How Lawyers Reason within Field of Litigation - Essay Example

? How lawyers reason, within field of litigation and how lawyers form legal argument within field of litigation. No: Instructor’s Name: Date: How lawyers reason, within field of litigation and how lawyers form legal argument within field of litigation. I. Introduction The lawyers while pleading the cases of their clients in competent court of law use certain legal and logical tools and reiterate on it in line with the provisions of law, statement of witnesses, documentary evidences, the circumstantial evidences besides video clips. These supporting tools are of great help in terms of their importance in making the minds of judiciary to decide. II. How lawyers reason, within field of litigation  A. Litigation  The legal professions in England and Wales are divided into two segments a) Barrister and b) Solicitor. Bar Standards Board is the regulatory authority of Barrister. A Barrister must be a member of one of the Inns of Court. These are a) The Honourable Society of Gray's Inn b) The Honourable Society of Lincoln's Inn c) The Honourable Society of the Middle Temple and d) The Honourable Society of the Inner Temple. Mentioned courts are located in Central London, which is very near to the Royal Courts of Justice1. In England, public representatives may have the services of a barrister directly. They are there to provide legal advice and assistance in almost all spheres of laws. Barristers are entitled to represent on behalf of their clients in any court of law in England and Wales provided he or she received instructions from his client to plead the case. Before taking up the case of any client, Barrister has to complete a course, which is known as special course2. The Public Access Scheme was introduced in the United Kingdom to liberalize it for public and at a cheaper fee. It further bridges the gap between solicitors and barristers. The role of Barrister and Solicitor is clearly defined in rules of business for the ease of public.   B. Precedent  Legal rulings are known as legal precedents, come from the cases of law. Rulings of the competent court of law are binding until and unless void by the superior courts. We may categorise the precedents into three categorise a) Original b) Binding and c) Persuasive. It can be used in place of statutory law in civil cases, which is familiar as common law. Judges pursue the know principles of superior courts3. Original Precedent Original Precedents are those which have never gone through the legal process ever before. Take the example of London bombing case, which was never heard by the UK Judge as this sort of incident has not been witnessed earlier. Hence, ruling in the mentioned case, is considered as Original Precedent4.   Binding Precedent If a ruling of a competent jurisdiction is the same as it was held in some similar case, this can be treated as binding precedent. For example if a person commits murder and the judge keeping in mind the circumstances, not finds the accused guilty and orders to release innocent person, therefore a case of equal standing can have the same ruling. Judges always try the cases on merits of the case5. Persuasive Precedent Persuasive precedents in fact are the decisions of subordinate courts. The decision has the legal validity provided higher court deems it fit and appropriate. There are circumstances where lower courts take the decision and the higher court did not endorse it taking into account the merits of the case6.   Precedents as Common Law Now, the courts of England and Wales use precedents as Common Law. The extraordinary cases usually try in the competent court of law and their decision is binding. Precedent may be used in a similar case being heard. The rulings of circuit court or the high court are binding. However, rulings of the subordinate courts are not binding since they are challengeable in mentioned superior courts7.    It would not be out of place to mention that number of post 9/11and 7/7 Cases heard in UK courts were “Without Precedent” as such type of cases have not previously been heard by any court of law.    C. stare decisis  In legal terminology, judicial precedent relies on satre decisis. If a point of law has been decided in a particular case, the same is applicable on those cases containing the similar material facts8. Take the example of Donoghue v Stevenson9 wherein in the House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This sort of binding precedent was followed in Grant v Australian Knitting Mills10 and in Shaw v DPP11 the House of Lords opined that crime of conspiracy to corrupt public morals existed. It was followed in the case of Knuller v DPP12. The multitude of rules provides legal consultants with variety of tools and techniques for legal reasoning and legal argument. Hence, stare decisis continues to play a key role. D. stare rationibus  The doctrine of binding precedent is familiar in the legal fraternity as the doctrine of stare decisis, whose complete title is stare rationibus decidendis, which means to keep the decisions of the past cases alive. It is the policy of the court of law to adhere to the precedent and not to disturb what is settled earlier by the superior judiciary. It is transpired that the precedent is important in deciding the cases of similar nature by the court of competent jurisdiction13. In the case of  Cassell & Co Ltd v Broome & Anor (1971), Lord Denning a judge of outstanding stature refused to follow a decision of the House of Lords for which, he had to face the wrath of Lords Chancellor and Hilsham, who were of the view : "The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." 14 E. obiter dicta  Obiter dictum is a Latin word, which speaks for itself a statement during the course of hearing. It can be an observatory remarks made by a judge on the bench, though it is part of the decision of the court but it may not necessarily be the part of court decision to be implemented. In this respect, we may cite following cases a) Adverton v Rayon 1985 b) R v Shivpuri c) Milliangos v George Frank Limited15. F. cessante ratione cessat ipsa lex  As per the Latin term, when the reason for the law ends, the law itself lapses, which is called maxim. In accordance with the universally accepted criterion, principle of law is universally admitted, as being just and in consonance with reason. What we distinguish between truth and the false, right from the wrong to attain a particular end is reasoning. With regard to the above, you may refer to the case of Miliangos V George Frank (Textiles) Limited16. G. Distinguishing  In accordance with law, distinguishing a case means contrary facts of the case. Take the example of Balfour v. Balfour (1919) and Merritt v Merritt (1970). In both the cases, wife is a claimant of compensation against the husband for breach of contract. H. res judicata  It means that the matter has already been decided and it may not re-litigate once it has been judged purely on merits. It has the limit both on the claims and the issues that may be raised in subsequent proceedings17. I. Case Studies Here, we peruse the cases of a) R V Brown (1993) 2 ALL ER 75 b) Wilson (1996) 3 WLR 125 CA c) Singlsby (1995) Crim LR 570 just to understand how the lawyers form legal arguments in each case. R v. Brown case (1993) is a case of sado masochists who were involved in sado masochistic activities with each other without taking care of its dangerous repercussions. It is arguable whether consented activities were within the permissible limit or beyond the limit. They ensured that mentioned activities should be free of pain and no one should be harmed bodily. In order to ensure check and balance of their activities, video recording was done to be viewed by the members18. In the mentioned case, each defendant was found involved in homosexual activities with the consent of victim. The victim did not suffer permanent fatal body injury, contrary to section 47 of the Offences against the Person Act 1861. Despite that, defendants had to face the charge of unlawful wounding. The defendants were pleaded guilty since the trial judge ruled out that mutual consensus of plaintiff and the defendant for a criminal offence cannot be taken as defence plea19. The House of Lords with a majority vote held that the offences of the appellant were proved. It was another thing whether their activities were with the consent of victim or not provided, but it was done in private20. In another case of R v Wilson, the appellant was booked on the charge of assaulting his wife. His act was found ultra virus of section 47 of the Offences against the Person Act 1861. Further, the appellant failed to produce any evidence in his defence; therefore, the court convicted him guilty21. The court of Appeal while allowing the appeal was of the view that Brown’s case is not the authority and that consent cannot be considered as defence to face a charge under section 47 of the Offences against the Person Act 1861. In all circumstances, it is proved that actual bodily harm is deliberately inflicted. The appellant had done the activities with the consent, hence, not fall within the ambit of section 47 lest actual bodily harm inflicted upon a victim deliberately. Yet, consensual activity in privacy between husband and wife as a result of matrimonial relationship does not attract criminal investigation or prosecution22. Look at the case of R v Slings by 1995 where cause of death of a woman was fists of a man on the private parts of a woman. The trial court heard the case in detail and observed that such sort of extreme sexual activities cannot be performed without the consent of a woman. Hence, this provides the person with a defence23. It is observed from the judgment of the Appellate Court that consent was a valid defence. In this case, the victim received internal wound due to cruel sexual activity that culminates to the death of a woman. The Court of Appeal was of the view that sexual activity between a husband and a wife in a private place does not merit criminal investigation24. The study of cited three cases reveals that each court has different views on similar kind of cases. At one stage, it considered that consented sexual activity is valid defence, which does not merit criminal investigation. In another case, it does not allow consented sexual activity as valid defence keeping in mind the larger public interest. Critical Analysis  Lawyers used to get verdict from the court of law through legal languages. The laymen are heavily dependent on lawyers for creating and translating legal texts. Hence, the lawyers have an edge over the non-professionals. The incorporation of precedents and other factors are of utmost importance to plead the case in an effective manner in the respective court. As we have observed in the UK Legal system, the precedents of the higher courts have to abide by the subordinate courts. It is unanimously agreed by the Bench and the Bar, the legal consultants that once a case is decided, the case of similar nature may be heard in the same way by the court of law taking into consideration its precedence. III. How lawyers form legal argument within field of litigation  Here we study the case of Miller v Jackson (1977) 25to understand how the lawyers form legal argument. The case was not pleaded by either side. The petitioner did not allege trespassing. The defendant did not raise an eyebrow. It seems that the case was pleaded in negligence. Take the case of Bolton v. Stone 1951. In the mentioned case, it was revealed that Madam Stone came out of her garden; she was hit by a cricket ball. Even then, she did not file trespassing against the person at fault. In a similar case of Letang v. Cooper (1965), it was held “If [the defendant] does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespassing. His only cause of action is in negligence, and then only on proof of want of reasonable care”26. The House of Lords ruled that consent is no defence to harm deliberately inflicted for sexual gratification27. As far as the conflicting interests are concerned, the court is of the view that public interest should prevail upon private interest. In the opinion of competent court, the right exercise amounts to refuse damages in lieu of an injunction. The court is of the view that the club was entitled to utilize the ground for cricket. By all means, neither it was a nuisance, nor it was negligent to run the club. The player was also not found negligent when he hit the ball for six. What ever they did, they were entitled for it. The court in view of the above dismissed the claim for damages28. The reason being that the certain courts have certain conclusions in terms of give and take, nature of law of nuisance is necessary to strike a balance. Sometimes, it is referred to as a reasonable user but in view of the Court of Appeal in the case of Barr v Biffa29, it was impressed upon the word reasonable that it causes unnecessary confusion. The Court of Appeal while taking this view thought that the position was correctly enumerated in An Introduction to Tort Law. We may cite here the case of Miller v Jackson (1977) wherein Mr. and Mrs. Miller claimed damages along with an injunction against the cricket club ensuring that hit ball should not reach the property to prevent cricket balls from reaching their property. It is an undeniable fact that the club in question has been in the same location since 1905 when it was surrounded by the agricultural fields. The Court of Appeal on hearing the appeal, held that the club was responsible for the damages and hence held it liable for compensation30.? The concluding part of the case can be found in the case of Coventry v Lawrence31. The claimants took up the matter with local council to sort out the issue. Accordingly, the council took immediate action and noise mitigation measures were put in place. However, the claimants are yet to receive any relief from concerned quarter. On filing of Appeal in the High Court, it was held that the racing operations were considered nuisance at law. The Court of Appeal set aside the case and held that the noise from the racing activity was part of the character. Lord Justice while delivering the leading judgment, summarized it into four stages: a) Planning permission cannot authorize nuisance b) May change the character of a locality c) Effect of changing the character of a locality d) Consequence of planning permission e) Whether the specific activities constitute nuisance or not f) Offensive activities in the specific locality cease to exist. Conclusion We have gone through the subject matter in detail and observed that the law of nuisance at some stages become confusing and frustrating for businesses concerning their right to operate in a specific location. In an otherwise scenario, businesses get disappointed with the verdict of Court of Appeal in Barr v Biffa case. We may take some comfort while conducting area test in the Court of Appeal in the case of Coventry v Lawrence. It is the lawyer’s capability, how he interprets the law to make up the mind of the judiciary to decide the case in the best interest of his client. ?   Bibliography Barr & ors v Biffa Waste Services Ltd [2012] EWCA Civ 312. Coventry (t/a RDC Promotions) & anor v Lawrence & ors [2012] EWCA Civ 26. Donoghue v Stevenson (1932) AC 562. Grant v Austalian Knitting Mills (1936) AC 85. Gillespie, A.A (2007). The English Legal System. Oxford: Oxford University Press. P.74. Knuller v DPP (1973) AC 435. Law.cornell.edu (2010) Res judicata. [online] Available at: http://www.law.cornell.edu/wex/res_judicata [Accessed: 14 Nov 2012]. Miller v Jackson [1977] Q.B. 966 (C.A.)  Miliangos v George Frank Ltd, [1976] AC 443. Prest, W.R. and Anleu, S.L.R (2004). Litigation: Past and Present. Wales: NewSouth Publishing. R V Brown (1993) 2 ALL ER 75. Shaw v DPP (1962) AC 220. Singlsby (1995) Crim LR 570. Steele, J (2007). Tort Law: Text, Cases, and Materials. Oxford: Oxford University Press. Tan, R (July 29, 2007). Comment: Keeping the Path to Justice Clear. [Online]. Available at: http://www.rtkm.com/content/view/314/30/ [Accessed: 14 Nov 2012]. Tufal, A (2012). Judicial Precedent. [Online]. Available at: http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf [Accessed: 14 Nov 2012]. Wilson (1996) 3 WLR 125 CA. Read More