Is it unnecessary to require evidence of presumed facts in the absence of unusual circumstances?

Is it unnecessary to require evidence of presumed facts in the absence of unusual circumstances?

Wednesday, March 02, 2016

‘The theoretical basis for recognizing presumptions is that the presumed fact would, in the usual course of events, flow naturally from the existence of the primary fact, so that there is a rational connection between the two so strong that it is unnecessary to require evidence of the presumed fact in the absence of unusual circumstances.’ Discuss.

Answer plan
This is an essay question which requires you to consider a subject that has already been referred to in the Introduction. Is it possible to say something Presumptions, Competence and Compellability that is true about the way in which all rebuttable presumptions of law behave? If it is, is this the common factor which is to be found? It is important to emphasise that this question, like many other essay questions, cannot be answered on knowledge of statutes and cases alone. You need to have read something of the theory of the subject, and in order to answer this question, you should at least have read what is said in -

• Tapper, C, Cross & Tapper on Evidence, 9th edn, 1999, pp 122–24, and in Zuckerman, AAS, The Principles of Criminal Evidence, 1989, pp 110–21.

You need to cover the following topics:

• the superficial attractiveness of the proposition;
• presumptions that appear to increase artificially the probative worth of the basic facts, for example, presumption of death;
• presumptions designed simply to resolve difficulties of proof, for example, s 184(1) of the Law of Property Act (LPA) 1925;
• the argument that all presumptions may operate simply as techniques for allocating the burden of proof;
• the diversity of ways in which the ‘same’ presumption can operate.

The conclusion is that at best, the quotation tells only part of the story, and it may be positively misleading.
Answering
The theoretical basis suggested in the quotation is superficially attractive. For example, according to the presumption of legitimacy, it is presumed that a child born during lawful wedlock is legitimate in the absence of evidence to the contrary ( Hetherington v Hetherington (1887)). Given the fact of a birth in those circumstances, it would seem most unreasonable not to presume the legitimacy of the child.

But not all presumptions provide such a ready illustration of this sort of rational, process. According to the presumption of death, a person will be presumed to have died if it is proved that: (a) there is no acceptable evidence that he has been alive at some time during a continuous period of at least seven years; (b) there are persons likely to have heard of him, had he been alive, who have not heard of him during that period; and (c) all due inquiries have been made with a view to finding the person in question, but without success ( Chard v Chard (1956)).

The presumption in this case appears to operate so as to increase artificially the probative value of the basic facts in the absence of any contrary evidence. So far as probative worth goes, there is nothing special about seven years’ absence as opposed, say, to one of six years. Yet, the former period gives rise to a rebuttable presumption of law, while the latter gives rise to no more than an inference of fact that may be made or not, In other cases, it seems clear that a presumption has been designed simply in order to resolve a difficulty of proof.  

• An example is s 184(1) of the Law of Property Act 1925. This provides that where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such death shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority and, accordingly, the younger shall be deemed to have survived the elder.

Here the probative worth of the basic fact is non- existent; the whole effect of the presumption is to allocate the burden of proof. It has been suggested in fact that a presumption is in all cases simply a technique whereby the substantive law distributes the risk of losing on a given issue, and that it is misleading to try to develop a rationale based on the probative force of the basic facts of the presumption. This misleading approach, it is argued, leads to the conclusion that presumptions such as that of death are simply presumptions of fact to which the law gives artificial weight. If, however, the rationale of presumptions is to be found in the allocation of the burden of proof, the charge of artificiality is misconceived. The rights of someone who has disappeared cannot remain suspended indefinitely; what the law does is to provide, by a rule affecting the burden of proof, a limitation period. The basic fact may, of course, have some probative weight, but it has this by virtue of common sense and experience rather than by virtue of the presumption.

This view of presumptions as devices for allocating the burden of proof receives considerable support from the fact that a particular presumption does not always affect the burden of proof in exactly the same way; the way in which a presumption operates depends on the context in which it may be relevant. This would not be the case if, from a primary fact, there flowed naturally in the usual course of events a particular presumed fact. One would expect a rational process such as that to operate regardless of context. That this is not the case is shown by the operation of presumptions in a criminal context. According to the presumption of regularity, upon proof of the fact that some official or public act has been performed, or that a person acted in an official capacity, it is presumed that the act which was done complied with any necessary formalities, or that the person so acting had been properly appointed.

In Dillon (1982), a police officer had been charged in Jamaica with the offence of negligently permitting two prisoners, lawfully in his custody, to escape. The prosecution failed to call any Presumptions, Competence and Compellability evidence to show that the officer had authority to hold the prisoners in custody, a matter which they had the burden of proving. On a defence submission of no case to answer, the magistrate held that the prosecution was entitled to rely on the presumption of regularity to establish that such authority existed. This decision was upheld by the Court of Appeal of Jamaica but rejected by the Privy Council, which held that the prosecution was not entitled to rely on a presumption to establish a central element of the offence.

There seems little doubt that the presumption of legitimacy would also affect the burden of proof in different ways, depending on the nature of the proceedings. In a civil case, once birth in lawful wedlock is established, the court must find the child legitimate unless the party opposing legitimacy proves on the balance of probabilities that the child is illegitimate.

But suppose a defendant is charged with committing incest with his daughter and his defence is that, though conceived and born in wedlock, she is actually the child of another man. It is most unlikely to be held that the defendant has a legal burden of proof on that issue. It would surely be enough to raise in the minds of the jury a reasonable doubt about whether the woman in question might have been the daughter of another man.
It might be objected that in these criminal examples, there is a conflict of presumptions which produces a different outcome, the presumption with which the others conflict being the presumption of innocence. But this would be to mislead by language. The so called presumption of innocence is not a rebuttable presumption of law like the others, but is simply a way of stating the rule that in criminal cases, the burden of proof is on the prosecution.

At best, therefore, it appears that the theoretical basis for recognizing presumptions which is suggested in the quotation does not tell the whole story. At worst, it may be positively misleading.

Notes

1. Tapper, C, Cross & Tapper on Evidence, 9th edn, 1999, p 123.
2. Tapper, C, Cross & Tapper on Evidence, 9th edn, 1999, p 123.
3. Zuckerman, AAS, The Principles of Criminal Evidence, 1989, pp 119–21.
4. Section 26 of the Family Law Reform Act 1969.
5. Tapper, C, Cross & Tapper on Evidence, 9th edn, 1999, p 124.

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Presumptions, competence and compellability - Evidence Law

Presumptions, competence and compellability - Evidence Law

Wednesday, March 02, 2016

Presumptions fit awkwardly into an evidence course. When lawyers first started to write books on evidence, they used to include large amounts of substantive law on such subjects as trespass, nuisance, bailment, actions on the case and so forth. The object of these writers was to include not only what we should recognise as rules of evidence, relating to such matters as the competence of witnesses and hearsay, but rules about what had to be proved in order to establish particular claims or defences. There was no unifying principle other than the convenience of the arrangement for practitioners. 

• (See, for example, Gilbert, G (Sir), The Law of Evidence, 2nd edn, 1760. This was the leading work on the subject in the second half of the 18th century; the last edition was published in 1801. See, generally, Twining, W, The rationalist tradition of evidence scholarship’, in Rethinking Evidence: Exploratory Essays, 1994, pp 32–91.)

Modern evidence textbooks deal with some, but by no means all, presumptions. (See the Checklist for details.) However, this is really no more than a hangover from the older way of writing. No successful attempts have been made to find an all-embracing theme that would make ‘presumptions’ a true part of evidence law. What you will be looking at will be several quite distinct bits of substantive law that have little or no connection with each other. Because this is an area where attempts to find unifying features have been made so unsuccessfully, you may find classification confusing. When a writer refers to a presumption, you need to be sure about how he is using the word.

The sort of presumption that you will be trying to learn about (of death, legitimacy, etc) is what is often called a ‘rebuttable presumption of law’. In my view, it confuses things to talk about anything else as a ‘presumption’. If someone refers to a ‘presumption of fact’ he should mean an inference about facts which is part of an ordinary reasoning process, having nothing specially to do with law at all. And, if he refers to an ‘irrebuttable presumption of law’, that is just the same as referring to some rule of substantive law. Thus, to refer to ‘the presumption of innocence’ is the same thing as referring to the rule which places the burden of proof on the prosecution.

Questions of competence and compellability are mainly governed by statute. You should note that the Youth Justice and Criminal Evidence Act 1999 contains new provisions relating to the competence of witnesses and their capacity to be sworn in criminal trials (ss 53–56). It also amends s 80 of the Police and Criminal Evidence Act 1984. Spouses and children are the obvious subjects for examination questions; for details, see the Checklist.

Checklist
Students should generally be familiar with the following areas, but check your syllabus, because it may provide a narrower or wider range:

• classifications of presumptions;
• presumption of marriage;
• presumption of legitimacy;
• presumption of death;
• presumption of regularity;
• res ipsa loquitur;
• conflicting presumptions;
• general rule of universal competence and compellability;
• how a co-accused can become competent for the prosecution;
• comment on an accused’s failure to testify;
• competence and compellability of an accused’s spouse: for the
• prosecution, the accused or a co-accused;
• competence of children in civil and criminal cases.

See example-
‘The theoretical basis for recognising presumptions is that the presumed fact would, in the usual course of events, flow naturally from the existence of the primary fact, so that there is a rational connection between the two, so strong that it is unnecessary to require evidence of the presumed fact in the absence of unusual circumstances.’

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The burden and standard of proof in relation to issues that arise in negligence situations.

The burden and standard of proof in relation to issues that arise in negligence situations.

Thursday, February 25, 2016

Annie hired a removal firm, XY & Co, to move the contents of her housein Plymouth to a house which she had bought in Worcester. The removal van and all its contents were destroyed by fire in a layby just outside Exeter. Some time after the loss, Annie was told by an employee of XY & Co that the van had been deliberately set on fire so that XY & Co could claim from their insurers for its loss.

Annie is suing XY & Co for the value of her destroyed property, which she estimates to be £250,000. She claims first in respect of their deliberate destruction by the defendants; alternatively, she alleges that they were destroyed by reason of the defendants’ negligence. By their defence, XY & Co deny deliberately setting fire to the van and plead that their contract with Annie had an exclusion clause, which said that they would not be liable for loss by fire provided that their servants were not negligent. They also plead that it was a term of the contract that they would not be liable for any loss in excess of £5,000. Annie says that she never agreed to this term and that XY & Co are liable for the full loss.

Discuss the burden and standard of proof in relation to the issues that arise ?

Answer plan
The first step is to sort out what the issues are likely to be. A rough and ready way of doing this is to think of what matters each side would have to prove in order to win, assuming there is no response from their opponents.
Annie must prove the existence of the agreement with the defendants for the carriage of her goods, the consignment of her goods to the defendants in accordance with the agreement, the fact that non-delivery was due to deliberate destruction of the goods by the defendants, and the amount of the loss. In view of the exclusion clause, the burden of proof in relation to negligence is uncertain.
The defendants must prove the existence of the exclusion clause, and, if need be, that the loss falls within it. They may also have to prove that they exercised all proper care of the goods while they were in their possession. In addition, they will have to show that the provision limiting their liability to £5,000 was part of the contract.

Broadly speaking, it will be seen that this ties in with the maxim that he who asserts must prove, but there are problems with the interpretation of the exclusion clause which require discussion of bailment.
The allegation of arson raises the question of the standard to be applied where a crime is alleged in a civil action.

Answering
Although the burden of proof in any particular case depends on the circumstances under which the claim arises, in a civil action, the burden normally lies on the party who affirms something to be the case, and not upon the party who makes a denial. As Viscount Maugham said in Constantine (Joseph) Steamship Line Ltd v Imperial Smelting Corp Ltd (1942), it is ‘an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons’.

Annie will therefore bear the legal burden of establishing the essential elements of her claim. With one exception, these are readily defined. She will first have to prove the existence of a contract made between herself and the defendants for the carriage by the defendants of her goods from Plymouth to Worcester. She will then have to prove that, pursuant to this contract, she consigned her goods to the defendants. Her principal claim is that the defendants deliberately destroyed her goods by fire whilst they had possession of them. Clearly, the burden of proving this rests on Annie.

She will also have to prove the value of the goods which have been lost. Since this is a civil action, all these matters will have to be proved according to ‘the preponderance of probability’ ( Miller v Minister of Pensions (1947)). Even where Annie is alleging matters that would amount to the criminal offence of arson, she does not have to prove them beyond reasonable doubt.

In Hornal v Neuberger Products Ltd (1957), the plaintiff was sold a lathe by the defendants. One of their directors was alleged to have stated falsely that the machine had been reconditioned by a named firm.
Had this representation been made by the director with knowledge of its falsehood, he would have been guilty of fraudulent misrepresentation. In a civil action for damages for breach of warranty, alternatively for fraud, the trial judge found that the claim in respect of fraud had been proved on the balance of probabilities, but added that he would not have been satisfied had the criminal standard been applicable. The Court of Appeal held that he had correctly applied the civil standard.

In Hornal, Denning LJ said that the more serious the allegation, the higher the degree of probability required, and in some later cases, the judge appears to have applied a slightly loaded civil standard. However, Morris LJ said in Hornal that the gravity of the allegation was simply part of the whole range of circumstances that had to be weighed when deciding on the balance of probabilities. He did not favour variations of standard in civil cases, and current opinion prefers his view.

In Re H and Others (1996), the majority of the House of Lords supported the view that the more serious the allegation, the less likely it was to be true, and the weightier the evidence needed for a court to find it proved. But it was emphasised that where a serious allegation was in issue, the standard of proof was not higher than the ordinary civil standard. If a third standard were to be substituted in some civil cases, it would be necessary to identify what that standard was, and when it applied. Confusion and uncertainty would result. Any earlier observations to the contrary were not accurate statements of the law.

As an alternative to deliberate destruction, Annie pleads negligence on the part of the defendants. Does she have the legal burden of proving this?
Two arguments might be used to show that she does. It could be said that this is just another instance of the application of the basic maxim that it is for the person who affirms something to be the case to bear the burden in respect of that issue. The defendants might also argue by analogy from the way in which an exclusion clause was interpreted in  The Glendarroch (1894).

In that case, the plaintiffs claimed damages from shipowners for the latter’s failure to carry goods safely. The shipowners relied on an exemption clause which excluded their liability for loss or damage occasioned by perils of the sea. It was held that the defendants had the burden of proving this provision and that the loss fell within it, but that the plaintiffs, who wished to rely on a proviso to the exemption clause which excluded its operation in the event of the shipowners’ negligence, had the burden of establishing that the facts were such as to bring the proviso into effect.

There is, however, an argument that, instead of Annie’s having to prove negligence, the defendants have a burden to show that they used all proper care in the carriage of the goods. This is the basic common law rule in cases of bailment for reward, of which this contract is an instance. It could be argued that any ambiguity as to the burden of proof should be resolved in Annie’s favour because this basic principle has not been clearly excluded, and its rationale is clearly present here: after the goods were consigned to the defendants, they, and not Annie, were in a better position to explain what happened to them. This was a consideration which proved persuasive in Levison v Patent Steam Carpet Cleaning Ltd (1978). In this case, the defendant carpet cleaners lost the plaintiff’s Chinese carpet in unexplained circumstances. A clause in the contract would have exempted them from liability for negligence, but not for any fundamental breach of contract.

The burden of proof on the latter issue was held by the Court of Appeal to lie on the defendants. They had to show that they had not been guilty of fundamental breach because they could more easily discharge this burden than could a plaintiff who had a burden to prove that there had been such a breach. It will of course be for XY & Co to establish the existence of the exclusion clause and, if need be, that the goods were destroyed by fire. Similarly, if they wish to rely on the limitation of damages clause, they will have to prove it formed part of the contract.

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To what extent has the principle in Woolmington v DPP been maintained in the following years

To what extent has the principle in Woolmington v DPP been maintained in the following years

Thursday, February 25, 2016

‘No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’ To what extent has this principle been maintained in the years following  Woolmington v DPP?

(a)This expression has always been used. It is entirely adequate and Alice has no grounds for appeal on this part of the summing up.

(b) Section 1 of the Prevention of Crime Act 1953 provides a defence of reasonable excuse to a charge of having an offensive weapon in a public place, but the section places the burden of proving this defence on the
accused. It would be possible to argue, following Lambert (2001), that the effect of s 1 is to impose only an evidential burden on defendants. But this interpretation is unlikely to be applied.

In L v DPP (2002), the Divisional Court upheld the traditional interpretation of s 139 of the Criminal Justice Act 1988, saying that there was a strong public interest in bladed articles not being carried in public without good reason, and that it was not obviously offensive to the rights of the individual to require him to prove a good reason for carrying one. The same approach is very likely to be adopted towards having an offensive weapon in a public place. The judge has almost certainly got her direction on burden right. However, in all cases where the law puts a burden of proving something on a defendant, it can be discharged merely by proof on the balance of probabilities the civil, rather than the criminal standard ( Carr-Briant (1943)).

What has happened here is that the judge has told the jury that Bertha has to ‘satisfy’ them that she had a reasonable excuse. But this is ambiguous, for it could refer either to the civil or to the higher criminal standard
( Hepworth (1955)). Thus, the jury might have applied the wrong standard in deciding whether Bertha had made out her defence. Accordingly, she has a good ground of appeal.

(c) The answer depends on who raises the issue. If the prosecution says that Charlene is under this disability and the defence disputes this, the burden of proof will be on the prosecution to satisfy the jury beyond reasonable doubt that its contention is correct (Robertson (1968)). If, on the other hand, it is the defence which puts forward this contention and the prosecution disagrees, the defence will have the burden of proof, but only to the civil standard—on a balance of probabilities ( Podola (1960)).

(d) Where the defendant is charged with wounding with intent to cause grievous bodily harm, the burden of proof, as is usual in criminal cases, rests throughout on the prosecution. In certain circumstances, self-
defence may be a defence to this charge, but the accused bears no legal burden on the issue. Thus, in
Lobell (1957), where the appellant had been convicted on such a charge after the trial judge had directed the jury that it was for the defence to establish its plea of self-defence, the conviction was quashed on the ground that there had been a misdirection. What the defendant does have is an evidential burden, but this means no more than that he must be able to point to some evidence in the trial which makes self-defence a live issue for the jury’s Burden and Standard of Proof consideration.

As Lord Morris put it in  Bratty v Attorney General for Northern Ireland (1963), where the accused bears the evidential burden alone, he must adduce such evidence as would, if believed and left uncontradicted, induce a reasonable doubt in the mind of the jury as to whether his version might not be true.

Whether a party has discharged an evidential, as opposed to a legal, burden is a matter for the judge and
not the jury. It was therefore wrong of the judge to refer to the evidential burden in her summing up. If possible, it was even more wrong to refer in that connection to the standard of proof which is applicable where a defendant has a  legal burden. The jury have been misled, and Dora has a good ground of appeal.

Notes
1 Either the prosecution or the defence may do so: see s 4(1) of the Criminal Procedure (Insanity) Act 1964.
2 Although Lord Morris used the word ‘adduce’, this does not mean that the defendant must call such evidence himself. It could be obtained from prosecution witnesses under cross-examination, or it might even emerge during their examination-in-chief.

Next Question
Discuss the burden and standard of proof in relation to the issues that arise in negligence situations ?

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The Burden and standard Of proof - Law of Evidence

The Burden and standard Of proof - Law of Evidence

Thursday, February 25, 2016

The burden and the standard of proof are matters that must be kept distinct, and judges have a duty to direct the jury in respect of each of them. Problems are therefore most likely to arise in criminal jury trials because a wrong direction, or no direction at all, could provide a successful ground of appeal.
You must be able to distinguish between a legal and an evidential burden. The latter is not strictly a burden of proof at all. It is best seen as a rule of common sense which says that there must be some evidence for a particular issue to become a live one, so that it is fit for consideration by a jury or other tribunal of fact. Because of this, whether an evidential burden has been satisfied or not in a jury trial is a matter for the judge alone, and consequently there should never be a need to refer to it in a summing up.

In civil cases, it will generally be clear from the statements of case where the burden of proof lies. Although you will find fascinating cases where it wasn’t clear at all discussed in the textbooks, don’t get bogged down with them when you first approach this topic. It is important to understand why in criminal cases it is impossible to say for certain when the well known Woolmington principle will not apply.

As you will see from the answer to the proceeding Question ( ‘To what extent has the principle in Woolmington v DPP been maintained in the following years ) , there can be no simple list of exceptions. This popular essay topic can be presented in many forms. All the examiner has to do is reproduce a pro-defence excerpt from Lord Sankey’s speech and either ask the sort of question which appears below, or
simply say ‘Discuss’. Obviously, you must read any question carefully, but if you see something on these lines in the examination paper, it is likely that you are being asked to write about this problem.

The standard of proof is less likely to occur as an essay topic because it raises too many theoretical issues. For example, should we reduce the standard of proof in (some) criminal cases if there were to be a significant increase in a particularly unpleasant type of crime? Does it make sense to talk of ‘standards’ of proof at all? Aren’t things either proved or not, more or less easily, depending upon their inherent probability? All good fun, but not to be attempted in the examination if you haven’t studied these problems as
part of your course.

What you may get is a ‘dud direction’ question, covering both burden and standard of proof, where you are asked to examine an excerpt from a summing up and say whether there are grounds for appeal. It is important to remember that there is no magic form of words about either the burden or standard of proof that must be used, though judges are wise to follow one of the two accepted forms and it is clear that certain directions will not suffice. It’s a good idea to look at the cases which have approved some forms of words so as to get their general sense and compare those with cases where there was held to have been a misdirection.

It is particularly important to remember that the legal burden of proof remains with the prosecution where defences such as provocation, self- defence, duress, non-insane automatism and alibi are in issue. In cases
where the defendant does have the legal burden of proving something, that burden will be discharged if the civil standard of proof is satisfied.
Remember also that where there is a burden on the defence on a particular issue, there cannot also be a burden on the prosecution on that same issue.

Sometimes, candidates try to have the best of both worlds and say, for example, that the defence in an offensive weapon case has to prove on the balance of probabilities that there was a reasonable excuse, and the prosecution has to prove beyond reasonable doubt that there was not. This is gibberish.

Students Checklist
Students should be familiar with the following areas:

• the distinction between the burden and standard of proof;
• the meaning of ‘evidential burden’;
• factors affecting the burden of proof in civil cases;
• the burden of proof in criminal cases;
• the standard of proof in civil and criminal cases.

Question and Answer
‘No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’
To what extent has the principle in Woolmington v DPP been maintained in the following years ?

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How Satisfactory is the law on judicial notice, Q and A on Evidence Series ?

How Satisfactory is the law on judicial notice, Q and A on Evidence Series ?

Monday, February 22, 2016

Answer plan
The law on this subject is in a mess albeit an interesting one. The following points should be made:
• the distinction (if any) between taking judicial notice and using local or special knowledge;
• the different rationales that have been suggested for judicial notice;
• the effect of those rationales on the way the law is viewed;
• the failure of English law to commit itself unequivocally to a single rationale;
• the ambiguity of the relationship between judicial notice and evidence.

Answering
The problem with the law of judicial notice is that it is underdeveloped. As a result of this, there is confusion about the principles on which it rests and about its scope.
There is confusion about its scope because it is unclear whether adistinction should be made between taking judicial notice and using special or local knowledge. In  Wetherall v Harrison (1976), the Divisional Court held that magistrates were entitled to use their own special or local knowledge when trying cases, but Lord Widgery CJ saw this as a necessary concession to the layman’s inability to exclude such factors from his deliberations. He thought that, in this respect, magistrates were unlike trained judges, and were more like members of a jury.

In line with this approach, the Divisional Court in Bowman v DPP (1990) said that a bench of magistrates using its local knowledge of a particular piece of land was not taking ‘judicial notice’. But in Mullen v Hackney LBC (1997), the Court of Appeal held that a county court judge had been entitled to take judicial notice of his own special or local knowledge about the defendant council’s failure to honour undertakings given to the court in other cases. This decision was almost certainly wrong. There is a line of cases to the effect that county court judges can rely on their own local knowledge ‘properly and within reasonable limits’: see, for example,

Reynolds v Llanelly Tinplate Co Ltd (1948). But all these cases were decided under the Workmen’s Compensation Acts, under which the county court judge sat as an arbitrator. There is no doubt that an arbitrator can, in certain circumstances, make use of his own knowledge and experience to determine issues in dispute between the parties to the arbitration, without hearing expert evidence. This was held to be within the judge’s powers under those Acts: see, for example, Peart v Bolckow Vaughan & Co Ltd (1925). But the cases do not establish that county court judges sitting in any other capacity have the same freedom that they had as arbitrators in workmen’s compensation cases. Nor do those cases suggest that judges were taking ‘judicial notice’ of anything.

There are two main theories about the rationale of judicial notice. On one view, it is a device for filtering out evidence about matters that are really unarguable. If you regard judicial notice in this light, you will tend to want its scope to be restricted to notorious, or readily ascertainable facts; its application to be mandatory rather than discretionary; and the effect of its application conclusive.

Another view is that judicial notice is simply a labour saving device in litigation. If seen in this way, its scope can be wider, and its application discretionary. Its effect can even be defeasible in the light of further evidence. A controversial variant of this view is that any process of judicial reasoning about facts assumes the truth of a mass of material that has not been formally proved. For example, a judge assumes that trains run on rails, that France is outside the United Kingdom, and that there is a law of gravity. If this analysis is right, ‘the tacit applications of the doctrine of judicial notice are more numerous and more important than the express ones’.

But this is a controversial view. Others have acknowledged that both judges and juries must make use of general knowledge to interpret evidence. But, they argue, this is not a question of judicial notice; it is the tribunal relying on its own experience of the ordinary course of human affairs.

A limited view of judicial notice should require mandatory application.
This line has been taken in cases relating to political and constitutional matters. For example, in  Duff Development Co Ltd v Government of Kelantan (1924), the House of Lords said that where the question of the sovereignty of a foreign state is in issue, it is the practice of the courts to treat as conclusive the information that they obtain on the matter from a Secretary of State. But in other cases, the courts have taken the view that they have a discretion whether or not to take judicial notice of a particular fact.

In  George v Davies (1911), for example, it was tacitly accepted by the Divisional Court that a judge had a discretion to decide whether to take judicial notice of an employment custom that had been established by evidence in earlier cases.

A further problem with judicial notice is its relationship to evidence.
Where judicial notice is taken without inquiry, for example, that cats are kept for domestic purposes ( Nye v Niblett (1918)) or that people who go to hotels do not like having their nights disturbed ( Andreae v Selfridge & Co Ltd (1938)), it is clear that no process of proof is involved, because no material containing information is produced by either party. But is judicial notice after inquiry based on a process of proof? The opinions of judges have been divided. In  McQuaker v Goddard (1940), at least one member of the Court of Appeal (Clauson LJ) took the view that a judge was entitled to disregard the rules of evidence and look at materials that would otherwise have been inadmissible, on the basis that he was merely ‘refreshing his memory’ about the ordinary course of nature a subject of which, by a legal fiction, judges had complete knowledge.

It is clearly unsatisfactory to have a situation where it is unclear whether rules about admissibility are going to be applied or not. The truth of the matter is that, in principle, scope and effect, the law about judicial notice is underdeveloped and ripe for clarification.

Notes

1. Morgan, EM,  Some Problems of Proof under the Anglo-American System of Litigation, 1956, p 42.
2. Thayer, JB,  A Preliminary Treatise on Evidence at the Common Law, 1898, p 278.
3. Tapper, C,  Cross & Tapper on Evidence, 9th edn, 1999, p 77.
4. See, for example, Eggleston, R (Sir),  Evidence, Proof and Probability, 2nd edn, 1983, pp 143–44.

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Is a concept of legal relevance useful in the law of evidence- Q and A Series ?

Is a concept of legal relevance useful in the law of evidence- Q and A Series ?

Monday, February 22, 2016

Answer plan
Begin by setting out the two different ways in which a legal concept can be ‘useful’: one is connected with what the law is, the other with what it ought to be. The question raises a classic problem on which the two great American writers on evidence, Thayer and Wigmore, had different views; these are outlined. Note that there are some cases where judges do appear to have laid down rules about what is or is not relevant. Note also the practice of the courts of rejecting evidence of only minimal weight on the ground that it is ‘irrelevant’. But, the point is then made that none of this justifies acknowledging a concept of ‘legal relevance’ in existing law because:

• such a concept would be impossible to define; and
• it would be difficult to develop a body of case law on the subject.

In addition, such a concept would be undesirable because:

• if a body of case law could after all be developed, it would be cumbersome and restrictive;
• it would make it even more difficult than it is at present for the law to respond to changing conditions.

In summary, therefore, the essay is constructed as follows:

• two ways in which a legal concept can be ‘useful’;
• outline of the argument to be put forward;
• Thayer’s rejection of ‘legal relevance’;
• Wigmore’s contrary view;
• judicial decisions about relevance, for example,  DPP v Camplin (1978); DPP v Majewski (1977);
• the connection made by courts between relevance and weight;
• apparent ‘rules’ about relevance: Grant (1996);  Halpin (1996);  Guney (1998);
• difficulties presented by ‘legal relevance’.

Answering
A legal concept may be useful either because it helps us to understand the law as it is, or because if it were to be introduced, it would improve the state of the law. I shall argue that a concept of legal relevance is not to be found in the existing state of the law and that it would not be useful to introduce it.
Thayer defined the law of evidence as ‘a set of rules and principles affecting judicial investigations into questions of fact’, but he pointed out that these rules and principles do not regulate the process of reasoning, save to the extent of helping to select the factual material upon which the processes of reasoning are to operate. Chiefly, in addition to prescribing the manner of presenting evidence and fixing the qualifications and privileges of witnesses, these rules and principles determine what classes of things shall not be received in evidence. There is one principle of exclusion, however, which Thayer described as not so much a rule of evidence as a presupposition involved in the very conception of a rational system of evidence: this was the principle which forbids receiving anything irrelevant.

But the law, according to Thayer, furnishes no test of relevance. For this, it tacitly refers to logic and general experience, the principles of which are presumed to be known. Wigmore, on the other hand, questioned the idea that the law furnished no test of relevance. He argued that although relevance is originally a matter of logic and common sense, there are still many instances in which the evidence of particular facts as bearing on particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish evidence of the sense common to a great many individuals, and so to acquire the authority of law. It is thus proper, he argued, to talk of legal relevance.

It is certainly the case that in some instances, judges have laid down rules about what is relevant or irrelevant. For example, they have decided that age and sex are always relevant when considering the defence of provocation ( DPP v Camplin (1978)). And intoxication is, as a matter of law, irrelevant in considering whether the mens rea for a crime of basic intent was present ( DPP v Majewski (1977).

But, apart from specific rules such as these, it is necessary to take into account the practice of the courts of rejecting evidence that has minimal weight on the ground that it is ‘irrelevant’. Is this because the evidence falls short of the minimum requirement of something which can be called ‘legal relevance’? There are good reasons why data of very slight weight should be excluded. Doing justice according to law is not the same as doing a piece of historical research. Concessions have to be made to what Justice Holmes referred to as ‘the shortness of life’, as well as to the financial resources of the litigants or the legal aid fund. Moreover, if the field of judicial inquiry were too wide, it might make decisions more unreliable because a mass of evidence would more readily lead to confusion.

It is also possible for the courts to develop something that can appear at first glance to be a rule about relevance in a particular type of situation, but which is really something else. Over the last few years, there has been a cluster of cases concerned with the precise significance to be attached to the discovery of large sums of cash in the possession of persons charged with possession of drugs with intent to supply. In one of these cases,

Grant (1996), it was said in the Court of Appeal that if there was any possible reason other than drug dealing for the defendant’s possession of cash, the finding of the cash was to be treated as irrelevant, and juries should be so directed. And, in  Halpin (1996), the Court of Appeal said that evidence of a defendant’s possession of large amounts of money, or of his extravagant lifestyle, could not be relevant where the issue in the case was possession, rather than intent to supply. However, this was later rejected in  Guney (1998), where the Court of Appeal said that although evidence of cash or lifestyle might only rarely be relevant where there was a charge of simple possession of drugs, such evidence could not be excluded as irrelevant as a matter of law. The relevance of any item of evidence is to be decided ‘not on abstract legal theory but on the circumstances of each individual case’ (see also  Griffiths (1998)). It appears that the courts, at any rate, are reluctant to acknowledge a concept of ‘legal relevance’, higher and stricter than logical relevance. In fact, two main difficulties lie in the way of such development.

The first is that a concept of this kind would defy definition. The second is that since each case would be decided on its own facts, there would be considerable difficulty in developing a body of case law about what was legally relevant. The examples cited earlier of  DPP v Camplin and  DPP v Majewski are better seen as defining the substantive law in relation to particular offences than in saying something about a concept called ‘legal relevance’.

Not only does there seem to be little support for the proposition that a concept of legal relevance despite the language of some judges can be found in the law; there appear to be good reasons why such a concept should not be recognised. In the first place, there is an inherent conflict between a theory that all logically relevant evidence should be admitted unless excluded by a clear ground of policy, and a theory of legal relevance, which would require a minimum quantity of probative value for each item of evidence in any particular case. There is a danger that a concept of legal relevance, if consistently applied, would exclude logically relevant evidence unless legal precedent authorised its admission. If, despite difficulties, a body of case law were to develop, it would give rise to a large number of cumbersome rules and exceptions.

The second reason why a concept of legal relevance ought not to be recognised is that to fix relevance in a straitjacket of case law would make it even more difficult than it already is to adapt the law to changing circumstances.
Necessarily, judges’ decisions about relevance reflect the prevailing value judgments of the society in which they live. Relevance can become a useful instrument for discarding arguments and evidence that challenge important, though perhaps unexpressed, values. Thus, in the 19th century, the courts upheld a notion of freedom of contract which allowed them to argue that an aggrieved worker could have protected his position by insisting on an appropriate contractual stipulation. Evidence of inequality of bargaining power would have been ruled ‘irrelevant’. That what is relevant depends on the basic assumptions of a particular society becomes even clearer when one considers the evidential significance of marks on the bodies of those formerly suspected of witchcraft, or of the appearance in their vicinity of such creatures as a cat, a toad or a wasp.

No one, of course, could argue a case from a standpoint wholly outside the beliefs of his own society. And it may well be that arguments about relevance will be constrained by the way in which the substantive law is defined. What one can reasonably hope is that the ability to argue from a critical standpoint in particular cases should not be easily frustrated. A further obstacle in the way of such arguments would be likely to emerge if a concept of legal relevance were to become fully developed in the law of evidence.

Key Notes

1. Cf  Turner (1975)  per Lawton LJ: ‘Relevance, however, does not result in evidence being admissible: it is a condition precedent to admissibility.’
2. Cf the observations of Lord Bridge in  Blastland (1986).
3. But see s 41 of the Youth Justice and Criminal Evidence Act 1999. It looks very much as if the government is accepting that some facts may be  logically relevant, but, to preserve a ‘balance’ between the interests of the complainant and the defendant, they are not allowed to be  legally relevant.
4.  Thomas, K,  Religion and the Decline of Magic, 1971, p 530.
5.  See Thayer, JB,  A Preliminary Treatise on Evidence at the Common Law, 1898, Chapter 6; James, GF, ‘Relevancy, probability and the law’ (1941) 29 California L Rev 689, pp 689–705; Trautman, HL, ‘Logical or legal relevancy—a conflict in theory’ (1952) 5, Vanderbilt L Rev 385, pp 385–413; Weyrauch, WO, ‘Law as mask—legal ritual and relevance’ (1978) 66 California L Rev 699, pp 699–726.

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Introduction to the law of evidence and the basic concepts

Introduction to the law of evidence and the basic concepts

Monday, February 22, 2016

The biggest obstacle to doing well in an evidence examination is failure to realise that this is very largely a practical subject, and that when you are faced with a problem question you need to think as carefully about the facts as about the law perhaps even more carefully, because quite often what you think about the facts will affect the legal position. It would therefore be a good idea to make it a rule that you think about a problem question first as a story.

Somebody is trying to prove something. How is he doing this? First, he should have in mind a clear idea of what is to be proved. Suppose we take a famous murder trial which took place in 1910 that of Dr Crippen. The prosecution was trying to prove that Crippen had murdered his wife. The story, according to them, was that Crippen had fallen in love with his young secretary, Ethel Le Neve, and had decided to kill his wife so as to leave him free to marry Ethel. One night, therefore, he put poison in a glass of stout his wife’s regular nightcap.

The poison might have been sufficient to kill her, or it might merely have rendered her unconscious. At any rate, by the time Crippen had finished with the body she must have been dead. According to the prosecution, he cut the flesh from the bones and buried it in pieces in the cellar of the house where they lived. He burned the bones, and the head was never found. To explain his wife’s absence, he told friends at first that she was staying with relations. Later, when the police began to make inquiries, he told them that she had left him and that he had been too embarrassed to tell people this. Crippen had not yet been arrested, and shortly after his interview with the police, he hurriedly left the country with Ethel Le Neve. Meanwhile, the police dug up the cellar floor and discovered the human remains that had been buried there. Crippen was followed and brought back to England to stand trial.

You know, of course, what constitutes murder in English law. But from the standpoint of someone studying evidence, you must now decide precisely what it was that the prosecution had to prove in this particular case. The first thing they had to prove was that Mrs Crippen was dead. Crippen maintained throughout that his wife had left him and that he knew nothing of the remains in the cellar. It was therefore necessary for the prosecution to establish that the remains were those of Mrs Crippen. They had also to show that her husband had killed her intentionally.

It is at this stage that the prosecution had to start thinking carefully in terms of relevance. Ideally, each item of evidence they presented should have had a probative job to do in the overall task of proving that Crippen had murdered his wife. For example, by proving that Mrs Crippen had had the mark of an operation on her body, and by showing that one of the pieces of buried flesh had the same mark, the prosecution was able to establish that the remains in the cellar were those of Mrs Crippen and that therefore she was in fact dead.

The evidence of Crippen’s flight was also relevant, but it’s worth pausing to consider why this was so. What probative job did this item of evidence do for the prosecution? The prosecution suggested that it showed guilty knowledge. But why should it do that? One answer is that people who suddenly leave the country when the police are making inquiries about them are likely to do so because they fear that their criminal activities are about to be discovered.

Notice two important points at this stage. The first is that if you press sufficiently the question why an item of evidence is relevant, your explanation will often take the form of a generalisation about the way things are in the world  which itself may or may not be true. I tried to make my explanatory generalisation about people who run away appear true by using the words ‘are likely to do so’. It leaves room for alternative explanations they may be innocent but fear that the police will frame them; they may have a rich aunt dying in Brazil but I put my explanation forward as one that is likely. If I am right in this, it follows that the evidence of the flight was relevant, admissible and had significant probative weight.

Now, let’s look at a question of relevance in another famous murder case. Edith Thompson and her husband were not very happily married. They took in a young lodger, Freddie Bywaters. One night, when Mr and Mrs Thompson were walking home, Freddie sprang out from a place where he had been waiting and stabbed Mr Thompson to death. But the prosecution story was that Freddie was not the only culprit. He and Edith, it was alleged, were having an affair, and she had plotted the murder with him and had encouraged him to carry it out.

Among the many items of evidence relied on at trial by the prosecution was the disparity in age between Freddie and Edith. She was 28 years old at the time of the murder; he was only 20. What was the relevance of this? What probative job did this information do? At the time, nobody seems to have had any clear thoughts on the matter. But we need to ask this question: what generalisation about the way things are in the world has to be true for this item of evidence to be relevant? Here is a suggestion: ‘In a s3xual relationship, an older woman is likely to dominate a younger man.’ That, if true, would help the prosecution because it would add to the probability that Edith persuaded Freddie to murder Mr Thompson. But  is it true? If it is not true, and no satisfactory substitute can be found, then surely the evidence is irrelevant, and so inadmissible.

(See Twining, W,Theories of Evidence: Bentham and Wigmore,1985, pp 143–44; and Twining, W, Rethinking Evidence: Exploratory Essays, 1994, pp 290–93.)

This is the sort of problem that classically arises in relation to what is known as ‘similar fact evidence’. More will be said later on that subject but it is worth emphasising now that in all such cases, you should be asking the following two vital questions. What is the probative job that this bit of evidence is being put forward to do? What generalisation about the way things are in the world has to be true for this evidence to be able to do that job? I said earlier that there were two important points to be made about the sort of answer which I suggested to the question of why evidence of Crippen’s flight was relevant at his trial. One was the point which I have just been making about the  form the answer takes—that of a generalisation.

The second important point is this. The weaker a generalisation is, the more likely it is to be true. But the weaker the generalisation, the less probative weight will attach to the item of evidence in question. This may be very important where admissibility depends on assessing the probative weight of a piece of evidence and the improperly prejudicial effect that it might have on a jury if they heard it (see, generally, the law relating to similar fact evidence). For example, some cats are Siamese. I have three cats. But, this is not much evidence that I have a Siamese cat. One or more of them  may be a Siamese, but the likelihood is not great because there are many other breeds, as well as non-pedigree cats.

Later, you will see the importance in other areas of evidence law of the question: what is the probative job that this item of evidence is put forward to do? Hearsay is a particularly good example. But being able to answer this question, and being able to say why an item of evidence is relevant by pointing to an appropriate generalisation, can be done only if you have first thought carefully about the  story the examiner is telling you in the particular problem question.
If you get a question directly on relevance in the examination, it will almost certainly be an essay question involving theory, and I have tried in the answer to Question 1 to give some idea of how such an essay might be tackled. But you don’t  have to be able to write an answer to a theoretical question about relevance to do well in an examination. What you  do have to be able to do is understand how the idea works.

As well as relevance, there are a few other basic concepts which you ought to know about. You will find that this is a subject that has attracted quite a complicated terminology, about the use of which there is not complete agreement on the part of either judges or writers. A lot of this terminology can in practice be avoided, but you should take care to understand how the writer of the textbook you are using employs his terminology, and you should be particularly careful when reading cases to make sure that you understand what a particular judge is getting at by the language he uses.

Checklist: Students should be familiar with the following areas:
• relevance;
• admissibility;
• what facts are in issue in criminal cases;
• how to discover what facts are in issue in a civil case;
• formal admissions in civil and criminal cases;
• judicial notice.

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Significance of LSAT and UGPA when making an Admission Decision

Significance of LSAT and UGPA when making an Admission Decision

Friday, January 15, 2016

There are usually numerous queries about how significant are the LSAT score numbers and Undergraduate UGPA are in the law school admissions process, if these remained the only two things admissions boards considered at the job, it would be simple and quick.

The Law School Admission exam, or LSAT. is the test compulsory for any admission to any law school that is recognized by the American Bar Association (ABA). it is the test to get admission into law school, you may think L-SAT would examine your knowledge of the law, but it doesn’t.

My presumption is that schools would have a supercomputer program to figure out who to admit by imputing those two numbers and a list of those admitted would be easy formed. However, this is not factual. Every submission gets reviewed and serious consideration is adhered to.

The “numbers”

These “numbers” are very significant but they are only one of numerous portions of the law school admission application mystery. Some institutions do not use an index for assessing their interviewees and the committees do not allocate a quantifiable value to any component of the application. The admissions committees take a general view of each applicant and assess every portion of each application.

The significance of any given component of the application will be determined by the strong point and feebleness of the application as a whole. Analyzing of an applications is the most significant part of the role of Admissions committees. It is perhaps popular counsel that you should try to do your best with all parts of the application together with the LSAT and the UGPA. Presenting as robust as possible the whole enchilada that is asked of you by the admissions committee, is very essential.

Significance of LSAT.

The LSAT is a significant part of your application. Even though no one aspect is an impeccable gauge of academic potential, studies make evident that the LSAT is a comparatively a dependable forecaster of law school performance. Nonetheless, the committee assesses the LSAT in the context of your general application and an applicant’s LSAT score is not the solitary factor in any application.

The committee will recite every single component of your application in its entirety notwithstanding your LSAT score.

Significance Undergraduate GPA.

The Undergraduate GPA is an additional three-digit number comparable to the LSAT, but there are numerous factors that are assessed when making an allowance for the UGPA. The committee uses your collective GPA as calculated by the Credential Assembly Service. The committee will also look at your GPA at your undergraduate degree institution, the GPA inside your major, the percentage ranking in contrast to additional law school applicants from the similar institution academic honors, the difficulty of that academic program, the quality of the degree awarding institution and any tendencies in your academic presentation.

Because consideration is based on numerous factors, successful students demonstrate considerable GPA variation and originate from an extensive range of undergraduate institutions.

In conclusion, the two-number modules of the application process, the UGPA and the LSAT, are significant but they aren’t the only part of the whole procedure. When setting together your application, ensure that all the pieces of the enigma are as resilient as they can be.

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How to Read a Judicial Opinion: A Guide For New Law Students.

How to Read a Judicial Opinion: A Guide For New Law Students.

Thursday, September 10, 2015

This article is intended to help incoming law students to understand how to read cases. It clarifies what judicial opinions are, by what method are they structured, and what to look for when you reading the cases. Part I explains the various ingredients found in a archetypal judicial opinion, and is the most indispensable section of the article. Part II debates what you should look for when you are reading an opinion for class. Part III accomplishes with a momentary discussion of why law schools use the case method.

I. What’s in a Judicial Opinion? 

Judicial opinions are also known as legal opinions, legal decisions or cases, they are written decisions authored by judges , they clarify how they resolved a particular legal dispute and  explain their reasoning. An opinion articulates the story of the case: what the case is about, how the court is resolving the case, and why. Most legal opinions follow a simple formula that will appear anomalous to you at first, but will swiftly convert a second nature.

The basic formula:

Let’s start with the preliminary material before the body of the opinion. This part isn’t very Imperative in most cases, but it’s useful to know nevertheless.

The Caption/s:

This is the title of the case, such as Donoghue vs. Stephenson, or Miranda vs. Arizona. In most of the cases, the caption reveals the last names of the two parties to the case or dispute, and it tells you who was involved in the case. If Ms. Smith sues Mr. Jones, the case caption may be Smith v. Jones (or, depending on the court, Jones v. Smith). In a criminal case, the government brings the case, and the government itself is listed as a party. If the government charges Samuel with a crime, for instance, the case caption would be ‘United States v. Samuel or Republic v. Samuel.

The Case Citation/s: 

Beneath the case name, you will find a legal-citation that stating the name of the court that decided the case, the law book/s in which the opinion was published, where it can be found, and the year in which the court decided the case. Illustration: “U.S. Supreme Court, 485 U.S. 759 (1988)” refers to a United .States. Supreme Court case decided in 1988 appearing in Volume 485 of the United States Reports, at page 759.

The Author of the Opinion: 

The then morsel of information is the name of the judge who authored that opinion. In most of the cases, the opinion will merely state the last name, followed by the initial “J.” No, judges don’t all have the first initial “J”; the letter stands for “Judge” or “Justice,” depending on the court. For instance, “Hand, J.” refers to Judge Hand, and “Holmes,J.” is Justice Holmes. In jurisdictions where the judges aren’t called “judges,” you may realize an altered initial.

For instance, some courts call their judges “Chancellors,” in this case, the initial will be a “C” instead of a “J.” You will also realize differences like “C.J.” for Chief Judge, “V.C.” for Vice Chancellor, etc. In some instance, the opinion will have the Latin phrase ‘per curiam’ in place of the judge’s name. This phrase means “by the court,” and generally means that the opinion reflects a common view held by all judges of the court’s, rather than the writings of a single judge. So that’s what is involved in the preliminary stage. Now Let’s see what the body of the opinion involves.

The Facts of the Case: 

The first part of the body of the opinion in a case is usually dedicated to presenting the facts of the case. Amazingly, there are no specific instructions on what a judge must include in this segment. Occasionally the fact segments are long and at times short; at times they are clear and accurate, and other times they are ambiguous. the facts tell you the judge’s understanding of the case and what the judge thought was a significant feature of the case that helped him or her reach a decision.

The “facts” of a case contain mostly events that occurred before the legal case was filed in court, and grounds that led to the filing of the case. For instance, that A pulled out a gun and shot B, or that A agreed to give B $100 and then changed her mind. Though, most opinions also comprise a section on the procedural history of the case.

The procedural history consists of numerous motions, hearings, trials, and proceedings that transpired in the case before the court that is writing the opinion was asked to resolve the dispute at issue. close attention should be paid to the procedural history when you read cases for your civil procedure class, always note the word “procedure”; normally speaking, it is of less importance if you are reading a case for your other classes.

Some opinions may perhaps make your life a bit challenging by calling the parties to a case by their special legal names, such as appellant/s, appellee/s, petitioner/s, respondent/s, plaintiff/s, defendants, etc. You will eventually get used to this. However, it may assist you to keep in mind a few simple guidelines. First of all, where someone is bringing an action or a lawsuit, the person bringing it is known as the plaintiff and the person whom he or she sues is the defendant. In criminal cases, where a charge is filed in court by the government, the person who has been charged is known as the defendant. In criminal cases , there are no plaintiffs , however; all cases are brought by the government, “the state,” or “the prosecution,” or simply “the government.”

After the original court of law has determined the case, the losing party may well wish to seek review of the decision by filing an appeal before a higher court. An appeal means a legal proceeding before a higher court to review the decision of the lower or original court. The original court is identified as the trial court because that’s where the trial occurs. the higher court is identified as the appellate or appeals court . A single usually judge presides over the proceedings of the trial court; however, appellate cases are decided by a panels of several judges.

In the course of the proceedings before the higher court, the party that lost at the original court Ordinarily is termed the appellant – hence the one bringing the appeal – and the party that won is known as the appellee or the party whose victory has been appealed.

Some older opinions may perhaps refer to the appellant as the “plaintiff in error” and the appellee as the “defendant in error.” In these cases, the party who lost before the lower court is termed the petitioner, and the party that won before the lower court is termed the respondent i.e. the one who appears before the higher court to answer to the losing party’s petition.

The Law of the Case

After the opinion has made the facts obtainable, it will then debate the law. This segment of the opinion defines the legal principles that the judge will use to resolve the case and reach a certain outcome. In various cases, the law is presented in two phases: first the opinion will debate the general principles of law that are applicable to the case given its facts, and secondly the court will apply the law to the facts and reach the court’s conclusion.

Some cases deduce the Constitution, the establishing charter of the government while other cases interpret statutes, which is a name for written laws passed by legislative body such as Congress or parliament. Still other cases interpret the common law, a term that refers to a body of prior case decisions ( known as precedents ) that originate ultimately from the pre-1776 English law that the Colonists brought over from England. The source of the law can be relatively important for the reason that Constitutional rules trump statutory or statute-based rules, and statutory rules also trump common law rules. As a outcome, the source of the court’s authority can help to determine the importance of the court’s opinion.

As student, you should also look out for the method/s of reasoning that the court bargains to justify its decision. For instance, courts may validate their decision on grounds of public policy. This is particularly probable in common law cases: the impression here is that the court believes that the legal rule it adopts is a good rule for the reason that it will lead to better results than any further rule.

Courts may also validate their decisions basing on the court’s understanding of the narrow function of the judiciary. When a case is directed by a statute. Courts may determine that a result is required since that is what the legislature’s statute says, no matter what the court contemplates would be the best rule. Similarly, when past courts have already responded to similar questions before, a court may clinch that it is required to reach a particular result because it is bound by the earlier precedents. This is referred to as an application of the judicial practice of stare decisis, an abbreviation of a Latin phrase to mean “That which has been already decided should remain settled”.

Other courts may rely on morality, fairness and notions of justice to justify their decisions. Numerous courts will blend and match, relying on more than a few or even all of these justifications. There are two important ingredients that you should be looking for in the legal section of the opinion.

Thus The holding of the case

If there is one, as well as any dicta the opinion may comprise. The holding is the essential principle of Law that the case represents. It is the decision or conclusion that the case stands for, the court’s determination of the key legal dispute that it faced. ( more about holdings of cases will be expounded in this article.) At the contrasting end of the spectrum from the holding of the case is the dictum, or, to use the more shared plural form, dicta. Dictum is an abridgement of the Latin phrase “obiter dictum,” which means “a remark or by the way.” Dicta are statements cutting-edge an opinion that are not actually compulsory to resolve the case before it. The difference between the holding and dicta can be significant for the reason that the holding of a case is more significant than the dicta.

The Disposition.

The disposition frequently appears at the end of the main opinion or judgment, and it tells you what act the court is taking with the case. For instance, an appeals court may affirm the Decision of the lower court, upholding it; or it may reverse that decision, overturning it, and remand the case, sending it back to that lower court for further proceedings. Note that that when a higher court affirms it means that the lower court had it right in result, if not in reasoning. Wordings like, remand, reverse and vacate means that the higher court thought the lower court had it wrong.

Concurring and Dissenting Opinions.

Concurring and dissenting opinions known as. “concurrences” and “dissents” are mere opinions by judges who did'nt see entirely eye-to-eye with other judges of the court, but wish to express a slightly or even dramatically different view of the case. In a broad-spectrum, a concurring opinion is an opinion by a judge who would have gotten or reached the same result as the majority, but for a dissimilar reason. Dissenting opinions are sentiments by judges who disagree with the majority’s outcome entirely.

Concurrences and dissents are very significant. You need to recite them carefully. When they aren’t important, concurrences and dissents commonly are edited out by authors of casebook objectively to keep the case from being too long. Whenever included, it means that they offer some valued insights and arguments.

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What to know about Immigration and the Art of Temporary Tightening

What to know about Immigration and the Art of Temporary Tightening

Wednesday, September 02, 2015

Immigration History- In 1789 the United States Constitution replaced the Articles of Confederation, and in 1790, the most pivotal document that would shape immigration policy for years to come, the Naturalization Act, established a 2-year residency requirement for "aliens who are free white persons of good moral character."

President John Adams would increase residency to 14 years, wanting to leave open the option of deporting those that were deemed dangerous, and then the Jefferson Administration would subsequently reduce residency to 5 years.

From 1820-1920, nearly 20 million immigrants would come to the United States. Millions of immigrants wrote home to their families, and as a result, many more wanted to come to this country.

This immigration has made the United States what it is today, because in the end we are very much a nation made up almost entirely of immigrants. There has been some exclusionary policies implemented over the years beginning in 1862 with the "Anti-Coolie Act." The reason for such policies is because of the enormous amount of people wanting to come to this country.

There could well be additional measures as our aging population has to have their needs met. In the end, the United States is still taking care of immigrants, they are just older now, and have lived here for many moons, helped build the country, and now they need some help in their golden years.

What Precipitated Such Widespread Interest in Coming to the United States

The streets were paved with gold, and opportunities were rampant. This was the news spreading through Ireland and Germany in the late 1800s. From 1830 to the first World War, German immigration steadily increased, and roughly 9 out of 10 immigrants chose the United States, largely because family members who were already in the United States wrote home telling them how wonderful it was in their new country.

The failed German Revolution of 1848 really precipitated their interest in finding a better place to live. Prospects in the United States also seemed very bright for the Irish as the potato famine caused widespread poverty and hopelessness. Irish Immigration peaked in the 1840s, having largely begun around the 1820s. In 1890, the trends of immigration would move from those coming to our shores from Northern and Western Europe, to those coming from Southern and Eastern Europe. From 1911-1920 almost 8 million immigrants, largely from Italy, would come to the United States.

How Immigration Has Shaped the United States

The importance of immigration for our country is everything we are about. We are a nation of immigrants, and everything we have achieved to date, has largely been a byproduct of immigrants. Sans the Native Americans, every person here is an immigrant. The immense growth, expansion and strength our country has today was sponsored by millions of people, representing thousands of different flags, from across the world at large.

It is, in fact, hard to ascertain if there have been any negative byproducts of immigration, as that is all this country has ever known. With every con one might hang on immigration, there are likely 10 items in the pro column. The bigger question is what might the country have become without the benefits of immigrants? Diversity has made us indeed very strong. Our strength comes from the fact that we blend so many different cultures, and different people, together in a nation that is collectively a composite of every country in the world.

Why the United States May Have To Control Immigration More Aggressively in the Next Decade

In the United States, as the Baby Boomers are getting on in years, cost of healthcare and how to take care of these citizens is becoming front-and-center. Immigration is not linked to this necessarily, but immigrants do use resources and public benefits as they work toward citizenship.

For this reason, immigration law will likely remain a very hot topic, and is unfortunately becoming a hole that the government needs to plug up. The funds that were available to provide services to immigrants are requiring redirecting so as to take care "of our own" as it were. Less of a political issue, immigration is slowly becoming a victim of the bigger question of where are we going to get the money?

Immigration is becoming collateral damage as the country struggles to manage an aging population. Immigration policies are likely to tighten up for the next 20-30 years as the need to manage the aging population takes over.

Likely beyond that time, there will again be a softening of what will likely be the implementation of quasi-exclusionary tactics now that are necessary to manage fiscal policy in the next few decades. Take care of our own comes to mind here, and eventually this would have to happen, but it will not be forever. Tightening should prove a temporary measure.

Article by:  Robert Rogers, Esq. www.corallaw.com

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International Trade Law Course Outline And Reading List Continued

International Trade Law Course Outline And Reading List Continued

Tuesday, August 18, 2015

This International Trade Law Course Outline And Reading List is a Continuation of the general international trade reading list and Course Outline.

International Carriage of Goods:

Carriage of goods by sea:
    From laissez faire to international Conventions
    Hague Rules
    The Hague Visby – Rules
    Hamburg Rules
    Rotterdam Rules
    The Uganda Marine Insurance Act, 2002
    Carriage of Goods by Sea Act 1971-UK
    Carriage of Goods by Sea Act 1992-UK
    See also: The United Nations Convention on Carriage of Goods by Sea 1978

Cases:
    The Amstelslot (1963)2 Lloyd’s Rep 223
    Albacora SRL vs. Westcott & Lawrence Line (1966)2 Lloyds Rep 53
    Anglo – Saxon vs Adamastos Shipping Co. (1957)1 Aller 725
    The antares (1987)1 Lloyd’s Rep 424

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Legal Research And Writing Skills - In A Nutshell

Legal Research And Writing Skills - In A Nutshell

Monday, July 13, 2015

A. Good writing style
i) Make the paragraph the unit of composition. It should express one’s thought or a series of thoughts. It should also have a good flow of arguments. Use topic sentences and avoid one sentence paragraphs.
ii) Use the active voice
iii) Make positive statements. Do not state anything that is false.
iv) Use definite, concrete, specific language
v) Omit needless words and phrases, e.g “nevertheless”;”actually”;” Because of the fact that . . “.;” More to that . . .”
vi) Avoid acronyms and define terms or organizations that are not common knowledge
vii) It is okay to rewrite many times as practice makes perfect.
viii) Well reasoned and structured argument, i.e ensure that there are no hidden steps in making the argument; the inputs into the argument are all true; conclusion is sound.
ix) Logical progression from introduction to conclusion (no side trips)
x) Evidence of original and critical thought.
xi) Grasp of relevant literature
xii) Well written and presented, i.e clear and precise use of words; should not be overly vague; easy to understand and follow.
xiii) Proper referencing and citation (as shown below).
xiv) In a nutshell, the Assessment criteria for a good piece of legal writing should address the following:

Comprehension – You should demonstrate a thorough understanding of the law in your area of research.
Analysis – breaking down a complex subject into component parts and examining them in detail.
Critique – should defend a position or criticize a position taken by othes, using arguments. Inter alia, your critique should reflect on the following questions: What are the goals aimed to be achieved by the law in this area? How far does the law achieve these goals? What are its failures?
Final presentation – should be well written (as above) and properly referenced.

xv) The most common errors in legal writing are as follows:
· No research question or the question is too broad.
· Overly descriptive work
· Unsupported conclusions
· Weak structure (this can be avoided by preparing an abstract before each chapter)
· Poor presentation, i.e grammatical and spelling errors.
· Bad citation and referencing

xvi) What makes a good research topic?
· Does it interest you?
· Does it have contemporary significance?
· Is it manageable? i.e is it too broad a subject/topic that you can not effectively cover it within the given word limit or time limit for the research.

In the words of Eugene Volokh, ‘Writing a Law Review Article.’ (1998) 48 J Legal Education 247: “Good legal scholarship should meet the requirements of patentability: It should make (1) a claim (assertion or argument) that is (2) novel (new), (3) non obvious (thought provoking), (4) useful, and (5) sound (not attracting obvious objections).” It should also be seen by the reader as such.

B. Referencing (citing authority)
i) Purposes:
a) Source of ideas and information
b) Quotations and paraphrases

ii) Systems
a) Author Date System (Harvard System)
b) Footnote/Endnote System. Note: If you use the footnote/endnote system and you do not put anything but references, then these will not be counted as part of the word count.

iii) Proper Attribution: You must indicate a source for any of the following that you take from someone else:
a) Passages
b) Ideas
c) Structures

iv) Avoid Derivative work or Mosaics, i.e too much quotation or paraphrasing.

C. Understanding Abbreviations
i) Supra = Above. Supra note 9 refers to the work previously cited in note 9.
ii) Infra = Below. Infra note 9 refers to the work cited subsequently in note 9.
iii) Op. Cit.= work already cited
iv) Ibid.= same source as the immediately preceding reference.

D. Bibliography
i) Must include all sources consulted, whether or not quoted or referenced in text
ii) Alphabetical by author
iii) Cases and Statutes are listed separately but also in alphabetical order.

E. Citing specific sources (see below)

F. Secondary Citations
i) When you obtain a passage or idea from a source other than the original, you must cite both sources. e.g A . . . .. . as quoted in B …….
ii) Do not cite only the original unless you have consulted it directly.
A good piece of legal writing involves avoiding putting the author/writer’s views at the Centre. You need to be objective and avoid pushing personal views, save for where it is appropriate.

Citing Specific Sources:
The preferred methods of referencing different types of work are set out below:

A: Book
Author’s family name, initial (year of publication) Title of Book, Edition Number (if other than first edition), Publisher, Place of Publication.
Examples:
· Maskus, K. (2000) Intellectual Property Rights in the Global Economy, Institute for International Economics, Washington DC.
· Trebilcock, M. and Howse, R. (1999) The Regulation of International Trade, 2nd Edition, Routledge, London.

B: Chapter in Edited Volume
Author’s Family name, Initial. (Year of Publication) “Title of Chapter” in - Editor’s Family name, Initial. (ed) Title of Book, Publisher, place of Publication.
Examples:
· Kauffer, E. (1990) “The Regulation of New Product Development in the Drug Industry”, Majone, G. (ed) Deregulation or Re- regulation? Regulatory Reform in Europe and the United States, Pinter, London.
· Merges, R. and Nelson, R. (1992) “Market Structure and Technical Advance: The Role of Patent Scope Decisions”, in Jorde, T. and Teece, D. (eds) Antritrust, Innovation, and Competitiveness, Oxford University Press, Oxford

C: Article
Author’s Family name, Initial. (Year of Publication) “Title of Article”, Volume Number of Journal, Name of Journal, Numbers of first and last Pages of Article.
Example:
· Jackson, J. (1998) “Dispute Settlement and the WTO: Emerging Problems”, 1 Journal of International Economic Law 329-351.

D: Published Report of Other Paper
Author’s Family Name, Initial. (Year of Publication) Title of Report/Paper, Document Number (if applicable), Publisher, Place of Publication.
Example:
· Primo Braga, C. Fink, C. and Paz Sepulveda, C. (2000) Intellectual property Rights and Economic Development, World Bank Discussion Paper No. 412, World Bank, Washington DC.
· Transparency International (2001) Global Corruption Report 2001, Transparency International, Berlin <http:// www.globalcorruptionreport.org /, visited 18th December 2001>

Note: Where published reports and other documents have been accessed via the Internet, the full web address and the date when the web site was visited must be included in the reference.

E: Case Report
Methods of referencing case reports vary between jurisdictions. You are recommended to adopt the system of citation used in the jurisdictions where the relevant case was decided. The jurisdiction and the name of the court in which the case was decided must be clearly indicated in any reference. In most situations, it will be sufficient to include the following information:
Ø Title of the case or names of the parties (underlined.
Ø Date when the case was reported
Ø Official case number (if any)
Ø Name of the series of reports in which the report is published (the name may be abbreviated using the standard abbreviation, e.g A.C. for Appeal Cases in England and Wales)
Ø Volume number of the series of reports in which the report is published
Ø Page number of the first page of the report.

Examples:
· Lubbe v Cape Plc (No. 2) [2000] 1 W.L.R. 1545 (House of lords, United Kingdom).
· Shevill v. Presse Alliance SA, C-68/93 [1995] ECR 1-415 (European Court of Justice).
· Quality King Distributors, Inc. v. L’anza Research Intern., Inc., 118 S.Ct. 1125 (1998) (Supreme Court, United States).
· Canada – Term of Patent Protection, AB-2000-7 (2000) WT/DS170/1B/R (World Trade Organization, Appellate Body)

Note: Further guidance on the citation of United States case law is given by Peter W. Martin of Cornell Law School in his Introduction to Basic Legal Citation - available online at: http://www.law.cornell.edu/citation/citation.table.html . Martin’s approach is based on - The Blue Book: A Uniform System of Citation published by the Harvard Law Review Association.

F: Academic Conference Paper/Workshop presentation
Presenter/Author’s Family Name, Initial. Title of Paper, Workshop/Conference organizers, Theme, place and date of workshop.

Examples:
· Lundeberg, H. The Natural Resources Policy in Uganda: Oil policy – Lessons from Norway and Bolivia, A Paper presented at a Public Debate organized by the Uganda Development Policy Management Forum (UPDMF) on Oil and Land Policies in Uganda, held at the Uganda Management Institute on the 26th of August, 2010.
· Kyomuhendo, B. Improving efficiency and effectiveness of the Uganda Registration Services Bureau, A paper presented at a Conference marking 20 years of Existence organized by the Uganda Law Reform Commission, on the theme Doing Business in Uganda, held at Speke Resort Hotel Munyonyo, 21st – 22nd October 2010.

G: Website
Full web site address (i.e URL – Universal Resource Locator), date visited
Example: http://www.consumersinternational.org, visited 20th December 2001.

Priorities to consider when writing a Legal research/academic paper

I. Steps to Identifying a Good Topic (Source: R. Kumar, Research Methodology (1996) (London: Sarge), p.39)
a. Identify a broad area of interest
b. Dissect the broad area into sub areas
c. Select a sub-area on which to focus
d. Raise several research questions that you would like to resolve
e. Formulate objectives
f. Assess the feasibility of your objectives
g. Check to make sure that you still have the interest, time and resources to complete the objectives.

II. Possible sources for ideas (Source: H. Meeker, Stalking the Golden Topic: A Guide to locating and selecting Topics for Legal Research Papers, (1996) Utah LR 917)
a. Comparative Law
b. Casebooks and treatises, especially questions.
c. Current news articles (e.g The Economist, The East African, Financial Times, The Independent, etc)
d. New Facts, New Cases or New laws.
e. Empirical Study
f. People

III. Research
a. Generally best to start with leading treatises in the area (i.e a formal written work that extensively deals with a subject area systematically, e.g Halsbury’s Law Reports)
b. Read any books or articles that are referred to.
c. Read all reported cases in the area; if you can’t read them all, your topic is probably too broad. Check for cases referenced in other cases.
d. Go online and do lots of different searches (Westlaw, Lexis, Google, Worldlii, Bailii, Ulii, safli and others) to make sure you have everything current in the area.
e. Check online to see that you have the latest news articles in the area.
f. After writing the article, but before turning it in to the relevant office, do more exhaustive search to make sure you have not missed anything.

IV. Structuring the content of your research paper
(Source: Marshall, L. (1997) A Learning Companion: Your Guide to Practicing Independent Learning, 2nd edn, Murdoch University, Murdoch, p.228.

a. Introduction
Start from a general introduction to a more specific content of the same.

i) Orientate the topic: Introduce the topic (perhaps by defining key terms) and provide back ground information.
ii) State the purpose: State the purpose of the essay
iii) State outline: Indicate the areas and perspectives to be discussed in this essay
iv) State thesis/proposition: Indicate your line of argument/viewpoint/conclusions
v) State scope: State what the limits of the essay will be.

b. Body
The body of the essay is the centre of the arguments. It should have topic sentences for each paragraph. The topic sentences carry the main points and outlines and help to develop the argument (thesis). Furthermore, the topic sentence should state the claim made and the following sentences back up that claim with evidence, e.g., through authorities and case studies.

c. Conclusion
i) Summarize outline: Sum up your argument and evidence with reference to the essay topic/question
ii) Restate or qualify the thesis: Restate the thesis or proposition of the essay
iii) Suggest research implications: (Perhaps) mention wider implications and future directions.

V. Formal Aspects of a research paper
a) Appearance, i.e page layout, margins, line spacing and font.
b) Contents, i.e Title page, table of contents, acknowledgements, Declaration, abstract, body of Dissertation/Research paper and Bibliography.

Compiled by
Anthony C.K. Kakooza, LL.M, LL.B, Dip LP akakooza@ucu.ac.ug
Source: Strunk & White, The Elements of style (New York MacMillan Publishing 3ed. 1979)

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Are DIY Legal Forms Software A Layman's Gem ?

Are DIY Legal Forms Software A Layman's Gem ?

Thursday, July 24, 2014

What are DIY Forms?

These are do-it-yourself Free and easy guided step-by-step programs designed to help you fill out your court forms, these computer programs ask you questions. Then the program uses your provided answers to prepare a required form for your case and it will make an information sheet to help you in court.

Who Can Use  DIY Legal forms Software

Criminals are not the only ones that can benefit from the use of legal forms assistance, small business owners too or people starting up their own business, be it independent contractors, or anyone else who needs legal forms and documents, Such form range and have been used in various instances by proven legal entities from Mesothelioma law firm ,Asbestos lawyers ,Structured annuity settlement , Annuity settlements , Car insurance quotes Colorado, Criminal defense attorneys Florida, Best criminal lawyer in Arizona, Life insurance co Lincoln, Online motor insurance quotes, Online colleges, Cheap auto insurance in VA, Forensics online course, Car insurance quotes pa, Car insurance in south Dakota, Cheap car insurance for ladies, Cheap car insurance in Virginia, Mortgage adviser, Automobile accident attorney, Auto accident attorney, Car accident lawyers, Motor insurance quotes, Personal injury lawyer, Car insurance quotes, Asbestos lung cancer, Injury lawyers, Personal injury law firm, Online criminal justice degree, Car insurance companies all can benefit from legal forms software services and they will be helped to eliminate attorney fees.

Legal matters are something that should not be taken for granted or lightly.  Thus, it is prudential that in whatever legal actions that needs to be taken; right from hiring an attorney, it is the best thing to do. However there are times when we just can’t afford to hire the services of a lawyer.   Taking into Consideration the critical condition of the economy, hiring an attorney may just not fit into your monetary budget.

Does it mean all hope is gone, 

No. there is no need to lose hope just yet,here are still other available options.

The Internet;

Yes, the internet, there are lots of legal forms software’s available online and you can download them for free.  That is if you want, however you can create your own and you do not need any formal legal education to do it.   How? By using, do-it-yourself (DIY) legal forms software that are available for both attorneys, business owners and for personal use.

If your legal issue is just a routine, you can just rely on legal forms; you will not want to hire an attorney.   DIY Legal forms software products are basically programs which can make your legal forms creation as easy as is.   Most of these software’s come with some kits of forms that are easy to fill up and also come with instructions on how to use them.  Thus, even if you’re not a lawyer, you can do this without facing any trouble.  Lawyers and Paralegals can also benefit by using the software to create legal forms for their clients in a matter of few minutes.

Some of the Different Available Legal Forms Software

Bankruptcy Legal Forms Software: this software contains the all forms and instructions need to file for bankruptcy.

Divorce Legal Forms Software: Generally these contains all the necessary legal forms and instructions needed for a no fault divorce. If you are a native of the US system, these divorce forms can be used to handle a no-fault divorce case, without an attorney.

Living Will Legal Forms Software:  this is another handy tool; it can be useful if you are planning to create your own living will.

Real Estate legal Forms software:  Using this software will help you create forms whenever you need to sell your or another home, when purchase a home, or when drafting a lease agreement.  Forms relating to rental agreements, eviction orders, deeds, business contracts, purchase agreements and other miscellaneous actions.

Create Power of Attorney Legal Forms:  this software will help you save on the high cost of hiring an attorney; it will help you to create the power of attorney forms.

Credit Repair Forms software: Be it outdated disputes, misleading or incorrect information in your credit files, adding information to get credit in future, negotiating with creditors and getting or maintain good credit

HR and Employee Manual Legal Forms Software: if you own a business as a HR Manager, this software is designed for you.  You can use this to create your handbooks for your employees, contracts, arbitration and employee assessment forms.

Music Copyright Forms Software: This software contains legal forms and information on how to copyright your song lyrics, legally accepted sample tracks, establishing ownership of songs and to sign contracts.

It all depends on what you need to accomplish, the above software products can be very helpful.  There are still lots of such software available on the internet, and are also available at most computer stores and office supplies.  However, when selecting software, be careful do your due diligence and research about the company.  When in doubt, consult with your legal advisor.

NYS DIY legal Forms software’s are only for court users who do not have a lawyer, legal service providers and pro bono attorneys and staff who help clients who cannot afford legal representation. Commercial use these forms is prohibited and no one may charge you for using these free programs. When you begin to use the program, you will be prompted to accept these terms of use.

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