Exhibits in the forms of charts, diagrams, and maps must not disclose

otherwise inadmissible material to the jury. For example, in mostjurisdictions, evidence that a defendant in a personal injury casehas insurance that may pay for the plaintiff's damages isinadmissible. A chart, shown to the jury, that conveys the name ofthe defendant's insurance company is improper and objectionable.

hearsay (objection), best evidence rule , self authenticatingdocuments rule

When a lawyer objects to evidence based on hearsay, the lawyer isobjecting to a type of evidence which is related secondhand, fromquestions asked or answers given outside of the court. If, forexample, an individual is relating evidence based on what he or shewas told by another person outside of court, then that would be

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hearsay evidence, and could be objected to. Best evidence rule orhearsay evidence: requires that the original source of evidence isrequired, if available. However, some documents are self-authenticating, such as:

1. domestic public documents under seal, 2. domestic public documents not under seal, but bearing a signature of a public officer, 3. foreign public documents, 4. certified copies of public records, 5. official publications, 6. newspapers and periodicals, 7. trade inscriptions and the like, 8. acknowledged documents (i.e. by a notary public), 9. commercial paper and related documents, 10. presumptions under Acts of Congress, 11. certified domestic records of regularly conducted activity, 12. certified foreign records of regularly conducted activity.

Incomplete: evidence (objection)

Opposing party only introducing part of the writing(conversation/act/declaration), taken out of context. Under theevidence rule providing for completeness, other party can move tointroduce additional parts. If any documents presented for thereview, the judge and other party entitled to a complete copy, nota partial copy, of the document. When a witness is presented with asurprise document, he should be able to take time to study it,before he can answer any questions.

Fruit of the poisonous tree evidence (objection)The evidence was obtained illegally, or the investigative methods

leading to its discovery were illegal.Proper reasons for objecting to material evidence include:relevance (objection)Only relevant evidence is admissible. Relevant means the evidence

proves or tends to prove a fact that is in dispute. For example, ina case involving a collision of two motor vehicles, the speed thatthe vehicles were travelling would probably be relevant, but whatthe drivers ate for breakfast would probably be irrelevant. Allirrelevant material is inadmissible. This is an over-ridingprinciple that applies to all evidence put before the court.

However, the mere fact that evidence is relevant does not make itautomatically admissible. The application of the other rules of

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evidence used in the mock trial competition may admissible. Forexample if the Rule in Brown v Dunn is breached.

immaterial (objection)Immaterial questions, or irrelevant questions, can be objected to by

the opposing counsel within a trial on the grounds that they arenot important to the matter at stake in the trial. Immaterialquestions are often designed for another, manipulative purpose,which is why they are made objectionable.

misleading (objection)One objection which a lawyer might raise is an objection based on the

grounds that the question being objected to was ambiguous,misleading, confusing, vague, or unintelligible. All of these termsmean generally similar things, although they do have some nuancebetween them. Ultimately, however, an ambiguous, misleading,confusing, vague, or unintelligible question is a question withouta clear, obvious, succinct, factual answer.

speculation (objection)A speculative question or speculative evidence is normally disallowed

from a trial on the grounds that it is not based in fact.Speculation arises when a witness is asked to answer a question towhich he or she does not know the immediate, factual answer, orwhen a witness provides an answer which is not based on immediatefacts of his or her experience. A lawyer can object to speculationto have it disallowed.

inflammatory (objection)An inflammatory statement or question is a question which is designed

to produce a reaction within the jury, particularly in terms ofinflaming the jury against a witness or the defendant. Aninflammatory statement or question is normally grounds for anobjection and for the disallowing of the question or the evidence,as it is manipulative and irrelevant.

leading questions (objection)Leading questions are questions which are designed to suggest an

answer within the question. Leading questions are often yes or noquestions, though not all yes or no questions could be accused ofleading the witness. Leading the witness is objectionable only ifthe lawyer asking the leading questions is examining his or her ownwitness, and is not asking questions of a hostile witness.

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privilege (objection)Objections based on privilege are objections based on the notion that

a witness does not have to give testimony or evidence in certainareas if that witness holds privilege of particular types. Forexample, a doctor witness might not have to provide answers toquestions that violate the privilege of doctor patientconfidentiality.

narrative (objection)An objection to questions which might result in narration on the part

of the witness is allowed because narrative answers do not giveopposing counsel the opportunity to object to questions or evidenceprior to the introduction of those questions or evidence.

opinion (objection)This rule relates to conclusions or views formed by witnesses based on

facts which they have observed. Opinions may not be given inevidence (if relevant) For example, the observation by a witnessthat another person was red in the face and shaking his fists wouldbe admissible, but the conclusion or opinion that the person wasvery upset or was angry with him would not be admissible.

The exception to this rule is where opinion evidence is given bywitness who is an expert in the field to which the opinion relates.Expert in this context means someone who has special expertise in afield, whether from qualifications or formal training, or fromexperience in that field. Before the opinion is given in evidence,the previous evidence given by that witness must qualify him or heras an expert in the field to which the opinion relates. This isdone by leading evidence from him or her about his or herqualifications, experience and so on.

hearsay (objection)Hearsay is the statement by a witness of what he or she heard someone

else say. Subject to the exceptions set out below, such evidence isinadmissible as to the truth of what the other person said.

For example, the statement by a witness, "Mrs Smith told me she saw MrSimpson driving the car", is not admissible to prove that MrSimpson was in fact driving the car. It is only admissible asevidence that Mrs Smith said it if that fact is relevant.

The reasons for the hearsay rule are:i. Hearsay is not the best evidence - Mrs Smith should give her own account to the court on

oath.ii. It is second-hand evidence which means that it may have changed in the re-telling.

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iii. There is no opportunity to cross-examine the person who made the comment orobservation to test his or her competence or credibility. For example, it may be that MrsSmith was not wearing her glasses at the time, or had her view obstructed or had somereason to make up a story about Mr Simpson.

iv. Hearsay evidence is easy to concoct and very difficult to disprove.

Exceptions to the hearsay rule:

(i) When the statement is made in the "heat of the moment" and formspart of the overall picture of what occurred.

(ii) When the statement is made by one of the parties in theproceedings and is a statement against that party's interests, forexample, an admission.

(iii) When the relevance of the contents of the statement is not toestablish the truth of the statement but only the fact that thestatement was made.

character evidence (objection)Evidence of bad character by a defendant may not be led by the

prosecution/plaintiff. Evidence of good character may be led byeither party, but only if it is relevant. If the defendant raiseshis or her good character or attacks the character of aprosecution/plaintiff witness, the prosecution/plaintiff may cross-examine the defendant on his or her bad character.

direct speech (objection)Conversations which are significant should be related by the witness

in direct speech. That is, the conversation should be recited as itoccurred and not summarised by the witness.

The witnesses statements should still comply with the form in whichthe statements are made.

For example, "Brian said me, "Could you please drive? I think I havehad too much to drink" is the proper way to give evidence, not"Brian asked me to drive because he had had too much to drink."

grounds for objections - procedural (objection)Objections may be lodged only on the following procedural grounds:leading or double questions(objection)A leading question is one in which the form of the question suggests

the answer. For example, "Was the car blue?" Double or multiplequestions are objectionable because they cannot necessarily beanswered with a single answer. For example,the answer to the first

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part of the question might be "yes" while the answer to the secondpart of the question might be "no".

failure to comply with the rule in browne v dunn(objection)The rule in Browne v Dunn requires, that unless prior notice has been

given of a cross examiner's intention to rely on evidencecontradictory to that given by the witness being cross-examined,the cross examiner must put to the witness the nature of thecontradictory evidence. A further explanation of this rule isexplained in the common law and is found under General Precedents.

Once an objection has been lodged, and points awarded if the objectionis made correctly, the remainder of the evidence upon which theparty relies is allowed to continue to completion, althoughstrictly under this rule it should be disallowed.

harassing or arguing with witnesses (objection)Barristers may lodge an objection if opposing Counsel is harassing or

arguing with a witness. This usually occurs during crossexamination.

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ADDUCING EVIDENCE

ridgeway discretionThe Ridgeway discretion, to exclude evidence illegally obtained based

on public policy grounds. balancing test (evidence) When referring to evidence presented at a trial, the balancing test

allows the court to exclude relevant evidence if its ‘probativevalue is substantially outweighed by the danger of unfairprejudice, confusion of the issues, misleading the jury, or byconsiderations of undue delay, waste of time, or needlesspresentation of cumulative evidence.’ In other words, if aparticular piece of evidence is substantially more prejudicial thanit is probative, it may not be allowed in as evidence.

evidence obtained illegally (fruit of the poisonous tree doctrine)Evidence obtained by the police through circumstances in which the

police or a police agent violated a person’s right againstunreasonable search and seizure as guaranteed by the FourthAmendment or analogous state constitutional provisions.

character evidenceCharacter evidence is a term used in the law of evidence to describe

any testimony or document submitted for the purpose of proving thata person acted in a particular way on a particular occasion basedon the character or disposition of that person. Three factorstypically determine the admissibility of character evidence256:

و the purpose the character evidence is being used for

و the form in which the character evidence is offered

و the type of proceeding (civil or criminal) in which the character evidence is offered

Character evidence may be offered, depending on the type ofproceeding, party offering, and purported purpose, explained below,in three forms:

و as opinion

و as reputation evidence, and

و as evidence of specific instances of conduct

256 FRE 404, Cornell University Law School, Legal Information Institute

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character evidence (civil trial)Character evidence is inadmissible in civil suits when being used as

circumstantial evidence to prove that a person acted in conformitywith his or her character; it is considered to be an unfair basisfrom which to attempt to prove that an individual behaved in aparticular way on a particular occasion.257 Another way of lookingat this is that character evidence is only admissible in a majorityof jurisdictions in a civil trial if character is actually asubstantive issue in the case (negligent hiring; negligententrustment, child custody cases, loss of consortium cases), or toimpeach a witness. A minority of jurisdictions, however, permitdefendants in assault and battery and fraudulent misconduct civilcases to introduce character evidence as circumstantial evidence toprove that a person acted in conformity with his or hercharacter.258

exculpatory evidenceExculpatory evidence is the evidence favorable to the defendant in a

criminal trial, which clears or tends to clear the defendant ofguilt. It is the opposite of inculpatory evidence, which tends toprove guilt.

inculpatory evidenceInculpatory evidence is evidence that shows, or tends to show, a

person's involvement in an act, or evidence that can establishguilt. In criminal law, the prosecution has a duty to provide allevidence to the defense, whether it favors the prosecution's caseor the defendant's case. Evidence that tends to show a person'sinnocence is considered exculpatory evidence. For example, if a manis poisoned to death by an overdose of arsenic, and a bottle ofarsenic is found in the purse of his wife, that bottle could beconsidered inculpatory evidence against his wife.

257 Pino v. Koelber, 389 So. 2d 1191, 1193 (Fla. Dist. Ct. App. 1980), citing 1 S. Gard, Jones on Evidence §4:34 (6th ed. 1972) and McCormick on Evidence § 188 (2d ed. 1972): "When a person's character is an essential element in the case, evidence of his character is always admissible because it is in issue. On the other hand, evidence of one's character which is offered only as tending to prove the probability that he acted in a manner consistent with that character on a particular occasion is generally inadmissible."

258 Wrabek v. Suchomel, 145 Minn. 468, 177 N.W. 764 (1920): "The complaint alleged that, in addition to inflicting injuries upon his person by an assault, defendantsintended to injure, and by the publicity of the assault did injure, plaintiff's standing and reputation as a citizen in the community where he lived. The general denial in the answers put plaintiff's reputation as a citizen in issue, and entitled defendants to show, in mitigation of damages, that it was bad."

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reasonable suspicion Reasonable suspicion is a legal standard of proof in United States law

that is less than probable cause, the legal standard for arrestsand warrants, but more than an "inchoate and unparticularizedsuspicion or 'hunch' ";259 it must be based on "specific andarticulable facts", "taken together with rational inferences fromthose facts".260 Police may briefly detain a person if they havereasonable suspicion that the person has been, is, or is about tobe engaged in criminal activity; such a detention is known as aTerry stop. If police additionally have reasonable suspicion that aperson so detained may be armed, they may "frisk" the person forweapons, but not for contraband like drugs. Reasonable suspicion isevaluated using the "reasonable person" or "reasonable officer"standard, 261 in which said person in the same circumstances couldreasonably believe a person has been, is, or is about to be engagedin criminal activity; it depends upon the totality ofcircumstances, and can result from a combination of particularfacts, even if each is individually innocuous.

character evidence (criminal trial)Character evidence is inadmissible in a criminal trial if first

offered by the prosecution as circumstantial evidence to show thata defendant is likely to have committed the crime with which he orshe is charged—the prosecution may not, in other words, initiatecharacter evidence that shows defendant's propensity to commit acrime. However the prosecution may introduce character evidence forcertain limited purposes after the defendant does so—after thedefendant has ‘opened the door’—through the permissible methods andpurposes explained below in ‘Character evidence offered by thedefendant,’ to rebut what defendant tried showing through characterevidence, and to ‘offer evidence of the defendant's same trait.’262

character witnessCommentators have noted that the ability of defendants to call

character witnesses can give an advantage to more affluentdefendants. Affluent defendants can call, as character witnesses,celebrities, athletes, and prominent members of the community. Incontrast, it is not unknown for death row inmates to sometimescall, as a character witness, fellow death row inmates.

259 Terry v. Ohio, 392 U.S. 1, 27 (1968).260 Id at 21261 Id at 22262 FRE 404(a)(2)(B)(i)-(ii), Cornell University Law School, Legal Information

Institute

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best evidence rule and presumption of authenticityThis rule states that original documents should be tendered when party

seeks to prove contents of document. Secondary evidence by way ofcopies or the testimony of witnesses is inadmissible.

The best evidence rule is confined to cases where a party has the originaldocument and could produce it, but does not. The party may satisfythe court that it has been lost, destroyed or in the possession ofsomeone else.

Documents may be authenticated in a variety of ways: calling thewriter, calling a witness who witnessed the document being signed,calling a witness who is familiar with the author's handwriting,comparison of the writing in dispute with a document that has beenauthenticated, by calling experts, or through the admissions ofopposing counsel. Circumstantial evidence may also be used toprove authenticity. In addition, under statute, a wide variety ofpublic and judicial records are admissible without proof ofauthenticity. This is due to the principle of presumption of authenticity,which treats government/public records as primary documents.

admission against interest rule or declarations against interestAn admission against interest is an exception to the hearsay rule

which allows someone to testify to a statement by another personthat reveals something incriminating, embarassing, or otherwisedamaging to the maker of the statement. Declarations againstinterest are an exception to the rule on hearsay in which aperson's statement may be used, where generally the content of thestatement is so prejudicial to the person making it that she wouldnot have made the statement unless she believed the statement wastrue.

spousal shield or spousal privilege or marital privilege or husband-wife privilege

Spousal privilege (also called marital privilege or husband-wifeprivilege is a term used in the law of evidence to describe twoseparate privileges: the communications privilege and thetestimonial privilege. Both types of privilege are based on thepolicy of encouraging spousal harmony, and preventing spouses fromhaving to condemn, or be condemned by, their spouses.

res gestae That a fact or opinion which is so closely associated in time, place

and circumstances with some act or event which is in issue that itcan be said to form a part of the same transaction as the act orevent in issue, is itself admissible in evidence.

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competent witnessA witness is competent if he or she can lawfully be called to give

evidence. At every stage in criminal proceedings all persons are(whatever their age) competent to give evidence.

There are two exceptions: 1. A person is not competent to give evidence in criminal proceedings if it appears to the court

that he is not a person who is able to understand questions put to him as a witness andgive answers to them which can be understood.

2. A person charged in criminal proceedings is not competent to give evidence in theproceedings for the prosecution (whether he is the only person, or is one of two or morepersons, charged in the proceedings).

evidentiary privilege An evidentiary privilege is a rule of evidence that allows the holder

of the privilege to refuse to provide evidence about a certainsubject or to bar such evidence from being disclosed or used in ajudicial or other proceeding. The well known privileges include:

admissibility of evidence

Admissible evidence, in a court of law, is any testimonial,documentary, or tangible evidence that may be introduced to afactfinder—usually a judge or jury—in order to establish or tobolster a point put forth by a party to the proceeding. In orderfor evidence to be admissible, it must be relevant, without beingprejudicial, and it must have some indicia of reliability.Inadmissible evidence is evidence that cannot be considered.Generally, relevant evidence is admissible. However, relevantevidence is not admissible if prohibited by the Constitution, anAct of Parliament, by the Rules of Evidence, or by rules prescribedby the Court.

authenticity of evidence

For evidence to be admissible enough to be admitted, the partyproffering the evidence must be able to show that the source of theevidence makes it so. If the evidence is in the form of witnesstestimony, the party introducing the evidence must lay thegroundwork for the credibility of the witness, and his knowledge ofthe things to which he attests. Hearsay is generally barred for itslack of reliability. If the evidence is documentary, the partyproffering the evidence must be able to show that it is authentic,and must be able to demonstrate the chain of custody from theoriginal author to the present holder. The trial judge performs a"gatekeeping" role in excluding unreliable testimony. The UnitedStates Supreme Court first addressed the reliability requirement

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for experts in the landmark case Daubert v. Merrell DowPharmaceuticals, Inc. 509 U.S. 579 (1993). The Court laid out fournon-exclusive factors that trial courts may consider whenevaluating scientific expert reliability: (1) whether scientificevidence has been tested and the methodology with which it has beentested; (2) whether the evidence has been subjected to peer reviewor publication; (3) whether a potential rate of error is known; and(4) whether the evidence is generally accepted in the scientificcommunity. Id. at 592-94. Kumho Tire Co., Ltd. v. Carmichael laterextended the Daubert analysis to include all expert testimony. 526U.S. 137 (1999).It bears an effect on the verdict of the court.

relevance of evidenceFor evidence to be admissible, it must tend to prove or disprove some

fact that is at issue in the proceeding. However, if the utility ofthis evidence is outweighed by its tendency to cause the factfinderto disapprove of the party it is introduced against for someunrelated reason, it will not be admissible. Furthermore, certainpublic-policy considerations bar the admission of otherwiserelevant evidence.

Evidence offered to prove assertions that are neither at issuenor probative of the matter at issue would also be irrelevant.The only evidence that is, therefore, relevant, is evidencethat to some degree advances the inquiry and has a probativevalue for the decision. In his Digest of the Law of Evidence, 12th

Edition, article 1,Stephen said that the word ‘relevant’ means that,Any two facts to which it is applied are so related to each other that according tothe common course of events one either taken by itself or in connection with otherfacts proves or renders probable the past, present or future existence or nonexistence of the other. Evidence is relevant if it is directly orindirectly related to a fact to be determined, and is capableof advancing the inquiry and making the existence or non-existence of a fact more probable.

In DPP vs Kilbourne263 at 756 Lord Simon of Glaisdale said: Evidenceis relevant if it is logically probative or disprobative ofsome matter, which requires proof. It is sufficient to saythat relevant evidence is evidence, which makes a matter,which requires proof more or less probable. “Sometimes factsin issue may be proved by direct evidence by the person whoperceived them. However, sometimes the direct evidence may notbe available or it may be of little weight. In such a casecircumstantial evidence will be admitted from which an

263 [1973] AC 729

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inference will be drawn, in order to conclude whether the factin issue is true or untrue, more probable or less probable.”264

weight of evidence“The weight or probative value of evidence is the ability of

admissible evidence to persuade the court of the truth orprobability of the fact in issue. This value depends on the court’sview of the truthfulness, reliability and cogency of theevidence.”265 “ The assessment of the weight is dependent on anumber of factors, which certainly include matters extraneous tothe evidence itself. An example is the demeanour of the witness.Evidence may lack weight because it is perjured or dishonest orexaggerated or unreliable. Some of the instances when the probativevalue of evidence may be reduced are:

ٮ When a witness’s recollection has failed,

ٮ When a witness lacked adequate opportunity to perceive the facts about which he istestifying,

ٮ When a witness’s knowledge of the facts he is testifying about is insufficient

ٮ When the evidence fails to give the court the assistance it needs to make a decision relatingto the facts in issue”266

competence and compellability“To address the issue of handling of witnesses, competence and

compellability must be considered. A witness is competent if by theexisting rules of law, his evidence is receivable by the court inthe proceedings concerned. A witness is compellable if in additionto being competent, he can lawfully be required by the court, undersanction of penalty as a contemnor, to give his evidence.”267

“At common law all witnesses are competent and compellable, but thereare exceptions. Children of tender years are an exception to thecompetence rule by reason of their personal characteristics, whichsupposedly render of no account any evidence they might give, inwhatever circumstances. In a criminal case, any issue as to thecompetence or incompetence of a prosecution witness should bedecided as a preliminary issue at the outset of the trial.”268

264 see above note 17 p.11265 see above note 17 p. 14266 see above note 17p. 15267 see above note 17 p. 411268 see above note 17 p. 412

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In R vs Brasier269 it was held that the competence of children dependedon ‘the sense and reason they entertain of the danger and impietyof falsehood, which is to be collected from their answers toquestions propounded to them by the court.’

“At common law no age was set to determine who children of tenderyears are. However the best way of expressing the matter is thatthe younger the child, the more the court should approach the issueof competence with caution, and subject the child’s answers to acritical scrutiny. Competence should depend on the individualcharacteristics of the child in question, rather than on anystandard minimum age.”270

“The test for competence requires that the witness have sufficientintelligence, understanding and ability to observe in order torecall and communicate information, comprehend the seriousness oftaking an oath, and appreciate the necessity of telling the truth.When the witness is a child the judge may question the child inwhat is known as a voir dire process. The purpose of the process is toascertain that the child,

ٮ Knows the difference between truth and lies

ٮ Is prepared to testify truthfully

ٮ Is capable of observing, remembering and verbally describing events.

Once the judge has determined the child’s competency, the child maytestify regardless of his or her age.”271

voir dire A voir dire is the preliminary examination of a witness by the judge to

determine his or her competence to give evidence.oath and affirmationGenerally all those who can give relevant testimony may be compelled

by the court to attend court and testify through the use ofsummons. The court will then choose the approach to adopt regardingthat testimony. A witness will be required to make an oath that histestimony is true or to affirm the truth of their evidence. An oathis a pronouncement swearing to tell the truth, usually by an appealto God to witness the truth of your statement. Where one objects totaking an oath on grounds that that is contrary to their religious

269 (1779) 1 leach 199270 see above note 17 P. 427271 www.nccanch.acf.hhs.gov

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belief or that he has no religious belief or it would bepractically unreasonable to administer an oath to such a person dueto his religious belief, such a person is permitted to make asolemn affirmation. An affirmation is a promise in solemn form totell the truth while giving evidence. An affirmation has the samelegal force and effects as an oath”272

corroboration“Corroboration in the law of evidence means a rule of law or practice

requiring certain kind of evidence to be confirmed or supported byother independent evidence in order to be sufficient to sustain agiven result, such as a conviction of a criminal offence.Corroboration enhances the reliability of certain kinds ofevidence, which are inherently suspect because of the nature of thewitnesses. Examples such witnesses are: young children, mentallydisabled persons or witnesses purposing to serve their owninterests in giving evidence against the accused. Common law has nogeneral rule for corroboration but this general rule became subjectto two groups of exceptions:

1. “Corroboration required as a matter of law – Its effect is that if no corroborating evidenceexists, no conviction or judgment can be based on it, and any conviction or judgment mustbe set aside on appeal.

2. Corroboration to be looked for as a matter of practice – In this group it is mandatory thatthe court warns itself of the danger of convicting on the basis of some uncorroboratedevidence. Where the warning is properly given, a conviction or judgment may be given nthe absence of corroboration. This requirement was confined to evidence of accomplices ofan accused person, children of tender years and complainants in sexual cases

The rules were regarded as technical, confusing and unnecessarilyrestrictive. There now seems to be an emerging view that lesstechnical directions are adequate and should be applied to whatmerits them, and need not be restricted to a certain category.”273

In R vs Chauhan274 the trial judge left the complainant’s (a woman whowas indecently assaulted) distress to the jury as potentiallycorroborative of her evidence. On appeal against conviction, thecourt of appeal held that the trial judge had been right to permitthe jury to consider the complainant’s visible distress, aboutwhich the fellow employee (independent observer) had testified,with a clear warning to regard if as corroboration only if theywere sure that the distress was genuine and unfeigned.

272 se above note 10, see above note 16 p. 79. A false affirmer or oath taker may bepunished as a perjurer.

273 ibid p. 497274 (1981) 73 Cr App R 232

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proof beyond a reasonable doubtIn a criminal prosecution, the government must prove the defendant’s

guilt "beyond a reasonable doubt." This standard is notspecifically articulated by the Constitution, but is now an impliedstandard mandated by the due process clause. In re Winship, 275

"A reasonable doubt is an actual doubt that you are conscious of after going over in yourminds the entire case, giving consideration to all the testimony and every part of it. If youthen feel uncertain and not fully convinced that the defendant is guilty, and believe thatyou are acting in a reasonable manner, and if you believe that a reasonable man in anymatter of like importance would hesitate to act because of such a doubt as you areconscious of having, that is a reasonable doubt of which the defendant is entitled to havethe benefit." Holt v. United States,276

A judge instructing a jury by using phrases such as "grave doubt" or"substantial uncertainty" fails to make clear that the state hasthe heavy burden of proving "guilty" beyond a reasonable doubt.

"It is plain to us that the words 'substantial' and 'grave' as they are commonly understood,suggest a higher degree of doubt than is required for acquittal under the reasonabledoubt, standards." Cage v. Louisiana,277

The harmless error doctrine does not apply to such an error; however,the standard of review is not whether the improper jury instructioncould have been applied by the jury, but whether the jury did applyit in an unconstitutional manner. Estelle v. McGuire, 278

In attempting to define "reasonable doubt", the trial judge shouldavoid using such phases as "moral certainty" or "substantialcertainty" in the abstract, since it does not sufficiently conveythe state’s heavy burden. Such phases, however, if sufficientlyexplained in the rest of the charge to convey the state’s heavyburden, are constitutionally adequate.279.

The New York Court of Appeals has defined a reasonable doubt as one"for which a juror could give a reason if called upon to do."280; People v. Malloy,281

harmless error doctrineGenerally, a judicial error in admitting or excluding evidence cannot

be successfully appealed unless a "substantial right" of a partyhas been effected by the error, i.e., it substantially swayed thejury's deliberation. The harmless error doctrine blocks appellate

275 397 U.S. 358 (1970).276 218 U.S. 245, 254 (1910).277 498 U.S. 39, 40-41 (1990).278 502 U.S. 62 (1991).279 Victor v. Nebraska, 114 S.Ct. 1239 (1994)280 1 N.Y. Criminal Jury Instructions, §§2.51, 3.07, 6.20 (1983)281 55 N.Y.2d 296 300 (1982).

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courts from "setting aside convictions for small errors or defectsthat have little, if any, likelihood of having changed the resultof the trail." Chapman v. California, 282A party is entitled to a "fairtrial," but not a perfect one. If the civil or criminal courtcommits an error in admitting or excluding evidence, the error isharmless and cannot be the basis for a new trial unless the erroraffected a substantial right of a party. Non-constitutional erroris harmless if there is other substantial evidence to support theverdict.

A different harmless error standard is utilized by appellate courtswhen reviewing constitutional errors; the standard adopted requiresthat the reviewing court must be convinced beyond a reasonabledoubt that the error did not contribute to the verdict obtained. Analleged violation of the confrontation clause is subject to thisheavier burden. A constitutional error in a criminal case shifts tothe State the burden of production and persuasion to show that theerror was harmless beyond a reasonable doubt. If the AppellateCourt finds that the error did not contribute to the guilty verdictbecause the People's proof was so overwhelming (the State had "anair tight case"), then the Appellate Court must conclude that evenabsent the error, the defendant would not have been acquitted.Today, introducing a confession that was coerced may be found to beharmless error. Arizona v. Falmiante, 283Thus, a trial error regardingevidentiary privilege is not a constitutional violation, becauseprivileges are not a requirement of due process. 284

Although most constitutional errors are amenable to harmless-erroranalysis, some will always invalidate a conviction, e.g., totaldeprivation of the right to counsel, a biased judge, a denial ofthe right to self-representation, and, of course, aconstitutionally deficient reasonable-doubt instruction. Becausesuch an error diminishes the People's burden of proof, a mistake bythe court on a jury instruction defining proof beyond a reasonabledoubt can never be regarded as harmless error, no matter howoverwhelming the evidence of guilt. Sullivan v. Louisiana285. If theAppellate Court finds "plain error," then it has discretion toorder a new trial even though the objection was not timely orproperly raised. "Plain error" is rarely used and only for the mostegregious errors. It is used by appellate courts where fairness andthe integrity of the court is effected by an obvious error. Absentthe error there is a significant probability.

282 386 U.S. 18, 22 (1967).283 111 S.Ct. 1246 (1991).284 1 McCormick on Evidence §72 at 269 (4th ed. 1992).285 113 S.Ct. 2078 (1993)

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presumption of legitimacyEvery person is presumed legitimate. A party seeking to rebut this

presumption must do so by "clear and convincing" evidence. Forexample, when a married woman admitted to having unprotected sexwith a non-spouse, whose human leucocyte test indicated 99%paternity, the presumption of legitimacy was sufficiently rebutted.Richard W. v. Robert Y.,286.

presumption of sanityAll persons are presumed sane.presumption against suicideThere is a presumption against suicide in civil litigation in which

the cause of death is in controversy.presumption of deathA person who has been continuously absent for a period of seven years

and who has not communicated with persons he would be expected tocontact is presumed dead.

presumption in bailmentsWhere a bailor proves that he delivered the goods to the bailee in

good condition, but they were returned to him in a damaged state,it is presumed that the bailee was negligent.

presumption of mail deliveryApiece of mail shown to have been properly stamped, addressed and

mailed is presumed to have been delivered. In New York, in additionto a claim of no receipt, there must be a showing that routineoffice practice was not followed or was so haphazard that it wasunreasonable to assume that the notice was mailed. Nassau Ins. Co. v.Murray, 401 N.Y.S.2d 363 (2d Dep't 1978).

presumption of the legality of a marriageWhere it has been shown that a marriage ceremony was performed, the

ceremony is presumed legal and the marriage is presumed valid.presumption of continuanceProof of the existence of an object, condition or tendency creates a

presumption that it continued for a usual length of time.presumption of solvencyA person's solvency is presumed and all debts are presumed

collectible.

286 212 A.D.2d 89 3d Dep't 1995)

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presumption of regularityIt is generally presumed that no public official acting under an oath

of office will do anything contrary to his official duty or omitanything which his official duty requires to be done. For example,presumption of regularity of IRS procedures suggests that thedeficiency notice was probably properly entered although proofthereof was missing. United States v. Aherns,287

If presumptions conflict, a court should apply the presumption that isbased upon the stronger policies and logic. Where the legality of alater marriage is challenged by evidence of an earlier one, thepresumption of the validity of the later marriage prevails.

original document ruleThe Original Document Rule, known at common law as the Best Evidence

Rule, requires that a litigant prove the terms or contents of amaterial writing, recording, or photography (or x-ray) byintroducing the original. An exception to this rule is made only ifthe proponent shows that the original is unavailable and that theunavailability is not the result of his own bad faith act ofdestruction or concealment. The rule exists to prevent fraud,mistake or inaccuracies. It is important to remember that this ruleapplies only to writings or the equivalent of a writing. The ruledoes not apply to the production of chattel. Also, a litigant isnot required to introduce the "best evidence" on every issue. Fed. R.Evid. 1001(1) defines a writing or recording as "letters, words,numbers, or their equivalent, set down by handwriting, typewriting,printing, photostating, photographing, magnetic impulse, mechanicalor electrical recording, or other form of data compilation." Fed. R.Evid. 1002 provides:

"To prove the contents of a writing, recording, or photograph, the original writing, recordingor photograph is required, except as otherwise provided in these rules or by Act ofCongress."

EXAMPLE:

The prosecution offers testimony with regard to an incriminatingconversation. The defendant argues that since the government hadrecorded the conversation the prosecution, should have introducedthe tapes. The Fifth Circuit held in United States v. Fagan, 288, that theprosecution would only have to produce the tapes if the contents of

287 530 F.2d 781 (8th Cir. 1976).288 821 F.2d 1002 (5th Cir. 1987)

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the tapes were at issue. The government could use testimony toprove the contents of the conversation even though a recordingexisted. 289defines an original as "the writing or recording itselfor any counterpart intended to have the same effect by a personexecuting or issuing it." Thus, a proponent must introduce the"original" in order to introduce the contents of a "writing orrecording."Acarbon copy of a contract executed in duplicate and asales slip carbon copy given to a customer are both treated asoriginals for the purpose of the "Best Evidence" rule.

The Original Document Rule is only applicable when a writing's contentis at issue. It is sometimes difficult to tell whether the contentsof a writing are, in fact, involved:

"The Original Document Rule does not apply when a witness refresheshis memory with a document, when an expert resorts to material as abasis for his opinion, or when a witness testifies that examinedbooks or records do not contain a particular entry. Sometransactions such as wills, contracts and deeds, as a matter ofsubstantive law take the form of a writing and any attempt to provetheir happening necessarily involves the contents of the writingand brings the Original Document Rule into play." Weinstein's Evidence, 290

Similarly, the Original Document Rule is inapplicable where a personbeing sued for onpayment

for goods testifies that he paid for the goods. This is true eventhough a receipt was purportedly delivered at the time of payment.The defendant is testifying as to the independent event of payment,and is not attempting to prove the contents of the written receipt.

rule of completenessFed. R. Evid. 106 codifies the common law "rule of completeness.” This rule

allows the otherparty to immediately introduce missing parts of “a writing or recorded

statement” (e.g. deposition) which in fairness ought to be consideredcontemporaneously with the statement. The purpose of this rule isto explain the admitted document to avoid misleading the jury.United States v. Li, 291This rule only applies to writings and not to oralstatements, but the trial court can use Fed. R. Evid. 611(a) to admitmissing parts of an oral statement.

289 Fed. R. Evid. 1001(3)290 §97 1002[03] at pp. 1002-09-10 (footnotes omitted).291 55 F.3d 325 (7th Cir. 1995).

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rule of competencyUnder the Federal Rules, a person offered as a witness is presumed

competent if that person has"personal knowledge" of a matter and states that he or she will speak

truthfully. See Fed. R. Evid. 601, 602 and 603; United States v. Blankenship, 923 F.2d1110 (5th Cir. 1991). Thus, no foundation need be laid before such witnesscan testify. However, in civil actions (diversity claims) in whichstate law applies regarding a claim or a defense, the competency ofthe witness shall be determined in accordance with more narrowstate competency laws. The Federal competency presumption appliesin federal criminal cases and non-diversity cases. This samedemarcation is used in determining the use of state vs. federalpresumptions. Fed. R. Evid. 301.

EXAMPLE:

In a Securities and Exchange action, a witness was deemed competentunder Fed. R. Evid. 601, notwithstanding his incompetency under thestate's Deadman's Statute, because state law did not supply theelements of the claim or defense. Sunstrand v. Sun Chem. Corp., 553 F.2d 1033(7th Cir. 1977).

Under federal law, the following are presumed competent,notwithstanding state laws to the contrary:

a. infants;b. convicted felons (conviction of a felony or of a crime involving

dishonesty or fraud isa. a basis for impeaching the witness. Fed. R. Evid. 609);b. interested persons (bias, although not specifically mentioned in

the Federal Rules, is a basis for impeachment); andc. incompetents.

Note that incompetency may be argued, however, as a matter of weightand credibility.

Remember, under Fed. R. Evid. 607, the credibility of a witness may beattacked by any party, including the party calling the witness.

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impeachment by contradiction: the collateral issue ruleOne potent method of impeachment is to present credible testimony of

'other evidence' contradicting the testimony of the witness soughtto be impeached. Such contradictory evidence is permitted onlywhere the evidence is independently relevant to a material issue inthe case. Contradiction evidence will not be received where itssole function is to "contradict" on a collateral issue. Fed. R. Evid.608(b); Badr v. Hogan, 292

The "collateral matter" rule applies whenever one party seeks tointroduce "extrinsic" evidence, i.e., the testimony of anotherwitness for the purpose of contradicting an opposing party'searlier witness. The English court attempted to explain the ruleover one hundred and fifty years ago:

"If the answer of a witness is a matter which would be allowed on your part to prove inevidence - if it had such a connection with the issue, that you would be allowed to give it inevidence - then it is a matter on which you may contradict him." Attorney-General v.Hitchcock, 293

That is, could the fact have been probatively offered into evidencefor a purpose independent of the purpose to contradict? If not,then it is collateral evidence which cannot be used to impeach thewitness. Thus, if the witness testifies that fact "X" is true, thenyou cannot contradict this fact with other testimony or evidenceunless fact "X" is a matter directly in issue in the litigation.

EXAMPLE:On cross-examination, W was asked if he had been fired from his job

because R, his employer, caught him stealing money. W responded no,that he quit his job to go to another job. Can that attorneysubsequently call R (extrinsic evidence) to testify that R firedWafter R caught him stealing? No, because that fact has no bearingon the litigation other than for purposes of impeachment.

EXAMPLE:

In a personal injury action, plaintiff was asked whether she receivedmoney from the Department of Social Services to which she was notentitled; plaintiff responded no.

Defendant's attorney offered a confession of judgment signed byplaintiff in which she admitted receiving the money and promised to

292 75 N.Y.2d 629 (1990).293 154 Eng. Rep. 38 (Exch. Ch. 1847).

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repay it. The court held the matter was collateral; her priormisconduct had no direct bearing on any issue in the case otherthan her credibility. Thus, it could not be pursued by the cross-examiner with extrinsic evidence to refute plaintiff's denial.

Note that evidence of wrongful acts, uncharged crimes, or conductoffered to prove motive, intent, absence of mistake or accident,identity, or knowledge, is not deemed collateral because allconcern issues material to the litigation. 294

marital privilege or husband-wife privilege or spousal testimonialprivilege

An early common law rule rendered any spouse incompetent to testifywhere his or her spouse was a party to a lawsuit. This rule oftotal incompetency has disappeared and has been replaced by twodifferent and distinct types of spousal privileges.

A "marital"or "spousal testimonial" privilege granting only thewitness-spouse a privilege to refuse to testify against the otherspouse at a criminal trial. Thus, it is only the witnessspouse whocan raise or waive the privilege. When a spouse wishes to testifyvoluntarily, the marriage must be in such disrepair that there islittle marital harmony to be preserved. This privilege mostfrequently arises when a spouse is present at a crime scene.Presently, the “marital" privilege, a.k.a. "spousal testimonialprivilege," as defined by the Supreme Court in Trammel v. United States,295is vested solely in the witness-spouse, who is free to testify, ornot, independent of the defendant spouse's control. This rule"furthers the important public interest in marital harmony withoutunduly burdening legitimate law enforcement needs."296. New York doesnot recognize this "marital" privilege.

A "husband-wife" privilege is available in both civil and criminaltrials. It shields from disclosure "confidential communications"between spouses which were made during marriage. This is the onlyprivilege that New York recognizes. 297

"There is no place like a bed for confidential disclosures between friends. Man (sic) and wife,they say, there open the very bottom of their souls to each other; and some old couplesoften lie and chat over old times till nearly morning." United States v. Byrd, 298This

294 Fed. R. Evid. 404(b).295 445 U.S. 40 (1980),296 Id. at 53297 CPLR 4502, 6010.298 750 F.2d 585, 593 n.5 (7th Cir. 1984) (quoting conversation between Ismael and Queequeg,in Herman

Melville's Moby Dick) (54 Norton Critical Ed. 1967).

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privilege does not apply to "ordinary conversations relating tomatters of business." Joel v. Weber,299

To invoke the "marital-spousal testimonial" privilege, the partiesmust be legally married at the time of the trial whereas to invoke the"husband-wife" privilege the parties must have been married at thetime of the conversation. If the spouses divorce or one spouse dies, thenthe "marital" privilege no longer exists because there is nomarriage to preserve. On the other hand, in the "husband-wife"privilege, the witness-spouse and the party-spouse do not have tobe married at the time of the trial; they simply must have beenmarried at the time of the communication. It protectscommunications made by a spouse who dies or is divorced after thecommunication is made, e.g., a suicide note received by thedecedent's spouse after the victim's death was held to beprivileged because the communication was made during marriage. In reVanderbilt, 300

shield law or reporters' privilegeA shield law or reporters' privilege is legislation designed to

provide a news reporter with the right to refuse to testify as toinformation and/or sources of information obtained during the newsgathering and dissemination process301.

A shield law is a law that gives reporters some means of protectionagainst being forced to disclose confidential information orsources in state court. There is no federal shield law (although alimited one has been passed by the House and awaits a Senate voteas of July 2008), and state shield laws vary in scope. In general,however, a shield law aims to provide the classic protection of, ‘areporter cannot be forced to reveal his or her source’ law. Thus, ashield law provides a privilege to a reporter pursuant to which thereporter cannot be forced by subpoena or other court order totestify about information contained in a news story and/or thesource of that information. Several shield laws additionallyprovide protection for the reporter even if the source and/orinformation is revealed during the dissemination of the news story,ie., whether or not the source or information is confidential.Depending on the jurisdiction, the privilege may be total orqualified, and it may also apply to other persons involved in the

299 153 Misc. 2d 549, 553 (1993).300 439 N.E.2d 378 (N.Y. 1982).301 See W. Cory Reiss, Crime That Plays: Shaping a Reporter's Shield to Cover

National Security in an Insecure World, 44 WAKE FOREST L. REV. 641 (2009).

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news-gathering and dissemination process as well, such as an editoror a publisher302.

deliberative process privilegeDeliberative process privilege is the common-law principle that the

internal processes of the executive branch of a government areimmune from normal disclosure or discovery in civil litigations,Freedom of Information Act requests, etc. The theory behind theprotection is that by guaranteeing confidentiality, the governmentwill receive better or more candid advice, recommendations andopinions, resulting in better decisions for society as a whole. Thedeliberative process privilege is often in dynamic tension with theprinciple of maximal transparency in government.

reporters' privilegeReporters' privilege in the United States, is a ‘reporter's protection

under constitutional or statutory law, from being compelled totestify about confidential information or sources’.303 It may bedescribed in US as the qualified (limited) First Amendment rightmany jurisdictions by statutory law or judicial decision have givento journalists in protecting their confidential sources fromdiscovery.304

priest–penitent privilegeThe priest–penitent privilege, also known as the clergy privilege,

clergy–penitent privilege, confessional privilege, andecclesiastical privilege, is an application of the principle ofprivileged communication that protects the contents ofcommunications between a member of the clergy and a penitent, whoshares information in confidence. It stems from the principle ofconfessional privilege. It is a distinct concept from that ofconfidentiality (see non-disclosure agreement).

McNicol305 gives three arguments in favour of the privilege:1. Freedom of religion2. The ethical duty of ministers of religion to keep confessions confidential

302 Rozell, Mark J., and Jeremy D. Mayer. 2008. Media Power Media Politics. Rowman and Littlefield Publishers, Inc. pg 330.

303 Black's law dictionary Ninth Ed.2004 WEST PUBLISHING Thompson Rueters 2009304 In re: Miller, 397 F.3d 964, 975 (D.C. Cir. 2005) (The appellant journalists

claimed that the contempt charges should be reversed because the justice department had not complied with the guidelines issuing subpoenas to news media. Because the circuit court found that the guidelines did not create an enforceable right, it found no reason to determine the issue of compliance).

305 McNicol (1992) p.338, n.88.

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3. The practical fact that ministers of religion will inevitably be ruled by the conscience anddefy the courts, even at the cost of their own liberty.

Jeremy Bentham, writing in the early years of the nineteenth Century,devoted a whole chapter to serious, considered argument that RomanCatholic confession should be exempted from disclosure in judicialproceedings, even in Protestant countries, entitled: Exclusion ofthe Evidence of a Catholic Priest, respecting the confessionsentrusted to him, proper. Remarkably, Bentham was an opponent ofprofessional privilege for the giving of legal advice306.

solicitor–client privilege or attorney–client privilege or legalprofessional privilege

Solicitor–client privilege, referred to as the attorney–clientprivilege or legal professional privilege. This protectsconfidential communications between a client and his legal adviserfor the dominant purpose of legal advice.307 The rationale is thatclients ought to be able to communicate freely with their lawyers,in order to facilitate the proper functioning of the legal system.

Other common forms include privilege against self-incrimination (inother proceedings), without prejudice privilege (protectingcommunications made in the course of negotiations to settle a legaldispute), public interest privilege (formerly Crown privilege,protecting documents for which secrecy is necessary for the properfunctioning of government), marital privilege, medical professionalprivilege, and clergy–penitent privilege.

The effect of the privilege is usually a right on the part of a partyto a case, allowing him to prevent evidence from being introducedin the form of testimony from the person to whom the privilegeruns. For example, a person can generally prevent his attorney fromtestifying about the legal relationship between attorney andclient, even if the attorney were willing to do so. In a fewinstances, such as the marital privilege, the privilege is a rightheld by the potential witness. Thus, if a wife wishes to testifyagainst her husband, she may do so even if he opposes thistestimony; however, the wife has the privilege of refusing totestify even if the husband wishes her to do so.

Attorney–client privilege is a legal concept that protects certaincommunications between a client and his or her attorney and keeps

306 See also, "Evidence that ought not to be admitted - Disclosure of Catholic Confession", Introductory View of the Rationale of Evidence, in Bowring, Works of Jeremy Bentham, VI, section 5, p. 98-99.

307 Esso Australia Resources Limited v The Commissioners of Taxation (1999) 201 CLR 49;168 ALR 123

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those communications confidential. The attorney–client privilege isone of the oldest recognized privileges for confidentialcommunications.308 The United States Supreme Court has stated thatby assuring confidentiality the privilege encourages clients tomake ‘full and frank’ disclosures to their attorneys, who are thenbetter able to provide candid advice and effectiverepresentation.309

state secrets privilegeThe state secrets privilege is an evidentiary rule created by legal

precedent. Application of the privilege results in exclusion ofevidence from a legal case based solely on affidavits submitted bythe government stating that court proceedings might disclosesensitive information which might endanger national security.310

United States v. Reynolds, 311 which involved military secrets, wasthe first case that saw formal recognition of the privilege.Following a claim of ‘state secrets privilege’, the court rarelyconducts an in camera examination of the evidence to evaluatewhether there is sufficient cause to support the use of thisdoctrine. This results in court rulings in which even the judge hasnot verified the veracity of the assertion. 312 The privilegedmaterial is completely removed from the litigation, and the courtmust determine how the unavailability of the privileged informationaffects the case. 313

The purpose of the state secrets privilege is to prevent courts fromrevealing state secrets in the course of civil litigation (incriminal cases, the Stte Secrets Act, or ites equivalent, servesthe same purpose). The government may intervene in any civil suit,including when it is not a party to the litigation, to ask thecourt to exclude state secrets evidence. While the courts mayexamine such evidence closely, in practice they generally defer tothe Executive Branch. Once the court has agreed that evidence issubject to the state secrets privilege, it is excluded from thelitigation. Often, as a practical matter, the plaintiff cannot

308 Swidler & Berlin v. United States, 524 U. S. 399, 403 (1998)309 Upjohn Co. v. United States, 449 U. S. 383, 389 (1981)310 The state secrets privilege: Expanding Its Scope Through Government Misuse by

Carrie Newton Lyons, the Lewis & Clark Law Review, published by Lewis & Clark Law School, Volume 11 / Number 1 / Spring 2007.

311 United States v. Reynolds, 345 U.S. 1, paragraph 8 (1953) (“the privilege againstrevealing military secrets, a privilege which is well established in the law of evidence”).

312 Id 313 Tenet v. Doe, 544 U.S. 1 (2005)

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continue the suit without the privileged information, and drops thecase.

habit evidenceCharacter evidence must be distinguished from habit evidence, which is

generally admissible, and which is evidence submitted for thepurpose of proving that an individual acted in a particular way ona particular occasion in question based on that person's tendencyto reflexively respond to a particular situation in a particularway.

evidence of dispositionMost people would agree that a person's past behaviour is a good guide

to his future conduct. The disagreement lies in assessing how gooda guide it is. The problem is particularly acute in criminaltrials, where the prosecution would frequently like to adduceevidence of a defendant's bad character (see evidence of badcharacter) to show that he has a disposition towards committing theoffence charged. Very often the bad character evidence will takethe form of previous convictions for related offences, but this isnot the only form that bad character evidence can take.

If such evidence is admitted as proof that the defendant is morelikely to have committed the offence than would be the case withoutit, it is very likely that this evidence will be highly prejudicialto the defendant -- often more prejudicial that its evidentialvalue merits. If for example, a defendant is charged with theft,and the evidence against him is insubstantial except a previousconviction for theft, disclosing that previous conviction will havean enormous impact on the jury's assessment of his guilt. Yet can asingle conviction really be sufficient to put the jury's assessmentof the defendant's guilt into the 'beyond reasonable doubt'category, as a defendant is entitled to expect? There is no doubtthat, averaged across the whole population, defendants withprevious convictions are more likely to be guilty of later chargesthan defendants without previous convictions. But a criminal trialis not supposed to be an exercise in the balancing ofprobablilities -- it is supposed to ensure that only a defendantwho is guilty beyond reasonable doubt is convicted. On the otherhand, refusal ever to admit evidence of a disposition to commit theoffence could sometimes lead to an egregious villain beingacquited.

'similar fact' evidence Boardman establishes that evidence of similar conduct in a number of

offences may be used to support the case that the defendant is

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guilty of one or more of these offences, even when the evidence onany one count is inconclusive. However, a related issue is whetherevidence of similar conduct can legitimately identify the defendantas the perpetrator, if identification is in issue. The answer hasnever really been clear. On the one hand, if evidence canaccumulate to show that a known person committed an a crime whosefacts are disputed, it should be capable of accumulating to showthat an unknown person committed a crime whose facts are not indoubt. On the other, there are particular problems withidentification evidence, which would suggest that its probativevalue should not be regarded too highly.

In DPP v P314, Lord Mackay seemed to suggest that identification evidencecould only be used cumulatively if there was a Straffen -metarelationship of 'striking similarity' between the events. Then in RV McGranaghan (1995), the Court of Appeal made a strong statementthat 'similar fact identification' evidence could never tie thedefendant to any specific count on the indictment; before considerwhether the defendant was guilty of multiple counts, the juryshould consider whether, similar fact evidence aside, he was guiltyof any one of them. This became known as the 'sequential' approachto identification evidence.

judicial noticeJudicial notice is a rule in the law of evidence that allows a fact to

be introduced into evidence if the truth of that fact is sonotorious or well known, or so authoritatively attested, that itcannot reasonably be doubted. This is done upon the request of theparty seeking to rely on the fact at issue. Facts and materialsadmitted under judicial notice are accepted without being formallyintroduced by a witness or other rule of evidence, and even if oneparty wishes to lead evidence to the contrary. Judicial notice isfrequently used for the simplest, most obvious common sense facts,such as which day of the week corresponded to a particular calendardate.

extrinsic evidence rule Facts or information not embodied in a written agreement such as a

will, trust, or contract. Extrinsic evidence is similar toextraneous evidence, which is not furnished by the document in andof itself but is derived from external sources. In contract law,Parol Evidence is extrinsic evidence since it is not within acontract but, rather, is oral and outside the instrument.

314 (1990) 93 Cr App R 267.

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recorded recollection A recorded recollection (sometimes referred to as a prior recollection

recorded), in the law of evidence, is an exception to the hearsayrule which allows a witness to testify to the accuracy of arecording or documentation of their own out-of-court statementbased on their recollection of the circumstances under which thestatement was recorded or documented - even though the witness doesnot remember the events attested to in the statement. It issufficient that the witness is able to testify to having made therecording, and to having written an accurate statement at thattime.

expert witnessAn expert witness, professional witness or judicial expert is a

witness, who by virtue of education, training, skill, orexperience, is believed to have expertise and specialised knowledgein a particular subject beyond that of the average person,sufficient that others may officially and legally rely upon thewitness's specialized (scientific, technical or other) opinionabout an evidence or fact issue within the scope of his expertise,referred to as the expert opinion, as an assistance to the fact-finder.315 Expert witnesses may also deliver expert evidence aboutfacts from the domain of their expertise.316 At times, theirtestimony may be rebutted with a learned treatise, sometimes to thedetriment of their reputations.

In Scots Law, Davie v Magistrates of Edinburgh317 provides authority that wherea witness has particular knowledge or skills in an area beingexamined by the court, and has been called to court in order toelaborate on that area for the benefit of the court, that witnessmay give evidence of his opinion on that area.318

dead man statuteA dead man statute is a statute designed to prevent perjury in a civil

case by prohibiting a witness who is an interested party fromtestifying about communications or transactions with a deceasedperson (a ‘decedent’) against the decedent's estate unless there isa waiver. This prohibition applies only against a witness who hasan interest in the outcome of the case and applies only where thatwitness is testifying for his own interests and against the

315 Black's Law Dictionary, articles "Evidence", "Expert", "Witness"316 Cullen, Pamela V., "A Stranger in Blood: The Case Files on Dr John Bodkin Adams",

London, Elliott & Thompson, 2006, ISBN 1-904027-19-9317 1953 S.C. 34318 Davie v Magistrates of Edinburgh 1953 SC 34

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interests of the decedent. Furthermore, the restriction only existsin civil cases, never in criminal cases.

و The restriction can be waived. A waiver can occur in a number of ways:

و The decedent's representative fails to object to the testimony;

و The decedent's own representative testifies to the communication;

و The decedent's testimony is brought before the jury in the form of a deposition or inanother form.

rule of evidenceRules of Evidence allow a court to exclude relevant evidence if its

"probative value is substantially outweighed by risks of unfairprejudice." Probative value is the extent to which the evidencewill prove some fact at issue in the case. "Prejudice" refers tothe extent to which members of the jury may weigh the evidenceagainst the non-offering party. Evidence is considered prejudicialif likely to elicit such a reaction from a juror.

unfair prejudiceMost evidence is inherently prejudicial, or the offering party would

have no reason to submit it to the jury. Evidence may beprejudicial and yet be admitted if the court deems it sufficientlyprobative of facts at issue in the case. "Unfair prejudice" existswhen the risk that the jury will weigh the evidence based on non-legal factors is so great that it outweighs the probative value ofthe evidence. Under evidence rules, courts are supposed to excludeunfairly prejudicial evidence.

probative valueEvidence which is sufficiently useful to prove something important in

a trial. However, probative value of proposed evidence must beweighed against prejudice in the minds of jurors toward theopposing party or criminal defendant. A typical dispute arises whenthe prosecutor wishes to introduce the previous conduct of adefendant (particularly a criminal conviction) to show a tendencytoward committing the crime charged, against the right of theaccused to be tried on the facts in the particular case and notprejudice him/her in the minds of the jury based on prior actions.

dying declarationIn the law of evidence, the dying declaration is testimony that would

normally be barred as hearsay but may nonetheless be admitted as

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evidence in certain kinds of cases because it constituted the lastwords of a dying person.319

party admissionThe party admission, in the law of evidence, is a type of statement

that appears to be hearsay (an out of court statement) but isgenerally exempted (excluded) from the definition of hearsay. Therationale for a party admission exception to hearsay exclusion canbe mostly easily understood by reference to the rationale for thehearsay rule itself. Affidavit evidence consisting of out-of-courtstatements, is not subject to cross-examination. Affidavit evidenceis thought to detract from the truth-finding mission of a trial.The accuracy or credibility of affidavits lack the transparencythat cross-examination exacts, but--at least in civil cases--aparty may be cross-examined or give an explanation or denial of itsadmission. In criminal cases, however, ‘modern psychologicalinterrogation techniques can cause innocent suspects’ to falselyadmit to crimes.320 Therefore, depending on the context, partyadmissions may advance, rather than detract from, the truth-findingmission.

statements against interest’ ruleThere is frequent confusion about whether a ‘party admission’ has to

be a statement that is against the interests of its maker. The word‘admission’ connotes that the statement must be harmful. However,the party admission exemption does not in any way require that theadmission be a representation against the party's interest - a‘statement against interest.’

‘Statements against interest’ made by other witnesses are sometimesadmissible over the hearsay exception, but that is covered by adifferent exception.321 The ‘statements against interest’ rule isdifferent because:

1) It is party neutral (the hearsay exemption is party-specific).2) The declarant must be unavailable.3) The statement must be against the penal interest (under federal rules of evidence) or the

fiscal or social interest (under the rules of states not following the federal rules).4) The ‘statements against interest’ rule has a rationale that is different from the party

admission rule. The courts that created that exception assumed it unlikely that a person

319 "Last Words", Brendan I. Koerner, Legal Affairs, November/December 2002. Fetched from URL on 9 May 2011.

320 Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 North Carolina Law Review 891, 995 (2001).

321 See Federal Rules of Evidence 804.

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would make a statement against his own interest untruthfully. The party admission, asshown above, has nothing to do with this.

declarations against interestDeclarations against interest are an exception to the rule on hearsay

in which a person's statement may be used, where generally thecontent of the statement is so prejudicial to the person making itthat she would not have made the statement unless she believed thestatement was true. The Federal Rules of evidence limit the basesof prejudices to the declarant to tort and criminal liability. Somejurisdictions, such as California, extend the prejudice to ‘hatred,ridicule, or social disgrace in the community.’

A declaration against interest differs from a party admission becausehere the declarant does not have to be a party to the case, butmust have a basis for knowing that the statement is true.Furthermore, evidence of the statement will only be admissible ifthe declarant is unavailable to testify.

present sense impressionA present sense impression, in the law of evidence, is a statement

made by a person (the declarant) that conveys his or her sense ofthe state of an event or the condition of something. The statementmust be spontaneously made while the person was perceiving (i.e.contemporaneous with) the event or condition, or ‘immediatelythereafter.’ The permissible time lapse between event and statementmay range from seconds to minutes, but probably not hours. Thesubject matter and content of the statement are limited todescriptions or explanations of the event or condition, thereforeopinions, inferences, or conclusions about the event or conditionare not present sense impressions. An example of present senseimpression is of a person saying, ‘it's cold’ or ‘we're goingreally fast’.

The witness testifying about the statement need not be the declarantwho, with firsthand knowledge about the event and condition, wouldnormally make a better witness. The witness must have personalknowledge of declarant's making of the statement, but need not havepersonal knowledge of the event or the content of the statement.For example, a policeman observed from a distance that a reporterwas dictating into a voice-recorder while a shooting was going on,but could not hear what the reporter was dictating. The reporter isunavailable to testify. The policeman testifies that he saw thereporter make the dictation. Upon proper authentication, thatportion of the audio-recording containing descriptions or

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explanations of the shooting is admissible as present senseimpression.

excited utteranceAn excited utterance, in the law of evidence, is a statement made by a

person in response to a startling or shocking event or condition.It is an unplanned reaction to a ‘startling event’. It is anexception to the hearsay rule.322 The statement must bespontaneously made by the person (the declarant) while still underthe stress of excitement from the event or condition. The subjectmatter and content of the statement must ‘relate to’ event orcondition. The statement could be a description or explanation (asrequired for present sense impression), or an opinion or inference.Examples include: ‘Look out! We're going to crash!’ or ‘I thinkhe's crazy. He's shooting at us!’ The basis for this hearsayexception is the belief that a statement made under the stress islikely to be trustworthy and unlikely to be premeditatedfalsehoods. Compared to present sense impression, excited utteranceis broader in scope for permitting a longer time lapse betweenevent and statement, and a wider range of content in the statement.

business records exception or business entry ruleThe business records exception to the sometimes referred to as the

business entry rule. Business records, for the purposes of theexception, are any writings or records of acts, events, conditions,opinions, or diagnosis, made at or near the time by, or frominformation transmitted by, a person with knowledge are admissibleif kept in the regular course of business and if it was the regularcourse of business to make that record, unless the source ofinformation or circumstances of preparation indicate a lack oftrustworthiness. The basic rationale for the exception is thatemployees are under a duty to be accurate in observing, reporting,and recording business facts. The underlying belief is that specialreliability is provided by the regularity with which the recordsare made and kept, as well as the incentive of employees to keepaccurate records (under threat of termination or other penalty)323.The exception functions to allow the record to substitute for thein-court testimony of the employees, but it can only substitute forwhat the employee could testify about. The availability of thedeclarant (the employee whose testimony is being replaced by therecord) is immaterial for the purposes of this exception.

322 Garner, Brian A., Editor in Chief, (1999). Black's Law Dictionary (7 ed.). St. Paul, MN, USA: West Publishing. p. 585. ISBN 0314199500.

323 Fisher, George. Evidence. pp. 484–491. Foundation Press, 2002. ISBN 1-58778-176-X

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confessionIn the law of criminal evidence, a confession is a statement by a

suspect in crime which is adverse to that person. Some secondaryauthorities, such as Black's Law Dictionary, define a confession inmore narrow terms, e.g. as ‘a statement admitting or acknowledgingall facts necessary for conviction of a crime,’ which would bedistinct from a mere admission of certain facts that, if true,would still not, by themselves, satisfy all the elements of theoffense. This specific form of testimony, involving oneself, isused as a form of proof in judicial matters, since at least theInquisition.

laying a foundationIn law, a foundation is sufficient preliminary evidence of the

authenticity and relevance for the admission of material evidencein the form of exhibits or testimony of witnesses. Materialevidence is important evidence that may serve to determine theoutcome of a case. Exhibits include real evidence, illustrativeevidence, demonstrative evidence, and documentary evidence. Thetype of preliminary evidence necessary to lay the proper foundationdepends on the form and type of material evidence offered. The lackof foundation is a valid objection that an adverse party may raiseduring trial.

public policy doctrines Public policy doctrines for the exclusion of relevant evidence, in the

law of evidence, encompass several types of evidence that would berelevant to prove facts at issue in a legal proceeding, but whichare nonetheless excluded because of public policy concerns. Thereare five major areas of exclusion that arise out of the Rules ofEvidence:

(1) subsequent remedial measures, (2) ownership of liability insurance, (3) offers to plead guilty to a crime, (4) offers to settle a claim, and (5) offers to pay medical expenses.

The exclusionary rule, under which evidence gathered by the policefrom an illegal search is excluded, is of similar operation but istypically considered separately.

inadmissibility of settlement claims Offers to settle a claim, and related statements made during a

settlement conference, are generally inadmissible. The primarypublic policy motivation is to encourage litigants to settle their

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disputes. This rule also recognizes that parties may makesettlement offers even where they believe they have no actualliability, in order to avoid the expense of litigation. Theinadmissibility of settlement claims only prohibits the admissionof statements, not the admission of facts. Thus, if a party to asettlement conference mentions that she possesses a certaindocument relevant to the proceedings, the other party may seek todiscover that document through legal processes, despite it havingfirst been mentioned in the settlement conference; merelydisclosing a document's existence and mentioning it during asettlement conference does not insulate it from being discoveredand admitted. Additionally, the public policy exception ofexcluding relevant evidence arising out of an offer to settlecannot not apply if the evidence sought to be introduced is a claimmade in a period before a dispute between the parties arose.

exclusionary ruleThe exclusionary rule is another rule under which relevant evidence

may be excluded, based in part on public policy concerns. Underthis rule, evidence gathered by the police from an illegal searchis inadmissible in a criminal case. Such exclusion is intended, inpart, to discourage law enforcement officials from violating thesearch subject's constitutional right against unreasonable searchand seizure. However, it is premised as much on the right of theindividual accused against such a search as it is on the largerissue of law enforcement behavior. The rule does also reflect onquestions of reliability regarding some (but not all) types ofevidence that are excluded thereunder. For example, an officerconducting a warrantless search may have more of an opportunity toplant evidence, and a confession coerced out of a party deniedaccess to legal counsel may be false. In legal education anddiscourse, the exclusionary rule is generally treated as a rule ofcriminal procedure, rather than a rule of evidence.

spoliation of evidence The spoliation of evidence is the intentional or negligent

withholding, hiding, altering, or destroying of evidence relevantto a legal proceeding.324Spoliation has two possible consequences:in jurisdictions where the (intentional) act is criminal bystatute, it may result in fines and incarceration for the partieswho engaged in the spoliation; in jurisdictions where relevant case

324 Black's Law Dictionary (8th ed. 2004). For an overview of spoliation, see generally Michael Zuckerman, Yes, I Destroyed the Evidence -- Sue Me?, Journal of Computer and Information Law

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law precedent has been established, proceedings possibly altered byspoliation may be interpreted under a spoliation inference.

The spoliation inference is a negative evidentiary inference that afinder of fact can draw from a party's destruction of a document orthing that is relevant to an ongoing or reasonably foreseeablecivil or criminal proceeding: the finder of fact can review allevidence uncovered in as strong a light as possible against thespoliator and in favor of the opposing party.

The theory of the spoliation inference is that when a party destroysevidence, it may be reasonable to infer that the party had‘consciousness of guilt’ or other motivation to avoid the evidence.Therefore, the factfinder may conclude that the evidence would havebeen unfavorable to the spoliator. Some jurisdictions haverecognized a spoliation tort action, which allows the victim ofdestruction of evidence to file a separate tort action against aspoliator.

Spoliation is often an issue in the context where a person claims hehas been injured by a defective product which he then discarded orlost.[3] In that circumstance, the defendant manufacturer ordistributor may move to dismiss the case on the basis of spoliation(instead of just having to rely on the plaintiff's usual burden ofproof, the argument being that any testimony of plaintiff'switnesses would not overcome the spoliation inference born of thelost evidentiary value of the missing product itself).

testimonyIn law and in religion, testimony is a solemn attestation as to the

truth of a matter. All testimonies should be well thought out andtruthful. The words ‘testimony’ and ‘testify’ both have a root inthe Latin testis, which is normally translated ‘witness’. In thelaw, testimony is a form of evidence that is obtained from awitness who makes a solemn statement or declaration of fact.Testimony may be oral or written, and it is usually made by oath oraffirmation under penalty of perjury. Unless a witness istestifying as an expert witness, testimony in the form of opinionsor inferences is generally limited to those opinions or inferencesthat are rationally based on the perceptions of the witness and arehelpful to a clear understanding of the witness' testimony.

When a witness is asked a question, the opposing attorney can raise anobjection, which is a legal move to disallow an improper question,preferably before the witness answers, and mentioning one of thestandard reasons, including:

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و argumentative or inflammatory

و asked and answered

و best evidence rule

و calls for speculation

و calls for a conclusion

و compound question or narrative

و hearsay

و irrelevant, immaterial, incompetent (this is actually not a proper objection because theterm ‘incompetent’ is meaningless and the words ‘irrelevant’ and ‘immaterial’ have thesame meaning under the Federal Rules of Evidence). Historically, however, the phase hadsome meaning. Irrelevant evidence referred to evidence that has no provative value (i.e.,does not tend to prove any fact). Immaterial refers to evidence that is probative, but not asto any fact material to the case. Incompetent is a catch-all for inadmissible, but typicallyreferred to evidence that is probative of a material fact but is otherwise inadmissible, forexample because it is hearsay or privileged.325

و lack of foundation

و leading question

و privilege

و vague

و ultimate issue testimony

There may also be an objection to the answer, including non-responsive.

real evidenceReal evidence, material evidence or physical evidence is any material

object, introduced in a trial, intended to prove a fact in issuebased on its demonstrable physical characteristics. Physicalevidence can conceivably include all or part of any object.326 Traceevidence, such as fingerprints, glove prints and firearm residue,is also a type of real evidence. Real evidence is usually reportedupon by an expert witness with appropriate qualifications to give

325 See Black's Law Dictionary (7th Ed.). 326 Jonathan Law, Elizabeth A. Martin (2009). "A Dictionary of Law". Oxford

University Press.

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an opinion. This normally means a forensic scientist or onequalified in forensic engineering. In a murder trial for example(or a civil trial for assault), the physical evidence might includebiological evidence such as DNA left by the attacker on thevictim's body, the body itself, the weapon used, pieces of carpetspattered with blood, or casts of footprints or tire prints foundat the scene of the crime.

provenanceAdmission of real evidence requires authentication, demonstration of

relevance, and a showing that the object is in ‘the same orsubstantially the same condition’ now as it was on the relevantdate. An object of real evidence is authenticated through witnessstatements or by circumstantial evidence called the chain ofcustody.

digital evidenceDigital evidence or electronic evidence is any probative information

stored or transmitted in digital form that a party to a court casemay use at trial.327 Before accepting digital evidence a court willdetermine if the evidence is relevant, whether it is authentic, ifit is hearsay and whether a copy is acceptable or the original isrequired.328 The use of digital evidence has increased in the pastfew decades as courts have allowed the use of e-mails, digitalphotographs, ATM transaction logs, word processing documents,instant message histories, files saved from accounting programs,spreadsheets, internet browser histories, databases, the contentsof computer memory, computer backups, computer printouts, GlobalPositioning System tracks, logs from a hotel’s electronic doorlocks, and digital video or audio files.329 Digital evidence isoften ruled inadmissible by courts because it was obtained withoutauthorization.330 In most jurisdictions a warrant is required toseize and investigate digital devices. In a digital investigationthis can present problems where, for example, evidence of othercrimes are identified while investigating another. During a 1999investigation into online harassment by Keith Schroederinvestigators found pornographic images of children on his

327 Casey, Eoghan (2004). Digital Evidence and Computer Crime, Second Edition. Elsevier. ISBN 0-12-163104-4.


329 Various (2009). Eoghan Casey. ed. Handbook of Digital Forensics and Investigation. Academic Press. pp. 567. ISBN 0-12-374267-6. Retrieved 2 September 2010.


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computer. A second warrant had to be obtained before the evidencecould be used to charge Schroeder.331

exculpatory evidence Exculpatory evidence is the evidence favorable to the defendant in a

criminal trial, which clears or tends to clear the defendant ofguilt.332 It is the opposite of inculpatory evidence, which tends toprove guilt.

frye testThe Frye test, coming from the case Frye v. United States (1923), said that

admissible scientific evidence must be a result of a theory thathad ‘general acceptance’ in scientific community. This test resultsin uniform decisions regarding admissibility. In particular, thejudges in Frye ruled that:

Just when a scientific principle or discovery crosses the line between experimental anddemonstrable stages is difficult to define. Somewhere in this twilight zone the evidentialforce of the principle must be recognized, and while courts will go a long way in admittingexpert testimony deduced from a well-recognized scientific principle or discovery, the thingfrom which the deduction is made must be sufficiently established to have gained generalacceptance in the particular field in which it belongs.

This test has been criticized as misunderstanding the scientificprocess and being based on the assumption that a jury is unable toevaluate scientific testimony. The goals of the test were to avoidevidence from overly questionable or controversial scientifictheories to be used; it was used to exclude lie-detector resultsemployed by the defense in the original case.

daubert testThe Daubert test arose out of the United States Supreme Court case

Daubert v. Merrell Dow Pharmaceuticals333. It requires four things to beshown:

(2) That the theory is testable (has it been tested?)(3) That the theory has been peer reviewed, (Peer reviewing usually reduces the chances of

error in the theory)(4) The reliability and error rate (100% reliability and zero error are not required, but the rates

should be considered by the trial judge)(5) The extent of general acceptance by the scientific community

331 "State v. Schroeder, 613 NW 2d 911 - Wis: Court of Appeals 2000". 2000.332 The Free Dictionary by Farlex Definition of Exculpatory evidence333 509 U.S. 579 (1993)

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reporting witnessCalled after teaching witness leaves stand. Usually the laboratory

technician who personally conducted the test. Witness will describeboth the test and the results. When describing test, will ventureopinions that proper test procedures were used and that equipmentwas in good working order.

interpreting witnessSometimes not needed 1) when test result is self-explanatory or pass-

fail, or 2) when there is a statutory presumption obviating theneed (e.g. drunk driving statutes and a test showing raised bloodalcohol levels). Otherwise, this witness needed to complete thefoundation. Syllogistic in nature: 1) states the interpretivestandard (Rule or Major Premise), applies the standard to the testresult (minor premise) and derives a conclusion.334

Some jurisdictions won't accept opinion unless it is a ‘reasonablescientific opinion.’ Otherwise, need to consider if the witness cancouch the opinion in terms of statistical probability.

For example, in the casebook case of People v. Collins, 335, an elderly lady was knocked downand robbed by a blond who escaped in yellow car with bearded black man. Defendants metthat rough description but could not be conclusively identified. Prosecutor used amathematics professor to discuss the probability that this couple could be the guilty party.Lower court overruled Defendants' objection. Court held that 1) there was no foundationalestablishment of the underlying probabilities and 2) the fact that the Defendants' fit aprobability model was irrelevant because it doesn't prove they did it.

demonstrative evidenceDemonstrative evidence is evidence in the form of a representation of

an object. This is, as opposed to, real evidence, testimony, orother forms of evidence used at trial. Examples of demonstrativeevidence include photos, x-rays, videotapes, movies, soundrecordings, diagrams, forensic animation, maps, drawings, graphs,animation, simulations, and models. It is useful for assisting afinder of fact (fact-finder) in establishing context among thefacts presented in a case. To be admissible, a demonstrativeexhibit must ‘fairly and accurately’ represent the real object atthe relevant time.336

334 Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, Mass.: Harvard University Press, 1997).

335 438 P.2d 33 (Cal. 1968)336 See Federal Rules of Evidence 901, 902, and 1001-1004 for an example from United

States law.

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known innocent’ fillersOnce police have identified a suspect, they will typically place that

individual into either a live or photo lineup, along with a set of‘fillers.’ Researchers recommend, as a preliminary matter, that thefillers be ‘known innocent’ non-suspects. This way, if a witnessselects someone other than the suspect, the unreliability of thatwitness's memory is revealed.337

evidence of identityEvidence is anything that you see, experience, read, or are told that

causes you to believe that something is true or has reallyhappened. Evidence of identity is hence something that identifiesa person or thing

evidence of opinionOpinion evidence refers to evidence of what the witness thinks,

believes, or infers in regard to facts, as distinguished frompersonal knowledge of the facts themselves.338 In common lawjurisdictions the general rule is that a witness is supposed totestify as to what was observed and not to give an opinion on whatwas observed. However, there are two exceptions to this rule:expert evidence and non-expert opinion given by laymen which peoplein their daily lives reach without conscious ratiocination.

In general, witnesses should testify only as to the facts observed andshould not give opinion.339

The main rationale for such a rule is that the admission of opinionevidence would not assist, or might even mislead, the court and inparticular the jury. This is because opinion evidence is usuallyirrelevant. Moreover, admission of such evidence would usurp thefunctions of the jury, which alone should be the tribunal of factand draw its own inferences.340

expert evidenceAn expert witness is a witness, who by virtue of education, training,

skill, or experience, is believed to have expertise and specialisedknowledge in a particular subject beyond that of the averageperson, sufficient that others may officially and legally rely upon

337 Charles A. Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. & Psychiatry 265, 272 (2004).

338 Tapper, Colin (2004). Cross & Tapper on Evidence (10th edn). UK: Lexis Nexis. p. 556. ISBN 978-0-406-95004-8.

339 Id 340 Id. p. 558.

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the witness's specialized (scientific, technical or other) opinionabout an evidence or fact issue within the scope of his expertise,referred to as the expert opinion, as an assistance to the fact-finder.341 Expert witnesses may also deliver expert evidence aboutfacts from the domain of their expertise.342 The facts upon which anexpert opinion is based must be proved by admissible evidence.343

The duty of experts is to furnish the judge with the necessaryscientific criteria for testing the accuracy of their conclusions,so that the judge or jury can form their own independent judgmentby the application of these criteria to the facts proved.344

non-expert opinionNon-expert opinion refers to the opinion given in restricted

circumstances by laymen or persons who do not possess anyexpertise. These circumstances mainly concern matters of every daylife where a person may be expected to give opinions and whichopinions may be safely acted upon by others.

Such circumstances cannot be definitively laid out in a closed list ofcases. However, cases in which non-expert opinion has been admittedinclude:

و Apparent age of a person345

و Apparent age of objects346

و Speed347

و Weather

و Identification of handwriting

و Eyewitness identification

و Identification of physical objects

و The general body condition or emotional state of a person348

341 Federal Rule of Evidence 702 (As amended April 17, 2000, effective December 1, 2000)

342 Black's Law Dictionary, articles "Evidence", "Expert", "Witness"343 R v Turner [1975] QB 834344 Davie v Edinburgh Magistrates345 R v Cox [1898] 1 QB 179346 Black's Law Dictionary, articles "Evidence", "Expert", "Witness"347 R v Cheung Shing-Wai [1993] 1 HKCLR 311348 R v Davies [1962] 1 WLR 1111

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و The general condition of objects

و The approximate value of objects349

و Approximate distance350

و Time

و Ability to speak and understand a language351

burden of proof or onus probandiThe burden of proof (Latin: onus probandi) is the obligation to shift

the accepted conclusion away from an oppositional opinion to one'sown position. The burden of proof is often associated with theLatin maxim semper necessitas probandi incumbit ei qui agit, thebest translation of which seems to be: ‘the necessity of proof always lies withthe person who lays charges.’ 352 He who does not carry the burden of proofcarries the benefit of assumption, meaning he needs no evidence tosupport his claim. Fulfilling the burden of proof effectivelycaptures the benefit of assumption, passing the burden of proof offto another party.

The Sixth Edition of Black's Law Dictionary explained theparenthetical maxim as follows:

'Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantisprobatio nulla sit.... The proof lies upon him who affirms, not upon him who denies; since,by the nature of things, he who denies a fact cannot produce any proof. 353

legal burden or burden of persuasionA ‘legal burden’ or a ‘burden of persuasion’ is an obligation that

remains on a single party for the duration of the claim. Once theburden has been entirely discharged to the satisfaction of thetrier of fact, the party carrying the burden will succeed in itsclaim. For example, the presumption of innocence places a legalburden upon the prosecution to prove all elements of the offense(generally beyond a reasonable doubt) and to disprove all thedefenses except for affirmative defenses in which the proof of non-

349 R v Beckett (1913) 8 Cr App R 204350 R v Ireland (No. 2) [1971] SASR 6351 R v Decha-Iamsakun [1993] 1 NZLR 141352 Herring, J. (2004). Criminal Law: Text, Cases, and Materials. Oxford: Oxford

University Press. pp. 58–64. ISBN 0-19-876578-9.353 Black's Law Dictionary 516 (6th ed. 1990).'; se also "Anthony Rogers v. Penske

Truck Leasing: case 1080880". Supreme Court of Alabama. December 30, 2010.

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existence of all affirmative defense(s) is not constitutionallyrequired of the prosecution. 354

evidential burden Legal burden is not to be confused with evidential burden, which is an

obligation that shifts between parties over the course of thehearing or trial. It is not a burden of proof, but the burden toadduce sufficient evidence to properly raise an issue at court.

reasonable suspicionReasonable suspicion is a low standard of proof in the U.S. to

determine whether a brief investigative stop or search by a policeofficer or any government agent is warranted. It is important tonote that this stop and/or search must be brief; its thoroughnessis proportional to, and limited by, the low standard of evidence. Amore definite standard of proof (often probable cause) would berequired to warrant a more thorough stop/search. In Terry v. Ohio, 355,the United States Supreme Court ruled that reasonable suspicionrequires specific, articulable, and individualized suspicion thatcrime is afoot. A mere guess or ‘hunch’ is not enough to constitutereasonable suspicion.

silver platter doctrine Silver platter doctrine is the doctrine under which evidence turned

over to prosecutors by other persons (including public officials)would not be suppressed even though it was obtained by means of anillegal search. However, this doctrine has been repudiated.Articles obtained as a result of an unreasonable search and seizureby state officers may not be introduced into evidence against adefendant over his/her timely objection in a federal criminaltrial, even though the search was conducted without the involvementof federal officers. The Silver Platter doctrine which was ruledunconstitutional in the case of Elkins v. United States356 in 1960. Stateofficials that obtained evidence illegally were allowed to turnover evidence to federal officials, and have that evidence beadmitted into trial.357 In Nix v. Williams358 it was held that if theevidence obtained in the unlawful search would almost definitelyhave been found eventually even without said search (inevitablediscovery), the evidence may be brought forth in court.

354 Patterson v. New York, 432 U.S. 197 (1977)355 392 U.S. 1 (1968)356 ante, p. 364 U. S. 206. P. 364 U. S. 255357 Wilkey, Malcolm R. (1978). ‘The Exclusionary Rule: Why Suppress Valid Evidence?’.

Judicature 62 (5): 214–232.358 98 Eng. Rep. 302 (K.B. 1769).

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This exception to the exclusionary rule, valid until 1960, permittedfederal courts to accept evidence seized illegally by stateofficers in searches that involved neither federal participationnor federal direction. First applied to federal trials in Weeks v.United States (1914) 359, the exclusionary rule prevented the use intrials of evidence seized in an illegal search. This decision didnot apply to state courts, however, many of which continued tofollow the common‐law practice of admitting such evidence.

In 1927, the Supreme Court developed the so‐called silver platterdoctrine in two cases involving enforcement of the Eighteenth(Prohibition) Amendment, Byars v. United States and Gambino v. United States 360.State law enforcement officials, often at the secret instigation offederal agents, violated search and seizure procedures and turnedevidence from illegal searches over to federal prosecutors, evokingthe image of a gift on a silver platter to describe this ploy toevade the federal exclusionary rule.

The extension to state courts of the Fourth Amendment prohibition ofillegal searches in Wolf v. Colorado (1949)361 cast doubt on the continuedviability of the silver platter doctrine. In Elkins v. United States (1960)362, the Supreme Court finally abandoned it. The doctrine underminedfederalism, the justices concluded. Almost half of the states hadby then adopted the exclusionary rule, so admitting illegallyseized evidence in federal courts defeated state court efforts touphold Fourth Amendment standards. The next year, in Mapp v. Ohio(1961), the Supreme Court made the exclusionary rule binding on allstate courts, thus ending completely the tactics prompted by thesilver platter doctrine.

good-faith exemption Good-faith exemption (also good-faith doctrine) is a legal doctrine

providing an exemption to the exclusionary rule. The exemptionallows evidence collected in violation of privacy rights asinterpreted from the Fourth Amendment to be admitted at trial ifpolice officers acting in good faith (bona fides) reliance upon adefective search warrant — that is, they had reason to believetheir actions are legal (measured under the reasonable persontest). The rule was established in the two companion cases decidedby the U.S. Supreme Court in: United States v. Leon363and Massachusetts v.

359 232 U.S. 383 (1914)360 275 U.S. 310 (1927)361 338 U.S. 25 (1949)362 364 U.S. 206 (1960).363 (468 U.S. 902)

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Sheppard364. The exception permits the courts to consider the mentalstate of the police officer.

search warrantA search warrant is a court order issued by a magistrate, judge or

Supreme Court official that authorizes law enforcement officers toconduct a search of a person, location, or vehicle for evidence ofa crime and to confiscate evidence if it is found. A search warrantcannot be issued in aid of civil process.

Jurisdictions that respect the rule of law and a right to privacy putconstraints on the powers of police investigators, and typicallyrequire search warrants, or an equivalent procedure, for searchesconducted as part of a criminal investigation. An exception isusually made for "hot pursuit": if a criminal flees the scene of acrime and the police officer follows him, the officer has the rightto enter a property in which the criminal has sought shelter.Conversely, in authoritarian regimes, the police typically have theright to search property and people without having to providejustification, or without having to secure the permission of acourt.

probable cause for arrestProbable cause is a relatively low standard of evidence, which is used

to determine whether a search, or an arrest, is warranted. It isalso used by grand juries to determine whether to issue anindictment. In the civil context, this standard is often used whereplaintiffs are seeking a prejudgement remedy.

some credible evidence standard The ‘Some Credible Evidence’ standard is used as a legal place-holder

to bring some controversy before a trier of fact, and into a legalprocess. It is on the order of the factual standard of proof neededto achieve a finding of ‘Probable Cause’ used in ex parte thresholddeterminations needed before a court will issue a search warrant.It is a lower standard of proof than the ‘Preponderance of theEvidence’ standard. The ‘Some Credible Evidence’ standard does notrequire the fact-finder to weigh conflicting evidence, merelyrequiring the investigator or prosecutor to present the bareminimum of material credible evidence to support the allegationsagainst the subject, or in support of the allegation365.

364 (468 U.S. 981)365 see Valmonte v. Bane, 18 F.3d 992 (2nd Cir. 1994)

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substantial evidenceIn some appeals from decisions of administrative agencies, the courts

apply a ‘substantial evidence’ standard of review over the agency'sfactual findings. Substantial evidence is ‘more than a merescintilla. It means such relevant evidence as a reasonable mindmight accept as adequate to support a conclusion.’

preponderance of the evidencePreponderance of the evidence, also known as balance of probabilities

is the standard required in most civil cases. This is also thestandard of proof used in Grand Jury indictment proceedings (which,unlike civil proceedings, are procedurally unrebuttable), and infamily court determinations solely involving money, such as childsupport.

The standard is met if the proposition is more likely to be true thannot true. Effectively, the standard is satisfied if there isgreater than 50 percent chance that the proposition is true. LordDenning, in Miller v. Minister of Pensions, described it simply as ‘moreprobable than not.’ This is also the standard of proof used whendetermining eligibility of unemployment benefits for a formeremployee accused of losing their job through alleged misconduct.

clear and convincing evidence or clear and convincing proofClear and convincing evidence is a higher level of burden of

persuasion than a ‘Preponderance of the Evidence’. It is employedintra-adjudicatively in Administrative Court determinations, aswell as in civil and certain criminal procedure. For example, aprisoner seeking habeas corpus relief from capital punishment mustprove his factual innocence by clear and convincing evidence. Thisstandard is used in many types of equity cases, includingpaternity, PINS, juvenile delinquency, child custody, the probateof both wills and living wills, petitions to remove a person fromlife support (‘right to die’ cases), and many similar cases.

Clear and convincing proof means that the evidence presented by aparty during the trial must be highly and substantially moreprobable to be true than not and the trier of fact must have a firmbelief or conviction in its factuality. In this standard, a greaterdegree of believability must be met than the common standard ofproof in civil actions, ‘Preponderance of the Evidence’, whichrequires that the facts as a threshold be more likely than not toprove the issue for which they are asserted.

This standard is also known as ‘Clear and Convincing Evidence’;‘Clear, Convincing, and Satisfactory Evidence’; ‘Clear, Cognizant,

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and Convincing Evidence’; and ‘Clear, Unequivocal, Satisfactory,and Convincing Evidence’, and is applied in cases or situationsinvolving an equitable remedy or where a presumptive civil libertyinterest exists.

To prove something by ‘Clear and Convincing Evidence’, the party withthe burden of proof must convince the trier of fact that it issubstantially more likely than not that the thing is in fact true.This is a lesser requirement than ‘Proof Beyond a ReasonableDoubt’, which requires that the trier of fact be close to certainof the truth of the matter asserted, but a stricter requirementthan proof by ‘Preponderance of the Evidence,’ which merelyrequires that the matter asserted pass the 50% threshold of beingmore likely true than not. In many jurisdictions, fraud, forexample, must be shown by clear and convincing evidence.

beyond the shadow of a doubtBeyond the shadow of a doubt is the strictest standard of proof. It

requires that there be no doubt as to the issue. Widely consideredan impossible standard, a situation stemming from the nature ofknowledge itself, it is valuable to mention only as a comment onthe fact that evidence in a court never need (nor can) reach thislevel. This phrase, has, nonetheless, come to be associated withthe law in popular culture.

air of realityThe ‘air of reality’ is a standard of proof used in Canada to

determine whether a criminal defense may be used. The test askswhether a defense can be successful if it is assumed that all theclaimed facts are to be true. In most cases, the burden of proofrests solely on the prosecution, negating the need for a defense ofthis kind. However, when exceptions arise and the burden of proofhas been shifted to the defendant, he is required to establish adefense that bears an ‘air of reality.’ Two instances in which sucha case might arise are, first, when a prima facie case has beenmade against the defendant or, second, when the defense mounts anaffirmative defense, such as the insanity defense.366

evidentiary standards of proofDepending on the legal venue, and/or intra-case hearing, varying

levels of reliability of proof are considered dispositive of theinquiry being entertained. If the subject threshold level ofreliability has been met by the presentation of the evidence, then

366 Cooper, S. (2003). "Human Rights and Legal Burdens of Proof". Web Journal of Current Legal Issues 3.

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the thing is considered legally proven for that trial, hearing orinquest.

fruit of the poisonous tree doctrineFruit of the poisonous tree is a legal metaphor in the United States

used to describe evidence that is obtained illegally.367 The logicof the terminology is that if the source of the evidence (the‘tree’) is tainted, then anything gained from it (the ‘fruit’) istainted as well.

Such evidence is not generally admissible in court.368 For example, ifa police officer conducted an unconstitutional search of a homeand obtained a key to a train station locker, and evidence of acrime came from the locker, that evidence would most likely beexcluded under the fruit of the poisonous tree doctrine. Thediscovery of a witness is not evidence in itself because thewitness is attenuated by separate interviews, in-court testimonyand his or her own statements.

The doctrine is an extension of the exclusionary rule, which, subjectto some exceptions, prevents evidence obtained in violation of theFourth Amendment from being admitted in a criminal trial. Like theexclusionary rule, the fruit of the poisonous tree doctrine isintended to deter police from using illegal means to obtainevidence.

The doctrine is subject to four main exceptions. The tainted evidenceis admissible if:

1) it was discovered in part as a result of an independent, untainted source; or2) it would inevitably have been discovered despite the tainted source; or3) the chain of causation between the illegal action and the tainted evidence is too

attenuated; or4) the search warrant not based on probable cause was executed by government agents in

good faith (called the good faith exception).

The fruit of the poisonous tree doctrine stems from the 1920 case ofSilverthorne Lumber Co. v. United States.369

367 Dressler, Joshua (2002). Understanding Criminal Procedure (3rd ed.). Newark, NJ: LexisNexis. ISBN 0-8205-5405-7.

368 Gaines, Larry; Miller, LeRoy (2006). Criminal Justice In Action: The Core. Belmont, CA: Thomson/Wadsworth. ISBN 0-495-00305-0.

369 See also Bransdorfer, Mark S. (1987). ‘Miranda Right-to-Counsel Violations and the Fruit of the Poisonous Tree Doctrine’. Indiana Law Journal 62: 1061. ISSN 00196665.

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rule of corroboration The rule of corroboration in criminal cases requires that there must

be two pieces of evidence, to prove each essential fact. Forexample, DNA evidence could corroborate an eye witness testimony,proving person X committed a crime. This corroboration requirementno longer applies in civil cases, with the exception of some areasof family law, such as divorce, when another individual, not partyto the marriage, must act as ‘witness’; however this is notreferred to as corroboration.370

rule of relevance Evidence is relevant if it has the ‘tendency to make the existence of

any fact that is of consequence to the determination of the actionmore probable or less probable than it would be without theevidence.’

The law allows relevant evidence to be excluded ‘if its probativevalue is substantially outweighed by the danger of unfairprejudice’, if it leads to confusion of the issues, if it ismisleading or if it is a waste of time.

rule of exclusion of evidenceEvidence that would otherwise be admissible at trial may be excluded

at the discretion of the trial judge if it would be unfair to thedefendant to admit it.

Evidence of a confession may be excluded because it was obtained byoppression or because the confession was made in consequence ofanything said or done to the defendant that would be likely to makethe confession unreliable. In these circumstances, it would be opento the trial judge to exclude the evidence of the confession.

Other admissible evidence may be excluded, at the discretion of thetrial judge, or at common law, if the judge can be persuaded thathaving regard to all the circumstances including how the evidencewas obtained ‘admission of the evidence would have such an adverseeffect on the fairness of the proceedings that the court ought notto admit it.’

rule of authenticationCertain kinds of evidence, such as documentary evidence, are subject

to the requirement that the offeror provide the trial judge with acertain amount of evidence (which need not be much and it need notbe very strong) suggesting that the offered item of tangibleevidence (e.g., a document, a gun) is what the offeror claims it

370 See Douglas Chalmers, Evidence, Law Essentials

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is. This authentication requirement has import primarily in jurytrials. If evidence of authenticity is lacking in a bench trial,the trial judge will simply dismiss the evidence as unpersuasive orirrelevant.

In systems of proof based on the English common law tradition, almostall evidence must be sponsored by a witness, who has sworn orsolemnly affirmed to tell the truth. The bulk of the law ofevidence regulates the types of evidence that may be sought fromwitnesses and the manner in which the interrogation of witnesses isconducted such as during direct examination and cross-examinationof witnesses. Other types of evidentiary rules specify thestandards of persuasion (e.g., proof beyond a reasonable doubt)that a Trier of fact -- whether judge or jury -- must apply when itassesses evidence.

Today all persons are presumed to be qualified to serve as witnessesin trials and other legal proceedings, and all persons are alsopresumed to have a legal obligation to serve as witnesses if theirtestimony is sought. However, legal rules sometimes exempt peoplefrom the obligation to give evidence and legal rules disqualifypeople from serving as witnesses under some circumstances.

probable cause hearingA Probable Cause hearing is one of the pre-trial stages of a criminal

case. During a probable cause hearing, the judge will determinewhether probable cause existed, usually in relation to an arrest ora search for evidence.

Probable cause is a reasonable belief, based on objective facts, thatthe suspect has committed or is going to commit a crime. Policeofficers need to establish probable cause before they can make anarrest or seize evidence.

There are two basic instances when a probable cause hearing becomesnecessary. The first happens before an arrest has been made. Thisis where the judge is requested to issue a warrant for the arrestof the suspect. In that case, police authorities need to establishprobable cause before they can obtain the arrest warrant.

The second instance where a probable cause hearing is necessary occursafter an arrest has already been made. This is usually todetermine whether the arrest was legal or not, and whether thepolice had probable cause to make the arrest. This type issometimes called a preliminary hearing and can occur in connectionwith the suspect’s arraignment.

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Probable cause hearings usually address two main issues. The first iswhether or not the crime was committed within the court’sjurisdiction. The second is the main finding of probable cause.Other issues may also be discussed, such as the amount of bail, aswell as any other charges that might be added to the case.

probable cause In criminal law, probable cause is the standard by which an officer or

agent of the law has the grounds to make an arrest, to conduct apersonal or property search, or to obtain a warrant for arrest,etc. when criminal charges are being considered. It is also used torefer to the standard to which a grand jury believes that a crimehas been committed. This term comes from the Fourth Amendment ofthe United States Constitution:

The right of the people to be secure in their persons, houses, papers,and effects, against unreasonable searches and seizures, shall notbe violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing theplace to be searched, and the persons or things to be seized.

"Probable" in this case may relate to actual statistical probability,or to a general standard of common behavior and customs. Thecontext of the word "probable" here is not exclusive to communitystandards and does not predate statistics, as some havesuggested.371

A common definition is "a reasonable amount of suspicion, supported bycircumstances sufficiently strong to justify a prudent and cautiousperson's belief that certain facts are probably true".372 Notable inthis definition is a lack of requirement for public position orpublic authority of the individual making the recognition, allowingfor use of the term by citizens and/or the general public.

In the context of warrants, the Oxford Companion to American Lawdefines probable cause as "information sufficient to warrant aprudent person's belief that the wanted individual had committed acrime (for an arrest warrant) or that evidence of a crime orcontraband would be found in a search (for a search warrant)"."Probable cause" is a stronger standard of evidence than areasonable suspicion, but weaker than what is required to secure acriminal conviction. Even hearsay can supply probable cause if itis from a reliable source or supported by other evidence, accordingto the Aguilar–Spinelli test.

371 Hald, Anders (1990). A History of Probability and Statistics and Its Applications before 1750. NewYork: Wiley. p. 44. ISBN 0471502308.

372 Handler, J. G. (1994). Ballentine's Law Dictionary (Legal Assistant ed.). Albany:Delmar. p. 431. ISBN 0827348746.





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definition of law of evidenceThe law of evidence encompasses the rules and legal principles that

govern the proof of facts in a legal proceeding. These rulesdetermine what evidence can be considered by the Trier of fact inreaching its decision and, sometimes, the weight that may be givento that evidence. The law of evidence is also concerned with thequantum (amount), quality, and type of proof needed to prevail inlitigation.

quantum of evidenceThe quantum of evidence is the amount of evidence needed; the quality

of proof is how reliable such evidence should be considered. Thisincludes such concepts as hearsay, authentication, admissibility,reasonable doubt, and clear and convincing evidence.

There are several types of evidence, depending on the form or source.Evidence governs the use of testimony (e.g., oral or writtenstatements, such as an affidavit), exhibits (e.g., physicalobjects), documentary material, or demonstrative evidence, whichare admissible (i.e., allowed to be considered by the Trier offact, such as jury) in a judicial or administrative proceeding(e.g., a court of law).

When a dispute, whether relating to a civil or criminal matter,reaches the court there will always be a number of issues which oneparty will have to prove in order to persuade the court to find inhis or her favour. The law must ensure certain guidelines are setout in order to ensure that evidence presented to the court can beregarded as trustworthy.

best evidence rule Best evidence rule is a common law rule of evidence which can be

traced back at least as far as the 18th Century. In Omychund vBarker373 Lord Harwicke stated that no evidence was admissible unlessit was ‘the best that the nature of the case will allow’. The publication tenyears later of Gilbert's enormously influential Law of Evidence,374 aposthumous work by Sir Jeffrey Gilbert, Lord Chief Baron of theExchequer, established the primacy of the best evidence rule, whichGilbert regarded as central to the concept of evidence. The generalrule is that secondary evidence, such as a copy or facsimile, will be not admissible if anoriginal document exists, and is not unavailable due to destruction or other circumstancesindicating unavailability. The best evidence rule is also thought to be the

373 (1745) 1 Atk, 21, 49; 26 ER 15, 33,374 Gilbert. Law of Evidence, 1st edition Dublin 1754

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basis for the rule precluding the admissibility of hearsayevidence, although the two rules are now quite distinct.375

similar fact evidence Similar fact evidence (or the similar fact principle) establishes the conditions

under which factual evidence of past misconduct of accused can beadmitted at trial for the purpose of inferring that the accusedcommitted the misconduct at issue. Evidence of prior bad acts bythe accused will be admissible if the prosecution satisfies thejudge on a balance of probabilities that, in the context of theparticular case, the probative value of the evidence in relation toa specific issue outweighs its potential prejudice and therebyjustifies its reception. Similar fact evidence can be used even ifthe original ‘misconduct’ could not be prosecuted due to duress orthe offender's youth. In R v TM,376, a Devon family imprisoned in1998, one of the defendants appealed his conviction for raping hissister at the age of 16, suggesting it was unlikely that she wouldnot complain or seek help. It was held that the evidence that hisfather had coerced him into sexual acts with his other sisters as achild was similar fact evidence and, in addition to the systematiclong-term sexual activity and abuse within the family, sufficientto explain why he felt that he could get away with abusing her andknew she could not rely on her family for protection; his appealfailed.

competenceCompetence concerns the mental capacity of an individual to

participate in legal proceedings. Defendants that do not possesssufficient ‘competence’ are usually excluded from criminalprosecution, while witnesses found not to possess requisitecompetence cannot testify.377 The English equivalent is fitness toplead. The word incompetent is also used to describe persons who lackmental capacity to make contracts, handle their financial and otherpersonal matters such as consenting to medical treatment, etc. andneed a legal guardian to handle their affairs.

privilege Privilege is a rule of evidence that allows the holder of the

privilege to refuse to provide evidence about a certain subject or

375 Hooper, Ormerod, Murphy and others, ed. Blackstone's Criminal Practice (2008 ed.). Oxford. p. 2285. ISBN 978-0-19-922814-0.

376 2000 2 Cr App 266377 ‘Standards for Determination of Competence’. Journal of the American Academy of Psychiatry

and the Law. 2007. Retrieved 2007-10-19.

http://en.wikipedia.org/wiki/Special:BookSources/978-0-19-922814-0


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to bar such evidence from being disclosed or used in a judicial orother proceeding.

One well known privilege is the solicitor-client privilege, referredto as the attorney-client privilege and as the legal professionalprivilege. This protects confidential communications between aclient and his legal adviser for the dominant purpose of legaladvice. The rationale is that clients ought to be able tocommunicate freely with their lawyers, in order to facilitate theproper functioning of the legal system.

Other common forms include privilege against self-incrimination (inother proceedings), without prejudice privilege (protectingcommunications made in the course of negotiations to settle a legaldispute), public interest privilege (formerly Crown privilege,protecting documents for which secrecy is necessary for the properfunctioning of government), marital privilege, medical professionalprivilege, and clergy-penitent privilege.

The effect of the privilege is usually a right on the part of a partyto a case, allowing him to prevent evidence from being introducedin the form of testimony from the person to whom the privilegeruns. For example, a person can generally prevent his attorney fromtestifying about the legal relationship between attorney andclient, even if the attorney were willing to do so. In a fewinstances, such as the marital privilege, the privilege is a rightheld by the potential witness. Thus, if a wife wishes to testifyagainst her husband, she may do so even if he opposes thistestimony; however, the wife has the privilege of refusing totestify even if the husband wishes her to do so.

estoppel (evidence)Estoppel refers to a rule of law whereby a party to litigation is

stopped from asserting or denying a fact. It is a rule ofexclusion which makes evidence improve or disprove of a factinadmissible. There is said to be an estoppel when one isforbidden in law to speak against his own act or deed even thoughthat person is trying to tell the truth. As a rule of evidence andin this capacity of adjectival procedural realm, it makes evidenceinadmissible. As a rule of procedure is as a facet of the law ofpleadings. The party who proposes to rely on Estoppel must raiseit in the proceedings. If the person fails to raise Estoppel inthe pleadings, it can amount to a waiver of the Estoppel. As afacet of substantive law and it can amount to a defence barring theplaintiff from proving some fact essential to his or her case.

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Estoppel in its broadest sense is a rule of evidence that preclude ‘aperson from denying or asserting anything to the contrary of thatwhich has, in contemplation of law, been established as the truth,either by the acts of judicial or legislative officers, or by hisown deed, acts, or representations, either express or implied.’378

This term appears to come from the French estoupail (or variation),which meant ‘stopper plug’, referring to placing a halt on theimbalance of the situation.

rule in hopgood Where I am under a duty to speak, act or take care, if I make a

negligent statement I will be estopped from denying the statement’struth or if I am under a duty to act and I don’t take any actionthen I would be estopped. I could make a positive representativein the sense that I was expected to act or speak and I didn’t.This failure would be what people relied on and it could give riseto estoppel.379

trustworthiness doctrine For corroboration purposes, courts have adopted the trustworthiness

doctrine that emphasizes the reliability of the defendant'sconfession over the independent evidence of the corpus delecti (Latin:‘body of crime’). Under the ‘trustworthiness’ doctrine, direct proof ofthe corpus delicti is not required. The evidence can even becollateral to the crime itself. However, the corroboration directlyrelates to the trustworthiness of the important facts contained inthe defendant's statement, whereas the corpus delicti is moreconcerned with the elements of the offense. This was held in U.S.case of Government of Virgin Islands v. Harris.380

hearsay evidenceHearsay is information gathered by one person from another person

concerning some event, condition, or thing of which the firstperson had no direct experience. When submitted as evidence, suchstatements are called hearsay evidence. As a legal term, ‘hearsay’ canalso have the narrower meaning of the use of such information asevidence to prove the truth of what is asserted. Such use of‘hearsay evidence’ in court is generally not allowed. Thisprohibition is called the hearsay rule.

378 Halsbury's Laws of England, Vol 16(2), 2003

379 Hopgood v. Brown [1955] 1 WLR 213380 938 F.2d 401 (3d Cir. V.I. 1991)

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rule of hearsayThe default rule is that hearsay evidence is inadmissible. Hearsay is

an out of court statement offered to prove the truth of the matterasserted. A party is offering a statement to prove the truth of thematter asserted if the party is trying to prove that the assertionmade by the declarant (the maker of the pretrial statement) istrue. For example, prior to trial Bob says, ‘Jane went to the store.’ Ifthe party offering this statement as evidence at trial is trying toprove that Jane actually went to the store, the statement is beingoffered to prove the truth of the matter asserted.

For example, a witness says ‘Susan told me Tom was in town’ as her evidenceto the fact that Tom was in town. Since the witness does not offerin this statement the personal knowledge of the fact, this witnessstatement would be hearsay evidence to the fact that Tom was intown, and not admissible. Only when Susan testifies herself in thecurrent judicial proceeding that she saw Tom in town, that Susan'stestimony becomes admissible evidence to the fact that Tom was intown. However, a witness statement ‘Susan told me Tom was in town’can be admissible as evidence in the case against Susan when she isaccused of spreading defamatory rumors about Tom, because now thewitness has personal knowledge of the fact that Susan said (i.e.,pronounced the words) ‘Tom was in town’ in the presence of thewitness; additionally, it is an opposing party’s statement.

Many jurisdictions that generally disallow hearsay evidence in courtspermit the more widespread use of hearsay in non-judicial hearings.

There are several exceptions to the rule against hearsay in law as: 1) present sense impression, 2) excited utterance, 3) then existing mental, emotional, or physical condition, 4) ... medical diagnosis or treatment, 5) recorded recollection, 6) records of regularly conducted activity, 7) absence of entry in records ..., 8) public records and reports, 9) records of vital statistics, 10) absence of public record or entry, 11) records of religious organizations, 12) marriage, baptismal, and similar certificates, 13) family records, 14) ... property records, 15) statements in documents affecting an interest in property, 16) statements in ancient documents, 17) market reports, commercial publications,

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18) learned treatises, 19) reputation concerning personal or family history, 20) reputation concerning boundaries or general history, 21) reputation as to character, 22) judgment of previous conviction, and 23) judgment as to personal, family or general history, or boundaries.

Also, some documents are self-authenticating, such as 1) domestic public documents under seal, 2) domestic public documents not under seal, but bearing a signature of a public officer, (3)

foreign public documents, 3) certified copies of public records, 4) official publications, 5) newspapers and periodicals, 6) trade inscriptions and the like, 7) acknowledged documents (i.e. by a notary public), 8) commercial paper and related documents, 9) presumptions under Acts of Congress, 10) certified domestic records of regularly conducted activity, 11) certified foreign records of regularly conducted activity.

res gestaeRes gestae (Latin ‘things done’) is a term found in substantive and

procedural American jurisprudence and English law. In Americansubstantive law, it refers to the start-to-end period of a felony.In American procedural law, it refers to an exception to thehearsay rule for statements made spontaneously or as part of anact. The English version of res gestae is similar.

In certain felony murder statutes, ‘res gestae’ is a term defining theoverall start-to-end sequence of the underlying felony. Generally,a felony's res gestae is considered terminated when the suspect hasachieved a position of relative safety from law enforcement. Resgestae is based on the belief that, because certain statements aremade naturally, spontaneously, and without deliberation during thecourse of an event, they leave little room formisunderstanding/misinterpretation upon hearing by someone else(i.e., by the witness, who will later repeat the statement to thecourt) and thus the courts believe that such statements carry ahigh degree of credibility. Statements that can be admitted intoevidence as res gestae fall into three headings:

1) Words or phrases that either form part of, or explain, a physical act,

2) Exclamations that are so spontaneous as to belie concoction, and

3) Statements that are evidence of someone's state of mind.

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In some jurisdictions the res gestae exception has also been used toadmit police sketches. 381

rule of privilege Privilege rules give the holder of the privilege a right to prevent a

witness from giving testimony. These privileges are ordinarily (butnot always) designed to protect socially valued types ofconfidential communications. Some of the privileges that are oftenrecognized in various jurisdictions are:

و marital secrets privilege,

و adverse spousal testimony privilege,

و attorney-client privilege,

و doctor-patient privilege,

و psychotherapist-patient

و counselor-patient privilege,

و state secrets privilege and

و clergy-penitent privilege.

A variety of additional privileges are recognized in differentjurisdictions, but the list of recognized privileges varies fromjurisdiction to jurisdiction; for example, some jurisdictionsrecognize a social worker-client privilege and other jurisdictionsdo not.

rule of competence Witness competence rules are legal rules that specify circumstances

under which persons are ineligible to serve as witnesses. Forexample, neither a judge nor a juror is competent to testify in atrial in which the judge or the juror serves in that capacity; andin jurisdictions with a dead man statute, a person is deemed notcompetent to testify as to statements of or transactions with adeceased opposing party.

knock and talk doctrine or or tap and rap doctrineKnock and Talk or Tap and Rap is a law enforcement tactic used when

there is not sufficient evidence, probable cause, or reasonablesuspicion to obtain a search warrant. A consent to search must be

381 Commonwealth v. Dugan, 381 A.2d 967 (Pa. Super. 1977)

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unequivocal and specific. It must be given voluntarily,intelligently, and knowingly. Officers described the procedure asgoing to the suspect house, engaging in conversation and attemptingto gain consent to search. Generally, courts examine every aspectof a knock and talk for any hint that the reasonable person wouldnot feel free to decline the officers’ requests as knock and talkcarries a great risk for abuse. ‘In a society where everyone knew their rights,this practice would not constitute a big problem, But in America today, the public schoolsdon't teach the Constitution or the underlying rights it provides us. The police takeadvantage of a pervasive constitutional illiteracy, which is a threat to civil liberties.’

rule of circumstantial evidenceEvidence of an indirect nature which implies the existence of the main

fact in question but does not in itself prove it. That is, theexistence of the main fact is deduced from the indirect orcircumstantial evidence by a process of probable reasoning. Theintroduction of a defendant's fingerprints or DNA sample areexamples of circumstantial evidence. The fact that a defendant hada motive to commit a crime is circumstantial evidence. However, inan important sense all evidence is merely circumstantial because onno evidence can prove a fact in the absence of one or moreinference.

chances The doctrine of chances is a rule of evidence that allows evidence to

show that it is unlikely a defendant would be repeatedly,innocently involved in similar, suspicious circumstances.382

Normally, evidence of other crimes, wrongs, or acts is notadmissible to prove the character of a person in order to showaction in conformity therewith. Using the doctrine of chancesallows a prosecutor to admit evidence of prior ‘accidents’ that canpersuade a jury that prior incidents are so similar that it is veryimprobable that the case at bar is actually accidental. Thedoctrine of chances was first developed by Common law courts inthe case Rex v. Smith,383 better known as the ‘brides in the bathmurder’. In this case the defendant was accused of murdering hiswife by drowning her in a bath. The defendant claimed that his wifehad fainted in the bath. The prosecutor sought to include evidencein the trial that the defendant's two previous wives had both diedin the same way. The evidence was allowed.

382 United States v. Tyndale, 56 M.J. 209, 213 (C.A.A.F. 2001), 383 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915)

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ancient documentAn ancient document, in the law of evidence, refers to both a means of

authentication for a piece of documentary evidence, and anexception to the hearsay rule.

With respect to authentication, an ‘ancient document’ is one that maybe deemed authentic without a witness to attest to thecircumstances of its creation because its age suggests that it isunlikely to have been falsified in anticipation of the litigationin which it is introduced.

A document is deemed authentic if it is:1) at least twenty years old;2) in a condition that makes it free from suspicion concerning its authenticity; and3) found in a place where such a writing was likely to be kept.

Many jurisdictionshave similar rules, but may limit the application ofthe doctrine to specific kinds of documents such as dispositiveinstruments (primarily conveyances, deeds, and wills), and mayrequire the documents to be even older. By admitting an ancientdocument into evidence, it is presumed only that the document iswhat it purports to be, but there are no presumptions about thetruth of the document's contents.

Ancient documents also present an exception to the hearsay rule. Thelaw applies this exception to all documents over twenty yearsold.384 Because of their age, they may be presented as evidence ofthe truth of any statements contained therein. Manyjurisdictionsfollow this rule as well, but again most limit it todocuments that dispose of property.

appeal , appellate reviewIn law, an appeal is a process for requesting a formal change to an

official decision. Very broadly speaking there are appeals on therecord and de novo appeals. In de novo appeals, a new decisionmaker re-hears the case without any reference to the prior decisionmaker. In appeals on the record, the decision of the prior decisionmaker is challenged by arguing that he or she misapplied the law,came to an incorrect factual finding, acted in excess of hisjurisdiction, abused his powers, was biased, considered evidencewhich he should not have considered, or failed to consider evidencethat he should have considered.

384 See FRE 803(16)

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false confession A false confession is an admission of guilt in a crime in which the

confessor is not responsible for the crime. False confessions canbe induced through coercion or by the mental disorder orincompetency of the accused. Even though false confessions mightappear to be an exceptional and unlikely event, they occur on aregular basis in case law, which is one of the reasons whyjurisprudence has established a series of rules to detect, andsubsequently reject, false confessions. These are called the"confession rules." Plea agreements typically require the defendantto stipulate to a set of facts establishing he/she is guilty of theoffense; in the United States federal system, before enteringjudgment on a guilty plea, the court must determine that there is afactual basis for the plea.

False confessions can be categorized into three general types, asoutlined by Saul M. Kassin in an article for Current Directions inPsychological Science:

Voluntary false confessions are those that are given freely, withoutpolice prompting. Sometimes they may be sacrificial, to divertattention from the actual person who committed the crime. Forinstance, a parent might confess to save their child from jail. Insome cases, people have falsely confessed to having committednotorious crimes simply for the attention that they receive fromsuch a confession. Approximately 60 people are reported to haveconfessed to the 1947 murder of Elizabeth Short, known as the"Black Dahlia."

Compliant false confessions These are confessions which are given to escape a stressful situation,

avoid punishment, or gain a promised or implied reward. Take, forexample, the setting of a police interrogation, which is simplytotal isolation. Interrogations are often conducted in stark roomswith no windows and no objects other than perhaps a table and twochairs. For suspects, the room becomes reality, and this createsserious mental exhaustion for the individual being questioned.After enough time suspects may confess to crimes they did notcommit to escape what feels like a helpless situation.Interrogation techniques such as the Reid technique try to suggestto the suspect that he will experience a feeling of moralappeasement if he chooses to confess. Material rewards like coffeeor the cessation of the interrogation are also used to the sameeffect. People may also confess to a crime they did not commit as aform of plea bargaining to avoid a harsher sentence. People who areeasily coerced score high on the Gudjonsson suggestibility scale.

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Internalized false confessions are those in which the person genuinelybelieves that they have committed the crime, as a result of highlysuggestive interrogation techniques.

subornation of perjury The subornation of perjury is the crime of persuading a person to

commit perjury — the swearing of a false oath to tell the truth ina legal proceeding, be it spoken or written. The term subornationof perjury further describes the circumstance wherein an attorneyat law causes a client to lie under oath, or allows another partyto lie under oath

selective prosecutionIn jurisprudence, selective prosecution is a procedural defense in

which a defendant argues that he should not be held criminallyliable for breaking the law, as the criminal justice systemdiscriminated against him by choosing to prosecute. In a claim ofselective prosecution, a defendant essentially argues that it isirrelevant whether he is guilty of violating a law, but that thefact of being prosecuted is based upon forbidden reasons. Such aclaim might, for example, entail an argument that persons ofdifferent age, race, religion, or gender, were engaged in the sameillegal actions for which the defendant is being tried and were notprosecuted, and that the defendant is only being prosecuted becauseof a bias. In the US, this defense is based upon the 14thAmendment, which stipulates, "nor shall any state deny to anyperson within its jurisdiction the equal protection of the laws."

Substantial evidenceUnder the "substantial evidence" standard, a finding of fact from a

jury, or a finding of fact made by an administrative agency decidedpursuant to an APA adjudication or formal rulemaking, is upheld onappeal unless it is unsupported by substantial evidence. Theappellate courts will generally not review such findings unlessthose findings have no reasonable basis. For example, if a juryfinds that a defendant used force during the commission of a crime,the appeals courts will not reverse this finding unless it has noreasonable basis in the testimony or other facts. This is a highlydeferential standard.

Clearly erroneous testUnder the "clearly erroneous" standard, where a trial court (as

opposed to a jury or administrative agency) makes a finding offact, such as in a bench trial, that finding will not be disturbedunless the reviewing court is left with a "definite and firm

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conviction that a mistake has been committed" by that court. Forexample, if a court finds that, based on the testimony of a singleeyewitness, that a defendant broke a window by throwing a one poundrock over 20 feet, the appeals court might reverse that factualfinding based on uncontradicted expert testimony (also presented tothe lower court) stating that such a feat is impossible for mostpeople. In such a case, the appeals court might find that, althoughthere was evidence to support the lower court's finding, theevidence taken as a whole—including the eyewitness and the experttestimony—leaves the appellate court with a definite and firmconviction that a mistake was committed by the Court below.

De novo Under de novo review, the appellate court acts if it were considering

the question for the first time, affording no deference to thedecisions below. Legal decisions of a lower court on questions oflaw are reviewed using this standard. This is sometimes also calledthe "legal error" standard. It allows the appeals court tosubstitute its own judgment about whether the lower court correctlyapplied the law.

A new trial in which all issues are reviewed as if for the first timeis called a trial de novo.

Mixed questions of law and fact Court and jury decisions concerning mixed questions of law and fact

are usually subjected to de novo review, unless factual issuespredominate, in which event the decision will be subject to clearlyerroneous review. When made by administrative agencies, decisionsconcerning mixed questions of law and fact are subjected toarbitrary and capricious review.

Questions of constitutionality Questions of constitutionality are considered a type of question of

law, and thus appellate courts always review these questions denovo. However, the term "standard of review" has an additionalmeaning in the context of reviewing a law for itsconstitutionality, which concerns how much deference the judiciaryshould give Congress in determining whether legislation isconstitutional. Concerning constitutional questions, three basicstandards of review exist: rational basis, intermediate scrutiny,and strict scrutiny. This form of standard of review is sometimesalso called the standard or level of scrutiny.

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Rational basis Generally, the Supreme Court judges legislation based on whether it

has a reasonable relationship to a legitimate state interest. Thisis called rational basis review. For example, a statute requiringthe licensing of opticians is permissible because it has thelegitimate state objective of ensuring the health of consumers, andthe licensing statutes are reasonably related to ensuring theirhealth by requiring certain education for opticians. Williamson v.Lee Optical Co., 348 U.S. 483 (1955).

Intermediate scrutiny Under the Equal Protection Clause, when the law targets a "quasi-

suspect" classification, such as gender, the courts applyintermediate scrutiny, which requires the law to be substantiallyrelated to an important government interest. It is more strict thanrational basis review but less strict than strict scrutiny.

Other forms of intermediate scrutiny are applied in other contexts.For example, under the Free Speech Clause, content-neutral time,place, and manner restrictions on speech are subject to a form ofintermediate scrutiny.

Strict scrutinyIf the statute impinges on a fundamental right, such as those listed

in the Bill of Rights or the due process rights of the FourteenthAmendment, then the court will apply strict scrutiny. This meansthe statute must be narrowly tailored to address a compelling stateinterest. For example, a statute restricting the amount of fundsthat a candidate for public office may receive in order to reducepublic corruption is unconstitutional because it is overly broadand impinges the right to freedom of speech. It affects not onlycorrupting individual contributions, but also non-corruptingexpenditures from their own personal or family resources, as wellas other sources that may not exhibit a corrupting influence.Buckley v. Valeo, 424 U.S. 1 (1976)

The courts will also apply strict scrutiny if the law targets asuspect classification, such as race. For example, there is nofundamental right to be an optician (as explained above), but ifthe state only requires licenses of African Americans (and notopticians of other races), that double standard would receivestrict scrutiny, and would likely be ruled unconstitutional.

harmless error A harmless error is a ruling by a trial judge that, although mistaken,

does not meet the burden for a losing party to reverse the original

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decision of the trier of fact on appeal, or to warrant a new trial.Harmless error is easiest to understand in an evidentiary context.Evidentiary errors are subject to harmless error analysis, underFederal Rule of Evidence 103(a) ("Error may not be predicated upona ruling which admits or excludes evidence unless a substantialright of the party is affected.") The general burden when arguingthat evidence was improperly excluded or included is to show thatthe proper ruling by the trial judge may have, on the balance ofprobabilities, resulted in the opposite determination of fact.

In the case of Earll v. State of Wyoming 2001 WY 66 29 P.3d 787, theWyoming Supreme Court distinguished between reversible error (whichrequires a conviction be overturned) and harmless error (which doesnot), as follows:

“ Before we hold that an error has affected an accused’s substantialright, thus requiring reversal of a conviction, we must concludethat, based on the entire record, a reasonable possibility existsthat, in the absence of the error, the verdict might have been morefavorable to the accused. Jones v. State, 735 P.2d 699, 703 (Wyo.1987). ”

In the evidentiary context, a harmless error is usually one where theevidence had no relevance to the issues to be decided by the trierof fact, evidence admitted actually helped the party seeking thereversal, or the remaining evidence was overwhelmingly against theparty seeking reversal.

For example, a prosecutor may try to bolster its case by bringing inan expert witness to explain the behavior of one of the keywitnesses. If the judge allows the expert to testify that there wasa reason to explain away inconsistencies in the witness'stestimony, this will most likely be grounds for an appeal, as inmost cases evidence that only bolsters the credibility of a witnessis not admissible. However, if there were a number of otherwitnesses against the losing party, the appellate court may rulethat this mistake was of no consequence and that even if theevidence had been excluded, the losing party would have lost.

False evidence, fabricate evidence, forge evidence or taint evidence False evidence, fabricate evidence, forge evidence or taint evidence

is information created or obtained illegally, to sway the verdictin a court case. Also, misleading by suppressing evidence can beused to sway a verdict; however, in some cases, suppressed evidenceis excluded because it was found hidden or locked away in areas theaccused could not be proven to know. In Britain, falsifyingevidence to convict the guilty is known as 'Noble Cause

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Corruption'. Some evidence is forged because the person doing theforensic work finds it easier to fabricate evidence than to performthe actual work involved. The planting of a gun at a crime scenewould be used by the police to justify shooting the victim in self-defense, and avoid possible prosecution for manslaughter. However,the accused might have falsified some evidence, especially if notarrested immediately, or by having other access to a crime sceneand related areas. Falsified evidence could be created by eitherthe police/prosecution or the defendant(s), or by someonesympathetic to their cause.

These type of evidence may be:1. forged evidence - an item or information manufactured, or altered, to support some

agenda, is not admissible in many courts, including U.S. criminal courts.2. planted evidence - an item or information which has been moved, or planted at a scene,

to seem related to the accused party, is not admissible in many courts, including U.S.criminal courts.

3. tainted evidence - information which has been obtained by illegal means or has beenrevealed (or traced) using evidence acquired by illegal search, and/or seizure, is called the"fruit of the poisonous tree" and is not admissible in many courts, including U.S. criminalcourts.

4. suppressed evidence - an item or information which a court judge has ruled as"inadmissible" is forbidden to be presented in a court case. Suppressed evidence might beexcluded because it was found hidden or locked away in areas the accused could not beproven to know.

In some criminal cases, a person will be identified as a "person ofinterest" for a few days before arrest, allowing time to revealsuspicious actions (such as in recorded phone calls), or to attemptto falsify evidence before their arrest. A type of falsifiedevidence, used to acquit, would be faked sales receipts whichindicated activities (with the accused) had occurred elsewhereduring the time of the crime.

prosecutorial misconduct In jurisprudence, prosecutorial misconduct is "an illegal act or

failing to act, on the part of a prosecutor, especially an attemptto sway the jury to wrongly convict a defendant or to impose aharsher than appropriate punishment." It is similar to selectiveprosecution.

Prosecutors are given discretion about how they conduct theirbusiness. However, while some practices are not illegal, they maybe seen as abusive and in need of reform, particularly bydefendants and criminal defense attorneys:

Selective prosecution by race, income, political affiliation, etc.

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Capture of the grand jury, misusing it as a tool for inquisitorialabuse, or excluding citizen complaints from being heard.

Plea bargaining abuses, such as seeking testimony in exchange forleniency. This may solicit perjury or falsified evidence.

“Horsetrading”, the practice of colluding with defense attorneys toagree to get some of their clients to plead guilty in exchange forletting others off.

Threatening public officials, especially judges, with prosecution ifthey don't unduly support their cases.

Tainting of jury pools with public statements by prosecutors that areeither inaccurate, exaggerated, unsupported by evidence or thatcould be inadmissible at trial, and such statements become widelypromulgated by the media.

Prosecutors causing depositions in a related civil trial which werelikely to yield exculpatory evidence, and then "staying" thosestatements so they cannot be used in a criminal trial.

Prosecutors naming a host of “unindicted co-conspirators” inconspiracy cases to intimidate potential defense witnesses withthreats of retaliatory prosecution.

Prosecutors using their Peremptory Challenges to remove from the juryanyone with relevant experience in the complex subjects of a trial.Defense attorneys often use similar tactics. Both attempt toprevent a juror's technical knowledge from interfering with thecredibility of their expert witnesses.

Prosecutors pursuing criminal penalties for selected industrypractices in Corporate America when regulatory intervention wouldbe more appropriate. For example, prosecuting a mechanic for minorviolations of the Clean Water Act rather than affording theopportunity for the mechanic to correct his error and pay theappropriate fines.

Prosecutors using multidefendant trials to get defendants to turn onone another in the courtroom, as judges may be reluctant to allowseparate trials in multi-defendant cases.

bench warrantA bench warrant is a variant of an arrest warrant that authorizes the

immediate on-sight arrest of the individual subject to the benchwarrant. Typically, judges issue bench warrants for persons deemedto be in contempt of court—possibly as a result of that person'sfailure to appear at the appointed time and date for a mandated

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court appearance. Bench warrants are issued in either criminal orcivil court proceedings.

Commonly (but not always), the person who is subject to a benchwarrant has intentionally avoided a court appearance to escape theperceived consequences of being found guilty of a crime. If aperson was on bail awaiting criminal trial when the nonappearancetook place, the court usually forfeits bail and may set a higherbail amount to be paid when the subject is rearrested, but normallythe suspect is held in custody without bail. If a person has abench warrant against him when stopped by a law enforcementofficer, the authorities put them in jail and a hearing is held.The hearing usually results in the court setting a new bail amount,new conditions, and a new court appearance date. Often, if a personis arrested on a bench warrant, the court declares them a flightrisk (likely to flee) and orders that person to be held withoutbail.

outstanding arrest warrantAn outstanding arrest warrant is an arrest warrant that has not been served.

A warrant may be outstanding if the person named in the warrant isintentionally evading law enforcement, unaware that there is awarrant out for him/her, the agency responsible for executing thewarrant has a backlog of warrants to serve, or a combination ofthese factors.

silent witness rule The silent witness rule is the use of 'substitutions' when referring

to sensitive information in the United States open courtroom jurytrial system. The phrase was first used in US v. Zettl, in 1987.385 Anexample of a substitution method is the use of code-words on a 'key card', to whichwitnesses and the jury would refer during the trial, but which the public would not haveaccess to. The rule is an evidentiary doctrine that tries to balancethe state secrets privilege with the bill of rights (especially theright of the accused to a public trial, and the right to dueprocess). In practice the rule has been rarely used and oftenchallenged by judges and civil rights advocates. Its use remainscontroversial.386

The conflict between the open court and state secrets privilege goesback to at least 1802 and Marbury v. Madison387. Under the privilege,

385 TS Ellis, in US v Rosen, MOTIONS HEARING, April 16, 2007, circa pg 34/35386 Johnathan M. Lamb, Pepperdine Law Review, Vol. 36, p. 213 (2008). ‘The Muted Rise

of the Silent Witness Rule in National Security Litigation’. ssrn.com. Retrieved 2011 4 14.

387 Infra

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the government can dismiss any charges against it by claiming thatimportant state secrets would be revealed at trial. The SilentWitness Rule (SWR) is a further attempt.388

inviolability of bordersThis principle was first clearly articulated in the CSCE Final Act in

1975 and now can be considered as an additional principle to theprinciple of respect for territorial integrity. It means:

1) Recognition of existing borders as a legally established in accordance with internationallaw;

2) Rejection of any territorial claims on the present or in the future;3) Rejection of any attack on these boundaries, including the threat or use of force.

Encroachment on state borders means unilateral actions or claims totheir change in position of the boundary, its legal registration orthe actual situation of the boundary line on the ground. Theprinciple of inviolability of borders is the point of contact withthe principle of inviolability of state borders. From the latterfollows the State’s duty to prevent illegal border crossing withanother State, as well as the right to control the movement acrossthe border. Could also be argued that the principle ofinviolability of borders is more regional in nature, as recorded inthe regional document – the CSCE Final Act.

rule of admissibility of evidenceEvidence, which is relevant, is admissible to a case.patent ambiguity rule The rule as to latent and patent ambiguities has been regarded as

furnishing a decisive test by which to determine in all caseswhether extrinsic evidence is admissible to aid in theinterpretation and construction of a written instrument. It hasbeen looked upon as covering the whole ground of the admission ofextrinsic evidence, and the confusion which has existed upon thissubject is attributable in a great degree to the loose anduncertain meanings attached to the terms latent and patentambiguities. The term ambiguity itself, which properly means thehaving two meanings, is misapplied when used to comprehend alldoubts and uncertainties in respect to the meaning of writteninstruments. As the term patent has been understood, it is nottrue, that a patent ambiguity is unexplainable by extrinsicevidence. Where words are, in the truest sense of the term,ambiguous, that is, have double meanings, not simply double

388 Id

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applications, as mere names, the uncertainty is inherent in theword, and is of course necessarily patent.

A patent ambiguity is apparent from the face of the will.Uncertainty or doubtfulness of the meaning of language.

When language is capable of being understood in more than one way by areasonable person, ambiguity exists. It is not the use of peculiarwords or of common words used in a peculiar sense. Words areambiguous when their significance is unclear to persons withcompetent knowledge and skill to understand them.

There are two categories of ambiguity: latent and patent. latent ambiguity ruleLatent ambiguity exists when the language used is clear and

intelligible so that it suggests one meaning but some extrinsicfact or evidence creates a need for interpretation or a choiceamong two or more possible meanings. In a classic case, Raffles v.Wichelhaus, 159 Eng. Rep. 375 (Ex. 1864), a contract was made to sell125 bales of cotton that were to arrive on a ship called Peerlessthat sailed from Bombay, India. Unknown to the parties to thecontract, two ships of the same name were to arrive from the sameport during different months of the same year. This extraneous factnecessitated the interpretation of an otherwise clear and definiteterm of the contract. In such cases, extrinsic or Parol Evidencemay be admitted to explain what was meant or to identify theproperty referred to in the writing. A patent ambiguity is one thatappears on the face of a document or writing because uncertain orobscure language has been used.

inadmissibility of character evidenceIt contains the principle that in civil cases in general, evidence of

the character of the parties will be rejected. Evidence ofCharacter in civil cases cannot be lead to establish the commissionof a wrong by a person nearly by bringing their character beforethe court. The argument is that the business of the court is totry the case before the court. One is not supposed to beinterrogating or inquiring into a person’s entire life and if onebrings extraneously details about the person’s character you aremaking a person defend their whole lives.

relevant evidence is admissible Evidence which is relevant to a SUBSTANTIVE issue or CREDIBILITY issue

properly before the Trier of fact is admissible UNLESS excluded.

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mater semper certa estMater semper certa est (‘The mother is always certain’) is a Roman-law

principle which has the power of praesumptio iuris et de iure, meaning thatno counter-evidence can be made against this principle (literally:Presumed there is no counter evidence and by the law). Its meaningis that the mother of the child is always known.

Since 1978, when the first child was conceived by the technique of in-vitro fertilization, the principle of ‘Mater semper certa est’ no longerapplies, since a child may have both a genetic and a natural(‘birth’) mother. Since then some countries have converted the oldnatural law to an equivalent codified law - in 1997 Germany hasintroduced paragraph 1571 ‘Mutterschaft’ (motherhood) of the BGB(civil code) reading ‘Mutter eines Kindes ist die Frau, die es geboren hat.’ (motherof a child is the woman who has given birth to it).

The Roman law principle however does not stop at the mother, in factit continues with ‘pater semper incertus est’ (‘The father is alwaysuncertain’). This was regulated by the law of ‘pater est, quemnuptiae demonstrant’ (‘father is to whom marriage points’).Essentially paternity fraud had originally been a marriage fraud inthe civil code (in Germany the historic‘Ehelichkeitsanfechtungsklage’ was simply renamed as‘Vaterschaftsanfechtungsklage’ when legal paternity was redefined)due to this principle. Today even married fathers will often usethe modern tools of DNA testing to ensure a certainty on theirfatherhood.

irrelevant evidence is inadmissibleEvidence NOT RELEVANT to either a substantive or credibility issue

properly before the Trier of fact is not admissible. Evidence whichis admissible, but which is relevant to an issue that the Trier offact CANNOT properly consider MAY BE ADMISSIBLE.

Evidence admissible for one purpose is not rejected just because it isinadmissible with respect to another purpose. However, the Trierof fact should be instructed as to the LIMITED purpose (curativelycharged) for which the evidence can be used. (I.e. Similar factevidence).

rule against hearsay Hearsay refers to:

و any out of court statement by a 3rd party

و offered as evidence by a witness at trial

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و to prove the TRUTH of its contents.

Only statements offered for their truth offend the rule againsthearsay (See Subramaniam). When an out of court statement isoffered for some other relevant purpose, such as that the statementwas made, it is admissible if it has probative value.

An out of court statement includes any assertion revealed throughactions and not words, as well as any prior statements (other thantestimony) of a witness that is to be called at trial. Where theactions are intended to communicate a message, they are treated thesame as verbal or written statements.

subramaniam hearsay rule The statement was only important in terms of establishing that it had

been made, it did not go to the truth of the statement, and istherefore admissible.

confessions ruleThere are four limitations on the confessions rule:

و Any statements that are voluntarily made are admissible

و Rule only applies after detention

و Voluntary statements to cellmates are admissible as long as not solicited

و Informants can be used as long as they don't solicit information

work made for hire standard In a work made for hire situation, the ‘author’ of the work is no

longer the individual who created the work. Instead, the ‘author’is considered to be the entity which hired the actual creators ofthe work (such as a corporation for whom the author works as anemployee).

The Copyright Act limits the work made for hire doctrine to twospecific situations:

1. a work prepared by an employee within the scope of his or her employment; or2. a work specially ordered or commissioned for use

The first situation applies only when the work's creator is anemployee and not an independent contractor. The determination ofwhether an individual is an employee for the purposes of the workmade for hire doctrine is determined under ‘the common law of

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agency.’ What this means is that courts will look at variousfactors to determine whether the individual is an employee, suchas:

a) the control exerted by the employer over the employee (i.e., the employee's schedule andthe hiring of the employee's assistants);

b) the control exerted by the employer over how and where the work is done;c) the supplying of equipment for the employee's use; andd) the payment of benefits and the withholding of taxes.

If a work is created by an independent contractor (that is, someonewho is not an employee), the work may still be a work for hire, butthe definition is much harder to meet. In order for the work of anindependent contractor to be a work made for hire, the followingfacts must exist:

a) the work must be specially ordered or commissioned;b) the work must come within one of the nine categories of works listed in the definition

above; andc) there must be a written agreement between the parties specifying that the work is a work

made for hire.

conclusive evidencePreponderant evidence that may not be disputed and must be accepted by

a court as a definitive proof of a fact.crown privilegePublic-interest immunity (PII) is a principle of English common law

under which the Common law courts can grant a court order allowingone litigant to refrain from disclosing evidence to the otherlitigants where disclosure would be damaging to the publicinterest. This is an exception to the usual rule that all partiesin litigation must disclose any evidence that is relevant to theproceedings. In making a PII order, the court has to balance thepublic interest in the administration of justice (which demandsthat relevant material is available to the parties to litigation)and the public interest in maintaining the confidentiality ofcertain documents whose disclosure would be damaging.

documentary evidenceDocumentary evidence is any evidence introduced at a trial in the form

of documents. Although this term is most widely understood to meanwritings on paper (such as an invoice, a contract or a will), theterm actually include any media by which information can bepreserved. Photographs, tape recordings, films, and printed emailsare all forms of documentary evidence. A piece of evidence is notdocumentary evidence if it is presented for some purpose other than

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the examination of the contents of the document. For example, if ablood-spattered letter is introduced solely to show that thedefendant stabbed the author of the letter from behind as it wasbeing written, then the evidence is physical evidence, notdocumentary evidence. However, a film of the murder taking placewould be documentary evidence (just as a written description of theevent from an eyewitness). If the content of that same letter isthen introduced to show the motive for the murder, then theevidence would be both physical and documentary.

authenticationDocumentary evidence is subject to specific forms of authentication,

usually through the testimony of an eyewitness to the execution ofthe document, or to the testimony of a witness able to identify thehandwriting of the purported author. Documentary evidence is alsosubject to the best evidence rule, which requires that the originaldocument be produced unless there is a good reason not to do so.

zealous witnessA witness who demonstrates disproportionate enthusiasm while

testifying.hostile witnessA party's witness who demonstrates such adversity to answering

questions that the trial judge allows leading questions to be putto that witness.

independent source doctrineEvidence initially discovered during an unlawful search, but later

obtained independently through activities untainted by theillegality, may be admitted into evidence

evidential burdenEvidential burden is the obligation to produce evidence to properly

raise an issue at trial. Failure to satisfy the evidential burdenmeans that an issue cannot be raised at a court of law. Evidentialburden has been described as the obligation ‘to show, if calledupon to do so, that there is sufficient evidence to raise an issueas to the existence or non-existence of a fact in issue, due regardbeing had to the standard of proof demanded of the party under suchobligation’.389

Lord Bingham said that evidential burden is not a burden of proof, butrather a burden of raising an issue as to the matter in question

389 Tapper, Collin (2010). Cross & Tapper on Evidence (11 ed.). Oxford University Press. p. 132. ISBN 978-0-19-929200-4.

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fit for consideration by the tribunal of fact. In the criminal lawcontext, if an issue is properly raised, it is for the prosecutorto prove, beyond reasonable doubt, that that issue does not availthe defendant.390

Evidential burden can rest on either party, although it usuallyrelates to matters of defence raised by the accused. Some defencesimpose an evidential burden on the defendant which, if met, imposesa legal burden on the prosecution. For example, if a person chargedwith murder pleads self-defense, the defendant must satisfy theevidential burden that there are some evidence suggesting self-defence. The legal burden will then fall on the prosecution toprove beyond reasonable doubt that the defendant was not acting inself-defence.391

The satisfaction of the evidential burden has sometimes been describedas ‘shifting the burden of proof’, a label which has beencriticized because the burden placed on a defendant is not thelegal burden of proof resting on the prosecution.392

To satisfy the burden, there must be evidence which both supported theissue and which is sufficiently substantial to raise a reasonabledoubt as to the accused’s guilt.[5] Whether the burden is satisfiedis a matter for the judge.

The reason for imposing an evidential burden is to ensure theprosecution does not have to disprove all imaginable defences, onlythose properly supported by sufficient evidence. Lord Morris ofBorth-y-Gest said in Bratty v Attorney-General for Northern Ireland393:

As human behaviour may manifest itself in infinite varieties ofcircumstances it is perilous to generalize, but it is not everyfacile mouthing of some easy phrase of excuse that can amount to anexplanation. It is for a judge to decide whether there is evidencefit to be left to the jury which could be the basis of somesuggested verdict...

exclusionary rule The exclusionary rule is a legal principle in the United States, under

constitutional law, which holds that evidence collected or analyzed

390 Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976 (14 October 2004), House of Lords

391 Herring, J. (2004). Criminal Law: Text, Cases, and Materials. Oxford: Oxford University Press. pp. 58–64. ISBN 0-19-876578-9.

392 Jackson, Michael (2003). Criminal Law in Hong Kong. Hong Kong: Hong Kong University Press. pp. 41–42. ISBN 962-209-558-5.

393 Bratty v Attorney General of Northern Ireland [1961] UKHL 3, [1963] AC 386, [1961] 3 All ER 523 (3 October 1961), House of Lords

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in violation of the defendant's constitutional rights is sometimesinadmissible for a criminal prosecution in a court of law. This maybe considered an example of a prophylactic rule formulated by thejudiciary in order to protect a constitutional right. However, insome circumstances at least, the exclusionary rule may also beconsidered to follow directly from the constitutional language,such as the Fifth Amendment's command that no person ‘shall becompelled in any criminal case to be a witness against himself’ andthat no person ‘shall be deprived of life, liberty or propertywithout due process of law’.

‘The exclusionary rule is grounded in the Fourth Amendment and it isintended to protect citizens from illegal searches and seizures.’394

The exclusionary rule is also designed to provide a remedy anddisincentive, which is short of criminal prosecution in response toprosecutors and police who illegally gather evidence in violationof the Fifth Amendment in the Bill of Rights compelled to self-incrimination. The exclusionary rule also applies to violations ofthe Sixth Amendment, which guarantees the right to counsel.

This rule is occasionally referred to as a legal technicality becauseit allows defendants a defense that does not address whether thecrime was actually committed. In this respect, it is similar to theexplicit rule in the Fifth Amendment protecting people from doublejeopardy. In strict cases, when an illegal action is used bypolice/prosecution to gain any incriminating result, all evidencewhose recovery stemmed from the illegal action—this evidence isknown as ‘fruit of the poisonous tree’—can be thrown out from ajury (or be grounds for a mistrial if too much information has beenirrevocably revealed).

The exclusionary rule applies to all persons within the United Statesregardless of whether they are citizens, immigrants (legal orillegal), or visitors.

oral evidenceOral testimony given in a court by a witness. Also called parol

evidence.secondary evidenceA reproduction of, or substitute for, an original document or item of

proof that is offered to establish a particular issue in a legalaction. Secondary evidence is evidence that has been reproducedfrom an original document or substituted for an original item. Forexample, a photocopy of a document or photograph would be

394 Berg, p. 29

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considered secondary evidence. Another example would be an exactreplica of an engine part that was contained in a motor vehicle. Ifthe engine part is not the very same engine part that was insidethe motor vehicle involved in the case, it is considered secondaryevidence.

Courts prefer original, or primary, evidence. They try to avoid usingsecondary evidence wherever possible. This approach is called thebest evidence rule. Nevertheless, a court may allow a party tointroduce secondary evidence in a number of situations.

After hearing arguments by the parties, the court decides whether toadmit secondary evidence after determining whether the evidence isin fact authentic or whether it would be unfair to admit theduplicate. However, when a party questions whether an assertedwriting ever existed, or whether a writing, recording, orphotograph is the original, the trier of fact makes the ultimatedetermination. The trier of fact is the judge if it is a benchtrial; in a jury trial, the trier of fact is the jury.

primary evidenceAn authentic document or item that is offered as proof in a lawsuit,

as contrasted with a copy of, or substitute for, the original.Primary evidence, more commonly known as best evidence, is the bestavailable substantiation of the existence of an object because itis the actual item. It differs from secondary evidence, which is acopy of, or substitute for, the original. If primary evidence isavailable to a party, that person must offer it as evidence. When,however, primary evidence is unavailable—for example, through lossor destruction—through no fault of the party, he or she may presenta reliable substitute for it, once its unavailability issufficiently established.

direct testimony Direct testimony is when I ask my witness open-ended questions and

have them tell a story. For example, "Tell me what happened on August 15"or "Please tell the Court about my son's special needs" or "How do you think theseneeds are best met?"

When it is my turn to testify, I will tell an organized story. It ishelpful to prepare my comments in advance by making an outline ofthe issues I would like to tell the judge. I will not plan to writeout and read my testimony though. I will tell the judge where I amgoing with my testimony. For example, "now I'm going to talk about theparenting plan you have proposed and why you think it is in our children's best interests."

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It is important to understand that testimony provided by a witness isconsidered evidence which the judge can use to decide an issue inthe case. Asking questions of a witness is not considered evidence.Instead, the witness’s answer is evidence.

If I am questioning a witness, do not use my question as anopportunity for I to provide testimony to rebut an answer that Idisagree with or think is not honest. Instead, ask proper questionsthat will bring out the witness’s testimony to support theinformation I want the judge to know.

rule in browne v dunn or anti-ambush ruleBrowne v. Dunn395 is a famous British House of Lords decision on the

rules of cross examination. From this case came the common law ruleknown as the "Browne v Dunn rule" or "The rule in Browne v Dunn".The rule in Browne v. Dunn396 requires that counsel put a matter to awitness involving the witness personally if counsel is later goingto present contradictory evidence, or is going to impeach thewitness’ credibility. Rule of evidence named after the British casein which it was first established; that if I intend on laterimpeaching a witness with contradictory evidence, that evidenceought to be put to the witness.

Therefore, under this rule if a witness gives a testimony that isinconsistent with what the opposing party wants to lead asevidence, the opposing party must raise the contention with thatwitness during cross-examination. If this has not been done, thenthe opposing party cannot later bring evidence to contradict thetestimony of the witness. This rule can be seen as an anti-ambushrule because it allows the witnesses to explain their position onpoints where their testimony will be contested as opposed to havingthe contention brought to their notice when the opposing party ispresenting their case.

The decision arose out of a civil case involving the parties JamesLoxham Browne and Cecil W. Dunn (solicitor). The case stemmed froma document issued by Dunn on behalf of others addressed to Browne.The document indicated that the signatories, all residents of TheVale, Hampstead, requested Dunn apply for an order against Browneto keep the peace.

At a subsequent Breach of the Peace hearing, Browne became aware ofthe document and commenced libel proceedings against all parties.During that hearing the document was never shown to any of thesignatories by Browne during his cross examination. During the

395 (1893) 6 R. 67, H.L.396 Browne v Dunn 6 R. 67 (1893, House of Lords)

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hearing Browne produced the document citing it "a sham". The juryeventually found in favour of Browne and ordered damages of 20shillings. Dunn appealed to the Court of Criminal Appeal and theverdict was set aside. Browne then appealed to the House of Lords.During that appeal it was discovered that a number of thesignatories were present at the original trial and none of them wasasked if the document was anything but genuine.

brady ruleThe Brady Rule, named for Brady v. Maryland397, requires prosecutors to

disclose materially exculpatory evidence in the government'spossession to the defense. "Brady material" or evidence theprosecutor is required to disclose under this rule includes anyevidence favorable to the accused-- evidence that goes towardsnegating a defendant's guilt, that would reduce a defendant'spotential sentence, or evidence going to the credibility of awitness. If the prosecution does not disclose material exculpatoryevidence under this rule, and prejudice has ensued, the evidencewill be suppressed. The evidence will be suppressed regardless ofwhether the prosecutor knew the evidence was in his or herpossession, or whether or not the prosecutor intentionally orinadvertently withheld the evidence from the defense. The defendantbears the burden of proving that the undisclosed evidence wasmaterial, and the defendant must show that there is a reasonableprobability that there would be a difference in the outcome of thetrial had the evidence been disclosed by the prosecutor.

halliday orderA special Court order in regards to document disclosure where, in

special cases, a lawyer for a litigant, as an officer of the Court,first review documents from specified sources, or at large, andidentifies and proposes to set aside and distinguish documentsweighed relevancy, for reasons of privilege, privacy,confidentiality, or the potential personal embarrassment of theparty given the personal nature of the information in a document.

depose (evidence)To make a deposition; to give evidence in the shape of a deposition;

to make statements that are written down and sworn to; to givetestimony that is reduced to writing by a duly qualified officerand sworn to by the deponent.

397 373 U.S. 83 (1963)

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cross-examinationIn law, cross-examination is the interrogation of a witness called by

one's opponent398. It is preceded by direct examination known asexamination-in-chief) and may be followed by a redirect.

direct examination or examination-in-chief The Direct Examination or Examination-in-Chief is one stage in the

process of adducing evidence from witnesses in a court of law.Direct examination is the questioning of a witness by the party whocalled him or her, in a trial. Direct examination is usuallyperformed to elicit evidence in support of facts which will satisfya required element of a party's claim or defense.

In direct examination, one is generally prohibited from asking leadingquestions. This prevents a lawyer from feeding answers to afavorable witness. An exception to this rule occurs if one side hascalled a witness, but it is either understood, or soon becomesplain, that the witness is hostile to the questioner's side of thecontroversy. The lawyer may then ask the court to declare theperson he or she has called to the stand a hostile witness. If thecourt does so, the lawyer may thereafter ply the witness withleading questions during direct examination.

Redirect examination is the trial process by which the party whooffered the witness has a chance to explain or otherwise qualifyany damaging or accusing testimony brought out by the opponentduring cross-examination. Redirect examination may question onlythose areas brought out on cross-examination and may not straybeyond that boundary.399

testimony The Rules of Evidence control what evidence the court is allowed to

consider. There are two main forms of evidence - people's testimonyas witnesses and items presented as exhibits.

When people speak as witnesses in court it is called testimony. I cantestify if I are the plaintiff / petitioner or defendant /respondent. Other people who have direct and relevant knowledge cantestify as witnesses. Also people who keep records can testifyabout the records.

398 Ehrhardt, Charles W. and Stephanie J. Young, "Using Leading Questions During Direct Examination", Florida State University Law Review, 1996. Accessed November 26, 2008.

399 Civil Procedure, (The White Book), Sweet & Maxwell, 2006 Volumes 1 and 2

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exhibits When things are used to present a case, they are called exhibits. This

can be photographs, records such as police reports, medical, bills,appraisals, school report cards, etc. Basically any item that isrelevant to the case can be considered as evidence.

There is a very specific way to prepare my exhibits BEFORE I come tocourt. This involves:

و choosing the exhibits

و marking them with special stickers

و making 4 sets of copies

و filling out the Exhibit List

و giving the opposing party a copy of all exhibits by the deadline stated in my schedulingorder.

Exhibits cannot testify for themselves, so somebody has to introducethem to the court. Over time, a standard procedure has developedfor admitting exhibits, and I need to understand this if I plan tosubmit exhibits.

In summary, the person introducing the exhibit has to know about it,be able to identify it and confirm that it is authentic. Forexample, I could introduce a letter written by the defendant to Ior a photograph of my house, because I will have first handknowledge to identify it. However, I could not introduce aphotograph of my ex's new house if I have never seen it.

rules of evidenceThey are rules that control what evidence the Court is allowed to

consider. Their purpose is to get the most reliable, relevant andaccurate evidence to the Judge. For example:

و People can only talk about what they know first hand. If I don't have first hand knowledge,it is called "hearsay" which is usually not allowed.

و I have the right to cross-examine anyone whose words (whether written or spoken) arebeing considered as evidence.

و The testimony or exhibit must be relevant.

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offer of proofSometimes, before I call a witness, the Judge will want to know why I

are going to call that person so that she can decide whether thetestimony is necessary and relevant. An Offer of Proof is a shortstatement from me telling the judge

و why I want a witness to testify;

و what that witness is expected to say;

و and why this is relevant and necessary to the case

exclusionary ruleA rule that provides that otherwise admissible evidence cannot be used

in a criminal trial if it was the result of illegal police conductcorroborationSeveral definitions have been proffered by textwriters and judges.

According to Heydon and Ockleton, “corroboration” is “evidencetending to confirm some fact of which other evidence is given.” ForNokes, it is “confirmatory or supporting evidence on a matter onwhich other evidence is adduced.400” In R v Baskerville Lord Reading CJdefines “corroboration” as follows:

“We hold that evidence in corroboration must be independent testimony which affects theaccused by connecting or tending to connect him with the crime. In other words, it must beevidence which implicates him, that sis, which confirms in some material particular notonly the evidence that the crime has been committed, but also the prisoner committed it.”401

Lord Diplock in DPP v Hester observed that “an examination of the basic19 th century cases makes it plain that in judgments‘corroboration' was not used in other sense than ‘confirmation'.”402

Finally, Lord Hailsham in DPP v Kilbourne opined:“The word ‘corroboration' by itself means no more than evidence tending to confirm other

evidence. In my opinion, evidence which is (a) admissible and (b) relevant to the evidencerequiring corroboration and, if believed, confirming it in the required particulars, iscapable of being corroboration of that evidence and, when believed, is in fact suchcorroboration.”403

From the foregoing statements, one can safely assert thatcorroboration means confirmation or support. Corroborativeevidence, therefore, means evidence from an independent source

400 J.D. Heydon Evidence: Cases and Materials (London: Butterworths, 1984), at 67.401 [1916] 2 KB 658.402 Ibid., p.667. For a critique of this definition, see S. Bronitt, “Baskerville

revisited: The definition of corroboration reconsidered” [1991] Crim LR 30.403 [1973] AC 296.

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which confirms or supports proof of a matter on which evidence hasbeen or will be given and which implicates the defendant in amaterial particular.404

cautionary rulesWhen relying upon certain types of evidence or witnesses, for example,

oral testimony of a spouse or a child, cautionary rules assist thecourt in deciding whether or not guilt has been proved according tothe required standard of proof applicable.

credibilityCrucial to a matter is a witness’s credibility as it has a direct

bearing on the truthfulness or untruthfulness of the evidence,which has been adduced. Credibility can be determined by thewitness’s demeanour in the proceedings.

oral evidence This type of evidence is usually given by way of oral testimony by a

witness to an event or fact.documentary evidenceThis type of evidence is hearsay evidence as it is incapable of being

subject to cross examination.real evidence material evidence or physical evidenceReal evidence, material evidence or physical evidence is any material

object,that play some actual role in the matter that gave rise tothe litigation, introduced in a trial, intended to prove a fact inissue based on its demonstrable physical characteristics. Physicalevidence can conceivably include all or part of any object. Thistype of evidence consists of items, which are examined by the courtas a means of proof. The court may rely on its own perceptions anddraw reasonable inferences therefrom.

expert evidenceThis type of evidence is the exception to the general rule against

admissibility of opinion evidence. It is allowed when an expert ona subject is better informed and qualified to give an opinion thanthe arbitrator.

judicial notice and formal admissionsJudicial notice can be described as accepting those facts which do not

require proof by the court or arbitrator as such facts are so wellestablished and are common knowledge that they are accepted “asis”.

404 Sir Rupert Cross, Cross On Evidence (London: Butterworths, 1967), at 162.

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assessment of evidenceEvidence which has been adduced needs to be “weighed” up by the

arbitrator. It is a process by which a certain value is placed onthe evidence.

direct evidence and circumstantial evidenceDirect evidence is when for e.g. a witness perceived an incident with

his own senses as opposed to circumstantial evidence where for e.g.the actual event is not perceived by the witness, but the witnesssaw a person fleeing the scene with a gun in his hand.

prima facie proofThis term means that such evidence is capable of being supplemented by

inferences from the other party’s failure to respond or reply.past bad actsGenerally, evidence of past bad acts by a criminal defendant is not

admissible to prove that the defendant is a bad person andtherefore committed the crime charged. However, evidence of pastbad acts will be admitted for other purposes such as to showmotive, intent, preparation, plan, knowledge, identity, or absenceof a mistake or accident. Such evidence is also admissible forImpeachment purposes, (for example, if a defendant takes the stand)and when a defendant seeks to introduce the evidence in his or herdefense.

In Ohler v. United States405, the defendant Ohler was tried for importationof marijuana and possession of marijuana with the intent todistribute. After the trial court granted the government's motionto admit evidence of her previous conviction for methamphetaminepossession, as impeachment evidence under Federal Rule of Evidence609(a)(1), Ohler decided to bring out her prior conviction underdirect examination, in order to "remove the sting" from theprosecutor's possible elicitation of the conviction on cross-examination. (Under the trial court's ruling, the prior convictionwas only admissible in the event that Ohler testified.) The juryconvicted Ohler on both counts, and she appealed, claiming that thetrial court erred in admitting her prior conviction. The U.S. Courtof Appeals for the Ninth Circuit and the United States SupremeCourt affirmed her conviction, holding that Ohler had waived herobjection to the evidence by introducing it herself.

rules of evidence

405 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (U.S.Cal., May 22, 2000) (NO. 98-9828)

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Rules of evidence govern whether, when, how, and for what purpose,proof of a legal case may be placed before a trier of fact forconsideration.

Prevailing in court requires a good understanding of the rules ofevidence in the given venue. The rules vary depending upon whetherthe venue is a criminal court, civil court or family court, andthey vary by jurisdiction. One reason to have a lawyer, amongothers, is that he or she should be familiar with the rules ofevidence. If one were allowed simply to tell the court what oneknew to be the truth, and how one knew it, one might prevail.However, the rules of evidence may prohibit one from presentingone's story just as one likes.

Some important rules involve relevance, privilege, witnesses,opinions, expert testimony, hearsay, authenticity, identificationand rules of physical evidence.

probative valueProbative is a term used in law to signify "tending to prove."406

Probative evidence "seeks the truth"; to make the existence of any[material] fact more probable or less probable than it would bewithout the evidence").407

materiality Materiality is a legal term which can have different meanings,

depending on context. When speaking of facts, the term generallymeans a fact which is "significant to the issue or matter athand".408

material evidenceAn item of evidence is said to be material if it has some logical

connection to a fact of consequence to the outcome of a case.Materiality, along with probative value, is one of the twocharacteristics which makes a given item of evidence relevant409.This is largely dependent upon the elements of the cause of actionthe plaintiff seeks to prove, or that the prosecutor must prove ina criminal case in order to secure a conviction. Which issues mustbe factually proven are therefore a product of the underlyingsubstantive law.410

double hearsay406 Hill, Gerald N., and Kathleen T. Hill. "Probative Legal Definition of Probative."

The Free Dictionary by Farlex. July 2007. Farlex Inc. 2 July 2007.407 Fisher, George. Evidence. pp. 18–19. Foundation Press, 2002. ISBN 1-58778-176-X408 Black's Law Dictionary, 7th ed.409 See Rule 401 of the Federal Rules of Evidence.410 Fisher, George. Evidence. pp. 18-19. Foundation Press, 2002. ISBN 1-58778-176-X

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Double hearsay is when a hearsay statement offered as evidencecontains another hearsay statement.

legal opinionA "legal opinion" or "closing opinion" is a type of professional

opinion, usually contained in a formal legal-opinion letter, givenby an attorney to a client or a third party. Most legal opinionsare given in connection with business transactions. The opinionexpresses the attorney's professional judgment regarding the legalmatters addressed. A legal opinion is not a guarantee that a courtwill reach any particular result.411 However, a mistaken orincomplete legal opinion may be grounds for a professionalmalpractice claim against the attorney, pursuant to which theattorney may be required to pay the claimant damages incurred as aresult of relying on the faulty opinion.

judicial opinionA "judicial opinion" or "opinion of the court" is an opinion of a

judge or group of judges that accompanies and explains an order orruling in a controversy before the court, laying out the rationaleand legal principles the court relied on in reaching itsdecision.412 Judges in the United States are usually required toprovide a well-reasoned basis for their decisions and the contentsof their judicial opinions may contain the grounds for appealingand reversing of their decision by a higher court.

411 412

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QUESTIONING WITNESSES

witnessThe plaintiff or defendant may have people who are witnesses that will

present testimony or introduce a physical piece of evidence that isrelevant to an issue in the case. Both the plaintiff and defendant(or their attorneys if represented) have the opportunity to ask the witnessesquestions. The witness sits in a separate area often called the“witness box” which is often located next to the in-court clerk. Awitness is someone who has, who claims to have, or is thought, bysomeone with authority to compel testimony, to have knowledgerelevant to an event or other matter of interest. In law a witnessis someone who, either voluntarily or under compulsion, providestestimonial evidence, either oral or written, of what he or sheknows or claims to know about the matter before some officialauthorized to take such testimony.

compelleable witnessA witness is compellable if he or she may lawfully be required to give

evidence. Most witnesses who are competent can be compelled to giveevidence. The only exception relates to spouses and civil partnerswho are only compellable to give evidence against their partner inlimited circumstances. In law a witness might be compelled toprovide testimony in court, before a grand jury, before anadministrative tribunal, before a deposition officer, or in avariety of other proceedings (e.g., judgment debtor examination).Sometimes the testimony is provided in public or in a confidentialsetting (e.g., grand jury or closed court proceeding).

rebuttal witnessThis is someone who is not on the witness list. This person's

testimony is suddenly needed to rebut something unexpected thatanother witness said. For example, my ex testifies that my child issick so often because I will not do what the doctor says. I callthe doctor as a rebuttal witness to explain how well I care for mychild, who has numerous medical conditions that result in frequentillnesses.

witness selectionI should carefully choose all witnesses. Find out how much time I will

have to question my witnesses so that I can figure out which onesare the most important to present. I will figure out why I want tocall a particular witness by thinking about the followingquestions:

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و What will they say?

و Will they really help my case?

و Why is their testimony relevant?

Once I decide which witnesses to call, I need to prepare an Offer ofProof for each witness (see below). Think carefully about whom Ichoose as witnesses and what they might say in their testimonybecause I do not want any surprises!

witnesses preperationIt is not cheating to prepare my witnesses. To best prepare my

witnesses for the direct examination, write out the questions Iwill ask them at trial. Practice asking my witnesses thesequestions. Prepare an Offer of Proof that I will say to the judgeto help I focus their testimony.

To prepare them to be cross-examined by the other side, talk with mywitness about what questions the other side might ask them.

Remind my witness that they must always tell the truth. Emphasize thatthey are not allowed to make up stuff. It is ok to say, "I don'tknow" or "I don't remember" or "please rephrase the questionbecause I don't understand."

I may subpoena a witness that tells I he or she will not come to courtto testify. A subpoena is a court order requiring a witness to showup in court for a specific reason. The court has different forms touse for subpoenas:

و "to appear" which are used for witnesses to appear and testify

و "to appear and produce" which are used for witnesses to appear and produce specificevidence, and

و to take a deposition

witness list The witness list is the list of people I plan to call as witnesses

during my trial or hearing. The point is to give the other sidenotice of who I may call as a witness at the trial. Both thepeople involved with the case are automatically witnesses. I don’thave to call everyone on the list at the trial if I decide aparticular witness’s testimony isn’t needed. I must also statewhether someone will be an expert witness. The judge will tell I

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when the witness list is due. If I do not file my witness list, thecourt may sanction I by not allowing I to call my witnesses.

witness impeachment Witness impeachment, in the law of evidence of the United States, is

the process of calling into question the credibility of anindividual who is testifying in a trial.

Under the common law of England, a party could not impeach its ownwitness unless one of four special circumstances was met. This wasdue to the Voucher Rule, which required that the proponent of thewitness ‘vouch’ for the truthfulness of the witness.

The special circumstances were:

و If the witness was an adverse party (e.g. if the plaintiff called the defendant to the stand, orvice-versa).

و If the witness was hostile (e.g. refused to cooperate).

و If the witness was one that the party was required by law to call as a witness.

و If the witness surprised the party who called him by giving damaging testimony againstthat party.

party deponent A person called to testify in a deposition.percipient witness or eyewitness A percipient witness or eyewitness is one who testifies what they

perceived through his or her senses (e.g. seeing, hearing, smelling,touching). That perception might be either with the unaided humansense or with the aid of an instrument, e.g., microscope orstethoscope, or by other scientific means, e.g., a chemical reagentwhich changes color in the presence of a particular substance.

hearsay witness A hearsay witness is one who testifies what someone else said or

wrote. In most court proceedings there are many limitations on whenhearsay evidence is admissible. Such limitations do not apply togrand jury investigations, many administrative proceedings, and maynot apply to declarations used in support of an arrest or searchwarrant. Also some types of statements are not deemed to be hearsayand are not subject to such limitations.

expert witness

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An expert witness, professional witness or judicial expert is awitness, who by virtue of education, training, skill, orexperience, is believed to have expertise and specialised knowledgein a particular subject beyond that of the average person,sufficient that others may officially and legally rely upon thewitness's specialized (scientific, technical or other) opinionabout an evidence or fact issue within the scope of his expertise,referred to as the expert opinion, as an assistance to the fact-finder. An expert witness is one who allegedly has specializedknowledge relevant to the matter of interest, which knowledgepurportedly helps to either make sense of other evidence, includingother testimony, documentary evidence or physical evidence (e.g., afingerprint). An expert witness may or may not also be a percipientwitness, as in a doctor or may or may not have treated the victimof an accident or crime.

reputation witness A reputation witness is one who testifies about the reputation of a

person or business entity, when reputation is material to thedispute at issue.

In law a witness might be compelled to provide testimony in court,before a grand jury, before an administrative tribunal, before adeposition officer, or in a variety of other proceedings (e.g.,judgment debtor examination). Sometimes the testimony is providedin public or in a confidential setting (e.g., grand jury or closedcourt proceeding).

confidential informant Although informally a witness includes whoever perceived the event, in

law, a witness is different from an informant. A confidentialinformant is someone who claimed to have witnessed an event or havehearsay information, but whose identity is being withheld from atleast one party (typically the criminal defendant). The informationfrom the confidential informant may have been used by a policeofficer or other official acting as a hearsay witness to obtain asearch warrant.

credible witnessSeveral factors affect witnesses' credibility. Generally, a witness is

deemed to be credible if they are recognized (or can be recognized)as a source of reliable information about someone, an event, or aphenomenon. Contesting the credibility of so-called "expert"witnesses rose into more common practice in the 1860s and 1870s.

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zealous witnessA witness who demonstrates disproportionate enthusiasm while

testifying.hostile witnessA party's witness who demonstrates such adversity to answering

questions that the trial judge allows leading questions to be putto that witness.

subpoena A subpoena commands a person to appear. It is used to compel the

testimony of a witness in a trial. Usually, it can be issued by ajudge or by the lawyer representing the plaintiff or the defendantin a civil trial or by the prosecutor or the defense attorney in acriminal proceeding. In many jurisdictions, it is compulsory tocomply, to take an oath, and to tell the truth, under penalty ofperjury.

questioning of witnesses There is a specific order to how the questioning of witnesses happens.

The plaintiff calls their witnesses first. The plaintiff asks thefirst witness questions which is called direct exam. The other sidethen asks that witness questions which is called cross-exam. Theplaintiff can ask more questions of that witness which is called re-direct exam. This cycle goes on for all of the plaintiff’s witnesses.Then the defendant asks their witnesses questions and the cyclestarts over again.

cross-examination The other side gets to ask leading questions. Examples are: "Isn't is true

that you see your son crying every time you go to your ex-wife's house?" or "Isn't it truethat you sold some of your marital property without your wife’s permission?" Thesequestions usually have "yes" or "no" answers. The intent of thesequestions is often to make the witness or accused look bad so it isimportant to listen carefully and take notes to organize myself to"fix" this on re-direct.

re-direct After a witness or accused or defendant has been cross-examined, the

lawyer other parties layers will have a turn to explain to thecourt how the cross-examination testimony might have beenmisleading and what more there is to the story.

This is opportunity to "fix" the cross-exam. I will give my witnessthe chance to explain. For example, I might say "Please tell the Court whatyou have observed about your son's crying?"

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Then my witness says, "He starts crying uncontrollably when I come over to drive him tovisitation. For the first half of the drive he is sobbing, but by the time we get to the drop-off,he is totally silent and will not speak. He will not get out of the car by himself."

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CLOSING STATEMENTS

In the closing statement, I state again what I want and why I want it,summarize the evidence and explain how it supports my case. Inaddition, I will state what is wrong with the other side'sposition.

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Legal InterpretationINTRODUCING LEGAL INTERPRETATION

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CONTRACT INTERPRETATION

boilerplate doctrineAs discussed in Tina L. Stark's Negotiating and Drafting Contract Boilerplate,

when lawyers refer to a ‘boilerplate‘ provision, they are referringto any standardized, ‘one size fits all‘ contract provision. Butlawyers also use the term in a more narrow context to refer tocertain provisions that appear at the end of the contract.Typically, these provisions tell the parties how to govern theirrelationship and administer the contract. Although often thought tobe of secondary importance, these provisions have significantbusiness and legal consequences.413 Common provisions include thegoverning law provision, venue, assignment and delegationprovisions, waiver of jury trial provisions, notice provisions, andforce majeure provisions.414

implied termsA term may either be express or implied. An express term is stated by

the parties during negotiation or written in a contractualdocument. Implied terms are not stated but nevertheless form aprovision of the contract.

terms implied in factTerms may be implied due to the facts of the proceedings by which the

contract was formed. In the Australian case of BP Refinery Westernport v.Shire of Hastings415 the UK Privy Council proposed a five stage test todetermine situations where the facts of a case may imply terms(this only applies to formal contracts in Australia).416

terms implied in lawThese are terms that have been implied into standardized

relationships. Instances of this are quite numerous, especially inemployment contracts and shipping contracts. The rules by whichmany contracts are governed are provided in specialized statutesthat deal with particular subjects. Most countries, for example,have statutes which deal directly with sale of goods, leasetransactions, and trade practices.

413 Tina L. Stark, Negotiating and Drafting Contract Boilerplate, (ALM Publishing 2003, pp.5-7).ISBN 978-1-58852-105-7

414 Not to be confused with a product warranty, which is always referred to as a 'guarantee' in law.

415 (1977) 180 CLR 266416 Byrne and Frew v. Australian Airlines Ltd (1995) 185 CLR 410

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integration clause or merger clause or entire agreement clauseIn contract law, an integration clause, or merger clause (sometimes,

particularly in the United Kingdom, referred to as an entire agreementclause) is a term in the language of the contract that declares itto be the complete and final agreement between the parties. It isoften placed at or towards the end of the contract. A contract thathas such a clause may be deemed an integrated contract, and any previousnegotiations in which the parties to the contract had considereddifferent terms will be deemed superseded by the final writing.However, many modern cases have found merger clauses to be only arebuttable presumption.

‘This Agreement, along with any exhibits, appendices, addendums, schedules, andamendments hereto, encompasses the entire agreement of the parties, and supersedes allprevious understandings and agreements between the parties, whether oral or written. Theparties hereby acknowledge and represent, by affixing their hands and seals hereto, thatsaid parties have not relied on any representation, assertion, guarantee, warranty,collateral contract or other assurance, except those set out in this Agreement, made by oron behalf of any other party or any other person or entity whatsoever, prior to theexecution of this Agreement. The parties hereby waive all rights and remedies, at law or inequity, arising or which may arise as the result of a party’s reliance on such representation,assertion, guarantee, warranty, collateral contract or other assurance, provided thatnothing herein contained shall be construed as a restriction or limitation of said party’sright to remedies associated with the gross negligence, willful misconduct or fraud of anyperson or party taking place prior to, or contemporaneously with, the execution of thisAgreement.’

material term (contract law)In the law of contracts, a material term in a contract is a term or

provision of a contract which concerns significant issues, such asthe subject matter, price, quantity, the type of work to be done,and terms of payment or performance.417

authentic actA contract or other legal document which has been properly prepared or

authenticated by a court officer, such as a notary, and thereaftergiven enhanced evidentiary status of its authenticity.

terms (contract)Terms are those stipulations, incorporated into the contract, which

the parties have agreed upon and which bind them to perform. Notall terms are necessarily in the written contract itself; termscomprise both the stipulations that the parties include in theircontract and those provisions which are included by operation of

417 Black's Law Dictionary, 7th ed.

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law. Contracts do not have to fall into any particular category,but certain traditional kinds are recognised, along with their ownparticular rules and terms and consequences.

terms implied ex legeTerms implied ex lege, or by operation of law, may derive from the

common law (as developed by the courts), from trade usage orcustom, or from statute. (In the case of the common law, they havealready been discussed in the section dealing with naturalia.)Terms implied ex lege may be varied or excluded expressly by theparties.

A custom is a particular rule which has existed, either actually orpresumptively, from time immemorial in a particular locality, whereit has obtained the force of law despite conflicting with or notbeing found in the general law of the land.

Trade usages do not apply to a particular space; they develop in aparticular profession or trade. In the case of Golden Cape Fruits vFotoplate,[39] Corbett JA established the requirements. The tradeusage must

be uniformly and universally observed; be long established; be reasonable, so that one would expect people in the trade to be aware of it; be notorious; be certain; not be in conflict with positive law; and not conflict with an express term of the contract.

In Coutts v Jacobs,[40] for instance, Jacobs consigned goods toCoutts, who sold them and charged commission, which Jacobs refusedto pay. The judgment went against him, the court finding that therewas a trade usage whereby wool sales agents were entitled to chargecommission.

amadio doctrineAmadio's Case (1983)418 is a landmark in the protection of

disadvantaged parties to commercial transactions. It establishesstringent expectations of what banks or other credit providers mustdisclose or explain to potential guarantors, especially if theguarantors are legally and financially vulnerable because of theirpersonal relationship with the debtor. It reinforces the principlethat those who give personal guarantees and mortgages to banks and credit providers tosecure another person's debts have the legal right not to be taken advantage of by debtorsor financiers, to know the true financial position, and to have adequate opportunity to

418 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 ('Amadio's Case')

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receive independent advice. It stands with other examples of the HighCourt's use of the concepts and doctrines of equity (includingestoppel, undue influence, constructive trusts, restitution, andrelief against forfeiture of interests in land) to develop commonlaw, and establishes the notion of unconscionability as a unifyingdoctrinal rationale underlying much of that development.

In 1977, Giovanni and Cesira Amadio executed a mortgage and guaranteeover their home in favour of a bank, as security for an overdraftfor a company controlled by their son, Vincenzo. Both were aged intheir seventies, were not educated, and the bank officer offered noexplanation to them because he believed Vincenzo had done so, andnothing reasonably alerted him to their ignorance of itsimplications. However, Vincenzo and the bank knew that thetransaction was financially unwise for the Amadios. They also knewthat the mortgage was essential for the company to continue inbusiness and knew that the Amadios had received no independentlegal or financial advice. When the company went into liquidation,the bank served a demand on the Amadios and moved to exercise itspower of sale.

The Amadios resisted the bank's action by proceedings in the SupremeCourt. Their counsel argued that the bank had acted unconscionably,that the mortgage was induced by undue influence, and that it wasobtained by misrepresentation or concealment of information thatthe bank knew and should have disclosed. The Court ordered thetransaction to be set aside.

The result is a striking development of the law of unconscionabilityas a ground for equitable intervention in contractual relationswhere a party in a superior bargaining position has unconscionablyor unconscientiously taken advantage of another party's specialdisability or special disadvantage. As Fullagar had said in Blomley vRyan (1956)419, cited by Deane in Amadio, the relevant specialcircumstances include but are not limited to ‘poverty or need ofany kind, sickness, age, sex, infirmity of body or mind,drunkenness, illiteracy or lack of education, and lack ofassistance or explanation where assistance or explanation isnecessary’.

See the rule in rule in Yerkey v Jones

419 (1956) 99 CLR 362 In Ryan, the contract was entered into when the owner of the land was drunk, and hence he sold his land for upto 24% less the market value. Thecourt set aside the sale on the basis of unconscionability.

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rule in yerkey v jonesThe rule in Yerkey v Jones,420 guarantees given to support both consumer and

business borrowings. Sir Owen Dixons' judgmentin Yerkey v. Jones (which held that there was a special married woman'sequity) can be seen as embodying the creative yet bounded decisionmaking that Dixon understood as lying at the heart of common lawjudging. Not only does Dixon's judgment cohere with the principalcases dealing with this aspect of the law, it also gives effect tothe underlying premise upon which this body of law had developed –the belief that in a relationship of confidence and trust such asmarriage, husbands could take advantage of their wives in ways thatwere not actionable in the courts – in a more convincing fashionthan in the competing formulation proposed by modern judicialcritics of his judgment. The equitable doctrine is confined toprocedural unfairness; that is, unfairness in the bargainingprocess.421 In terms of the Amadio doctrine, this is established byshowing that in the process of taking the guarantee the creditorhad knowledge of the existence of a special disability suffered bythe guarantor and took advantage of that disability.

Under this rule, a party having a legal right shall not be permittedto exercise it in such a way that the exercise amounts tounconscionable conduct’. The rule in Yerkey v Jones states that asecurity given by a wife to her husband’s creditor may beinvalidated against the creditor where:

و The husband procures his wife’s execution of a guarantee;

و The guarantee is for the immediate economic benefit not of the wife but of the husband;

و There are grounds to set aside the guarantee as against the husband (a failure to explain asecurity accurately and adequately);

و The creditor relied upon the husband to obtain it from his wife; and

و The creditor has no independent grounds for reasonably believing that she fullycomprehended the transaction and freely entered into it.

420 [1999] LawIJV 20421 (1983) 151 CLR 447.

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Such an equitable principle was originally developed as a way ofameliorating the harshness of the common law, which prevented awoman from dealing with a property in her own name.422

The position of married women under common law has been explained byBlackstone in the following way:

‘By marriage the husband and wife are one person in law. The very being or legal existence ofthe woman is by the common law suspended during the marriage, or, at least it isincorporated and consolidated into that of the husband, under whose wing, protection andcover she performs everything.’423

special wives’ doctrine There are a great number of cases in which practical problems

encountered by guarantor wives have rendered them unable todemonstrate they are under a ‘special disability’ that issufficiently evident to the lender.424 This means that the onlyoption left for the court is to grant relief to the guarantor wifeunder the Yerkey v Jones principle.

abstraction principle (property & contract law)The abstraction principle is a legal term relating to the law of

obligations and property law. The concept of ‘abstracting’ apersonal obligation to pay or exchange goods or legal rights (e.g.through contract) from the transfer of proprietary title of goodsor legal rights is fundamental to private law. The main advantageof the principle of abstraction is its ability to provide a securelegal construction to nearly any financial transaction howevercomplicated this transaction may be. A good example is the wellknown retention of title. If someone buys something and pays the purchaseprice by installments the system faces two conflicting interests:the buyer wants to have the purchased goods immediately, whereasthe vendor wants to secure full payment of the purchase price. Withthe principle of abstraction the purchase contract obliges thebuyer to pay the full price and requires the vendor to transferproperty upon receipt of the last installment. As the obligationsand the actual conveyance of ownership are in two differentcontracts it is quite simple to secure both parties' interests. Thevendor keeps the rights to the property up to the last payment andthe buyer is the mere holder of the purchased goods. If he fails to

422 Lee Aitkin, ‘Equity, Third‐Party Guarantees and Wife as Guarantors: Recent English Developments’ (1992) 3 Journal of Banking and Finance 260, 264.

423 Quoted in G Williams ‘Equitable Principles for the Protection of Vulnerable Guarantors: Is the Principle in Yerkey v Jones Still Needed?’ (1994) 8 Journal of Contract Law 60, 69. See Aitkin, above n 11, 264.

424 For example, Teachers Health v Wynne (1994) NSW Con R 55‐718; Akins v National Australia Bank (1994] 34 NSWLR 155.

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pay in full the vendor may reclaim his property just like any otherowner.

non-derogation from grants The doctrine of non-derogation from grants is a principle of the law

of England and Wales. As the House of Lords explained in BritishLeyland Motor Corp. v. Armstrong Patents Co425., it states that a seller ofrealty or goods is not permitted to take any action (such asbringing an infringement action) that will lessen the value to thebuyer of the thing sold.

United States federal law recognises similar doctrines such as theexhaustion doctrine or doctrine of implied license. ‘TransCore sought toenforce the ’946 patent in derogation of the rights it grantedunder the TransCore–Mark IV settlement agreement. That attemptedderogation is prevented by legal estoppel, which gives rise to theimplied license.’ 426 A similar effect has also been realised inpatent law under the doctrine of repair and reconstruction.427

An important difference between the doctrine of non-derogation fromgrants and other doctrines, particularly implied license, that areused to accomplish similar results is that the doctrine of non-derogation from grants is ‘inherent’ as a matter of property lawand apparently cannot be avoided by a seller's use of languageattempting to negative application of the doctrine or by trialcounsel's pointing to evidence of intent not to relinquish patentrights or copyright. In contrast, the other doctrines may bevulnerable to contractual disclaimers or evidence of intent not togrant intellectual property rights. The issue is discussed to someextent in the courts' opinions in British Leyland and Quanta Computer, Inc. v.LG Electronics, Inc428.

tacit termsA tacit term is a wordless understanding between contracting parties.

These are terms which the parties must have had in mind but whichare so obvious they were never expressly articulated. A tacit term,accordingly, has the same legal effect as an express term. It isderived from the common intention of the parties (express termsplus surrounding circumstances), and is in this way an exception tothe parol evidence rule.

425 [1986] A.C. 577 [1986] 426 Id. at -- n.4.427 See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336 (1961).428 553 U.S. 617 (2008)

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The courts often deploy the officious-bystander test to determinewhether or not a contract contains a tacit term, imagining that animpartial bystander had been present at the conclusion of thecontract and had asked what might happen in a situation the partieshad not expressly foreseen: If the answer is self-evident to theparties, the term is taken to be incorporated as a tacit term. If,therefore, the parties are engaged in a particular trade and knowthat there is a trade usage governing their transaction, they aretaken to have tacitly incorporated it into their contract.

The party claiming the existence of a tacit term must formulate itclearly and precisely.

conditionsA condition is a term that qualifies a contractual obligation so as to

make its operation and consequences dependent on some uncertainfuture event. There is a distinction, therefore, in this areabetween various jurisdictions and English law, where terms andconditions are synonymous and used interchangeably.

positive condition A positive condition depends on the occurrence of an uncertain future

event. It is fair to say that the preponderance of suspensiveconditions are positive.

negative condition A negative condition depends on an uncertain future event's not

happening. When it becomes clear that an event can no longer takeplace, the condition will be satisfied and the agreement will workon that basis. Negative conditions are generally resolutive.

fictional fulfilmentA contracting party is under a duty not to obstruct the fulfillment of

a condition. If the party deliberately prevents the condition frombeing fulfilled, the condition will be deemed to have beenfulfilled. A legal fiction comes into effect. MacDuff v JCI429 is theleading case in this area.

time clausesA time clause (dies) is a contractual term which makes the existence of

an obligation dependent on an event or time that is certain toarise in the future. Such clauses may be either suspensive orresolutive:

429 Case: 1924 AD 573.

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suspensive time clauseAn example of a suspensive time clause would be one which permits a

car buyer to take the purchased vehicle now, but only commencepayment in three weeks. In other words, the agreement suspends thedate of payment until a certain date in the future.

resolutive time clauseA resolutive time clause stipulates the duration of the contract,

after which it will cease. Although it comes into existence and isperformed right away, it will at a certain future point be resolvedand the obligation terminated. Lease contracts and fixed periodcontracts of employment are common examples.

acceleration clauseA clause in a contract that states that if a payment is missed, or

some other default occurs (such as the debtor becoming insolvent),then the contract is fully due immediately.

accord and satisfactionThe act of one party, having complied with its contractual obligation,

accepting some type of compensation from the other party (usuallymoney and of a lesser value) in lieu of enforcing the contract andholding the other party to their original obligation.

blue-pencil severanceStriking out an offending part of a legal document, such as a contract

or a statute.choice of law clauseA term of a contract which sets the jurisdiction for dispute

resolution, or the applicable law, in the event of any disputebetween the conrtracting parties.

forward contractAn agreement to buy or sell a specified thing at a fixed price at some

future date.grand-father clauseA provisions in law or a contract which exempts persons already

engaging in the activity which the law or contract prohibits, fromadverse results from the subsequent law or contract.

himalaya clauseA clause in a transportation contract purporting to extend liability

limitations which benefit the carrier, to others who act as agentsfor the carrier such as stevedores or longshoremen.

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dragnet clauseA clause in a credit agreement which purports to secure future

liabilities.exclusion clauseA clause in a contract which limits remedies one party may have in

specified events; eg. a clause in an insurance contract thateliminates coverage for specified events.

inurement clauseA clause in a legal document, such as a contract or will, that

purports to extend the benefits of the document beyond thesignatories.

invitation to treatAn invitation to another person to make an offer to contract.yellow dog contractA name given in American labor law to contract of employment by which

the employee promises not to join a union and to forfeit employmentif he/she joins a union during the period of employment.

interlineationAn addition of something to a document after it has been signed.ouster clauseThe term ‘ouster’ is generally used in Common law to mean the wrongful

dispossession of someone's right to property. In judicial reviewhowever, an 'ouster clause' has a separate meaning: limiting accessto judicial review of the decisions of public bodies. In Englishpublic law, judicial review allows an interested party the right tohave the legality of a decision by a public body, or a private bodyexercising public functions, reviewed by the Administrative Court;a division of the High Court.

ad referendumTerm used in contracts to indicate that although material points have

been agreed upon, some minor points remain to be decided. Latinfor, to be considered.

exemption clausesExemption or exclusionary clauses are the opposite of warranties,

exempting persons from liability that would ordinarily apply tothem under the common law. Exemption clauses are commonly deployedby big business for planning, for protection from liabilities andto control variables that are otherwise uncontrolled. Although an

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important feature of contracts, the fact that they are used on sucha large scale means that they are approached by the courts withsuspicion and

1. interpreted restrictively,430 particularly if they are unclear; and2. tested against the dictates of public policy.431 The Constitution,

as illustrated in Barkhuizen v Napier,432 plays an important backgroundrole here.

If an exemption is clear and concise, there is very little room tomanoeuvre. The courts are bound by the dolus rule. The difficultyhere is that most exemption clauses are vague and ambiguous. Thecourts' attitude, well illustrated in Wells v SA Alumenite,433 is tointerpret them very strictly:

If the clause is clear and unambiguous in its meaning, the courtswill give it that meaning. In Durban's Water Wonderland v Botha,434 wherethe respondent and her child sustained injuries when they werethrown off a malfunctioning jet ride at an amusement park, thecourt found that the exemption clause clearly covered any liabilitybased on negligence related to the ride's design or manufacture.This approach has been confirmed by the Supreme Court of Appeal inmore recent cases.435

If the clause is ambiguous, the court will interpret it narrowlyand contra proferens. This interpretation must, however, be one towhich the language is fairly susceptible;436 it must not be fancifulor remote. In this regard, the court must examine, among otherthings, the nature of the contract and its content, and the natureof the dealings between the parties. In Weinberg v Olivier,437 the ownerof a garage was found to be liable for damage to a car parkedthere, in spite of an exemption clause in the basic bailmentcontract, because it did not to cover damage occurring outside thegarage.

interpretation ruleThe integration aspect of the parol evidence rule is supplemented by

the interpretation rule, "which determines when and to what extent extrinsicevidence may be adduced to explain or affect the meaning of the words contained in a

430 Afrox Healthcare v Strydom 2002 (6) SA 21 (SCA), para 9.431 Afrox Healthcare v Strydom.432 2007 (5) SA 323 (CC).433 1927 AD 69.434 1999 (1) SA 982 (SCA).435 Drifter's Adventure Tours v Hircock 2007 (2) SA 83 (SCA); see also Walker v Redhouse 2007 (3)

SA 514.436 FNB v Rosenblum 2001 (4) SA 189 (SCA), para 6.437 1943 AD 181.

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written contract."438 In other words, it controls the kind of evidencethat may be led to establish the meaning of contractual provisions.Irrelevant evidence is inadmissible: It is a general rule that noevidence may be led to alter the clear and unambiguous meaning of acontract, whether written or oral.

When, therefore, the contract as written is lacking or incomplete,there is no problem with then referring to extrinsic evidence. Thisis not in conflict with the integration rule:

Where ex facie the document itself the contract appears to beincomplete, the object of leading extrinsic evidence is not tocontradict, add to or modify the written document or to completewhat is incomplete so that the contract may be enforced thuscompleted, but merely to explain the lack of completeness, todecide why the parties left blanks in a particular clause and whatthe integration actually comprises, and in this way to determinewhether or not the document constitutes a valid and enforceablecontract [...]. Consequently, it does not seem to me that theadmission of such extrinsic evidence for this purpose [...] wouldbe either contrary to the substance of the integration rule orlikely to defeat its objects.439

freedom of contractThe doctrine which states that people have the right to legally bind

them is known as freedom of contract. 440 Freedom of contract is ajudicial concept which holds that contracts are based on mutualagreement and free choice. Therefore, contracts are not be hamperedby external control such as governmental interference. This is theprinciple which supports that people are able to fashion theirrelations by private agreements, when opposed to the assigned rolesof the feudal system. 441 Freedom of contract embraces two closelyconnected, but two different concepts. Firstly, it indicates thatcontracts were based on mutual agreement. Secondly, it emphasizesthat the creation of a contract was the result of a free choiceunhampered by external control including the government or thelegislature. The freedom to contract is the underpinning oflaissez-faire economics and is a cornerstone of free marketlibertarianism.442

438 Johnston v Leal 943A.439 943C-E.440 Roscoe Pound, ‘Liberty of Contract,’ 18 Yale Law Journal 454 (1909).441 Atiyah, P.S:’The Rise and Fall of Freedom of Contract’ (Oxford University Press,

USA; New ed; Dec 12, 1985) ISBN 13 978-0198255277; Bernstein, David E.: Freedom ofContract, George Mason Law & Economics Research Paper No. 08-51 (2008)

442 Trebilcock, Michael J.:’The Limits of Freedom of Contract’ (Harvard University Press) ISBN 13 978-0-674-53429-2; See also Atiyah, P.S:’The Rise and Fall of

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In most systems of law, parties have freedom to choose whether or notthey wish to enter into a contract, absent superseding duties. InAmerican law, one early case exemplifying this proposition is Hurleyv. Eddingfield (1901)443, in which the Supreme Court of Indiana ruled infavor of a physician who voluntarily decided not to help a patientwhom the physician had treated on past occasions, despite the lackof other available medical assistance and the patient's subsequentdeath.444

In addition, for some contracts formalities must be complied withunder legislation sometimes called a statute of frauds (especiallytransactions in real property or for relatively large cashamounts).

will theory (contract)The will theory of contract postulates an extremely subjective

approach to contract, whereby consensus is the only basis forcontractual liability. The upshot is that, if there is no genuineconcurrence of wills, there can be no contract. It is generallyagreed, though, that unqualified adherence to this theory wouldproduce results both unfair and economically disastrous.445

declaration theory (contract)The declaration theory, in contrast, stipulates that the only

important consideration is the external manifestation of theparties' wills. The true basis of contract, then, is to be found inthe concurring declarations of the parties, not in what theyactually think or intend. 446This extremely objective approach hasalso generally been found to be unacceptable in practice, unless itis qualified.447

reliance theory (contract)In terms of the compromise reliance theory, the basis of contract is

to be found in a reasonable belief, induced by the conduct of theother party, in the existence of consensus. This protects a party'sreasonable expectation of a contract. The reliance theory should beseen as a supplement to the will theory, affording an alternative

Freedom of Contract’ (Oxford University Press, USA; New ed; Dec 12, 1985) ISBN 13 978-0198255277; Bernstein, David E.: Freedom of Contract, George Mason Law & Economics Research Paper No. 08-51 (2008)

443 156 Ind. 416, 59 N.E. 1058, 1901 444 [1968] 1 WLR 1204445 Du Plessis, et al. p.15.446 Du Plessis, et al. p.15-16.447 De Wet & Van Wyk 12-13.

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basis for contract in circumstances where the minds of the partieshave not truly met.448

secondary rules of interpretationSecondary rules include rules or presumptions against tautology or superfluity, such that, when examining a

contract, its every word is seen to have relevance and purpose; that, similarly, a deliberate change in expression or language

should be taken prima facie to import a change of intention; that written or typed insertions in a printed agreement are

interpreted as a more accurate reflection of the parties' intentionthan the printed terms;

that inconvenience ought to be avoided, in favour of constructionswhich lead to less of it, and in accordance with the dictates ofcommercial efficiency;

that greater weight should be given to special provisions than togeneral ones (generalia specialibus non derogant);

that words with a general meaning are restricted when used inassociation with words relating to a species of a particular class(the eiusdem generis rule);

that, in the same vein, words are known or understood by thecompany they keep (noscitur a sociis), so that they should be read intheir context, not in isolation;

that preambles are regarded as subordinate to the operative part ofa contract if they are sufficiently clear;

that an ambiguous term should be given the meaning that would makeit legally effective (ut res magis valeat quam pereat);

that the parties intended their contract to be legal rather thanillegal;

that the parties intended their contract to have a fair result,although the unambiguous wording of a contract must not be departedfrom on equitable grounds, which has the paradoxical effect ofensuring that the courts do not in the interpretative process giveone of the parties an unfair or unreasonable advantage over theother; and

against the implication of a term when an express term alreadycovers the relevant ground (expressio unius est exclusio alterius). Expressmention of one item indicates an intention to treat differentlyitems of a similar nature which have not been mentioned. A lease

448 Du Plessis, et al. p.16.

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agreement which forbids the tenant to fish in the dam may generallybe taken to mean that he may fish in the river; on the other hand,a lease which tells him that he may not cut down the gum trees onthe property does not thereby entitle him to fell the oaks, the gumtrees having been mentioned ex abundanti cautela.

tertiary rules of interpretationAs a last resort, the courts may use tertiary rules of interpretation.

The goal here, a divergence from prior procedure, is rather to setup a fair outcome than to give effect to the parties' commonintention. These tertiary rules include;

quod minimum rule the quod minimum rule, which states that ambiguous words must be

narrowly interpreted, so as to encumber a debtor or promisor aslittle as possible; and

contra proferentem rule the contra proferentem rule, which states that ambiguous terms of a

contract are to be interpreted against the party who proposed them.The proferens is the party to the contract who is responsible, eitherhimself or through an agent, for the wording of the ambiguouscontract. The reasoning is simply that, if the wording isambiguous, its author should be the one to suffer, as he had it inhis power to make his meaning plain.

contra proferentemContra proferentem means an exclusion clause is interpreted strictly

against the party seeking to rely on it, so any ambiguity isresolved against them. As a mode of interpretation it is usedparticularly against exclusion clauses for negligence on the basisthat the courts regard it as inherently unlikely that one partywill agree to allow the other contracting party to excludeliability for his own negligence. In BCCI SA v Ali449 Lord Hoffmann(dissenting), the doctrine ‘is a desperate remedy, to be invokedonly if it is necessary to remedy a widespread injustice.’ Socontra proferentum should only operate where there is realambiguity.

rule in smith v hughes Smith v Hughes450 is a famous English contract law case. In it, Blackburn

J set out his classic statement of the objective interpretation of

449 [2001] UKHL 8,450 (1871) LR 6 QB 597

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people's conduct when entering into a contract. Rejecting that oneshould merely look to what people subjectively intended, he said,

‘If, whatever a man's real intention may be, he so conducts himself that a reasonable manwould believe that he was assenting to the terms proposed by the other party, and thatother party upon that belief enters into the contract with him, the man thus conductinghimself would be equally bound as if he had intended to agree to the other party's terms.’451

five stage test Terms may be implied due to the facts of the proceedings by which the

contract was formed. The Privy Council established a five stagetest in BP Refinery Western Port v. Shire of Hastings452 to determine situationswhere the facts of a case may imply terms.

1) Reasonableness and equitableness: The implied term must be reasonable and equitable.2) Business efficacy: The implied term must be necessary for the business efficacy of the

contract. For instance, if the term simply causes the contract to operate better, that doesnot fit this criterion. This is the principle laid out in The Moorcock.453 The presiding judgecreated a quaint concept of an officious bystander; if the officious bystander were topropose a term and both the parties would be likely to reply with a testy ‘oh, of course’, theterm is implied.

3) Obviousness: The term is so obvious that it goes without saying. Furthermore, there mustbe one and only one thing that would be implied by the parties. For example, in CodelfaConstruction Pty Ltd v. State Rail Authority of New South Wales,454 a term regarding theinability of construction company to work three shifts a day could not be implied because itwas unclear what form it would have taken. In English Law, This principle was establishedin the case of Spring v. NASDS,455 in the context of a Trade Union membership contract.

4) Clear expression: The term must be capable of clear expression. No specific technicalknowledge should be required.

5) Consistency: The implied term may not contradict an express term.

four corners ruleThe Four Corners Rule requires the court to interpret the meaning and

understanding of the provisions contained in a document byconsidering the overall meaning and intention of that document. Insuch an interpretation of document, the external factors will notinfluence the meaning. But the meaning of a sentence or clause isinfluenced by the document as a whole. The primary duty of a courtwhen considering the validity of a contract is to ascertain theintent of the parties from the contract as a whole, known as the‘four corners rule,’ not from isolated parts of the contract. This

451 (1871) LR 6 QB 597, 607452 (1977) 180 CLR 266453 (1889)14 P.D. 64454 (1982) 149 CLR 337455 [1956] 1 W.L.R. 585

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rule requires the court to look at the words of the contract, notprior drafts or exchanges of letters or other documents ortestimony to determine the intent of the parties. To achieve thisgoal, the court must examine the entire document and consider eachpart with every other part so that the effect and meaning of onepart on any other part may be determined. No one phrase, sentenceor section of a contract should be isolated and considered apartfrom the other provisions.

A contract requires a meeting of the minds. A determination of whetherthere was a meeting of the minds is based on objective standards ofwhat the parties said and did, not on their alleged subjectivestates of mind.456

parole evidence ruleUnder the Parole Evidence Rule, if the parties have integrated their

agreement into a single written contract, all prior negotiationsand agreements with regard to the same subject matter are excludedfrom consideration, whether written or oral. Parole evidence isadmissible to supplement or explain a partially integratedcontract, but is not admissible to contradict it.

parol evidence rule or ‘extrinsic evidence’ ruleEvidence outside the written contract itself will not be looked at to

add to, vary or contradict a written term. But this rule is riddledwith exceptions. Mahoney JA says that the rule does not affect theuse of extrinsic evidence to ascertain the initial contractual intention ofthe parties. In short, the parol evidence rule is about the contentsof a written contract and does not affect the enquiry about formationof contract.457 ‘The basis of the rule...’ As McHugh JA put it on p32, evidence is admissible to prove that there was no intention tocontract when to outward appearances the parties have made acontract. It would be odd if it was not equally possible to show byevidence that there was an intention to contract when to outwardappearances that intention is not very clear (as in this case ifone only looks at the document).

ambiguity in contract lawIn the law of contracts, ambiguity means more than that the language

has more than one meaning upon which reasonable persons coulddiffer. It means that after a court has applied rules ofinterpretation, such as the PLAIN MEANING, course of dealing, Courseof Performance, or Trade Usage rules to the unclear terms, the

456 In re Hudgins, 188 BR. 938, 942 (E.D. Tex. Bankr. 1995), cited in Spectrum Creations L.P. v. Carolyn Kinder Int’l LLC, 2008 WL 416246, *45 (W.D. Tex. 2008).

457 See p 31

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court still cannot say with certainty what meaning was intended bythe parties to the contract. When this occurs, the court will admitas evidence extraneous proof of prior or contemporaneous agreementsto determine the meaning of the ambiguous language. Parol evidencemay be used to explain the meaning of a writing as long as its usedoes not vary the terms of the writing. If there is no suchevidence, the court may hear evidence of the subjective intentionor understanding of the parties to clarify the ambiguity.Sometimes, courts decide the meaning of ambiguous language on thebasis of who was responsible or at fault for the ambiguity. Whenonly one party knew or should have known of the ambiguity, theunsuspecting party's subjective knowledge of the meaning willcontrol. If both parties knew or should have known of theuncertainty, the court will look to the subjective understanding ofboth. The ambiguity no longer exists if the parties agree upon itsmeaning. If the parties disagree and the ambiguous provisions arematerial, no contract is formed because of lack of mutual assent.Courts frequently interpret an ambiguous contract term against theinterests of the party who prepared the contract and created theambiguity. This is common in cases of adhesion contracts andinsurance contracts. A drafter of a document should not benefit atthe expense of an innocent party because the drafter was carelessin drafting the agreement.

pacta sunt servanda (pacts must be kept) In law, a contract is a binding legal agreement

that is enforceable in a court of law. That is to say, a contractis an exchange of promises for the breach of which the law willprovide a remedy. Agreement is said to be reached when an offercapable of immediate acceptance is met with a ‘mirror image’acceptance (i.e., an unqualified acceptance). The parties must havethe necessary capacity to contract and the contract must not beeither trifling, indeterminate, impossible or illegal. Contract lawis based on the principle expressed in the Latin phrase pacta suntservanda (usually translated ‘pacts must be kept’, but moreliterally ‘agreements are to be kept’). Breach of contract isrecognized by the law and remedies provided.

conversion This doctrine states that if a contract is enforceable at time of its

entry, it creates an equitable interest. This act is calledconversion.

postal acceptance ruleSee the mailbox acceptance rule

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mailbox ruleThe mailbox rule or the postal acceptance rule is a term of common law

contracts which determines when a contract has been formed wherethe parties are communicating via the mail. The basic thrust of therule is that an acceptance of an offer that is sent before arevocation of the offer is received. However, if a communication issent rejecting the offer, and a later communication is sentaccepting the contract, then the first one to be received by theofferor will prevail. The mailbox rule does not apply to optioncontracts, where acceptance is still only effective upon receipt.

battle of the formsOften when two companies deal with each other in the course of

business, they will use standard form contracts. Often these termsconflict (e.g. both parties include a liability waiver in theirform) and yet offer and acceptance are achieved forming a bindingcontract. The battle of the forms refers to the resulting legaldispute of these circumstances, wherein both parties recognize thatan enforceable contract exists, however they are divided as towhose terms govern that contract.

Under English law, the question was raised in Butler Machine Tool Co Ltd v. Ex-Cell-O Corporation (England) Ltd458, as to which of the standard formcontracts prevailed in the transaction. Lord Denning MR preferredthe view that the documents were to be considered as a whole, andthe important factor was finding the decisive document; on theother hand, Lawton and Bridge LJJ preferred traditional offer-acceptance analysis, and considered that the last counter-offerprior to the beginning of performance voided all preceding offers.The absence of any additional counter-offer or refusal by the otherparty is understood as an implied acceptance. In U.S. law, thisprinciple is referred to as the last shot rule.

a. the offer expressly limits acceptance to the terms of the offer,b. material alteration of the contract results,c. notification of objection to the additional/different terms are given in a reasonable time

after notice of them is received.

Material is defined as anything that may cause unduehardship/surprise, or is a significant element of the contract.

reasonableness test for implied terms Attorney General of Belize v Belize Telecom Ltd459 is a case on which the Privy

Council gave advice, relevant for contract law, company law and

458 [1979] WLR 401459 [2009] UKPC 10

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constitutional law. It concerns the correct method forinterpretation and implication of terms into a company's articlesof association. The case of AG of Belize v Belize Telecom Ltd has beenwidely cited as the new and all encompassing statement on impliedterms. Lord Hoffmann set out the principles for interpretation of acompany's articles thus: ‘the same principles of interpretation apply whether it is acompany's constitution, a contract or an Act of Parliament. A court should search for themeaning of any such document with all relevant contextual facts in mind, and consider themeaning it would convey to a reasonable person.’

The same principle was applied in Equitable Life Assurance Society v Hyman460,where Lord Steyn said: ‘If a term is to be implied, it could only be a term impliedfrom the language of [the instrument] read in its commercial setting.’461

expressio unius exclusio alterius (the express mention of one thing excludes all others).

Where there is a list of specific words but no general words then thething must be on the list for the Act to apply. In Tempest v. Kilner(1846)462 a list in a section of an Act included ‘goods ware andmerchandise’ and so the section was held not to apply to stocks andshares that were not included in the list.

noscitur a sociis (A word is known by the company it keeps).

When a word is ambiguous, its meaning may be determined by referenceto the rest of the statute. The rule simply means that the meaningof a word must be determined by its context. So in Beswick v. Beswick(1968)463, the words ‘other property’ was held to refer only tointerests in the land otherwise known as real property, becausethat was what the whole statute was about. [Beswick is a landmark Englishcontract law case on privity of contract and specific performance. It held that a thirdperson who has a legitimate interest to enforce it is entitled to specific performance of thecontract]

mutatis mutandis Mutatis mutandis is a Latin phrase meaning ‘by changing those things which need to

be changed’ or more simply ‘the necessary changes having been made’. Thephrase carries the connotation that the reader should pay attentionto the corresponding differences between the current statement anda previous one, although they are analogous. The phrase is alsoused in the study of counter-factuals, wherein the requisite change

460 [2002] 1 AC 408 , 459461 See Belize at [19] and [20].462 (1846) 3 CB 249.463 [1967] UKHL 2

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in the factual basis of the past is made and the resultingcausalities are followed. In In re McMahon464, the court stated thus:This Latin phrase simply means that the necessary changes in details, such as names andplaces, will be made but everything else will remain the same.

nunc pro tunc Nunc pro tunc is a Latin expression which means ‘Now for then’. In general,

a court ruling ‘nunc pro tunc’ applies retroactively to correct anearlier ruling. Nunc pro tunc is a phrase which theoretically appliesto acts that are allowed to be done after the time expires. In theprobate of an estate, if real property, such as lands, mineralinterests, etc., are discovered after the Final Decree or Order, anunc pro tunc order can include these discovered lands or assetsinto the estate and clarify how they were meant to be distributed.

A corporation may have been created by an individual, but since acorporation has the standing in law of a person (although not anatural person), it is possible for its human creator to gobankrupt and for the assets of the corporation to be seized tosatisfy unpaid taxes. Then, if others bought the assets from thetax authority and the corporation shell passed into other hands, itis possible for the person who bought the assets to also buy thecorporation shell and, after paying corporate franchise taxes, forthat person to claim that the corporation is the originalcorporation with the original assets.

A judgment nunc pro tunc is an action by a trial court correcting aclerical (rather than judicial) error in a prior judgment. A nuncpro tunc may be signed even after the trial court loses its plenarypower. For appellate purposes, a nunc pro tunc judgment correctlytaken ordinarily does not extend appellate deadlines.

ceteris paribus Ceteris paribus or caeteris paribus is a Latin phrase, literally translated as

‘with other things the same,’ or ‘all other things being equal orheld constant.’ It is an example of an ablative absolute and iscommonly rendered in English as ‘all other things being equal.’ Aprediction, or a statement about causal or logical connectionsbetween two states of affairs, is qualified by ceteris paribus in orderto acknowledge, and to rule out, the possibility of other factorsthat could override the relationship between the antecedent andthe consequent.465A ceteri paribus assumption is often fundamental tothe predictive purpose of scientific inquiry. In order to formulate

464 235 B.R. 527, 536, footnote 7 (S.D.N.Y. 30 Nov 1998)465 Schlicht, E. (1985). Isolation and Aggregation in Economics. Springer Verlag. ISBN 0-387-

15254-7.

http://scholar.google.com/scholar_case?case=1552575106454200922&q=235+B.R.+527&hl=en&as_sdt=2,44

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scientific laws, it is usually necessary to rule out factors whichinterfere with examining a specific causal relationship. Underscientific experiments, the ceteris paribus assumption is realized whena scientist controls for all of the independent variables otherthan the one under study, so that the effect of a single independentvariable on the dependent variable can be isolated. By holding allthe other relevant factors constant, a scientist is able to focuson the unique effects of a given factor in a complex causalsituation. Such assumptions are also relevant tothe descriptive purpose of modeling a theory. In such circumstances,analysts such as physicists, economists, and behavioralpsychologists apply simplifying assumptions in order to devise orexplain an analytical framework that does not necessarily provecause and effect but is still useful for describing fundamentalconcepts within a realm of inquiry.

blue pencil testIf individual words which make the clause excessively wide are able to

be crossed out and the clause still makes grammatical sense,without altering the nature of the obligations, then the courts maybe willing to sever the illegal aspects of the clause and enforcethe remainder.

implied-in-law ‘good faith’ termsMany contracts include ‘satisfaction clauses’, in which a promisor can

refuse to pay if he isn't subjectively satisfied with thepromisee's performance. Strictly speaking, this is an illusorypromise, since the promisor has no actual legal burden to pay if hechooses not to. However, courts will generally imply in law thatthe promisor must act in good faith and reject the deal only if heis genuinely dissatisfied. As another example, if a contract promises a promiseea certain percentage of the proceeds of a promisor's business activities, this is illusory,since the promisor doesn't have to do anything: any percentage of zero is zero. However,courts may find that the promisor made an implied promise to usereasonable efforts to try to make money, and cite him for breach ofcontract if he does absolutely nothing.466

implied-in-fact termsJudges will often infer terms into the contract that the parties did

not explicitly cite. For instance, in the ‘satisfaction clause’case, judges might infer that the parties intended a‘reasonableness test’ - that the clause could be satisfied if areasonable person would be satisfied by the promisee's performance,regardless of whether the promisor himself asserts he is satisfied.

466 See Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917).

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(This interpretation is often used in cases in which a performancecan be objectively evaluated, such as with the construction of awarehouse; the implied-in-law interpretation above is preferredwhere satisfaction is more subjective, as with the painting of aportrait.)467

contemporanea expositoThat the meaning of words in a document are to be understood in the

sense which they bore at the time of the document. Sometimespresented in long form as contemoranea exposito est fortissima inlege.

In Perka, Justice Dickson adopted these words:‘The doctrine of contemporanea expositio is well established in our law. The words of a statute

must be construed as they would have been the day after the statute was passed. Since astatute must be considered in the light of all circumstances existing at the time of itsenactment it follows logically that words must be given the meanings they had at the timeof enactment, and the courts have so held. The words of an Act will generally beunderstood in the sense which they bore when it was passed.

‘This does not mean, of course, that all terms in all statutes must always be confined to theiroriginal meanings. Broad statutory categories are often held to include things unknownwhen the statute was enacted.... [F]or example, it was held that the Engraving Copyright Actof 1735, which prohibited ... in any other manner copying prints and engravings, applied tophotographic reproduction — a process invented more than one hundred years after theAct was passed. This kind of interpretive approach is most likely to be taken, however, withlegislative language that is broad or open-textured.’

business efficacy testThe classic tests have been the ‘business efficacy test’ and the

‘officious bystander test’. The first of these was proposed by LordJustice Bowen in The Moorcock.468 This test requires that a term canonly be implied if it is necessary to give business efficacy to thecontract to avoid such a failure of consideration that the partiescannot as reasonable businessmen have intended. But only the mostlimited term should then be implied - the bare minimum to achievethis goal. The officious bystander test derives its name from thejudgment of Lord Justice Mackinnon in Shirlaw v. Southern Foundries (1926)Ltd469 but the test actually originates in the judgment of LordJustice Scrutton in Reigate v. Union Manufacturing Co (Ramsbottom) Ltd470

467 1 Corbin on Contracts, s 149, at 659.468 (1889) 14 PD 64469 [1939] 2 KB 206470 [1918] 1 KB 592

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officious bystander test’This test is that a term can only be implied in fact if it is such a

term that had an ‘officious bystander’ listening to the contractnegotiations suggested that they should include this term theparties would ‘dismiss him with a common 'Oh of course!'‘. It is atleast questionable whether this is truly a separate test or just adescription of how one might go about arriving at a decision on thebasis of the business efficacy test.

parol evidence ruleThe rule provides that where a contract is reduced into writing and

appears in the writing to be entire, it is presumed that thewriting contains all the terms of it and evidence will not beadmitted of any previous or contemporaneous agreement which wouldhave the effect of adding to, subtracting from or varying it inany way.471

Agreements between parties are not always entirely reduced to writing.This is particularly the case where pre printed standard formcontracts are used and any changes to the standard form may not bewritten down, but perhaps agreed to on a handshake.

There are two aspects to the rule, i.e. in relation to:the content of the contract

This aspect states that if the parties intended the contract to bewholly in writing, parol evidence is not admissible to add to orvary or contradict the writing472. The rule excludes evidence ofextrinsic terms only where the document was agreed to be a completerecord of the entire contract, hence does not apply where theagreement is partly written and partly oral e.g. the varying of apre printing contractual form473.

The following are the exceptions to the rule:(a) evidence of collateral contract

The prevention of extrinsic evidence being led to affect the maincontract does not apply to the collateral contract; therefore, oralevidence relating to that contract can be led. The rule willcontinue to operate in relation to the main contract.

(b) evidence that the written contract is not yet in force

471 Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252.472 Robertson v Kern Land Pty Ltd (1997) 42 NSWLR 273473 Couchman v Hill [1947] 1 KB 554

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The rule will operate only if the contract is in force, and thewritten document reflects the contractual arrangement.

(c) evidence that the written document was later varied or discharged

The rule prevents introduction of extrinsic evidence that the partiesvaried the agreement before it was reduced to writing, not evidencethat the parties later agreed to its variation or discharge. Unlessthe contract was one required to be in writing to be enforceable,neither the variation nor discharge need be in writing. Therefore,oral or other evidence can be led that the written agreement hasbeen subsequently varied or discharged.

(d) evidence necessary for rectification

Although the rule will generally prevent the introduction of evidenceto add to, subtract from or vary the agreement, the rule will notexclude such evidence if it is necessary to rectify the writtendocument so as to correct such an error e.g. the recording of adifferent sum other than agreed upon for the purchase of a house474.

This aspect involves the rule being used to determine the true meaningof a contract and applying that meaning to the circumstancessurrounding the entry into the contract. Extrinsic evidence ofantecedent negotiation, the subjective intention of the parties andsubsequent conduct appear to be inadmissible.

communication rule The general rule is that an acceptance must be communicated to the offeror.

Until and unless the acceptance is so communicated, no contractcomes into existence.

Exceptions to the communication rule:a) In unilateral contracts the normal rule for communication of acceptance to the offeror

does not apply. Carrying out the stipulated task is enough to constitute acceptance ofthe offer.

b) The offeror may expressly or impliedly waive the need for communication ofacceptance by the offeree, e.g., where goods are dispatched in response to an offer to buy.

c) The Postal Rule - Where acceptance by post has been requested or where it is anappropriate and reasonable means of communication between the parties, thenacceptance is complete as soon as the letter of acceptance is posted, even if the letter isdelayed, destroyed or lost in the post so that it never reaches the offeror.

non est factum doctrine Non est factum (Latin for ‘it is not [my] deed’) is a doctrine in contract law

that allows a signing party to escape performance of the agreement.A claim of non est factum means that the signature on the contract was

474 NSW Medical Defence Union v Transport Industries [1997] LRLR 24.)

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signed by mistake, without knowledge of its meaning, but was notdone so negligently. A successful plea would make the contract voidab initio. Non est factum is difficult to claim as it does not allow fornegligence on the part of the signatory, i.e. failure to read acontract before signing it will not allow for non est factum.

factual matrixExtrinsic evidence of the factual matrix or setting of the contract is

admissible. When a court embarks upon a process of construing adocument, it must place itself in thought in the same factualmatrix as that in which the parties were. Accordingly, whendetermining the parties intentions, the court may validly take intoaccount not only the words recorded in the document but alsoevidence of the surrounding circumstances. The evidence ofsurrounding circumstances must be known to both parties.

The following are exceptions to the rule: (a) ambiguity

Extrinsic evidence may be admitted to resolve an ambiguity in thecontract. Ambiguity extends not only to patent ambiguity -language that on its face is capable of more than on possiblemeaning, or is otherwise made unclear by the other language in thedocument475, but also latent ambiguity – where an apparently clearmeaning is shown to be ambiguous when extrinsic facts are takeninto account476.

(b) identification of subject matter

Extrinsic evidence is admissible to resolve ambiguity about thesubject matter of the contract. This is usually as a result oflatent ambiguity. Thus the doubt created by extrinsic knowledge isresolved by extrinsic evidence.

(c) identification of the parties

Extrinsic evidence is admissible where there is ambiguity concerningthe identity of the parties to the agreement, or concerning theirrelationship or the capacity in which they have entered into thecontract.

(d) identification of real consideration

Extrinsic evidence is admissible to prove the real consideration undera contract where:

و No consideration or nominal consideration is expressed in the instrument;

475 White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266476 Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348

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و The expressed consideration is in general terms or ambiguously stated; or

و A substantial consideration is stated but an additional consideration exists, provided theadditional consideration proved is not consistent with the instrument.

Where the additional consideration is of a different kind, it will notbe inconsistent unless perhaps the written instrument says that thestated consideration is the only consideration. Where asubstantial consideration is stated, and the additionalconsideration is the same kind, for example the statedconsideration is $100 000 and the true consideration is claimed tobe $150 000, the argument for inconsistency is stronger.

(e) Custom or usage

Where the language used in the instrument has a particular meaning,for example, by custom or usage in a particular trade, industry orregion, evidence of that meaning is admissible, even if there is nopatent ambiguity.

(f) Rectification

Extrinsic evidence may be admitted to show that the parties intentionwas not accurately recorded in the written instrument. Inappropriate circumstances, the document may be rectified so that itaccords with the parties actual agreement.

inadmissible evidenceRegardless of surrounding circumstances, certain evidence is remains

inadmissible. (a) Subjective intention

Evidence of the actual, subjective intentions of the parties is notadmissible. Intention is ascertained objectively - a court cannotreceive evidence from a party regarding his or her intentions andconstrue the contract by reference to those intentions.477

(b) Prior Negotiations

Evidence of negotiations that precede the written document isgenerally not admitted because the evidence is unhelpful478. Thenature of negotiation is that even if the parties intentions areconvergent, they are still not the same and only the final documentwill properly reflect a consensus of the parties.

(c) Subsequent conduct

477 Life Insurance Co of Australia v Phillips (1925) 36 CLR 60478 Prenn v Simonds [1971] 1 WLR 1381

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Evidence of subsequent conduct cannot be referred to for the purposeof interpreting the contract (Administration of Papua & New Guinea v DaeraGuba) as parties may tailor their post contract behavior accordingto the case they believe they later have to present in court; theymay seek to advance their understanding of the agreement simply topersuade the other party to accept their construction; theyexpansion in the field of inquiry would add to the burden of factfinding and consequently the length and cost of litigation; andsubsequent conduct may be based on an erroneous understanding ofthe parties rights (Hide & Skin Tradig v Oceanic Meat Traders).

contra proferentem doctrineContra proferentem is a doctrine of contractual interpretation which

provides that an ambiguous term will be construed against the partythat imposed its inclusion in the contract – or, more accurately,against the interests of the party who imposed it.479 Theinterpretation will therefore favor the party that did not insiston its inclusion. The rule applies only if, and to the extent that,the clause was included at the unilateral insistence of one partywithout having been subject to negotiation by the counter-party.Additionally, the rule applies only if a court determines the termto be ambiguous, which often forms the substance of a contractualdispute. It translates from the Latin literally to mean ‘against(contra) the one bringing forth (the proferens).’ The reasoning behindthis rule is to encourage the drafter of a contract to be as clearand explicit as possible and to take into account as manyforeseeable situations as it can.

Additionally, the rule reflects the court's inherent dislike ofstandard-form take-it-or-leave-it contracts also known as contractsof adhesion (e.g., standard form insurance contracts for individualconsumers, residential leases, etc.). Contra proferentem alsoplaces the cost of losses on the party who was in the best positionto avoid the harm. This is generally the person who drafted thecontract. An example of this is the insurance contract mentionedabove, which is a good example of an adhesion contract.

mirror image ruleIn the law of contracts, the mirror image rule, also referred to as an

unequivocal and absolute acceptance, states that an offer must beaccepted exactly without modifications. The offeror is the master

479 Péter Cserne, Policy Considerations In Contract Interpretation: The Contra Proferentem Rule From a Comparative Law and Economics Perspective, Hungarian Association for Law and Economics, 2007 (pdf) (itself including a list of references relating to the contra proferentem principle)

http://works.bepress.com/cgi/viewcontent.cgi?article=1027&context=peter_cserne

http://works.bepress.com/peter_cserne/28/

http://works.bepress.com/peter_cserne/28/

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of his own offer. An attempt to accept the offer on different termsinstead creates a counter-offer, and this constitutes a rejectionof the original offer.

test of acceptanceFor the Acceptance, the essential requirement is that the parties had

each from a subjective perspective engaged in conduct manifestingtheir assent.480 Under this meeting of the minds theory of contract,a party could resist a claim of breach by proving that he had notintended to be bound by the agreement, only if it appearedsubjectively that he had so intended. This is unsatisfactory, asone party has no way to know another's undisclosed intentions. Oneparty can only act upon what the other party reveals objectively tobe his intent. Hence, an actual meeting of the minds is notrequired. Indeed, it has been argued that the ‘meeting of theminds’ idea is entirely a modern error: 19th Century judges spoke of‘consensus ad idem’ which modern teachers have wrongly translatedas ‘meeting of minds’ but actually means ‘agreement to the [same]thing’.481

The requirement of an objective perspective is important in caseswhere a party claims that an offer was not accepted and seeks totake advantage of the performance of the other party. Here, we canapply the test of whether a reasonable bystander (a ‘fly on thewall’) would have perceived that the party has impliedly acceptedthe offer by conduct.

last shot rule In the law of contracts, under the last shot rule, a party implicitly

assented to and thereby accepted a counter-offer by conductindicating lack of objection to it. In addition to being based on aquestionable notion of implied assent, the last shot rule tended inpractice to favor sellers over buyers, because sellers normally‘fire the last shot’ – i.e., send the last form.

480 G.H. Treitel, The Law of Contract, 10th edn, p.8.481 R. Austen-Baker, ‘Gilmore and the Strange Case of the Failure of Contract to Die

After All’ (2000) 18 Journal of Contract Law 1.

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STATUTORY INTERPRETATION

legal interpretation The art or process of determining the intended meaning of a written

document, such as a constitution, statute, contract, deed, or will.The interpretation of written documents is fundamental to theprocess and Practice of Law. Interpretation takes place wheneverthe meaning of a legal document must be determined. Lawyers andjudges search for meaning using various interpretive approaches andrules of construction. In constitutional and statutory law, legalinterpretation can be a contentious issue.

statutory interpretation Interpretation is a very important function of the court. The process

of ascertaining the meaning of letters and expressions by the courtis either interpretation or construction. Interpretation is theprocess of which the court seeks to ascertain the Meaning of aparticular legislature. It is through interpretation, the judiciaryevolves the law and brings the changes in it and thus keeps the lawabreast of law. Statutory laws are generally derived from directlaws passed by the legislative arm of government. Statutoryinterpretation is the process by which courts or other judicialorgans interpret and apply legislation. Some amount ofinterpretation is always necessary when a case involves a statute.Sometimes the words of a statute have a plain and straightforwardmeaning. But in many cases, there is some ambiguity or vagueness inthe words of the statute that must be resolved by the judge. Tofind the meanings of statutes, judges use various tools and methodsof statutory interpretation, including traditional canons ofstatutory interpretation, legislative history, and purpose. Incommon law jurisdictions, the judiciary may apply rules ofstatutory interpretation to legislation enacted by the legislatureor to delegated legislation such as administrative agencyregulations. Statutory interpretation is a very important functionof the court, the process of ascertaining the meaning of lettersand expressions by the court is either interpretation orconstruction. Interpretation is the process of which the courtseeks to ascertain the meaning of a particular legislature. It isthrough interpretation, the judiciary evolves the law and bringsthe changes in it and thus keeps the law abreast of law.

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desuetude doctrine In law, desuetude (from the Latin desuetudo, outdated, no longer custom) is a

doctrine that causes statutes, similar legislation or legalprinciples to lapse and become unenforceable by a long habit ofnon-enforcement or lapse of time. It is what happens to laws thatare not repealed when they become obsolete. It is the legaldoctrine that long and continued non-use of a law renders itinvalid, at least in the sense that courts will no longer toleratepunishing its transgressors.

The doctrine of desuetude is not favoured in the common law tradition.In 1818, the English court of King's Bench held in the case of Ashfordv Thornton482 that trial by combat remained available at a defendant'soption in a case where it was available under the common law. Theconcept of desuetude has more currency in the civil law tradition,which is more regulated by legislative codes, and less bound byprecedent.

Desuetude does not apply to violations of the Constitution. In Walz v.Tax Commission of the City of New York, 483, the United States Supreme Courtasserted that: ‘It is obviously correct that no one acquires a vested or protected rightin violation of the Constitution by long use, even when that span of time covers our entirenational existence and indeed predates it.’

It may, however, have validity as a doctrine in defense of penalprosecution. Penal statutes may become void under the doctrine ofdesuetude if484:

1. The statute proscribes only acts that are malum prohibitum and not malum. in se;2. There has been open, notorious and pervasive violation of the statute for a long period;

and3. There has been a conspicuous policy of nonenforcement of the statute.

enrolled bill rule The enrolled bill rule, is a principle of judicial interpretation of

rules of procedure in legislative bodies. Under the doctrine, oncea bill passes a legislative body and is signed into law, the courtsassume that all rules of procedure in the enactment process wereproperly followed. That is, ‘[i]f a legislative document is authenticated in regularform by the appropriate officials, the court treats that document as properly adopted.’485

482 (1818) 106 ER 149483 397 U.S. 664, 678 (1970)484 Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992)485 United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986), cert. denied, 107 S.Ct.

187 (1986), citing Field v. Clark, 143 U.S. 649, 36 L.Ed. 294, 12 S.Ct. 495 (1892).

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The doctrine was adopted in The King v Arundel.486 It was based on theproposition that the when an Act was passed and assented to, it wasaffixed with the Great Seal, the ‘effective legal act ofenactment’.487 It was ‘a regal act, and no official might disputethe king's word.’

The enrolled bill rule was restated by Lord Campbell in Edinburgh & DalkeithRailway Co v Wauchope488 In that case it was complained that the passageof a private bill was defective because proper notice had not beengiven. The House of Lords rejected the notion that the validity ofan Act could be questioned.

legal opportunism Legal opportunism is a wide area of human activity, which refers

generally to a type of abuse of the proper intention of legalarrangements (the "spirit of the law" as distinguished from theletter of the law). More specifically, it refers to deliberatelymanipulating legal arrangements for purposes they were not meantfor, guided by self-interested motives.

Usually, legal opportunism is understood to occur legally: it isitself not necessarily a "crime" (a violation of the law or anunlawful act), but it could be considered "immoral" ("there oughtto be a law against it"). The general effect of legal opportunism,if it really occurs, is that it discredits the rule of law ordestroys the legitimacy of particular legal rules in the eyes ofthe people affected by them. Inversely, if people perceive a legalframework as arbitrary, obstructive or irrelevant, they are temptedto search for opportunities to find ways "around the law", withoutformally breaking the law.

Typical of legal opportunists is that they accept or approve of theapplication of legal rules when it suits their own interest butreject or disapprove of the application when the rules are againsttheir interest (or if taking self-interested action would meanbreaking the law). The law should serve them, and not the other wayaround; or, there is "one rule for them, and another rule for otherpeople."

legal technicality The term legal technicality is a casual or colloquial phrase referring

to a technical aspect of law. It implies that strict adherence to486 [1616] EWHC J11487 Sandler, David. ‘Forget What You Learned in Civics Class: The ‘Enrolled Bill

Rule’ and Why It's Time to Overrule Field v. Clark’. Columbia Journal of Law and Social Problems 41: 217–19.

488 [1842 UKHL J12; 1 Bell 278; 8 Cl & Fin 710; 8 ER 279].

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the letter of the law has prevented the spirit of the law frombeing enforced. However, as a vague term, the definition of atechnicality often is simply used to denote any portion of the lawwhich interferes with the outcome desired by the user of the term.

Some legal technicalities govern legal procedure, enable or restrictaccess to courts, and/or enable or limit the discretion of a courtin handing down judgment. These are aspects of procedural law.Other legal technicalities deal with aspects of substantive law,that is, aspects of the law which articulate specific criteria thata court uses to assess a party's compliance with or violation of,for example, one or more criminal laws or civil laws.

sui generis (statutory interpertation) In statutory interpretation, it refers to the problem of giving

meaning to groups of words where one of the words is ambiguous orinherently unclear. For example, in criminal law, a statute mightrequire a mens rea element of ‘unlawful and malicious’ intent.Whereas the word ‘malicious’ is well-understood, the word‘unlawful’ in this context is less clear. Hence, it must be given ameaning of the ‘same kind’ as the word of established meaning. Thisis particularly the case when the two or more words are conjoined,linked by the word ‘and’, as opposed to placed in a disjunctiverelationship, linked by the word ‘or’. The interpretation of thetwo or more words might be different depending on thecircumstances. Courts sometimes have to attribute a conjunctive (X'and' Y) intention to the legislature even though the list isdisjunctive (X 'or' Y) because, otherwise, no overallinterpretation of the law in question would make sense.

judicial interpretationJudicial interpretation is a theory or mode of thought that explains

how the judiciary should interpret the law; particularlyconstitutional documents and legislation (see statutoryinterpretation). An interpretation which results in or supportssome form of law-making role for the judiciary in interpreting thelaw is sometimes pejoratively characterized as judicial activism,the opposite of which is judicial lethargy, with judicial restraintsomewhere in between. Theories of judicial interpretation rangefrom originalism and strict constructionism to functionalism. TheConstitution can be viewed as a Living Constitution or as The MoralConstitution.

statutory interpretation Statutory interpretation is the process by which courts interpret and

apply legislation. Some amount of interpretation is always

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necessary when a case involves a statute. Sometimes the words of astatute have a plain and straightforward meaning. But in manycases, there is some ambiguity or vagueness in the words of thestatute that must be resolved by the judge. To find the meanings ofstatutes, judges use various tools and methods of statutoryinterpretation, including traditional canons of statutoryinterpretation, legislative history, and purpose. In common lawjurisdictions, the judiciary may apply rules of statutoryinterpretation to legislation enacted by the legislature or todelegated legislation such as administrative agency regulations.

textual interpretation Decision based on the actual words of the written law, if the meaning

of the words is unambiguous. Since a law is a command, then it mustmean what it meant to the lawgiver, and if the meaning of the wordsused in it have changed since it was issued, then textual analysismust be of the words as understood by the lawgiver, which for aconstitution would be the understanding of the ratifying conventionor, if that is unclear, of the drafters. Some Latin maxims: Averbis legis non est recedendum. From the words of the law there isnot any departure. 489 Noscitur à sociis. Meaning of words may beascertained by associated words. 490

historical interpretationDecision based less on the actual words than on the understanding

revealed by analysis of the history of the drafting andratification of the law, for constitutions and statutes, sometimescalled its legislative history, and for judicial edicts, the casehistory. A textual analysis for words whose meanings have changedtherefore overlaps historical analysis. It arises out of such Latinmaxims as Animus hominis est anima scripti. Intention is the soulof an instrument. 491

functional interpretation or structural interpretationAlso called structural. Decision based on analysis of the structures

the law constituted and how they are apparently intended tofunction as a coherent, harmonious system. A Latin maxim is Nemoaliquam partem recte intelligere potest antequam totum perlegit. Noone can properly understand a part until he has read the whole492.

489 5 Coke 118. 490 3 T.R. 87.491 3 Bulst. 67.492 3 Coke Rep. 59.

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doctrinal interpretationDecision based on prevailing practices or opinions of legal

professionals, mainly legislative, executive, or judicialprecedents, according to the meta-doctrine of stare decisis, whichtreats the principles according to which court decisions have beenmade as not merely advisory but as normative. Some Latin maximsare: Argumentum à simili valet in lege. An argument from a likecase avails in law. 493. Consuetudo et communis assuetudo ...interpretatur legem scriptam, si lex sit generalis. Custom andcommon usage ... interpret the written law, if it be general. 494.Cursus curiæ est lex curiæ. The practice of the court is the law ofthe court. 495. Judiciis posterioribus fides est adhibenda. Credit isto be given to the latest decisions. 496. Res judicata pro veritateaccipitur. A thing adjudicated is received as true. 497

prudential interpretationDecision based on factors external to the law or interests of the

parties in the case, such as the convenience of overburdenedofficials, efficiency of governmental operations, avoidance ofstimulating more cases, or response to political pressure. One suchconsideration, avoidance of disturbing a stable body of practices,is also the main motivation for the doctrinal method. It alsoincludes such considerations as whether a case is "ripe" fordecision, or whether lesser or administrative remedies have firstbeen exhausted. A Latin maxim is Boni judicis est lites dirimere.The duty of a good judge is to prevent litigation. 498

equitable interpretationAlso called ethical. Decision based on an innate sense of justice,

balancing the interests of the parties, and what is right andwrong, regardless of what the written law might provide. Oftenresorted to in cases in which the facts were not adequatelyanticipated or provided for by the lawgivers. Some scholars putvarious balancing tests of interests and values in the prudentialcategory, but it works better to distinguish between prudential asbalancing the interests and values of the legal system fromequitable as balancing the interests and values of the parties. Itarises out of the Latin maxim, Æquitas est perfecta quædam ratio quæ jusscriptum interpretatur et emendat; nulla scriptura comprehensa, sed sola ratione

493 Coke, Littleton, 191494 Jenk. Cent. 273495 3 Buls. 53496 13 Coke 14497 Coke, Littleton, 103.498 4 Coke 15.

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consistens. Equity is a sort of perfect reason which interprets andamends written law; comprehended in no code, but consistent withreason alone. 499

natural interpretationDecision based on what is required or advised by the laws of nature,

or perhaps of human nature, and on what is physically oreconomically possible or practical, or on what is actually likelyto occur. This has its origin in such ancient Latin maxims as: Juranaturæ sunt immutabilia. The laws of nature are unchangeable. 500

Impossibilium nulla obligatio est. There is no obligation to doimpossible things. 501. Lex non cogit ad impossibilia. The law doesnot compel the impossible. 502 Lex neminem cogit ad vana seuinutilia peragenda. The law requires no one to do vain or uselessthings. 503. Legibus sumptis desinentibus, lege naturæ utendum est.Laws of the state failing, we must act by the law of nature. 504

Of these, only the first three, textual, historical, and functional,are methods of interpreting or constructing the writtenconstitution of government, and the historical and functionalmethods may be more a matter of construction than interpretation.The last, natural, is construction (not interpretation) of theunwritten constitution of nature, or the unwritten constitution ofsociety, which form a hierarchy of authority, with the constitutionof nature superior to the constitution of society, and theconstitution of society superior to the written constitution ofgovernment.

The doctrinal, prudential, and equitable methods are not interpretionor construction of any of these constitutions, although judgesoften claim they are. There is an misguided tendency among modernjudges to misrepresent what are essentially prudential or equitabledecisions as constitutional constructions. Too many lawyers arecomplicit in this by casting what are essentially prudential orequitable arguments into constitutional terms. There is nothinginherently wrong with making prudential or equitable decisions. 505

499 Coke, Littleton, 24.500 Jacob. 63.501 D. 50, 17, 185502 Hob. 96. 503 5 Coke 21504 2 Rol. Rep. 98.505 Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub.

Pol'y 23, 24 (1994).

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abstraction (statutory interpretation)It was common for the Founders to use somewhat more concrete words to

mean broader principles. Thus, "press" or "arms" is not limited tothe technology of the time, but refers to the general function theyserved. "Militia" does not mean merely those legally obliged torespond to an official call-up, but defense activity generally.

bright-line rule or bright-line testA bright-line rule (or bright-line test) is a clearly defined rule or

standard, generally used in law, composed of objective factorswhich leaves little or no room for varying interpretation. Thepurpose of a bright-line rule is to produce predictable andconsistent results in its application. Bright-line rules areusually standards established by courts in legal precedent or bylegislatures in statutory provisions. Bright-line rules are oftencontrasted with its opposite balancing tests (or "fine linetesting"), where a result is dependent on weighing several factors,which could lead to inconsistent application of law or reduceobjectivity.

balancing test (jurisprudence) A balancing test is any judicial test in which the jurists weigh the

importance of multiple factors in a legal case. Proponents of suchtests argue that they allow a deeper consideration of complexissues than a bright line rule can allow. But critics say that suchtests can be used to justify any conclusion which the judge mightarbitrarily decide upon.

dictionaries and other literary sources (statutory interpretation)Dictionaries and textbooks are consulted to give meaning to statutory

words. They are especially useful where the literal rule is beingused.

However, they are only a starting point as context is also considered.In Bourne v Norwich Crematorium limited506, the judge stated that wordscannot be taken out of a sentence, defined separately, and then putback into the sentence without distorting the English language.

In addition, the meaning of a word cannot be looked up, where the wordhas been statutorily defined, or judicially interpreted.

Exception that proves the rule, Inclusion of one is to exclude theothers, inclusio unius est exclusio alterius

"The exception that proves the rule" is used when an exception to a generally accepted truth is discovered. This is an old fashioned

506 (1967) 1. WLR

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use of the word 'prove', which means 'to test'. It does not mean itproves a rule is true, but that it tests the rule. It is usually used these days when an exception to a rule has been identified: for example, Mutillidae are wasps without wings, and therefore are an exception that proves the rule that wasps fly.

"The exception that proves the rule" also means that the presence of an exception applying to a specific case establishes ("proves") that a general rule exists. For example, a sign that says "parking prohibited on Sundays" (the exception) "proves" that parking is allowed on the other six days of the week (the rule). A more explicit phrasing might be "The exception that proves the existenceof the rule."

Henry Watson Fowler is Modern English Usage identifies five ways in which the phrase is commonly used, here listed in order from most to least correct.

The phrase is derived from a legal principle of republican Rome: exceptio probat regulam in casibus non exceptis ("the exception confirms the rule in cases not excepted"), a concept first proposedby Cicero in his defence of Lucius Cornelius Balbus. This means a stated exception implies the existence of a rule to which it is theexception. The second part of Cicero is phrase, "in casibus non exceptis" or "in cases not excepted," is almost always missing frommodern uses of the statement that "the exception proves the rule," which may contribute to frequent confusion and misuse of the phrase.

This legal principle is classically referred to as "inclusio unius estexclusio alterius" (Inclusion of one is to exclude the others). Theidea is that if the promulgator of law finds reason to enumerate one exception, then it is only reasonable to infer no others were intended. The Ninth Amendment of the United States Constitution wasenacted to explicitly suppress this principle by stating that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the voters."

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practice (statutory interpretation)The courts also consider the practice or usage that precedes the

enactment of related legislation. In Bassett v Bassett507, the judgestated that where the meaning of a word or phrase used inconveyance is at issue, the uniform opinion and practice of eminentconveyancers has always had great regard paid to it by the courtsof justice.

However, the subsequent practice of those involved in theimplementation of a statute is not permissible aid. In Republic vWandsworth London Borough Council exp. Beckwith 508the court stated thatstatements in government circular may be “simply wrong”.

other enacting words (statutory interpretation) Involves an examination of the whole statute, or those parts that deal

with the subject matter of the provision to be interpreted. This ismainly done because there is a presumption, though weak, that aword or phrase is to be accorded the same meaning wherever itappears in the statute. The examination should give some indicationof the overall purpose of the statute. It may also show that aparticular interpretation of a provision may lead to absurdity whentaken with another section. e.g. in the case of Gibson v Ryan.

long title (statutory interpretation)Gives a guide in finding out the general objectives of a statute.

Courts use this in order to resolve ambiguity in a statute,purpose and reason for a statute. The courts have discretion torestrict their use where there is no ambiguity. Long titles may bemisleading, as they may not correspond with the body of a statute,especially where the provisions of a statute have been amended orrepealed. Also, the long titles may not control, circumscribe, orwiden the scope of legislation, if the provisions are otherwiseclear and unambiguous.

preamble (statutory interpretation)In Attorney General V Ernest Augustus of Hanover, it was held that preambles

could be used as an aid to construing enacting provisions, as it’sin its recitals that the mischief to be remedied and the scope ofthe Act are described. Preambles can only be considered where theenacting words are obscure. However, preambles may be ineffectivein their role as an interpretational aid, as enactments may fallshort, or go beyond indications that may be gathered from apreamble. (No exact correspondence). Similarly, they are not of

507 (1774) 3 Atk508 (1996) 1 W. L. R.,

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much help in construing provisions containing qualifications orexceptions from the operation of the purpose of the Act.

short title (statutory interpretation)Found in section one of all Acts in Kenya, although in the United

Kingdom they are usually found towards the end of the Acts.In British Amusement Catering Trades Association v Westminster City Council, the judge

held that he had given weight to the short tile “CinematographActs” in holding that a video game wasn’t a “cinematographexhibition”. Accuracy of the short title may be sacrificed in thequest for clarity.

side notes/ clause titles (statutory interpretation)Found on the side of the provisions of a statute. They are considered

by courts in the interpretation of ambiguous provisions. However,they cannot change the meaning of clear enacted words.

punctuation (statutory interpretation)Punctuations affect the meaning the words are intended to have, and

are thus considered by courts in the interpretation of unclearprovisions. However, they may be altered or ignored to give effectto the purpose of a statute. In Hanlon v The Law Society, Lord Lowrystated, “I consider that not to take account of the punctuationdisregards the reality that literate people, such as parliamentarydraftsmen, punctuate what they write…. why should not literatepeople such as judges look at the punctuation in interpreting themeaning of legislation.”

headings (statutory interpretation)Headings indicate the scope of the sections that follow it, though the

scope can be widened by amendment. In D.P.P v Schildkamp, the provisionthat was at issue was section 332(2) of the Companies Act, whichmade it an offence to knowingly being party to the carrying on of abusiness with the intent to defraud creditors. However, it appearedamong sections that were under the heading, “Offences Antecedent toand in the course of winding up”. The court held that an offenceunder section 332(3) could only be committed after a winding uporder had been made.

historical setting (statutory interpretation)This approach looks for the intention of parliament when that law was

made. A statute may have been passed to deal with a particulargrievance and should be historically interpreted. However, thecourts are free to apply the current meaning of a statute inpresent day conditions.

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other statutes in pari materia (of the same matter) (statutoryinterpretation)

Related statutes dealing with the same subject matter may beconsidered as part of the context, or to resolve ambiguities bycomparing the statutes to see the meaning that parliament puts onthe same phrase in similar context.

In some cases other statutes may be considered in construing of astatute, as a statute may provide that it be read as one with aseries of other statutes.

legislative antecedents (statutory interpretation)The courts may refer to provisions that have been re-enacted in

similar form in a succession of statutes, where words in a similarprovision are unclear. Arguments in such a case may be based on:

a) Similarities or dissimilarities in the statutory language.b) On judicial decisions concerning provisions subsequently re-

enacted.statutory instruments (statutory interpretation)Statutory instruments such as regulations may be used in interpreting

provisions in the Act under which they were made. Lord Lowryconsidered this in Hanlon v The Law Society, where the followingpropositions were made:

a) Subordinate legislation may be used in construing the parent Act,where power is given by that Act, to amend it by regulations, orwhere the Act is ambiguous.

b) Regulations made under an Act don’t control or decide its meaning.Judges are the interpreters.

c) Regulations, which are consistent with certain interpretation ofthe Act, tend to confirm that interpretation.

d) Where the Act provides a framework built on contemporaneouslyprepared regulations, they are a reliable guide to the meaning ofthe Act.

e) Regulations are a clear guide, especially where they were made inpursuance of a power to modify the Act.

f) Guidance may also be obtained from regulations, which are to haveeffect as if enacted in the parent Act.

main purpose rule - Under the main purpose rule, where one answers for the debt, default

or miscarriage of another, but the intent (main purpose) is tobenefit oneself, then no writing is required. Martin Roofing, Inc. v.Goldstein, 60 N.Y.2d 262, 269 (1983); Knitting Mills, Inc., v. Duofold, 131 A.D.2d 87, appealwithdrawn, 70 N.Y.2d 1003 (1988). The "main purpose rule" rests upon a

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recognition that in many cases the purpose underlying the statutemaybe satisfied if the evidence establishes that the promisor'smain purpose (or leading object) is a benefit which he did notenjoy before the promise. The elements of the rule areconsideration for the promise and a benefit which accrues to thepromisor. It is said that the benefit must be immediate, personal,pecuniary and direct.

EXAMPLE:R, a race car driver, about to enter a race at Watkins Glen, was to be

arrested because of nonpayment of his former wife's alimony. TheSheriff was about to seize R when his manager and sponsor, who hada substantial financial interest in having him race the next day,went to W and told her, "Let him race and we'll pay the alimonyarrears."

The promise is enforceable even though it was oral because the promiseto discharge another's previously existing duty was chiefly orentirely for the third person's own material benefit rather thanprimarily intending to benefit W or R. Look to the intent of thesurety; if it appears to be mainly for his own"economic advantage"then it is not within the statute of frauds.509.

official reports (statutory interpretation)Legislation may be preceded by a report of an official body or

committee, such as a Law Commission. Courts may consider such areport:

a) As evidence of the pre-existing state of the lawb) As evidence of the “mischief” the legislation intended to deal

with.

However, recommendations contained therein may not be regarded asevidence of parliamentary intention, as parliament may not haveaccepted the recommendations, and acted upon them.

The House of Lords held in I. v D.P.P (2001) 2 All E.R. 583, that where aprovision was intended to give effect to a law commissionrecommendation, the courts could have regard to the view of the lawcommission on that issue.

treaties and international conventions interpretation A treaty cannot have effect until when it’s incorporated by a statute.

A statute may incorporate a treaty in two ways:

509 Restatement (Second) Contracts §116

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a) By expressly enacting that it shall be part of law. The text of thetreaty shall normally be in a schedule.

b) By enacting substantive provisions of law, but without expresslyincorporating the text of the treaty as part of law.

Various questions thus arise about the use of a treaty ininterpretation:

i. Can a treaty only be considered if expressly referred to in theAct?

The court in Salomon v Commissioner in of Customs and Excise held that iffrom extrinsic evidence that an enactment was intended to fulfillthe governments obligations under a particular convention, itmatters not that there is no express reference to the convention inthe statute.

ii. Can the treaty only be considered if the words of the statute areunambiguous, or are it to be read as part of the context of thestatute, before it’s determined whether the words are ambiguous?

The treaty should be considered as part of the context of enactingwords.

iii. If the words of the statute are unclear, but capable of more thanone meaning, the meaning consonant with the statute is preferredover the one that is not.

However, the court in Ellerman Lines v Murray stated that if the words ofa statute are unclear, they must be given effect to, whether or notthey carry out Her Majesty’s treaty obligations

In The Eschersheim 510the court stated that statutory words cannot beinterpreted in order to conform to a treaty if the words are notcapable of bearing that meaning.

In other instances, the courts have held that they can take account ofa treaty in interpreting a statute, even where the statute wasn’tpassed to interpret any particular treaty obligation.

parliamentary materialsParliamentary materials include reports of debates in the House and in

the committees such as the Hansard, explanatory memoranda attachedto bills, successive drafts of bills, and speeches of the movers ofa bill.

Glanville Williams in his book “Understanding the Law” opined that theHansard should not be used in interpretations as a lot of thestatements made by members of parliament may not be serious orrelated to the Act, and in addition, there is usually a lot ofpolitical maneuvering in parliament, thus arguments may be made by

510 (1979) 1 W.L.R

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members, not to make a bill better, but merely to frustrate themover of the bill.

In other jurisdictions, reference to parliamentary materials may notbe permitted, due to doubts as to the reliability and availabilityof legislative material, since it’s hard to access them, and alsothe cost and delay involved in researching on them may beinhibitive.

However, in jurisdictions such as the United States, legislativematerials are used as they are more accessible and concise.

In Pepper (Inspector of Taxes) v Hart the House of Lords relaxed theprohibition as it related to the Finance Act 1976. The judge held thatthe exclusionary rule should be relaxed to permit reference toparliamentary materials where:

a) Legislation is obscure.b) The statements relied upon are clear.

The speech of a mover of a bill usually explains the reasons for theintroduction of the bill, and may be used by a court to ascertainthe mischief, which the Act seeks to remedy, or its object andpurpose. However, the statements made by the mover of the bill inintroducing regulations can only be used where those regulationscannot be amended by parliament, or if capable of amendment, wasnot in fact amended.

literal approach/plain meaning ruleIn this approach, statutory words are accorded their ordinary meaning,

in their literal and grammatical sense. In Muller v BP Exploration(Alaska) inc511 it was stated that “in assessing statutory language,unless words have acquired a peculiar meaning by virtue ofstatutory definition or judicial construction, they are to beconstrued in their common usage. The justification for the useliteral approach is that:

-It encourages careful drafting. Legislators know that words will beread strictly

-Judges can be seen as non-political because they don’t have tointerpret according to policy

-It accords well with the notion of parliamentary supremacy, whenjudges read statutes too freely it can be seen as an usurpation ofthe usurpation of the powers of the elected representatives of thepeople

511 . 923p.2d 783, 787-88(Alaska 1996)

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There are reasons against this approach, including:-Wording of the statute includes some generalizations whose

application to a particular subject or situation may be difficultto determine. E .g Allen v Emerson and Others 1944. The question waswhether theaters and other places of public entertainment appliedto fun fairs. The act was unhelpful.

-The wording may be ambiguous, contradictory or absurd. R v Allen (1872)a case of bigamy. The legislation at the time defined it as beingmarried twice. Because the second attempt at marriage would bevoid, it would thus be impossible to commit bigamy. The languagewas thus clear but absurd.

-It offers little help against the exploitation of technicalloopholes. Whitley v Chappel (1868) 4LR QB 147 held that a dead personwas not entitled to vote, so someone impersonating a dead personwas entitled to vote.

-It does not allow courts to extend common sense to specific caseswhose factors are envisaged by the legislature. R v Adams held thata man who had bitten off another’s nose wasn’t guilty of an offencethat required him to stab, cut or wound. A strict application ofexpressio unius est exclusio alterius meant that anything that wasn’t in thatspecific act was excluded.

- It is not helpful when a court is resolving a doubt as to theapplicability of a broad term.

Remjana Bourne v Norwich Crematorium (1967) WLR 691purposive approachWords are not just interpreted literally but also with reference to

their context and purpose. Courts may divert from the literalmeaning to give effect to the intention of parliament. Bentham(2002) All ER 549 the question was whether a defendant who pointedfingers having an appearance of a gun during robbery constitutedhaving in his possession of an imitation of a firearm. The court ofappeal agreed because he put people in fear.

Justifications-It allows courts to give effect to the intentions of parliament, when the exact words don’t allow

for this.

-It allows courts to seek authority outside the exact word of the statute.

Reasons against

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-Usurpation of legislative function under the guise of interpretation

-It favours short-term justice over long-term legislative stability.

general presumptions to interpretation presumption of non-retospectivityA retrospective statute violates the rule of law because a) It makes compliance impossibleb) It leads to loss or damage on those who rely on previous law hence

becoming arbitrary and unfair. c) It also upsets plans and undermines expectations.A retrospective operation is not to be given to a statute so as to

impair an existing right or obligation unless that effect cannot beavoided without doing violence to the language of the enactment. Iflanguage can be interpreted in any way it ought to be construed asprospective only. The degree to which provision is retrospective isto be decided not by reference to general presumptions or maximsbut by considering whether the consequence of reading the statutewith the suggested degree of retrospectivity is so unfair that thewords used by parliament may not have been to mean what it mightappear to say. Factors to be considered are thus:

-The degree of retrospectivity suggested-The value and nature of rights affected which retrospectivity will

impinge-Clarity of language-Circumstances in which legislation was enacted

Waddington vs. Miah (1974) WLR 683 The House of Lords held that certain offences created by the

immigration act of 1971 were not intended to operateretrospectively. In view of the prohibitions contained in theinternational declaration of human rights a government department agovernment department would not promote nor would parliament passedretrospective legislation.

presumption of territorial operationIt is based on the concept that each state has legislative, judicial

and executive jurisdiction over all persons and things in itsterritory, including its law. It recognizes the sovereignty of

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sates and that laws are to apply within the state. The applicationof a country’s laws is not to be extended to another country sinceno country’s laws are supreme against the other i.e. It recognizesthe principle of primus inter pares. However this is not usually thecase, as some politically powerful states have been known to havetheir laws influence those of others, which are weaker economicallyand politically.

It depends on the following rules under international law:

a) Domestic jurisdiction. States are supreme internally and thissupremacy is not to be extended to another country.

b) Judicial jurisdiction. It concerns the power of the courts of aparticular country in cases whish a foreign factor is present. Incivil cases the basis for jurisdiction is a service of writ uponthe defendants’ physical or constructive presence in the country.Constructive presence is essential where circumstances establish abasic level of contact by the defendants with the foreign statessufficient to justify the exercise of jurisdiction over them.

Such circumstances may include:-The defendant owning property-Conducting business there-By having made visits in person or by agent or employees-Or in the case of a foreign company as a defendant having within the

foreign state a wholly or subsidiary which has no independent powerof the decision

Criminal jurisdiction is based upon the territory of the stateclaiming to try the offence. Thus all crimes committed or allegedto have been committed within the territorial jurisdiction of astate may come before the municipal courts and the accused ifconvicted may be sentenced if he/she is a foreign citizen.

c) Universality – each and every state has jurisdiction to tryparticular offences. It’s presumed that crimes committed areoffensive to the international community as a whole e.g. piracy,war crimes and others against humanity.

d) Immunity-certain people’s property and situations are immune fromthe territorial jurisdiction in spite of being situated or takingplacer there. Diplomats for example have extensive immunity fromthe laws of a country in which they are working. In addition,various sovereign acts by states may not be questioned or venturedin the courts of a foreign country.

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presumption of strict construction of penal codes and statutesLaws, which impose criminal or other penalties, are strictly construed

so that the words are ambiguous and there are two reasonableinterpretations, the more lenient one will be given.

E.g. a provision penalizing the personating at an election of “anyperson entitled to vote” was held not to apply to person whopersonated a deceased voter. In Anderton vs. Ryan, section 1 of theCriminal Attempts act was held not to apply to some impossibleattempts. In so doing they took insufficient account of the LawCommission Report that led to the 1981 Act, and introduced“confusion and uncertainty”. Following devastating criticism, thehouse overruled Anderton v Ryan in R v Shivpuri. Also see Willis v Bowley 1 AC 57101.

If there is ambiguity, criminal liability will not be imposed, so asnot to interfere unduly with personal liberty. This applies to taxlaws and laws encroaching on personal freedom.

presumption of non-alteration of existing lawsPrevention of unexpected and undesirable changes of principle is

necessary so courts are obliged to assume that statutes retaineffect indefinitely if they are not repealed. In common law a wifemay not testify against her husband, when a statute permitted herto testify (Criminal Evidence Act) I t was held that that she wouldnot be compelled if she did not want to do so, the change wasfundamental and shouldn’t be extended by implication. Parliamentcan thus change law but an intention to change it will not beimplied. The above act allowed a spouse to be called a as a witnessfor prosecution or defense without the consent of the accused. TheHouse of Lords held that this made a wife competent but not acompellable witness against her husband.

Courts are also obliged to assume that where the words of a statue areclear and unambiguous they must be applied accordingly. Prince Ernest ofHanover v Attorney General) 1957.

In another case a viscountess was disallowed a hereditary claim to sitin the House of Lords by virtue of the Sex Disqualification (Removal) Act of1919.

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presumption of ousting of courts jurisdiction by express words onlyCourts look with disfavor at parliament’s attempts to oust their

jurisdiction. This is common in administrative law context whereexclusion clauses have been construed narrowly or totally evaded.Courts prefer to regard special procedures laid down by statute asadditional parallel procedures rather than excluding recourse tothe courts.

Unless expressly stated, it is assumed that actions carried out underthe authority of legislation can be challenged in the courts.

presumption of consistency in use of termsWhere the meaning of a section is not clear all relevant sections of

the statute must be examined to decide it’s meaning. A whole groupof statues may be studied in order to come up with a decision. Itis a general presumption that terms used in written law or in anystatue will have consistency in their meanings. Terms are usuallydefined in the interpretation section of most statutes. Courts willpresumably apply the words according to their meanings. Where theyhave not been clearly defined the court will interpret accordingto the intention parliament intended. The sui generis rule applies toresolve the problem of giving meaning to different groups of wordswhere one word is ambiguous or inherently unclear.

originalism principle Originalism is a principle of interpretation that tries to discover

the original meaning or intent of the constitution. It is based onthe principle that the judiciary is not supposed to create, amendor repeal laws (which is the realm of the legislative branch) butonly to uphold them. The term is a neologism, and the concept is aformalist theory of law and a corollary of textualism.

Originalism is a family of theories, principally:

و The original intent theory, which holds that interpretation of a writtenconstitution is (or should be) consistent with what was meant bythose who drafted and ratified it.

و The original meaning theory, which is closely related to textualism, isthe view that interpretation of a written constitution or lawshould be based on what reasonable persons living at the time ofits adoption would have declared the ordinary meaning of the textto be. It is with this view that most originalist, such as JusticeScalia, are associated.

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Both of these theories share the view that there is an authority,contemporaneous with a constitution's or statute's ratification,which should govern its interpretation; the divisions relate towhat exactly that authority is: the intentions of the authors orthe ratifiers, or the original meaning of the text.

The primary alternative to originalism is most commonly described asthe Living Constitution; this is the theory that the Constitutionwas written in flexible terms whose meaning is dynamic.

Originalism is a means of constitutional interpretation, notconstitutional construction; whenever ‘to describe [a] case is not to decide it,’512

it can only serve as a guide for what the Constitution says, nothow that text applies to a given case or controversy.

original intent theory Original intent is a theory in law concerning constitutional and

statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intentis indeed one theory in the originalist family, it has someextremely salient differences which has led originalist from morepredominant schools of thought such as original meaning tocastigate original intent as much as legal realists do.

Original intent maintains that in interpreting a text, a court shoulddetermine what the authors of the text were trying to achieve, andto give effect to what they intended the statute to accomplish, theactual text of the legislation notwithstanding. As in purposivism,tools such as legislative history are often used.

legislative intent principleLegislative intent of the legislature in enacting legislation may

sometimes be considered by the judiciary when interpreting the law.The judiciary may attempt to assess legislative intent wherelegislation is ambiguous, or does not appear too directly oradequately address a particular issue, or when there appears tohave been a legislative drafting error.

When a statute is clear and unambiguous, the courts have said,repeatedly, that the inquiry into legislative intent ends at thatpoint. It is only when a statute could be interpreted in more thanone fashion that legislative intent must be inferred from sourcesother than the actual text of the statute.

Courts frequently look to the following sources in attempting todetermine the goals and purposes that the legislative body had inmind when it passed the law:

512 See Atkins v. Virginia, 536 U.S. 304 (2002) (Scalia, dissenting)

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و the text of the bill as proposed to the legislative body

و amendments to the bill that were proposed and accepted or rejected,

و the record of hearings on the topic

و legislative records or journals

و speeches and floor debate made prior to the vote on the bill

و legislative subcommittee minutes, factual findings, and/or reports

و other relevant statutes that can be used to understand the definitions in the statute onquestion

و other relevant statutes which indicate the limits of the statute in question

و legislative files of the executive branch, such as the governor or president

و case law prior to the statute or following it which demonstrates the problems thelegislature was attempting to address with the bill

و Constitutional determinations (Would Congress still have passed certain sections of astatute had it known about the constitutional invalidity of the other portions of the statute?)

و legislative intent, which is the reason for passing the law

These principles of legislative intent often overlap with those principlesof statutory construction that courts have developed to interpretambiguous or incomplete legislation. As an example, the principlethat courts should not interpret a statute to produce absurd orunintended results will often be informed by evidence of what theproponents of a bill stated about the objectives to be achieved bythe statute.

textualism Textualism is a formalist theory of statutory interpretation, holding

that a statute's ordinary meaning should govern its interpretation,as opposed to inquiries into non-textual sources such as theintention of the legislature in passing the law, the problem it wasintended to remedy, or substantive questions of the justice andrectitude of the law.

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‘Textualism judges have contended, with much practical impact, that courts should not treatcommittee reports or sponsors' statements as authoritative evidence of legislative intent.These judges base their resistance to that interpretive practice on two major premises: first,that a 535-member legislature has no ‘genuine’ collective intent concerning the properresolution of statutory ambiguity (and that, even if it did, there would be no reliable basisfor equating the views of a committee or sponsor with the ‘intent’ of Congress as a whole);second, that giving weight to legislative history offends the constitutionally mandatedprocess of bicameralism and presentment. ‘513

The textualist will ‘look at the statutory structure and hear thewords as they would sound in the mind of a skilled, objectivelyreasonable user of words.’514 The textualist thus does not giveweight to legislative history materials when attempting toascertain the meaning of a text. Textualism is often associatedwith originalism. Oliver Wendell Holmes, Jr., well-captured thephilosophy, and its rejection of intentionalism: ‘We ask, not what thisman meant, but what those words would mean in the mouth of a normal speaker ofEnglish, using them in the circumstances in which they were used ... We do not inquire whatthe legislature meant; we ask only what the statutes mean.’515

Strict constructionism is often misused by laypersons and critics as asynonym for textualism. Nevertheless, although a textualist can bea strict constructionist, they are separate views: Justice Scalia,for example, warns that ‘textualism should not be confused with so-called strictconstructionism, a degraded form of textualism that brings the whole philosophy intodisrepute. I am not a strict constructionist, and no one ought to be.... A text should not beconstrued strictly, and it should not be construed leniently; it should be construedreasonably, to contain all that it fairly means.’516 Similarly, textualism shouldnot be confused with the ‘plain meaning‘ approach.

Textualism looks to the ordinary meaning of the language of the text,but it looks at the ordinary meaning of the text, not merely thepossible range of meaning of each of its constituent words:

The statute excludes only merchandise ‘of foreign manufacture,’ which the majority says mightmean ‘manufactured by a foreigner’ rather than ‘manufactured in a foreign country.’ I thinknot. Words, like syllables, acquire meaning not in isolation but within their context. Whilelooking up the separate word ‘foreign’ in a dictionary might produce the reading themajority suggests, that approach would also interpret the phrase ‘I have a foreign object in

513 John F. Manning, ‘Textualism as a Nondelegation Doctrine’, 97 Colum. L. Rev. 673, 1997, JSTOR 1123360514 Easterbrook, Frank H. (1988). ‘The Role of Original Intent in Statutory

Construction’. Harv. J.L. & Pub. Pol'y 11: 59 [p. 65].515 Holmes (1899). ‘The Theory of Legal Interpretation’. Harv. L. Rev. 12 (6): 417.

JSTOR 1321531.516 Antonin Scalia, A Matter of Interpretation 23 (1997).

http://www.jstor.org/stable/1123360

http://en.wikipedia.org/wiki/JSTOR

http://en.wikipedia.org/wiki/Columbia_Law_Review

http://en.wikipedia.org/wiki/John_F._Manning

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my eye’ as referring, perhaps, to something from Italy. The phrase ‘of foreign manufacture’is a common usage, well understood to mean ‘manufactured abroad.’517

As an illustrative example, Justice Scalia refers to a case in whichthe law provided for a longer sentence when the defendant ‘uses afirearm’ ‘during and in relation to’ a ‘drug trafficking crime.’ Inthe case, the defendant had offered to trade an unloaded gun asbarter for cocaine, and the majority (wrongly, in his view) tookthis meeting the standard for the enhanced penalty. He writes that‘a proper textualist’ would have decided differently:

The phrase ‘uses a gun’ fairly connoted use of a gun for what guns arenormally used for, that is, as a weapon. As I put the point in mydissent, when you ask someone, ‘Do you use a cane?’ you are not inquiring whetherhe has hung his grandfather's antique cane as a decoration in the hallway.518

judicial deference doctrine Judicial deference is a doctrine by which judges seek to avoid

frustrating the will of the legislature when deciding cases. It ismost commonly found in countries, such as the United Kingdom, whichlack an entrenched constitution, as the essential purpose of suchdocuments is to limit the power of the legislature.519

There are some examples, however, of the occurrence of judicialdeference in the United States, such as on immigration case law,wherein the judiciary has (historically) sought to not impedeexplicit constitutional Congressional authority.520

In R (Kehoe) v Work and Pensions Secretary521, Lord Hope explained that courtsshould ‘defer, on democratic grounds, to the considered opinion ofthe elected body as to where the balance is to be struck betweenthe rights of the individual and the needs of society.’Nevertheless the doctrine has been criticised for representing away in which the courts should act obediently to Parliament inorder to uphold the doctrine of Parliamentary Sovereignty.

However, any suggestions that the House of Lords was being undulyservile to Parliament were overturned by the decision in A v Home

517 K-Mart v. Cartier, 486 U.S. 281, 319 (1988) (Scalia, J., concurring in part and dissenting in part).

518 Scalia, Antonin (2010). ‘Textualism and the Constitution’. In Bruce Miroff, Raymond Seidelman, Todd Swanstrom. Debating Democracy: A Reader in American Politics (SeventhEdition ed.). Boston, MA: Wadsworth Cengage Learning. pp. 288-294. ISBN ISBN-10 0495913472, ISBN-13 9780495913474.

519 Klug, F. (2003) ‘Judicial deference under the Human Rights Act 1998’. London School of Economics. Retrieved 18 April 2006.

520 see Fiallo v. Bell (1977).521 [2005]

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Secretary522. In the case, a group of detainees who had been imprisonedwithout charge under s.23 of the Anti-terrorism, Crime and SecurityAct 2001 on the grounds that they posed a threat to nationalsecurity, appealed successfully against their detention. The courtheld that the powers of detention without charge violatedConvention rights because of their discriminatory impact (articles5 and 14 Human Rights Act 1998).

jurisprudence constanteJurisprudence constante is a legal doctrine according to which a long

series of previous decisions applying a particular rule of law isvery important and may be determinative in subsequent cases. Thisdoctrine is recognized in most civil law jurisdictions, in thecivil law of Louisiana, for example.

The rule of law applied in the Jurisprudence constante directlycompares with stare decisis. But the Louisiana Supreme Court notes theprincipal difference between the two legal doctrines: a singlecourt decision can provide sufficient foundation for stare decisis,however, ‘a series of adjudicated cases, all in accord, form thebasis for jurisprudence constante.’523 Moreover, the Louisiana Courtof Appeals has explicitly noted that jurisprudence constante ismerely a secondary source of law, which cannot be authoritative anddoes not rise to the level of stare decisis.524

textual and strict constructionist methodsDecision is based on the actual words of the written law, if the

meaning of the words is unambiguous. Textualists argue that sincethe law is a command, it must mean what it meant to the lawgiver.If the meanings of the words have since changed, textual analysismust be of the words as understood by the lawgiver. The meaning ofthe words may be ascertained by associated words.

Textualism and strict constructionism are similar in that, they bothagree that a proper inquiry into constitutional interpretationbegins and ends with the text itself, not with the ‘intent’ of thewriters, judicial precedent, or consensus of society.

However, textualism differs from strict constructionism in itsappreciation for the context, and in its search for the understoodmeaning of constitutional language, as opposed to the literalmeaning of the words in question.

522 [2005]523 Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & Use Tax Comm'n., 903 So.2d

1071, at n.17 (La. 2005). (Opinion no. 2004-C-0473)524 Royal v. Cook,, 984 So.2d 156 (La. Ct. App. 2008).

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The case of Smith v United States525 is an example of where the literalmeaning strayed from the reasonable meaning of the law. The courtheld that the exchange of a gun for drugs constituted ‘use’ of thefirearm for purposes of a federal statute imposing penalties for‘use’ of a firearm ‘during and in relation to’ a drug traffickingcrime. In Watson v. United States,526 the court later decided that atransaction in the opposite direction does not violate the samestatute (i.e., Smith holds that one ‘uses’ a gun by giving it inexchange for drugs, but Watson holds that one does not ‘use’ a gunby receiving it in exchange for drugs). Both textualists and strictconstructionists argue that:

و The original constitution does not allow for judicial interpretation of any form.

و Less strict interpretations of the constitution can be a method of judicial activism by judges,which they feel is an abuse of judicial power.

Decisions are based on the understanding revealed by the analysis ofthe history of drafting and ratification of the law. When statutesand constitutions are the subject of the analysis, what is derivedis referred to as legislative history, whereas if the subject ofthe analysis is judicial edicts, it is called case history.

undisclosed principalIn ordinary agency, where the principal and the existence of the

agency relationship are disclosed, the agent is merely theinstrument through which the principal becomes a party to thecontract. Therefore, the principal acquires rights and liabilitiesunder the contract.527 Where the principal is undisclosed, to allintents and purposes, the agent is the party to the contract whowill assume the rights and liabilities.

The doctrine of the undisclosed principal is at variance with one ofthe fundamental rules of the law of contract.528 The rule of privityof contract allows only the parties to the contract to acquirerights and liabilities under that contract. Under the doctrine ofundisclosed principal, the principal may be sued or may sue on thecontract that is made by its agent, despite the fact that upon

525 508 U.S. 223 (1993)526 128 S.Ct. 697 (2007)527 G Fridman, The Law of Agency, 6th ed, Butterworths, Sydney, 1990, p 229528 Sir Frederick Pollock characterised the doctrine as ‘inconsistent with the

elementary doctrines of the law of contract’: Notes (1887) 3 LQR 359 referring to Isaac Cooke & Sons v Eshelby (1887) 12 App Cas 271.

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strict interpretation, the agent is the contracting party and theundisclosed principal is a third party to that contract.529

In Armstrong v Stokes, Blackburn J stated in respect of the legality ofthe doctrine:

‘It has often been doubted whether it was originally right to hold so: but doubtsof this kind come now too late.’530

sui generis ruleThe sui generis rule applies to resolve the problem of giving meaning to

different groups of words where one word is ambiguous or inherentlyunclear.

literal rule‘This primary rule that takes precedence over the others. Words and phrases should be

construed by the courts in their ordinary sense, and the ordinary rules of grammar andpunctuation should apply i.e. this gives the words in dispute their ‘plain, ordinary literalmeaning’.

Tindal C.J. made one of the leading statements of the ‘literal rule’in advising the House of Lords in the Sussex Peerage Case531,

‘My Lords, the only rule for the construction of the Act of Parliament is that they should beconstrued according to the intent of the Parliament which passed the Act. If the words ofthe statute are in themselves precise and unambiguous, then no more can be necessarythan expound those words in their natural and ordinary sense.’

The literal rule encourages precision in drafting. Should anyalternative approach be adopted, an alteration of the statutorylanguage could be seen as usurpation by non-elected judges of thelegislative function of Parliament and other users, would have thedifficult task of predicting how doubtful provisions might be‘rewritten’ by the judges.

mischief rule Mischief rule is one of three rules of statutory construction

traditionally applied by Common law courts . The other two are the‘plain meaning rule‘(also known as the ‘literal rule’) and the‘golden rule.’ ‘The notion has long prevailed that three different rules or approachesmay be employed in ascertaining the meaning of a statute. First, there is said to be the‘purpose’ approach or ‘mischief rule’....Then there is said to be the ‘literal’ approach or‘plain meaning’ rule....Finally there is what is called the ‘golden rule’.... 532

529 Andrews v Nominal Defendant (1968) 89 WN (Pt 2) (NSW) 113 at 124. See F Reynolds, Bowstead on Agency, 15th ed, Sweet & Maxwell, London, 1985, p 313.

530 (1872) LR 7 QB 598 at 604.531 (1844) 11 Cl&Fin 85532 Source: Elmer Driedger, Construction of Statutes. Toronto: Butterworths, 1983, p. 1.

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The main aim of the rule is to determine the ‘mischief and defect’that the statute in question has set out to remedy, and what rulingwould effectively implement this remedy. In applying the rule, thecourt is essentially asking the question: what was the ‘mischief’that the previous law did not cover, which Parliament was seekingto remedy when it passed the law now being reviewed by the court?

The Mischief Rule is of narrower application than the golden rule orthe plain meaning rule, in that it can only be used to interpret astatute and, strictly speaking, only when the statute was passed toremedy a defect in the common law.

Legislative intent is determined by examining secondary sources, suchas committee reports, treatises, law review articles andcorresponding statutes.

The application of this rule gives the judge more discretion than theliteral and the golden rule as it allows him to effectively decideon Parliament's intent. It can be argued that this underminesParliament's supremacy and is undemocratic as it takes law-makingdecisions away from the legislature.

The way in which the mischief rule can produce more sensible outcomesthan those that would result if the literal rule were applied isillustrated by the ruling in Smith v Hughes533. Under the Street OffencesAct [1959], it was a crime for prostitutes to ‘loiter or solicit inthe street for the purposes of prostitution’. The defendants werecalling to men in the street from balconies and tapping on windows.They claimed they were not guilty as they were not in the ‘street.’The judge applied the mischief rule to come to the conclusion thatthey were guilty as the intention of the Act was to cover themischief of harassment from prostitutes.

The rule was first set out in Heydon's534 where the court ruled thatthere were four points to be taken into consideration wheninterpreting a statute:

‘For the sure and true interpretation of all statutes in general (bethey penal or beneficial, restrictive or enlarging of the commonlaw), four things are to be discerned and considered:

(1st). What was the common law before the making of the Act?

(2nd). What was the mischief and defect for which the common law did not provide.

533 [1960] 2 All E.R. 859534 Case [1584]76 ER 637 3 CO REP 7a

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(3rd). What remedy the Parliament hath resolved and appointed to cure the disease of thecommonwealth. And,

(4th). The true reason of the remedy;

and then the office of all the judges is always to make suchconstruction as shall suppress the mischief, and advance theremedy, and to suppress subtle inventions and evasions forcontinuance of the mischief, and pro privato commodo, and to add forceand life to the cure and remedy, according to the true intent ofthe makers of the Act, pro bono public.

In the Century in which it was created, and for some time thereafter,the mischief rule was used in a legislative environment verydifferent than the one which has prevailed in the past twocenturies. As Elmer Driedger notes,

‘Sixteenth-Century common law judges…looked upon statutes as a gloss upon the commonlaw, even as an intrusion into their domain. Hence, statutes were viewed from the point ofview of their effect upon the common law, as adding to it, subtracting from it or patching itup….

Then also, in the time of ‘’Heydon’s Case’’, the judges paid more attention to the ‘spirit’ of thelaw than to the letter. Having found the mischief they proceeded to make mischief with thewords of the statute. They remodeled the statute, by taking things out and putting thingsin, in order to fit the ‘mischief’ and ‘defect’ as they had found them.535

‘Modern courts continue to apply the rule in a more restricted manner, and generally with agreater regard for the integrity of the statutes which they are interpreting. Driedger puts itthis way: ‘To this day, ‘’Heydon’s Case’’ is frequently cited. The courts still look for the‘mischief’ and ‘remedy’, but now use what they find as aids to discover the meaning of whatthe legislature has said rather than to change it.’536 Driedger goes on to argue that thismodern use of the mischief rule ought to be understood as one of the components of whathe characterized as the ‘modern’ method of statutory construction, rather than a stand-alone rule serving (as it formerly had), as an alternative to the methods of constructionproposed by the plain meaning rule and the golden rule.

The mischief rule is the most flexible of the interpretation methods.Coming from Heydon’s case (1584)537, it allows the court to enforce whatthe statute is aimed at remedying rather than what the wordsactually say. When it is not clear whether an act falls within whatis prohibited by a particular piece of legislation, the judges canapply the mischief rule. Also, if a strict literal interpretationleads to absurdity, and the golden rule leads to something that is

535 Elmer Driedger, ‘’The Construction of Statutes’’. Second Edition. Toronto: Butterworths, 1983, pp. 74-75.

536 Elmer Driedger, ‘’The Construction of Statutes’’. Second Edition. Toronto: Butterworths, 1983, p. 75.

537 (1584) 76 ER 637

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clearly outside the overall context of the act, a court can applythe mischief rule. A disadvantage of this rule is that it is notalways easy to discover ‘mischief’ at which the particular Act wasaimed at. This rule was originally derived from Heydon’s case, a caseis considered a landmark because it was the first case to use whatwould come to be called the mischief rule for the interpretation ofstatutes. The mischief rule is more flexible than the Golden orLiteral rule, in that the mischief rule requires judges to lookover four tasks to ensure that gaps within the law are covered.

consolidating statuteConsolidating statute is a statute that collects the legislative

provisions on a particular topic and embodies them in a singlestatute, often with minor amendments and drafting improvements. Thecourts generally presume that a consolidating statute leaves priorcaselaw intact.

A consolidating statute re-enacts and repeals particular legal subjectmatter which was previously contained in several differentstatutes. Its purpose is to state the combined effect of differentstatutes and so simplify the presentation of the law.

enabling statuteA law that gives new or extended authority or powers, generally to a

public official or to a corporation.ex post facto law or retroactive lawAn ex post facto law (from the Latin for ‘from after the action’ or

‘after the fact’) or retroactive law is a law that retroactivelychanges the legal consequences (or status) of actions committed orrelationships that existed prior to the enactment of the law. Inreference to criminal law, it may criminalize actions that werelegal when committed; or it may aggravate a crime by bringing itinto a more severe category than it was in at the time it wascommitted; or it may change or increase the punishment prescribedfor a crime, such as by adding new penalties or extending terms; orit may alter the rules of evidence in order to make conviction fora crime more likely than it would have been at the time of theaction for which a defendant is prosecuted. Conversely, a form ofex post facto law commonly known as an amnesty law maydecriminalize certain acts or alleviate possible punishments (forexample by replacing the death sentence with lifelong imprisonment)retroactively. Such laws are also known by the Latin term Inmitius.

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A law may have an ex post facto effect without being technically expost facto. For example, when a law repeals a previous law, therepealed legislation no longer applies to the situations it oncedid, even if such situations arose before the law was repealed. Theprinciple of prohibiting the continued application of these kindsof laws is also known as Nullum crimen, nulla poena sine praevialege poenali, particularly in European continental systems.

Some common law jurisdictions do not permit retroactive criminallegislation, though new precedent generally applies to events thatoccurred prior to the judicial decision. ex post facto laws areexpressly forbidden by the United States Constitution. In somenations that follow the Westminster system of government, such asthe United Kingdom, ex post facto laws are technically possible asthe doctrine of parliamentary supremacy allows Parliament to passany law it wishes. However, in a nation with an entrenched bill ofrights or a written constitution, ex post facto legislation may beprohibited.

cassus omissusAn omitted case. When a statute or an instrument of writing undertakes to

foresee and to provide for certain contingencies, and throughmistake, or some other cause, a case remains to be provided for, itis said to be a casus omissus.For example, when a statute providesfor the descent of intestates estates, and omits a case, the estatedescends as it did before the statute, whenever that, case occurs,although it appear to be within the general scope and intent of thestatute.538

dillon's ruleA rule of judicial interpretation that a municipality may exercise

only those powers expressly conferred by statute, necessarily orfairly implied by the expressed power in the statute, or essentialand not merely convenient.

social purpose rule A rule of statutory construction, the process of interpreting and

applying legislation, where the courts look at the whether theapplication of law will lead to desired social results of fairness,or it would amount to someone benefiting from his wrongful act.Held in Riggs 539. In these cases, judges must decide which of thepossible applications of the legal rules are best social policy andthen apply the rule which is best.

538 2 Binn. R. 279.539 Riggs v. Palmer, 115 N.Y. 506 (1889),

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riggs principleRiggs540 was an example of the judiciary using the ‘social purpose’ rule of

statutory construction, the process of interpreting and applyinglegislation. In Riggs, a probate suit, the plaintiffs, sought toinvalidate the will of their father since the defendant in thecase, a grandson to the testator, knowing that he was to be therecipient of his grandfather's large estate, but fearing that hisgrandfather might change the will, murdered his grandfather bypoisoning. The plaintiffs argued that by allowing the will to beexecuted Elmer would be profiting from his crime. While a criminallaw existed to punish Elmer for the murder, there was no statuteunder either probate or criminal law that invalidated his claim tothe estate based on his role in the murder. The court reasoned thattenets of universal law and maxims would be violated by allowingElmer to profit from his crime. The court held that the legislaturecould not be reasonably expected to address all contingencies incrafting laws and that, had they reason to suspect one might behavein the manner Elmer did, they certainly would have addressed thatsituation.541 Such decision of decisions occupy the penumbra of legalrules, where the direction of the legal rule is unclear. In thesecases, judges must decide which of the possible applications of thelegal rules are best social policy and then apply the rule which isbest.

internal and external consistency doctrineIt is presumed that a statute will be interpreted so as to be

internally consistent. A particular section of the statute shallnot be divorced from the rest of the act. A statute shall not beinterpreted so as to be inconsistent with other statutes. Wherethere is an inconsistency, the judiciary will attempt to provide aharmonious interpretation.

statements of the legislature

Legislative bodies themselves may try to influence or assist thecourts in interpreting their laws by placing into the legislationitself statements to that effect. These provisions have manydifferent names, but are typically noted as:

و Declarations, sometimes suffixed with of Policy or of Intent; or

540 Id 541 Hart, H.L.A. (1961). The Concept of Law. Oxford University Press. ISBN 0198760051;

See also Dworkin, Ronald (1986). Law's Empire. Cambridge, MA: Belknap Press (HarvardUniversity Press). ISBN 0-674-51836-5.

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و Sense of Congress, or of either house in multi-chamber bodies.

These provisions of the bill simply give the legislature's goals anddesired effects of the law, and are considered nonsubstantive andnon-enforcable in and of themselves.542

canons or canons of construction

Also known as canons of construction, canons give common senseguidance to courts in interpreting the meaning of statutes. Mostcanons emerge from the common law process through the choices ofjudges. Proponents of the use of canons argue that the canonsconstrain judges and limit the ability of the courts to legislatefrom the bench. Critics argue that a judge always has a choicebetween competing canons that lead to different results, sojudicial discretion is only hidden through the use of canons, notreduced.

textual ruleTextual canons are rules of thumb for understanding the words of the

text. Some of the canons are still known by their traditional Latinnames.

plain meaningWhen writing statutes, the legislature intends to use ordinary English

words in their ordinary senses. If a statute's language is plainand clear, the Court further warned that ‘the duty ofinterpretation does not arise, and the rules which are to aiddoubtful meanings need no discussion.’

ejusdem generis rule The ejusdem generis (Latin for ‘of the same kind, class, or nature’) rule applies

to resolve the problem of giving meaning to groups of words whereone of the words is ambiguous or inherently unclear. The ruleresults that where ‘general words follow enumerations of particularclasses or persons or things, the general words shall be construedas applicable only to persons or things of the same general natureor kind as those enumerated.’543 Thus, in a statute forbidding theconcealment on one's person of ‘pistols, revolvers, derringers, orother dangerous weapons,’ the term ‘dangerous weapons’ may beconstrued to comprehend only dangerous weapons of the kindenumerated, i.e., firearms, or perhaps more narrowly still,

542 American Jurisprudence 2d, Vol. 73, ‘Statutes’ (West Group 2001); see also NormanJ. Singer, Sutherland Statutory Construction, 6th Edition, Vol. 1A, §20.12 (West Group 2000)

543 F. Supp. 846, 859.

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handguns. Here, the term ‘dangerous weapons’ must be given ameaning of the ‘same kind’ as the word of established meaning.

charming betsy canon National statute must be construed so as not to conflict with

international law. 544 ‘It has also been observed that an act of parliament oughtnever to be construed to violate the law of nations if any other possible constructionremains...’

interpretation in light of fundamental values Statute does not violate fundamental societal values. 545

rule of lenity In construing an ambiguous criminal statute, the court should resolve

the ambiguity in favor of the defendant.546 avoidance of abrogation of state sovereignty doctrineStatute should not create abrogation of state duty.547 indian’ canon National statute must be construed in favor of Natives.548 ‘statutes are to

be construed liberally in favor of Indians with ambiguous provisions interpreted to theirbenefit.’

rule of deferenceDeference canons instruct the court to defer to the interpretation of

another institution, such as an administrative agency orParliament. These canons reflect an understanding that thejudiciary is not the only branch of government entrusted withconstitutional responsibility. If a statute administered by anagency is ambiguous with respect to the specific issue, the courtswill defer to the agency's reasonable interpretation of thestatute. This rule of deference was formulated by the United StatesSupreme Court in Chevron v. Natural Resources Defense Council549.

544 See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804):545 See, for example, Holy Trinity Church v. United States, 143 U.S. 457 (1892).546 See McNally v. United States, 483 U.S. 350 (1987); See, e.g., Muscarello v. U.S., 524

U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S., 504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977) (Stewart, J., dissenting); See United States v. Santos (2008).

547 See Gregory v. Ashcroft, 501 U.S. 452 (1991); see also Gonzales v. Oregon, 546 U.S. 243 (2006); see also Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003)

548 See Chicksaw Nation v. United States, 534 U.S. 84 (2001):549 467 U.S. 837 (1984)

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canon of constitutional avoidanceIf a statute is susceptible to more than one reasonable construction,

courts should choose an interpretation that avoids raisingconstitutional problems. The traditional avoidance canon requiredthe court to choose a different interpretation only when oneinterpretation was actually unconstitutional. The modern avoidancecanon tells the court to choose a different interpretation whenanother interpretation merely raises constitutional doubts.550

clear statement rule When a statute may be interpreted to abridge long-held rights of

individuals or states, or make a large policy change, courts willnot interpret the statute to make the change unless the legislatureclearly stated it. This rule is based on the assumption that thelegislature would not make major changes in a vague or unclear way,and to ensure that voters are able to hold the appropriate legislatorsresponsible for the modification.

leges posteriores priores contrarias abrogant (subsequent laws repealthose before enacted to the contrary, aka last in time rule)

When two statutes conflict, the one enacted last prevails. Critics of the use of canons argue that canons impute some sort of

‘omniscience’ to the legislator, suggesting that it is aware of thecanons when constructing the laws. In addition, it is argued thatthe canons give credence to judges who want to construct the law acertain way, imparting a false sense of justification to theirotherwise arbitrary process. In a classic article, Karl Llewellynargued that every canon had a ‘counter-canon’ that would lead tothe opposite interpretation of the statute.551

However, it could be argued that the fundamental nature of language isto blame for the problem of ‘for every canon, a counter.’ Interpretingwhether a statute applies to a given set of facts often boils downto analyzing whether a single word or short phrase covers someelement of the factual situation before the judge. Theexpansiveness of language necessarily means that there will oftenbe good (or equally unconvincing) arguments for two competinginterpretations. A judge is then forced to resort to documentationof legislative intent, which may also be unhelpful, and then

550 Einer Elhauge. Statutory Default Rules: How to Interpret Unclear Legislation. Harvard University Press (2008), p. 237–39. ISBN 978-0-674-02460-1; See laso United States v. Jin Fuey Moy’, 241 U.S. 394, 401 (1916).

551 Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules of Cannons About How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950) repubished with permission in 5 Green Bag 297 (2002).

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finally to his or her own judgment of what outcome is ultimatelyfair and logical under the totality of the circumstances. Canons ofstatutory construction give judge the ability to decide questionsof statutory interpretation that necessarily rely on an element ofjudicial discretion.

literal ruleSee plain meaning rule plain meaning rule The plain meaning rule, also known as the literal rule, is one of three

rules of statutory construction traditionally applied by Common lawcourts .552 The other two are the ‘mischief rule‘and the ‘golden rule.’

The plain meaning rule dictates that statutes are to be interpretedusing the ordinary meaning of the language of the statute, unless astatute explicitly defines some of its terms otherwise. In otherwords, the law is to be read word for word and should not divertfrom its ordinary meaning. The plain meaning rule is the mechanismthat underlines textualism and, to a certain extent, originalism.

To avoid ambiguity, legislatures often include ‘definitions’ sectionswithin a statute, which explicitly define the most important termsused in that statute.553 But some statutes omit a definitionssection entirely, or (more commonly) fail to define a particularterm. The plain meaning rule attempts to guide courts faced withlitigation that turns on the meaning of a term not defined by thestatute, or on that of a word found within a definition itself.

According to the plain meaning rule, absent a contrary definitionwithin the statute, words must be given their plain, ordinary andliteral meaning. If the words are clear, they must be applied, eventhough the intention of the legislator may have been different orthe result is harsh or undesirable. The literal rule is what thelaw says instead of what the law was intended to say.

soft plain meaning ruleSee doctrine of ‘scrivener's error’

552 ‘The notion has long prevailed that three different rules or approaches may be employed in ascertaining the meaning of a statute. First, there is said to be the ‘purpose’ approach or ‘mischief rule’....Then there is said to be the ‘literal’ approach or ‘plain meaning’ rule....Finally there is what is called the ‘golden rule’.... Source: Elmer Driedger, Construction of Statutes. Toronto: Butterworths, 1983,p. 1.

553 See, e.g., 18 U.S.C. §1531(b) (defining ‘partial-birth abortion’ as comprehended by the Partial-Birth Abortion Ban Act of 2003).

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scrivener's errorsee American Rule

american rule (statutory interpretation)Justices normally impose an absurdity limit on this rule, which states

that a statute cannot be interpreted literally if it would lead toan absurd result. In the Supreme Court Chung Fook v. White (1924)554

marked the beginning of the looser American Rule that the intent ofthe law was more important than its text. The court in Chung Fookmarked the end of the era of strict plain meaning interpretation ofstatutes and the beginning of the looser American Rule that theintent of the law was more important than its text. It states thata man did not have the automatic right to bring his wife to theUnited States if he married her after he entered there even if thatexception was not explicitly mentioned in the law.

This is sometimes termed the soft plain meaning rule, where the statute isinterpreted according to the ordinary meaning of the language,unless the result would be cruel or absurd555. Even the most vocalsupporters of textualism and the plain meaning rule have beenwilling to commute ‘strict’ plain meaning to ‘soft’ plain meaningto a certain extent, in some circumstances; see, e.g. United States v. X-Citement Video,556 (Scalia, J., dissenting):

I have been willing, in the case of civil statutes, to acknowledge a doctrine of ‘scrivener's error’that permits a court to give an unusual (though not unheard-of) meaning to a word which,if given its normal meaning, would produce an absurd and arguably unconstitutionalresult.

In the United Kingdom, this is referred to as the Golden Rule.Proponents of the plain meaning rule claim that it prevents courts

from taking sides in legislative or political issues. They alsopoint out that ordinary people and lawyers do not have extensiveaccess to secondary sources. This is the oldest of the rules ofconstruction and is still used today, primarily because judges maynot legislate. As there is always the danger that a particularinterpretation may be the equivalent of making law, some judgesprefer to adhere to the law's literal wording. In probate law therule is also favored because the testator is typically not aroundto indicate what interpretation of a will is appropriate.Therefore, it is argued, extrinsic evidence should not be allowed

554 264 U.S. 443 (1924)555 For example, see Rector, Holy Trinity Church v. United States 143 U.S. 457 (1892)556 513 U.S. 64 (1994)

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to vary the words used by the testator or their meaning. It canhelp to provide for consistency in interpretation.

Opponents of the plain meaning rule claim that the rule rests on theerroneous assumption that words have a fixed meaning. In fact,words are imprecise, leading justices to impose their ownprejudices to determine the meaning of a statute. However, sincelittle else is offered as an alternative discretion-confiningtheory, plain meaning survives.

absurdityIn law, strictly literal interpretations of statutes can lead to

logical absurdities, and the Doctrine of Absurdity is thatcommonsense interpretations should be used in such cases, ratherthan literal reading of a law or of original intent. The Absurditydoctrine is a doctrine in legal theory, also known as ‘Scrivener’sError‘; in which courts have interpreted statutes contrary to theirplain meaning in order to avoid absurd legal conclusions.557 It iscontrasted with.558

The common sense of man approves the judgment mentioned by Pufendorf[sic. Puffendorf], that the Bolognian law which enacted ‘that whoeverdrew blood in the streets should be punished with the utmost severity’559, did notextend to the surgeon who opened the vein of a person that felldown in the street in a fit. The same common sense accepts theruling, cited by Plowden, that the statute of 1st Edward II, whichenacts that a prisoner who breaks prison shall be guilty of afelony, does not extend to a prisoner who breaks out when theprison is on fire – ‘for he is not to be hanged because he would not stay to beburnt’. 560

An explanation of the rule was given in the Sussex Peerage Case561. ‘The onlyrule for construction of Acts of Parliament is that they should be construed according to theintent of the Parliament which passed the Act. If the words of the Statute are in themselvesprecise and unambiguous, then no more can be necessary than to expound those words in

557 The Absurdity Doctrine, Harvard Law Review, John F. Manning, Vol.116, #8, June, 2003, pp. 2387-2486; se ealsoStatutory Construction and the ‘Absurdity Doctrine’ or ‘Scrivener's Error’ Exception, Francis G.X. Pileggi; see also Avoiding Absurdity, Indiana Law Journal, Vol. 81, p. 1001, 2006, Glen Staszewski,

558 See 44 Am. U. L. Rev. 127 (1994-1995) Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation, Veronica M Dougherty

559 Craig L. Carr (ed), The Political Writings of Samuel Pufendorf (Oxford 1994).560 44 Am. U. L. Rev. 127 (1994-1995) Absurdity and the Limits of Literalism:

Defining the Absurd Result Principle in Statutory Interpretation, Veronica M Dougherty

561 1844; 1 Cl&Fin 85

http://en.wikipedia.org/wiki/Pufendorf

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that natural and ordinary sense. The words themselves alone do, in such a case, bestdeclare the intention of the law giver.’

Ironically, however, use of the literal rule may defeat the intentionof Parliament. For instance, in the case of Whiteley v. Chappel562, thecourt came to the reluctant conclusion that Whiteley could not beconvicted of impersonating ‘any person entitled to vote’ at anelection, because the person he impersonated was dead. Using aliteral construction of the relevant statutory provision, thedeceased was not ‘a person entitled to vote.’ This, surely, cannothave been the intention of Parliament. However, the literal ruledoes not take into account the consequences of a literalinterpretation, only whether words have a clear meaning that makessense within that context. If Parliament does not like the literalinterpretation, then it must amend the legislation.563

british ruleSee golden rule

golden rule or british ruleSubsidiary of the literal rule; the golden rule is only used where

using the literal rule might lead to an absurd result. The usuallycited authority for this approach is Lord Wensleydale in Grey v.Pearson564

‘…and all written instruments, the grammatical and ordinary sense of the words is to beadhered to, unless that would lead to some absurdity, or some repugnance orinconsistency with the rest of the instrument, in which case the grammatical and ordinarysense of the words may be modified, so as to avoid that absurdity and inconsistency, but nofurther.’

In Alder v. George565a conviction was challenged on the basis of what wasan obvious miswording in the Official Secrets Act (1920). This Act made itan offence to obstruct a member of the armed forces ‘in thevicinity of’ particular locations, but not actually ‘in’ thoselocations. The defendant was actually inside an Air Force base atthe time of the incident, which he claimed was beyond the literalscope of the act. It was held that the words ‘in vicinity of’included being found ‘in’ the prohibited area. In its broad sense,it is used to give a different meaning where plain meaning would beunacceptable for policy reason. This occurred in Re Sigsworth (1935)566

562 1868; LR 4 QB 147563 See Cheeseman v DPP [1990]564 (1857) 6 HL Cas 61, 106; 10ER 1216, 1234565 [1964] 2 QB 7.566 [1935] 1 Ch 98.

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where a man who murdered his mother was forbidden from inheritingher estate, despite a statute to the contrary.

Golden rule, or British rule, is a form of statutory constructiontraditionally applied by Common law courts . The other two are the‘plain meaning rule‘(also known as the ‘literal rule’) and the‘mischief rule.’

The golden rule allows a judge to depart from a word's normal meaningin order to avoid an absurd result.

The term ‘golden rule’ seems to have originated in an 1854 courtruling,567 and implies a degree of enthusiasm for this particularrule of construction over alternative rules that has not beenshared by all subsequent judges. For example, one judge made apoint of including this note in a 1940 decision: ‘The golden rule is thatthe words of a statute must prima facie be given their ordinary meaning.’568

Like the plain meaning rule, the golden rule gives the words of astatute their plain, ordinary meaning. However, when this may leadto an irrational result that is unlikely to be the legislature'sintention, the golden rule dictates that a judge can depart fromthis meaning. In the case of homographs, where a word can have morethan one meaning, the judge can choose the preferred meaning; ifthe word only has one meaning, but applying this would lead to abad decision, the judge can apply a completely different meaning.

The rule is usually based on part of Becke v Smith569 per Justice Parke(later Lord Wensleydale), which states:

‘It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of thewords used, and to the grammatical construction, unless that is at variance with theintention of the legislature to be collected from the statute itself, or leads to any manifestabsurdity or repugnance, in which case the language may be varied or modified so as toavoid such inconvenience but no further.’

This rule may be used in two ways. It is applied most frequently in anarrow sense where there is some ambiguity or absurdity in thewords themselves.

For example, imagine there may be a sign saying ‘Do not use lifts in case of fire.’Under the literal interpretation of this sign, people must neveruse the lifts, in case there is a fire. However, this would be anabsurd result, as the intention of the person who made the sign is

567 Chief Justice Jervis, in Mattison v. Hart, [1854], 14 C.B. 357, at p. 385.568 Viscount Simon, in Nokes v. Doncaster Amalgamated Collieries, [1940] A.C. 1014, at p.

1022.569 (1836) 2 M&W 195

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obviously to prevent people from using the lifts only if there iscurrently a fire nearby.

The second use of the golden rule is in a wider sense, to avoid aresult that is obnoxious to principles of public policy, even wherewords have only one meaning.

The rule was applied in this second sense in Bedford v Bedford570, wherethe court applied the rule to section 46 of the Administration ofEstates Act 1925. This statute required that the court should‘issue’ someone's inheritance in certain circumstances. The courtheld that no one should profit from a crime, and so used the goldenrule to prevent an undesirable result, even though there was onlyone meaning of the word ‘issue’. A son murdered his mother and thencommitted suicide. The courts were required to rule on who theninherited the estate: the mother's family, or the son'sdescendants. There was never a question of the son profiting fromhis crime, but as the outcome would have been binding on lowercourts in the future, the court found in favour of the mother'sfamily.571

purposive theory or teleological approach or broad interpretationtheory

Purposive theory (or the teleological approach) is a theory ofstatutory interpretation that holds that common law courts shouldinterpret legislation in light of the purpose behind thelegislation. Purposive theory of interporetation requires a braodapproach to interpretation. Purposive theory stands in contrast totextualism or statutory derogation, two other prominent common lawinterpretation theories.

In Pepper v. Hart572, the House of Lords held that courts may now take apurposive approach to interpreting legislation when the traditionalmethods of statutory construction are in doubt or result in anabsurdity. To find what Parliament intended, all sources includingHansard (records of debates in Parliament before an Act is passed)may be consulted. Lord Griffiths stated (at 617),

‘My Lords, I have long thought that the time had come to change the self-imposed judicial rulethat forbade any reference to the legislative history of an enactment as an aid to itsinterpretation. The ever increasing volume of legislation must inevitably result inambiguities of statutory language which are not perceived at the time the legislation isenacted. The object of the court in interpreting legislation is to give effect so far as the

570 1935; Ch 89571 Lord Simon of Glaisdale, reasons for judgment in Stock v. Frank Jones (Tipton) Ltd. [1978]

1 W.L.R. 231, at p. 235.572 [1993] AC 593

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language permits to the intention of the legislature. If the language proves to beambiguous I can see no sound reason not to consult Hansard to see if there is a clearstatement of the meaning that the words were intended to carry. The days have longpassed when the courts adopted a strict constructionist view of interpretation whichrequired them to adopt the literal meaning of the language. The courts now adopt apurposive approach which seeks to give effect to the true purpose of legislation and areprepared to look at much extraneous material that bears upon the background againstwhich the legislation was enacted. Why then cut ourselves off from the one source in whichmay be found an authoritative statement of the intention with which the legislation isplaced before Parliament?’

strict constructionism Strict constructionism refers to a particular legal philosophy of

judicial interpretation that limits or restricts judicialinterpretation. The phrase is also commonly used more loosely as ageneric term for conservatism among the judiciary.

Strict construction requires a judge to apply the text only as it isspoken. Once the court has a clear meaning of the text, no furtherinvestigation is required. Judges should avoid drawing inferencesfrom a statute or constitution and focus only on the text itself.573

Justice Hugo Black argued that the First Amendment's injunction,that Congress shall make no law (against certain civil rights), should beconstrued strictly: no law, thought Black, admits no exceptions.Ironically, Black's legacy is as a judicial activist.574 However,‘strict construction’ is not a synonym for textualism ororiginalism, and many adherents of the latter two philosophies arethus misidentified as ‘strict constructionists.’

The term is often contrasted with the phrase ‘judicial activism,’ usedto describe judges who seek to enact legislation through courtrulings, although the two terms are not actually opposites.

living constitution, loose constructionismLiving Constitution is a concept in America, also referred to as loose

constructionism, constitutional interpretation which claims that theConstitution has a dynamic meaning or that it has the properties ofa human in the sense that it changes. The idea is associated withviews that contemporaneous society should be taken into accountwhen interpreting key constitutional phrases.575

573 The Judiciary: The Power of the Federal Judiciary, The Social Studies Help Center574 Supreme Court, United States, Questia.com 575 Winkler, Adam. A Revolution Too Soon: Woman Suffragists and The ‘Living Constitution’. 76 NYULR

1456, 1463 (‘Based on the idea that society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Justice Oliver Wendell Holmes Jr., ‘must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.’)

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While the arguments for the Living Constitution vary, they cangenerally be broken into two categories.

و First, the pragmatist view contends that interpreting the Constitution in accordance withlong outdated views is often unacceptable as a policy matter, and thus that an evolvinginterpretation is necessary.

و The second, relating to intent, contends that the constitutional framers specifically wrotethe Constitution in broad and flexible terms to create such a dynamic, ‘living’ document.

Opponents of the idea often argue that the Constitution should bechanged through the amendment process, and that the theory can beused by judges to inject their personal values into constitutionalinterpretation.

judicial pragmatismAlthough ‘the living Constitution’ is itself a characterization rather

than a specific method of interpretation, the phrase is associatedwith various non-originalist theories of interpretation. The mostcommon association is with judicial pragmatism.576

According to the pragmatist view, the Constitution should be seen asevolving over time as a matter of social necessity. Looking solelyto original meaning, when the original intent was largely to permitmany practices universally condemned today, is under this viewcause to reject pure originalism out of hand.

Under this view, for example, constitutional requirements should beread with regard to current standards of equality, and not those ofdecades or centuries ago, because the alternative would beunacceptable.

original intentIn addition to pragmatist arguments, most proponents of the living

Constitution argue that the Constitution was deliberately writtento be broad and flexible to accommodate social or technologicalchange over time.

In the draught of a fundamental constitution, two things deserveattention:

1) To insert essential principles only; lest the operations of government should be clogged byrendering those provisions permanent and unalterable, which ought to be accommodatedto times and events: and

2) To use simple and precise language, and general propositions, according to the example ofthe constitutions of the several states.577

576 Harold Koh, 41 Duke Law Journal 122, 128 (1991)(note 34).

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The living constitution's proponents assert that Randolph's injunctionto use ‘simple and precise language, and general propositions,’such that the Constitution could ‘be accommodated to times andevents,’ is evidence of the ‘genius’ of the Constitutional framers.It is one of the main arguments for the living Constitutionalframework. Among other quotes cited in support of the livingConstitution is Justice John Marshall's in McCulloch v. Maryland578, inwhich he described the Constitution as ‘intended to endure for ages to come,and, consequently, to be adapted to the various crises of human affairs.’579 Thesestatements are seen as a call for respecting the text and meaningof constitutional language, but also for allowing contemporaryneeds or values to inform its application to modern events.

James Madison, principal author of the U.S. Constitution and oftencalled the ‘Father of the Constitution’. Said this:

‘I entirely concur in the propriety of resorting to the sense in which the Constitution wasaccepted and ratified by the nation. In that sense alone it is the legitimate Constitution. Andif that is not the guide in expounding it, there may be no security for a consistent andstable, more than for a faithful exercise of its powers. If the meaning of the text be soughtin the changeable meaning of the words composing it, it is evident that the shape andattributes of the Government must partake of the changes to which the words and phrasesof all living languages are constantly subject. What a metamorphosis would be produced inthe code of law if all its ancient phraseology were to be taken in its modern sense.’580

judicial activismAnother common view of the Living Constitution is as synonymous with

‘judicial activism,’ a phrase generally used to accuse judges ofresolving cases based on their own political convictions orpreferences.

The pejorative ‘judicial activism’ is most commonly subjective, so itis not proper to classify all decisions made using the Livinginterpretation as activist. More properly, it could be argued thata Living interpretation leaves much more room for political bias

577 Records of the Federal Convention, available athttp://press-pubs.uchicago.edu/founders/documents/preambles7.html Retrieved4/17/07; See also Goldford, Dennis J (2005). The American Constitution and the Debate OverOriginalism. Cambidge University Press, Pg. 59. ISBN 0521845580 (‘Harold Kohjustifies such a position by distinguishing between a rigid literalism he ascribesto originalism and a flexible pragmatism that views the Constitution as a livingdocument that must adapt to modern times.’)

578 McCulloch v. Maryland, 17 U.S. 316 (1819)579 Balkin, Jack. Alive and Kicking: Why no one truly believes in a dead

Constitution. August 29, 2005 http://www.slate.com/id/2125226/ Retrieved 4/20/07580 Labunski, Richard, James Madison and the Struggle for the Bill of Rights, pp.195-7, Oxford

University Press, New York, NY, 2006.

http://www.slate.com/id/2125226/


http://press-pubs.uchicago.edu/founders/documents/preambles7.html%20Retrieved%204/17/07

http://press-pubs.uchicago.edu/founders/documents/preambles7.html%20Retrieved%204/17/07

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than other interpretations, thus creating more opportunity formisuses of judicial power.

The doctrine of the ‘living Constitution’ relies on the concept thatthe original framers either could not come to a consensus about howto interpret, or they never intended any fixed method ofinterpretation. This would then allow future generations thefreedom to reexamine for themselves how to interpret theConstitution.

In 1987, Supreme Court Justice Thurgood Marshall delivered a lecture,‘The Constitution: A Living Document,’ in which he argued that theConstitution must be interpreted in light of the moral, political,and cultural climate of the age of interpretation.581 If JudgeBork's formulation of ‘the living Constitution’ is guiding, thenany interpretation of the Constitution other than originalism (ofone form or another) implicates a living Constitution.

Oliver Wendell Holmes, Jr., wrote in 1914: 'The provisions of the Constitution are not mathematical formulas....They are organic, living

institutions.'582

elmann doctrine The decision in Republic vs. Elmann583 (supra) has come to be known as the

Elmann doctrine and has mistakenly been construed to say that theConstitution would be construed like any other ordinarystatute. The said decision reiterated two cardinal principles ofinterpretation, the Constitution will be given a liberalinterpretation in certain contexts where the words used areambiguous and imprecise. Where the words used are precise andunambiguous they will be construed in their literal meaning.

progressive interpretationSee the living tree doctrine

literal rule This the primary rule that takes precedence over the others. Words

and phrases should be construed by the courts in their ordinarysense, and the ordinary rules of grammar and punctuation shouldapply i.e. this gives the words in dispute their ‘plain, ordinaryliteral meaning’. Tindal C.J. made one of the leading statements of the ‘literal rule’ inadvising the House of Lords in the Sussex Peerage Case,

581 Lithwick, Dahlia. Reasons To Go On Living: Does anyone believe in a ‘living Constitution’ anymore? August 23, 2005. http://www.slate.com/id/2124891/ Retrieved 4/20/07.

582 James, Leanoard Frank (1964). The Supreme Court in American Life. Chicago: Scott, Foresman. Pg. 159.

583 [1969] EA 357

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“My Lords, the only rule for the construction of the Act of Parliament is that they should beconstrued according to the intent of the Parliament which passed the Act. If the words ofthe statute are in themselves precise and unambiguous, then no more can be necessarythan expound those words in their natural and ordinary sense.”

The literal rule encourages precision in drafting. Should anyalternative approach be adopted, an alteration of the statutorylanguage could be seen as usurpation by non-elected judges of thelegislative function of Parliament and other users, would have thedifficult task of predicting how doubtful provisions might be“rewritten” by the judges.

The full force of the literal rule was in the case of Whitely v. Chappell(1869). The defendant voted in the name of a person who had died,but was f not guilty of the offense of personating ‘any personentitled to vote’, since a dead person is not entitled to vote.

golden ruleSubsidiary of the literal rule. It is only used where using the

literal rule might lead to an absurd result. The usually citedauthority for this approach is Lord Wensleydale in Grey v. Pearson(1957) “…and all written instruments, the grammatical and ordinarysense of the words is to be adhered to, unless that would lead tosome absurdity, or some repugnance or inconsistency with the restof the instrument, in which case the grammatical and ordinary senseof the words may be modified, so as to avoid that absurdity andinconsistency, but no further.” In Alder v. George (1967) a convictionwas challenged on the basis of what was an obvious miswording inthe Official Secrets Act (1920). This Act made it an offence to obstruct amember of the armed forces “in the vicinity of” particularlocations, but not actually “in” those locations. The defendant wasactually inside an Air Force base at the time of the incident,which he claimed was beyond the literal scope of the act. It washeld that the words “in vicinity of” included being found “in” theprohibited area. In its broad sense, it is used to give a differentmeaning where plain meaning would be unacceptable for policyreason. This occurred in Re Sigsworth (1935) where a man who murderedhis mother was forbidden from inheriting her estate, despite astatute to the contrary..

mischief rule (purposive approach in modern usage)The mischief rule is the most flexible of the interpretation methods.

Coming from Heydon’s case (1584), it allows the court to enforce whatthe statute is aimed at remedying rather than what the wordsactually say. When it is not clear whether an act falls within whatis prohibited by a particular piece of legislation, the judges can

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apply the mischief rule. Also, if a strict literal interpretationleads to absurdity, and the golden rule leads to something that isclearly outside the overall context of the act, a court can applythe mischief rule. A disadvantage of this rule is that it is notalways easy to discover “mischief” at which the particular Act wasaimed at.

This rule was originally derived from Heydon’s case (1584), whichidentified a four-point procedure.

i. Examine the Common law prior to the Act.

ii. Locate the mischief or defect for which the Common law did not provide.

iii. Identify the remedy Parliament has decided and appointed to eliminate the mischief.

iv. The true reason of the remedy, and the judges should always make such construction asshall suppress the mischief.

For example, in United Kingdom (U.K.) the Street Offences Act 1959 made itan offence for a prostitute to solicit men ‘in a street or publicplace’. In Smith v. Hughes the question was whether a woman who hadtapped on a balcony and hissed at men passing by was guilty of anoffence under the Act. Parker, L.C.J found her guilty after havingused the mischief rule. Similarly, in Corkery v Carpenter (1950), aman was found guilty of being drunk in charge of a carriage,although in fact he only had a bicycle. The mischief in theprevious law was the absence of protection for the road users fromthose who were drunk and therefore not in control of their actions.

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CONSTITUTIONAL INTERPRETATION

constitutional interpretation, or constitutional constructionConstitutional interpretation, or constitutional construction, the

term more often used by the Founders, is the process by whichmeanings are assigned to words in a constitution, to enable legaldecisions to be made that are justified by it. Some scholarsdistinguish between "interpretation" — assigning meanings based onthe meanings in other usages of the terms by those the writers andtheir readers had probably read, and "construction" — inferring themeaning from a broader set of evidence, such as the structure ofthe complete document from which one can discern the function ofvarious parts, discussion by the drafters or ratifiers duringdebate leading to adoption ("legislative history"), the backgroundof controversies in which the terms were used that indicate theconcerns and expectations of the drafters and ratifiers,alternative wordings and their meanings accepted or rejected atdifferent points in development, and indications of meanings thatcan be inferred from what is not said, among other methods ofanalysis.

Constitutional controversies are about whether an official act isconsistent with, and authorized by, a constitution orconstitutional statute or court decision. Since a constitution is alaw, and the supreme law within its domain, and authorizes statutesand other official acts which have a textual expression, theprinciples of constitutional interpretation are essentially thesame as the principles of statutory or judicial interpretation.

Most legal scholars recognize seven main methods of judicialdecisionmaking: textual, historical, functional, doctrinal,prudential, equitable, and natural, although they may differ onwhat each includes, and there is some overlap among them584.

living tree doctrine Living tree doctrine is a doctrine of constitutional interpretation

that says that a constitution is organic and must be read in abroad and progressive manner so as to adapt it to the changingtimes.

The living tree doctrine has been deeply entrenched into Canadianconstitutional law since the seminal constitutional case of Edwardsv. Canada (Attorney General)585 also widely known as the ‘Persons Case’

584 Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub.Pol'y 23, 24 (1994).

585 [1930] A.C. 124

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wherein Lord Sankey stated: ‘The British North America Act planted in Canada aliving tree capable of growth and expansion within its natural limits.’ This is knownas the Doctrine of Progressive Interpretation. This means that theConstitution cannot be interpreted in the same way as an ordinarystatute. Rather, it must be read within the context of society toensure that it adapts and reflects changes. If constitutionalinterpretation adheres to the Framer's Intent and remains rooted inthe past, the Constitution would not be reflective of society andeventually fall into disuse.

The ‘frozen concepts’ reasoning runs contrary to one of the mostfundamental principles of Canadian constitutional interpretation:that our Constitution is a living tree which, by way of progressiveinterpretation, accommodates and addresses the realities of modernlife.586

ambiguity in constitutional lawIn Constitutional Law, statutes that contain ambiguous language are

VOID FOR VAGUENESS.587 The language of such laws is considered soobscure and uncertain that a reasonable person cannot determinefrom a reading what the law purports to command or prohibit. Thisstatutory ambiguity deprives a person of the notice requirement ofDue Process of Law, and, therefore, renders the statuteunconstitutional.588

textual constructionist methods and strict constructionist methodsDecision is based on the actual words of the written law, if the

meaning of the words is unambiguous. Textualists argue that sincethe law is a command, it must mean what it meant to the lawgiver.If the meanings of the words have since changed, textual analysismust be of the words as understood by the lawgiver. The meaning ofthe words may be ascertained by associated words. Textualismappeals to the promises of simplicity and determinacy by thelawmakers. Also argued that reading sentences of the constitutionin the name of “strict construction” can leave questions as towhether the meaning of the text at issue can be interpreted withoutcontext. E.g. although the constitution may say that no law may bepassed abridging the freedom of speech, treason cannot be protectedspeech.

586 Supreme Court of Canada, in its ruling, Re: Same-Sex Marriage, December 2004587 A Law Dictionary, Adapted to the Constitution and Laws of the United States. By

John Bouvier. Published 1856.588 West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group,

Inc. All rights reserved.

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Textualism and strict constructionism are similar in that, they bothagree that a proper inquiry into constitutional interpretationbegins and ends with the text itself, not with the ‘intent’ of thewriters, judicial precedent, or consensus of society.

However, textualism differs from strict constructionism in itsappreciation for the context, and in its search for the understoodmeaning of constitutional language, as opposed to the literalmeaning of the words in question.

The case of Smith v United States is an example of where the literalmeaning strayed from the reasonable meaning of the law. Bothtextualists and strict constructionists argue that:

a) The original constitution does not allow for judicial interpretation of any form.b) Less strict interpretations of the constitution can be a method of judicial activism by judges,

which they feel is an abuse of judicial power.

historical approach to constitutional interpretationDecisions are based on the understanding revealed by the analysis of

the history of drafting and ratification of the law. When statutesand constitutions are the subject of the analysis, what is derivedis referred to as legislative history, whereas if the subject ofthe analysis is judicial edicts, it’s called case history. Atextual analysis of words whose meanings have changed also fallsunder historical analysis.

prudential approach to constitutional interpretation Decisions are based on factors that are external to the law or

interests of the parties in the case, such as response to politicalpressure, avoidance of stimulating more cases, or efficiency ofgovernment operations.

natural approach to constitutional interpretationDecisions are based on what is required by:a) Laws of nature or human nature.b) What is physically or economically possible or practicable.c) What is likely to occur.

Its origin in a Latin phrase, impossibillium nulla obligatio est.(there is no obligation to do impossible things)

equitable /ethical approach to constitutional interpretationDecisions are made based on certain factors regardless of what the

written law may provide. Such factors include:

ٮ An innate sense of justice.

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ٮ Balancing of the interests of the parties.

ٮ What is right and wrong.

This approach is often resorted to in cases in which facts were notprovided for, or anticipated by the lawgiver.

It balances the values or interests of the parties, unlike theprudential approach that balances the interests and values of thelegal system.

originalist approach to constitutional interpretationIt interprets constitutional text in light of the subjective

intentions of the lawgiver. It focuses on the original publicmeaning or understanding of a provision, for the generation thatratified or amended that provision.

It’s argued that it’s difficult to determine what counts as evidenceof intent, whose intent counts, and whether the intent should beabstract or concrete.

functional / structural approach to constitutional interpretationThis approach proposes to decide cases by looking for guidance in the

constitutions arrangement of offices and powers.It differs from textualism or strict constructionism, as it notes that

none of the constitutions’ principal ideas, such as separation ofpowers, checks and balances, federalism, democracy, or fundamentalrights, is expressly mentioned in the constitution. Texas v.White,5891869, The Court held that Texas had remained a state of theUnited States ever since it first joined the Union, despite itsjoining the Confederate States of America and its being undermilitary rule at the time of the decision in the case. It furtherheld that the Constitution did not permit states to secede from theUnited States, and that the ordinances of secession, and all theacts of the legislatures within seceding states intended to giveeffect to such ordinances, were "absolutely null".

During the war, the secessionist government of Texas had sold U.S.bonds after passing an ordinance repealing a requirement that thegovernor of Texas endorse the bonds before redeeming them. The casewas brought by the state of Texas to recover the bonds that hadthus been transferred to White, Chiles, and several others. Theissue of whether or not Texas was a state of the United States hadbearing on whether or not the Supreme Court had jurisdiction in thecase.

589 74 U.S. 800 (1869)

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Critics of this approach argue that it’s too subjective, without anyformal basis for the claims it makes, since it lacks textual,contextual, and historical support.

doctrinal approach to constitutional interpretationThis approach searches for past interpretations of the constitution,

prevailing practices and opinions legal professionals.(mainlylegislative, executive or judicial precedents)

It gives a central place to the doctrine of stare decisis, and principlesof court decision are seen as normative and not merely advisory. Itthus preserves the continuity of law. This approach gives credit tothe latest decisions.

Criticisms:

ٮ Textualists argue that it distracts attention from the constitution itself, giving too muchemphasis on the commentary on the text. According to Justice Felix Frankfurter, theultimate touchstone of constitutionality is the constitution itself, and not what others havesaid about it.

ٮ Doctrinalism allows for too much judicial discretion.

aids to interpretation (internal and external)Are used in determining the primary meaning of statutory words, and

where there is ambiguity, in pointing out the way to theinterpretation that is to be desired. Kinds of interpretationalaids

1. Internal aids: - these are found within a statute, or in “rules of language” commonlyapplied to statutory texts.

2. External aids: - these refer to sources that help in interpretation that are found outside thebody of a statute.

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Index

"Catch All" Dispute Resolution Clause, 276

72-hour clause, 275, 277abstraction (statutory interpretation), 496

abstraction principle (property & contract law), 475

absurdity, 517acceleration clause, 477accord and satisfaction, 477acquits sequitur legem, 35act of God, 38ad referendum, 478admissibility of evidence, 415admission against interest rule,

414after the fact, 38aids to interpretation (internaland external), 527

air of reality, 440Alliteration, 25Allusion, 25amadio doctrine, 473ambiguity in constitutional law,

524ambiguity in contract law, 483ambiguous question, 404ambiguous(objection), 405american rule (statutory interpretation), 516

amicus briefs, 114Amplification, 25Anadiplosis, 25Anaphora, 26ancient document, 448and strict constructionist methods, 525

anti-ambush rule, 460Antimetabole, 27Antistrophe, 26Antithesis, 24

appeal, 449appellate brief, 115appellate review, 449arbitration clause, 276are citizens, immigrants (legal or illegal), or visitors., 459

argument (persusasion not argumentation), 158

argumentative (objection), 404argumentative question, 403argumentative(objection), 405asked and answered) (objection),

405assemble a case, 38assessment of evidence, 464assume liability, 38Assumes facts not in evidence(objection), 405

assuming a fact not in evidence,403

Asyndeton, 27attorney–client privilege, 425authentic act, 473authentication, 457authenticity of evidence, 415bail out, 38balancing test, 496balancing test (evidence), 412battle of the forms, 484bench warrant, 453best evidence rule, 414, 443Best evidence rule, 408between equal equities the firstin order of time shall prevail, 35

beyond a reasonable doubt, 39beyond the scope(objection), 405beyond the shadow of a doubt,

439blue pencil test, 486blue-pencil severance, 477

663


boilerplate doctrine, 472bona fide, 39brady rule, 461breach of promise, 39breach of the peace, 39break the law, 39bright-line rule, 496bright-line test, 496british rule, 517broad interpretation theory, 519burden of persuasion, 436burden of proof, 436Business efficacy, 482business efficacy test, 487business records exception, 430by the book, 39call parties by name, 155Calls for a conclusion(objection), 404

Calls for a narrative answer. (objection), 404

Calls for an immaterial answer(objection), 404

Calls for an irrelevant answer (objection), 404

Calls for an opinion. (objection), 404

Calls for hearsay(objection), 405

Calls for privileged communication, 404

canon of constitutional avoidance, 514

canons, 513canons of construction, 513capacity to contract, 273cardinal equity, 36case, 172cassus omissus, 512cautionary rules, 463ceteris paribus, 486chances, 448character evidence, 412character evidence (civil trial), 412

character evidence (objection), 411

character witness, 413charming betsy canon, 514Chiasmus, 27choice of law clause, 477circumstantial evidence, 464citizen's arrest, 40civil action, 40civil law, 40class action lawsuit, 40clean hands doctrine, 36clear and convincing evidence,

439clear and convincing proof, 439Clear expression, 482clear statement rule, 515Clearly erroneous test, 450closing statements, 470collateral issue rule, 422come clean (with someone about something), 40

commercial law, 40common law, 40common property, 41communication rule, 488community property, 41comparative negligence, 41compelleable witness, 466competence, 444competence and compellability,

416competent witness, 414Compliant false confessions, 449compound question, 403compound(objection), 405conclusive evidence, 41, 457conditional sale, 41conditions, 476confession, 430confessions rule, 456confidential informant, 468confusing (objection), 405consecutive sentences, 41consensus ad idem, 272

664


consideration, 272Consistenc, 482consolidating statute, 511constitutional construction, 524constitutional interpretation,,

524contemporanea exposito, 487contempt of court, 41contra proferentem, 481contra proferentem doctrine, 490contra proferentem rule, 481Contrasts. See antithesisconversion, 484corroboration, 417, 462counter arguments, 381CRAC theory, 397credibility, 463credible witness, 468criminal law, 41cross-examination, 461, 469crown privilege, 457cumulative(objection), 405daubert test, 434De novo, 450dead man statute, 427declaration theory (contract),

480declarations against interest,

414, 429decree, 192defining legal rhetoric, 17deliberative process privilege,

424demonstrative evidence, 435depose (evidence), 461desuetude doctrine, 492Devil’s Advocate, 381Diacope, 28dictionaries and other literary sources (statutory interpretation), 497

digital evidence, 433dillon's rule, 512direct evidence, 464direct examination, 461

direct speech (objection), 411direct testimony, 460discovery motions, 398disorderly conduct, 42disturbing the peace, 42doctrinal approach to constitutional interpretation,526

doctrinal interpretation, 495doctrine of repair and reconstruction, 476

Doctrines, 20documentary evidence, 457double hearsay, 465dragnet clause, 477draw up an agreement/contract,

42due process (of law), 42dying declaration, 428ejusdem generis rule, 513elmann doctrine, 522enabling stautute, 511enrolled bill rule, 493entire agreementclause, 275, 472Eponym, 28equitable interpretation, 495equity abhors a forfeiture, 36equity acts in personam., 36equity aids the vigilant, not the indolent, 34

equity aids the vigilant, not those who slumber on their rights, 34

equity delights in equality, 33equity delights to do justice and not by halves, 34, 37

equity does not require an idle gesture, 34, 36

equity follows the law, 34equity follows the law:, 35equity imputes an intent to fulfill an obligation, 36

equity of redemption, 36equity regards done what ought to be done, 33

665


equity will not aid a volunteer,34

equity will not allow a statute to be used as a cloak for fraud, 35

equity will not allow a trust tofail for want of a trustee, 36

equity will not complete an imperfect gift, 35

equity will not permit a party to profit by his own wrong, 37

equity will not suffer a wrong to be without a remedy, 33

equity will take jurisdiction toavoid a multiplicity of suits,34

escape clause, 275, 277estoppel (evidence), 444ethical approach to constitutional interpretation,525

ethos, 14evergreen clause, 276evidence obtained illegally, 412evidence of disposition, 426evidence of identity, 435evidence of opinion, 435evidentiairy objections, 402evidential burden, 437, 458evidential presumption of law,

19evidentiary privilege, 414evidentiary standards of proof,

440ex injuria ius oritur., 33ex post facto law, 511examination for discovery, 42examination-in-chief. See directexamination

Exception that proves the rule, 497

excited utterance, 430exclusion clause, 478exclusionary rule, 431, 458, 462exculpatory evidence, 413, 433

exemption clauses, 478exhibits, 462Expedited Arbitration, 276expert evidence, 435, 463expert witness, 42, 427, 467expressio unius exclusio alterius, 485

extenuating circumstances, 42extrinsic evidence rule, 427extrinsic evidence’ rule, 483eyewitness, 467fabricate evidence, 452factual matrix, 489failure to comply with the rule in browne v dunn(objection), 411

false arrest, 42false confession, 449False evidence, 452false pretenses, 42false witness, 42fee simple, 43fictional fulfilment, 477fine print, 43five stage test, 482for cause, 43forge evidence, 452forged evidence, 452formal admissions, 464forward contract, 477four corners rule, 482free and clear, 43freedom of contract, 479fruit of the poisonous tree doctrin, 412

fruit of the poisonous tree doctrine, 440

Fruit of the poisonous tree evidence (objection), 409

frye test, 433functional interpretation, 495general presumptions to interpretation, 502

give notice, 43go into effect, 43

666


go legit, 43go on record, 43golden rule, 522golden rule or british rule, 517good-faith exemption, 438goods and chattels, 43grace period, 43graf doctrine, 36grand-father clause, 477gray area, 43grounded in fact, 43grounds, 366grounds for objections - procedural (objection), 411

habit evidence, 426halliday order, 461harassing or arguing with witnesses (objection), 411

harmless error, 451harmless error doctrine, 418have (someone) dead to rights,

44have (someone) in one's pocket,

44have a brush with the law, 44have a case (against someone),

44have a run-in with (the law or someone), 44

have the right to (do something), 44

headings (statutory interpretation), 499

hearsay (objection), 408, 410hearsay evidence, 445hearsay witness, 467himalaya clause, 477historical approach to constitutional interpretation,525

historical interpretation, 495historical setting (statutory interpretation), 499

hostile witness, 458, 468husband-wife privilege, 423

Hyperbole, 28immaterial (objection), 409impeachment by contradiction,

422implicate (someone) in (something), 44

implied terms, 472implied-in-fact terms, 486implied-in-law ‘good faith’ terms, 486

improper characterization (objection), 405improper impeachment (objection), 405

in abeyance, 44in arrears, 45in bad faith, 45inadmissibility of character evidence, 455

inadmissibility of settlement claims, 431

inadmissible evidence (objection), 408

inclusio unius est exclusio alterius, 497

Inclusion of one is to exclude the others, 497

incompetent (objection), 407Incomplete: evidence (objection), 409

inculpatory evidence, 413independent source doctrine, 458indian’ canon, 514inflammatory (objection), 409integration clause, 275, 472intention to be legally bound,

271interlineation, 478Intermediate scrutiny, 451internal and external consistency doctrine, 513

Internalized false confessions, 449

interpretation rule, 479interpreting witness, 434inurement clause, 478

667


invasion of privacy, 47inviolability of borders, 454invitation to treat, 478IRAC, 370IRAC case briefs, 114irrebuttable presumptions of law, 19

irrelevant evidence is inadmissible, 456

Is asked of an incompetent witness, 404

judgement (validity), 192Judgment, 192judicial activism, 521judicial deference doctrine, 507judicial interpretation, 494judicial notice, 427, 464judicial opinion, 465judicial pragmatism, 520jump bail, 47jurisdictional statement, 172jurisprudence constante, 508knock and talk doctrine, 447known innocent’ fillers, 435last in time rule, 515last shot rule, 491latent ambiguity rule, 455laying a foundation, 430leading or double questions(objection), 411

leading question, 403leading questions (objection),

409legal age, 47legal briefs, 114legal burden, 436legal doctrine, 20legal interpretation, 492legal opinion, 465legal opportunism, 493legal principle, 17legal professional privilege,

425legal technicality, 493legalese, 270

legality (contract), 270legislative antecedents (statutory interpretation), 499

legislative intent principle, 505

list authorities, 171literal approach, 501literal rule, 509, 515, 522living constitution, 520living tree doctrine, 524Logical Arguments, 364logos, 15long title (statutory interpretation), 498

loose constructionism, 520mailbox rule, 484main purpose rule, 499marital privilege, 423mater semper certa est, 455material evidence, 465material term (contract law),

473materiality, 465Maxims (of Equity), 20maxims of equity, 33memorandum of law, 114merger clause, 275, 472merit briefs, 114Metaphor, 29mineral rights, 48mirror image rule, 491mischief rule, 510mischief rule (purposive approach in modern usage), 522

misleading (objection), 409misleading (objection),, 405misquoting a witness or exhibit,

404Mistakes evidence (or misquotes the witness), 405

Mixed questions of law and fact,450

motion, 398motion for a directed verdict,

399

668


motion for further and better particulars, 400

motion for judgment n.o.v., 399motion for leave, 400motion for leave to proceed in forma pauperis, 400

motion for new trial, 399motion for nolle prosequi, 399motion for summary judgment, 398motion in limine, 399motion to compel, 400motion to dismiss, 400motion to set aside judgment,

399murphy’s law, 157mutatis mutandis, 485'naked citations', 377narrative (objection), 410natural approach to constitutional interpretation,525

natural interpretation, 496negative condition, 476next of kin, 48no authentication evidence (objection), 408

no foundation evidence (objection), 408

non est factum doctrine, 489non-derogation from grants, 475non-expert opinion, 436noscitur a sociis, 485null and void, 48nunc pro tunc, 485oath and affirmation, 417objecting to a question, 403objecting to material evidence,

408objections, 402objections to answers, 407objections to exhibits, 408Obviousness, 482of law of evidence, 442offensive weapon, 48offer and acceptance, 271

offer of proof, 462official reports (statutory interpretation), 500

officious bystander test’, 487one who seeks equity must do equity, 33, 36

onus probandi, 436opening statements, 397opinion (objection), 410or business entry rule, 430or teleological approach, 519oral evidence, 463original document rule, 420original intent, 520original intent theory, 505originalism principle, 505other enacting words (statutory interpretation), 498

ouster clause, 478outstanding arrest warrant, 454overly broad questions, 403Oxymoron, 30pacta sunt servanda, 483parliamentary materials, 501parol evidence rule, 483, 487parole evidence rule, 483party admission, 428party deponent, 467past bad acts, 464patent ambiguity rule, 454pathos, 15percipient witness, 467pereman’s theory, 360Personification, 30Persuasive Cases, 378persuasive presumption of law,

19plagiarism, 270plain meaning, 513plain meaning rule, 501, 515planted evidence, 452positive condition, 476postal acceptance rule, 484power of attorney, 49

669


Preamble (statutory interpretation), 498

pre-hearing brief, 114prejudicial evidence (objection),

408preliminary hearing, 49preliminary statement, 171preponderance of the evidence,

439Presence (legal rhetoric), 367present sense impression, 429presumption against suicide, 419presumption in bailments, 419presumption of authenticity, 414presumption of consistency in use of terms, 504

presumption of continuance, 420presumption of death, 419presumption of legitimacy, 419presumption of mail delivery,

419presumption of non-alteration ofexisting laws, 504

presumption of non-retospectivity, 502

presumption of ousting of courtsjurisdiction by express words only, 504

presumption of regularity, 420presumption of sanity, 419presumption of solvency, 420presumption of strict construction of penal codes and statutes, 504

presumption of territorial operation, 503

presumption of the legality of amarriage, 420

Presumptions of Law, 18priest–penitent privilege, 424prima facie proof, 464Principia data sequuntur

concomitantia., 18Principia probant, non probantur., 18principle of law, 17

privilege, 444privilege (objection), 410privity, 274probability, 381probable cause, 442probable cause for arrest, 438probable cause hearing, 441probation, 48probative value, 428, 464progressive interpretation, 522proof beyond a reasonable doubt,

418prosecutorial misconduct, 452provenance, 433Proverbs, 30prudential approach to constitutional interpretation,525

prudential interpretation, 495public policy doctrines, 431punctuation (statutory interpretation), 498

purposive approach, 502purposive theory, 519quantum of evidence, 443questioning of witnesses, 468Questions of constitutionality,

450quntillian’s five (5) canons of rhetoric, 13

quod minimum rule, 481Rational basis, 451real evidence, 433, 463re-asking a question that has been "asked and answered", 403

reasonable suspicion, 413, 437Reasonableness and equitableness:,

482reasonableness test for implied terms, 484

rebuttable presumptions of facts, 18

rebuttable presumptions of law, 19

rebuttal witness, 466

670


record. See caserecorded recollection, 427re-direct, 469relevance (objection), 409relevance of evidence, 415relevant evidence is admissible,

455reliance theory(contract), 480repetitive objection, 405reporters' privilege, 423, 424reporting witness, 434reputation witness, 468res gestae, 414, 446resolutive time clause, 477retroactive law, 511Reversal. See Chiasmusrhetoric, 10ridgeway discretion, 412riggs principle, 512rule against hearsay, 456rule in browne v dunn, 460rule in hopgood, 445rule in smith v hughes, 481rule in yerkey v jones, 474rule of circumstantial evidence, 448

rule of admissibility of evidence, 454

rule of authentication, 441rule of competence, 447rule of competency, 421rule of completeness, 421rule of corroboration, 440rule of deference, 514rule of evidence, 428rule of exclusion of evidence,

441rule of hearsay, 445rule of lenity, 514rule of privilege, 447rule of relevance, 441Rules of law, 20rules of evidence, 462, 464scrivener's error, 516search warrant, 438

secondary evidence, 459secondary rules of interpretation, 480

selective prosecution, 450self authenticating documents rule, 408

shield law, 423short title (statutory interpretation), 498

side notes/ clause titles (statutory interpretation), 498

silent witness rule, 454silver platter doctrine, 437similar fact evidence, 443'similar fact' evidence, 426Simile, 29six (6) elements of a contract,

270social purpose’ rule, 512soft plain meaning rule, 516solicitor–client privilege, 425some credible evidence standard,

438special wives’ doctrine, 475speculation (objection), 409speculation(objection), 405spoliation of evidence, 431spousal privilege, 414spousal privilege or marital privilege or, 414

spousal shield, 414spousal testimonial privilege,

423state secrets privilege, 425statement of the case, 172statements against interest’ rule, 429

statements of the legislature, 513

statutory instruments (statutoryinterpretation), 499

statutory interpretation, 492, 494

strict constructionism, 519Strict scrutiny, 451

671


String of Citations, 380structural approach to constitutional interpretation,526

structural interpretation, 495student briefs, 114subornation of perjury, 449subpoena, 468subramaniam hearsay rule, 456substantial evidence, 439Substantial evidence, 450sui generis (statutory interpertation), 494

sui generis rule, 509suppressed evidence, 452suspensive time clause, 477Symploce, 31tacit terms, 476taint evidence, 452tainted evidence, 452tap and rap doctrine, 447terms (contract), 473terms implied ex lege, 473terms implied in fact, 472terms implied in law, 472tertiary rules of interpretation, 481

test of acceptance, 491testimony, 432, 462Tests of law, 20textual and strict constructionist methods, 508

Textual constructionist methods,525

textual interpretation, 494textual rule, 513textualism, 506three (3) parts of rhetorical speech, 14

Three Part Lists. See tricolontime clauses, 477treaties and international conventions interpretation, 500

trial brief, 114trial, the trier of fact is the jury., 459

Tricolon, 23trustworthiness doctrine, 445types of presumptions, 18undisclosed principal, 509unfair prejudice, 428unintelligible (objection, 405unintelligible (objection), 405unresponsive (objection), 405vague (objection), 405Validity Of Judgment, 192vicarious liability, 52Violates parol evidence rule (objection), 405

Violates the best evidence rule,404

voir dire, 417Voluntary false confessions, 449volunteered (objection), 405weight of evidence, 416where equities are equal, the law will prevail, 35

will theory (contract), 480witness, 466witness impeachment, 467witness list, 467witness selection, 466witnesses preperation, 466work made for hire standard, 456yellow dog contract, 478zealous witness, 457, 468