UNIVERSITY OF THE WEST INDIESFACULTY OF LAW, MONA

LAW 1230 LEGAL METHODS RESEARCH AND WRITING2015 - 2016

ADVANCED LEGAL ANALYSIS - CASE BRIEF METHOD TO ANALYSING CASES

This module discusses the use of the case brief to analyse cases in order to determine the rule for which the case stands, identify flaws in reasoning and discern the flexibility in its application to the facts presently before the court. A case is a complex living thing and must be methodologically dissected to uncover the nuances of its implication in much the same way that the biologist dissects in order to get an accurate understanding of the functioning of a complex living organism. Through this specially formulated structure of briefing a case, flaws in reasoning and other deficiencies in an opinion can be readily identified. Moreover, the briefing of two or more cases that address similar issues allows for the formulation of a general principle that explains all the decisions or to highlight and evaluate inconsistencies in approach.

1. Case Briefs

The case brief is one of the most important systematic tools in legal analysis. It is multi-purposed and achieves a high level of understanding. As lawyers you will be called upon to become experts in areas of law that you were never exposed to during your academic training and yet you must quickly become as authoritative as a judge must be. The deep reading of cases provides one of the quickest and surest ways to become authoritative in an unaccustomed field of law.

Sarah E. Redfield. Thinking Like a Lawyer: An Educator’s Guide to Legal Analysis and Research. (Carolina American Press, 2002) at pp. 108-9:

A case brief is an analytical summary of an opinion. Case briefs are personal tools to assist your understanding of a case. Case briefs extract the important aspects of a court opinion from the sometime lengthy dissertation of the delivering judge. Many people have their own briefing format that they have developed over time. When you begin to write briefs it is easiest to follow a standard form, and then as you gain more experience you can modify that form to fit your own needs. Briefs provide a quick reference source that you can go back to when discussing a case….

In this context, to brief a case means to identify the essential components of an opinion. This kind of brief serves two functions: to help you clarify your thinking on what the opinion really means; and to provide you with a set of notes on the opinion to which you can refer later without having to reread the entire opinion every time you need to use it.

Rarely will you be reading an opinion simply for enjoyment. The objective of a case analysis is to determine whether the opinion, in whole or in part, is analogous or useful to your fact pattern or situation in order to know how the law will deal with your “next case”. The basic methodology for case analysis is to first compare the facts in the opinion with the facts in your situation, and then compare the rule of law that was interpreted and applied in the prior opinion to the rule of law that must be interpreted and applied to your situation.

1

To effectively analyse whether your case is analogous to another opinion, you must understand the opinion. Briefing an opinion can help with this understanding. The problem is that reading and briefing a case are not easy because judges tend to assume and imply a great deal in what they write and because opinions often involve numerous issues and difficult points of law. Still, a framework is helpful.

Charles R. Calleros. Legal Method and Writing 4th ed. (Aspen Publishers, 2002) at pp 115-6:

Perhaps the most important and the most challenging element of a case brief is the ‘synthesis,’ in which you explore the relationship between two or more cases that address the same issue or closely related ones. After comparing the critical elements of each in a series of cases, you can refine your view of the holding of each case in the series. With synthesis, you can either (1) formulate a general principle that explains all the decisions or (2) compare and evaluate the inconsistent approaches of different courts or of the same court over time. In synthesizing cases, you take a critical step in legal analysis…

***Similarly, when studying law, you cannot fully appreciate the legal significance of a single judicial decision without examining its role within a larger body of case law; yet you cannot master the larger body of case law without first gaining at least an imperfect grasp of its parts, first one case in isolation and then a growing group of cases. As you brief a series of cases, you gain new insights by examining the cases’ relationships to one another. Those insights may cause you to modify your early, less sophisticated understanding of a case standing alone or standing with fewer cases in the series. Additionally, they may enable you to identify a general legal principle, or at least a set of accepted criteria, that helps to explain the decisions.

2. Format of the Case Brief

Case briefs may be organized under the following headings:

1. Facts2. Issues3. Decision4. Holding5. Reasoning6. Policy Analysis

I. Facts

Any set of facts, any story, can be written or told from as many perspectives as there are people to write or tell. But the perspective of the lawyer is from the rule of law that is identified as being implicated by the facts since the concern of every lawyer is the application of rules to facts. You must dissect facts, sifting the relevant from the merely related or fascinating, and to position the crucial facts in the very centre of the controversy through a simple easy to read, concise narrative. What is relevant is necessarily what is dictated by the factual elements of the rule or rules that are, at least preliminarily, identified as most closely applicable to the facts presented by the events that occurred. These may be referred to as the legal facts. The legal facts are the facts that

2

are central to the event in that that they will be measured against the factual element of the rule identified as applicable to produce the legal consequence.

This means that no factual statement can be written without a clear sense of the rule that most closely governs the situation; as the rule determines the facts that are relevant or irrelevant. The statement of facts gives all the facts that are necessary to determine whether the rule applies. This leads to another point. This is that the facts of a case can only be preliminarily written and must be revisited and revised as the final step of the judgment. This is because the rule is not always clear; meaning that one or more factual elements of the rule itself is disputed. This occurs not only with regard to common law rules but also to statutory rules. Indeed, it will be the very purpose why the parties appeal to the court. One or more of the factual elements of the rule is not clear.

The other implication that this has for writing the facts is that you must necessarily include every fact upon which a new interpretation of the rule might be given. This does not invite confusion but rather, prepares your reader for the court’s reasoning given as justification for its conclusion. Both you and your reader (your audience) must engage the entire spectrum of possible outcomes which the facts reasonably provoke. Thus the statement in the opening chapter of this book that the lawyer’s thinking must be both structured and open-ended, a lawyer’s reading, both rigorous and critical, and a lawyer’s writing, expansive and precise.

It must be remembered that not all of the factual elements of the rule will be in dispute. The controversy will normally concern only one or two, factual elements of the rule. These facts will be central to the factual recitation because they are the foundation of the issue in the case - the controversy in the narrative. Like all good narratives the central point must not be lost and indeed, must be identified through the way in which the story is told. The reader must intuitively know what it is that demands resolution. Put another way, the facts must suggest the issue. In so doing, there is a seamless transition between the segments of the opinion as the recitation intuitively communicates to the reader what is to happen next. At the conclusion of the narrative, even a layman would be able to say what the issue is.

The Procedural Background Procedure is of critical importance to law; no factual recitation can be complete without the inclusion of the procedural background of the case. This involves the point at which the events arrive at the door of the legal system up to the present point where some kind of a relief is requested. It is not separate from the factual narrative but a vital part of it.

Example

The story can be very simply told even though the case leads to a profound development in the law. Take the example of the familiar case of Donoghue v. Stevenson. It would be useful to compare the following with the actual facts recited in the judgment. This will give you a sense of what has been culled.

3

Donoghue v. Stevenson[1932] AC 652

Mrs. Donoghue brought an action to recover damages for the nervous shock and severe gastroenteritis which she suffered after discovering the decomposed remains of a snail in a bottle of ginger beer some of which she had consumed. The bottle was opaque preventing inspection. The ginger beer was purchased for her by her friend from a retailer. Her suit was brought in negligence against the manufacturer of the ginger beer.

In this recitation, no procedural history is recounted and no argument of counsel. However, the issue can be clearly discerned. When the procedural history is added, it becomes even clearer.

The manufacturer’s contention that the pleading disclosed no cause of action was upheld by the Second Division on the basis that the manufacturer of the ginger beer did not owe a duty of care to Mrs. Donoghue since she did not purchase the ginger beer from them and there was no contractual relationship.

Mrs. Donoghue appealed to the House of Lords.

Sometimes with a little editorialising you can force the issue. For example:

Mrs. Donoghue brought an action against the manufacturer of a bottle of ginger beer that she had partly consumed before discovering the decomposed remains of a snail in it. The bottle was sealed and opaque, preventing intermediate inspection by Mrs. Donoghue before she consumed it. Although the ginger beer was manufactured by the respondent, it was not purchased from him. It was purchased for the appellant by a friend from a retailer. Nonetheless, she sought to recover damages from the manufacturer for the nervous shock and severe gastroenteritis she suffered.

The use of the italicized words injects the writer into the story (editorializing) and deprives it of authenticity. This may be resorted to in persuasive legal writing which we will come to in the second semester. The purpose of this exercise is an authentic distillation of the case.

Checklist for well-written facts Is the narrative clear – meaning does it tell a story? Are the events in the story well sequenced? Is there information other than facts, such as your conclusion or opinion? Is there unnecessary editorializing? Are any irrelevant facts included? Does it pass the test of background

information? Can you figure out what rule or rules are implicated? Do the facts suggest the issues?

II. Issues

Despite the fact that you have achieved the ability to construct a well-written factual narrative that accomplishes the task of intuitively suggesting the issue; the issue must still be stated. A basic skill that every lawyer and law student must achieve with easy

4

dexterity is the ability to succinctly and clearly state the issue in a case. For the practising lawyer, the issue is the point that is brought before the court for adjudication, and for the lawyers in the majority of cases that do not reach the courts, it is the point which forms the basis of negotiations and discussions between opposing lawyers. Equally for the academic, all discussion revolves around an identified legal issue. It is the fulcrum of any legal discourse. Thus for the law student, learning the law hinges on being able to identify the issue presented.

An issue must be stated as a legal question. A legal question is one that incorporates the legal rule or rules that are implicated as well as the facts that make those rules relevant. This is so because it is the rule that will resolve the issue. Only rules resolve issues in law once a factual finding is made or agreed. From the point of view of the definition of a rule as factual predicate plus a consequence; the issue is the element or elements of the factual predicate of the rule for which there is a dispute regarding whether it is satisfied by the evidence of the event in question. In any case, the issue is the disputed connection between the major premise of the rule and the minor premise supplied by the events that the court must resolve before it can impose the legal consequence of the rule on the parties.

For example, accept, arguendo, the rule that:

Offer + acceptance + consideration + intention to create legal relations = contract

Consider its application to a situation where a father promises and his son accepts the promise of the father’s car if he mows the lawn every Sunday for the next six months. On suit by the son to compel his father to deliver the car to him, after the son diligently mowed the lawn every Sunday for six months, it can be accepted without serious argument that there was an offer, an acceptance and valuable consideration. The satisfaction of those factual elements of the rule relating to a contract is not in dispute. However, there is a dispute as to whether his father intended his promise to be legally binding and enforceable in a court of law. In other words, do the facts as presented satisfy the factual element of the rule relating to the intention to create legal relations? This would be the dispute between the parties – the issue.

How would we state this issue? Three examples suffice to illustrate the correct way to state a legal question.

1. Is there a contract?This is broad, vague and unhelpful. It could be applied to many contract cases. It says nothing regarding why the question is being asked.

2. Does a promise made by a father to a son constitute intention to create legal relations?

We are referring to this father and this son regarding a specific mutual promise not to every son and every father in the world where there may be a factual nuance that may change the entire picture.

5

3. Did the defendant’s promise to his son to buy him a car in return for his doing his chores on time for six months evidence an intention to create legal relations so as to constitute an enforceable contract?

This incorporates the law, the element of the law that is in dispute and the specific facts which has led to this dispute. It is a correct statement of the issue in this case.

Example

In Donoghue v. Stevenson, Lord Atkin phrased the issue in this way:

The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health.

Proper framing of issues have two other important impacts on your legal reasoning and writing. First, it tells the judge clearly what question you are answering. In argumentation, it is axiomatic that the parties at first agree regarding the question to be answered. This is your first duty to your judge after clarifying the facts. You must convince your judge that you know what the question is. You do this by a clear and accurate recitation of the facts and by a precise formulation of the issue which incorporates the rule that is called into question as well as the facts against which the rule must be tested.

The second important effect of the proper phrasing of the issue on your legal reasoning and writing is that a well phrased issue is the beginning of your persuasion of the reader to accept your ultimate conclusion. This is aptly and subtly demonstrated in Lord Atkin’s formulation. If you examine the speech of Lord Buckmaster, you will note that he does not take the opportunity like Lord Atkin to begin his enterprise of convincing the reader that his conclusion is correct by framing his issue.

Key Hints to Issue StatementSometimes, it is possible to make a perfectly good statement of issue which read by itself is vague but read with the factual narrative is sound. However, it should not be so vague that it is a question that can be transposed to in most cases.

There are many common mistakes that are made regarding the identification of the issue in a case. The first is the confusion between an issue and a step in the reasoning to answer the issue. In the example given above, if the court in its reasoning considered the closeness of the relationship between the father and the son, that is a mere consideration or factor in arriving at the decision on the issue. It is not a separate issue: ‘is there a bond of affection between the father and son in order to support an intention to create legal relations?’ This is merely a factor that the court considers within the overarching issue of whether there existed an intention to create legal relations.

6

Your statement of the issue should be a question ending with a question mark. Therefore do not begin your issue with ‘whether’ - which begins a statement and not a question. Do not begin with the word ‘can’ – as that is a hypothetical; suggesting of possibility when legal questions in cases deal with concrete facts.

A Common Mistake to AvoidA common mistake to avoid is to believe that you should be bound by what the court states is the issue. Often the court merely outlines broad areas that it will discuss and although it refers to it as the issues, it requires a reading of the entire case to determine what the real legal issues are.

III. Decision & Holding

There should be a distinction made between the decision in a case and the holding. The decision is the effect of the court’s ruling on the rights of the parties as a matter of res judicata. The holding is the enduring effect of the case as a matter of precedent. The decision only affects the parties while the holding affects the jurisprudence. When the Judicial Research Assistant (JRA) is assigned research based on new facts, the challenge the JRA has is to predict how the court will deal with these facts. Except in the unusual situation where the question is of first impression, the JRA will necessarily have to look to the holdings in previous decisions which may be only tangentially analogous to the facts of the case before him or her. This will involve two processes: first - the formulation of the holding and secondly - what we refer to in Legal Methods Research and Writing as synthesis.

The holding can be formulated narrowly or broadly. You must be conscious of your formulation. It is the crux skill of the common lawyer. If you choose a narrow formulation, you must justify the formulation, just in the same way if you do so broadly.

Synthesis involves taking several cases and other legal authorities and come up with a rule statement. This was adeptly demonstrated by Lord Atkin in Donoghue v. Stevenson.

The holding must not be confused with the reasoning. The holding is in effect, a rule of law as we have defined it, consisting of factual elements or predicate and a consequence. The other point that must be made is that the holding is not synonymous with the ratio decidendi of the case, although it includes it. A court may expound a legal principle despite the fact that it is neither necessary nor determinative in the case. Nonetheless such dicta are invaluable tools for identifying or formulating legal rules to solve problems presented to the court for resolution.

Good Examples1. The Constitution of Trinidad and Tobago by implication grants to Members of Parliament a right to be paid, and as an implied right given by the Constitution, it is to be constitutionally protected. Members of Parliament should not be denied this constitutional right because a procedural rule is not adhered to, especially when they are not at fault for the breach of procedure, and in fact would have been quite willing to adhere, if given the opportunity.

7

2. The phrase ‘any written law’ in s 66(1) of the Interpretation and General Provisions Act is not wide enough to include executive acts.

Poor Examples1. The Board held that the findings of the learned judge were correct in that both parties had an equal beneficial interest in the matrimonial home.

2. The Court of Appeal did not have the jurisdiction to entertain the USA’s appeal as the statute did not provide for such a right of appeal.

The last two examples contain no legal rule but is the application of a legal rule and would be unhelpful without more in a later case.

*Holding Exercise for Tutorials

(1) Read the case decision below. Then choose the best statement of the holding from the five choices.

Beta v Adam

Terse, J.

Beta has sued Adam, the owner of a restaurant, for false imprisonment. Adam believed that Beta was leaving without paying her bill. Beta in fact had left the money on her table. Adam told Beta that she could not leave until someone verified that she had paid. Adam took Beta’s pocket-book in which Beta had her keys, money, credit cards, and her checkbook. The restaurant was very busy and understaffed. Beta stayed with Adam for twenty minutes until Adam found an employee to see if Beta had left the money on the table.Although Adam never physically prevented Beta from leaving, and Beta could have walked out of the restaurant at any time, Adam is liable to Beta for falsely imprisoning her. A person falsely imprisons another by unlawfully confining her within fixed boundaries, if he acts intending to do so. Adam confined Beta in the restaurant by telling her she could not leave and by taking her purse. Confinement may be effected by duress, even duress that is not the product of threatening behaviour. Beta could not leave the restaurant because she believed that she could have lost her pocketbook with its valuable contents if she did so. Thus, she was unlawfully confined. She acted reasonably by remaining in the restaurant until she recovered her possessions.

Which is the broadest formulation of the holding? The most narrow?

a. The defendant falsely imprisoned the plaintiff by duress when he took an item from the plaintiff in order to have her remain on the premises.

b. The owner of a restaurant unlawfully confined his customer when he told her she could not leave and took her pocketbook and its valuable contents away for twenty minutes until he could verify her payment of her bill.

c. The defendant falsely imprisoned the plaintiff by means of duress although he did not use physical force when he took an item of value belonging to plaintiff in order to have her remain on the premises.

8

(2) Read the case decision below. Then choose the best statement of the holding from the five choices.

In Re Gaunt

Terse, J.

John Gaunt was having coffee with his nephew Felix. John told Felix that he was giving him a gift of his gold watch, which he kept in a safe deposit box in his bank. He said he would get the watch for Felix the next time he went to the bank. John died that night, without going to the bank. Felix has demanded the watch be delivered over to him as his gift. The administrator of John’s estate is keeping the watch as part of the estate.

Felix’s demand must be refused. A completed gift requires first that the donor, intend to give the gift, second, delivery of the item of gift, and third, acceptance by the donee. Only then does the intended donee have title to the item. John probably did intend that Felix have the watch. The watch had been John’s grandfather’s and Felix is the next male heir in that family. We can assume that Felix would have accepted the watch. Sentiment aside, it is a valuable piece of jewellery. John, however, never sent the watch to Felix, and Felix never had possession of the watch. If he had given him the key to the safe deposit box, that may have been a constructive delivery, John made only an unenforceable promise. A court will not enforce an uncompleted gift.

Which is the best statement of the holding in In Re Gaunt?

a. The court held that delivery of a key to a safe deposit box is a delivery of the item kept in the box because it is a constructive delivery.

b. The court held that there are three requirements for a valid gift: intent to give, delivery, and acceptance.

c. The court held that a decedent’s jewellery remains part of his estate at death if he has not given it away during his life.

d. The court held that a decedent has not made an effective gift of personal property during his life where he made an oral promise of the gift but had not delivered possession of the item to the intended done (the person receiving the gift).

e. A court will not enforce an incomplete promise of a gift.

IV. Reasoning

The reasoning is the process by which the court comes to its conclusion (a decision) regarding an issue using the holding or rule of law. Only a rule can resolve an issue in law. Even where it is a factual issue the reason that it is being resolved is based on the existence of a rule that must be applied to the facts and the resolution of that factual issue is done from the perspective of the rule. Indeed, there is a great deal of controversy regarding what is an issue of fact and an issue of law and it is never clear from a logical point of view.

9

A properly framed reasoning must first contain either explicitly or implicitly the rule that the court used to resolve the controversy. Often the court must interpret or explain the rule in a way that it can be used in the particular case. The unique facts of each case mean that an existing statement or understanding of a rule is not always easy to apply without comment to the case before the court. We saw that in Wilkinson v. Downton [1897] 2 Q.B. 57. In such a situation the court will restate or explain the rule in terms that enable the facts of the case to be measured against it. This synthesis, distillation, explanation or restatement of the rule is part of the reasoning. It is important in your brief to attempt to paraphrase the court’s explanation of the rule. This is a great measure of your understanding. It is not sufficient merely to regurgitate or quote extensively what the court said. This does not give any confidence that you and your reader (your judge) interpret the court’s words in the same way. When you use your own words and then cite the words of the judge, the determination can be made regarding what you understand to be the reasoning in the case.

Having located the rule and explained it, it then has to be applied to the facts of the case. In other words, the facts as determined must be marshalled to show that the facts satisfy or do not satisfy the elements of the rule. There can be no satisfactory statement of reasoning of a court without an application of the rule identified as applicable to the facts.

The third part of the reasoning is the conclusion. In this way, legal reasoning partakes of a syllogistic form. Major premise - the rule; minor premise - the facts and the conclusion. You should always test your reasoning by applying this three step approach.

Examples of a good recitation of reasoning are as follows:

1. It is well established that a tenant for a term of years who holds over after the expiry of the term and continues to pay to the landlord the monthly rent that had been payable during the term becomes, if the landlord accepts the payments, a tenant from month to month. The Notice to Quit served in April 1996 referred to the “next complete month of [the appellant’s] tenancy”. This suggests acceptance by the respondent that the appellant had become a monthly tenant. However, it was clear that the appellant was making payments on the footing that the payments were required by the lease to be paid as rent for the new five year term. The respondent accepted the monthly rental payments up to and after the service of the Notice to Quit. The respondent, who must have known that the appellant’s payments were being made as rent calculated under the lease for the new five year term, will not be able to retain the payments and subsequently, nearly five years after the payments had commenced, argue that they had been retained on a different footing from that on which they had been paid. The retention by the respondent of the payments made prior to the service of the Notice to Quit constituted a representation that the appellant’s status as lessee under the lease for that five year term was accepted. The respondent would thus be estopped from denying that the lease as still in effect.

2. The implementation of a new road involved the replacement of an inadequate road and a new bridge, which was for the public interest will not constitute a taking of property. Brandies J in Pennsylvania Coal Co. v. Mahon (1922) 260 US 393, 417, illustrated that generally speaking, all restrictions on the use of property which deprives the owner of some right previously enjoyed, can be considered as the taking of property without compensation. However, restrictions that are in the interest of the public are not regarded as a taking of property. In this case, the construction of a new road and the changing of a toll in the interest of the public could not amount to a taking or acquisition of any proprietary right capable of violating section 18.

10

Poor examples are:

3. The decision in Cartwright was applied to the current case after his re-arrest. The USA appeal had already been allowed and any order of the court made prior to that, was beyond the point of reform.

4. The non-disclosure complained of referred to the entry in the Police diary showing that PC Straker had taken Daniel to the Bank in Couva which could have put some doubt on the reliability of the police evidence. However, the relevance of this was not apparent until PC Straker denied in cross-examination that he had taken Daniel to the bank. Although the judge was wrong in denying the defence the opportunity to cross-examine relating to the making of the statement itself, did not have enough weight to cause the judge to exclude the statement.

V. Policy Analysis

Extracting the policy is problematic principally because it is the only part of the case brief where you have to exercise an independent judgment and bring a deep understanding of the case; your own knowledge and perspective of the world as well as your evaluative judgment to bear on the case. The policy is the opposing subjective values that underlie the rule and the decision in the case. In teaching undergraduate law, most students find it difficult to engage in a policy analysis, contenting themselves with an explanation of the rule and the decision. This is not what is meant by a policy analysis.

Underlying legal decisions are the social policies or goals that the decision-maker wishes to further. When a court explicitly refers to those policies in a case, include that information in your case brief, since it will probably help you understand the court's decision. If the court does not explain the policies on which it based its decision, then try to identify them for yourself.

Professor Vandervelde in his text Thinking Like a Lawyer: An Introduction to Legal Reasoning (Westview Press, 1998) gives a description of policy that is worth repeating in view of the traditional difficulty that the student has in identifying it in case briefs:

Rules are presumed by the American legal system not to be mere arbitrary pronouncements but to be based on some underlying policy. That is, rules create a right or duty not for its own sake but in order to further a public policy.

When the rule is a statute, the underlying policy is generally that which the legislature intended to further when it enacted the statute. When the rule is a case law rule, the underlying policy is generally that which the court articulated as the justification of the rule at the time the rule was announced. Case law rules may also be based on the policies underlying legislative enactments, even in cases that do not involve a statute. For example, the court may adopt a rule favourable to consumers. In support, the court may cite recent legislation that may not be applicable to the case under consideration but nevertheless reflects a public policy of protecting the consumer against the superior bargaining power of merchants and manufacturers.

Rules, moreover, are usually not based on a single policy but represent compromises among sets of opposing policies. Typically, one set of policies favours creation of a broad right or duty, where as an opposing set of policies favours restricting or eliminating the same right or duty.

11

If the policies favouring the right or duty were to prevail all of the time, the right or duty would become absolute - with no exceptions or limitations. If the policies opposing the right or duty were to prevail all of the time, the right or duty would disappear.

In fact, however, both sets of policies are important, so neither can be permitted to prevail in every situation. Rather, the policies supporting the right or duty will prevail in some situations, whereas the opposing policies will prevail in others.

The elements of the rule define exactly the situations in which the policies favouring the right or duty prevail. When the elements are satisfied, the right or duty exists; when they are not satisfied, the right or duty does not exist.

The policies underlying the rule are of great importance to the process of legal reasoning. If it would not further the underlying policies, then applying the rule to a particular situation would be undesirable and the court often will not apply it, especially if the rule is based on case law rather than enacted law. Further, at least where case law rules are concerned, even though the factual predicate of the rule may seem clearly not to apply, if the policy behind the rules would not be furthered by finding the rule to be applicable, the court may nevertheless apply the case law rule by analogy, may synthesize a new case law rule to govern the situation, or may modify the rule so that it becomes applicable. Thus, … the underlying policies provide much assistance in identifying those situations in which the rule will be applied.

Shapo, Walter and Fajans in the text Writing and Analysis in the Law 4th ed. (Foundation Press, 2003) state:

Policy arguments will often decide a case, especially when each party offers plausible interpretations of the law. In this situation, the judge may then decide the case on the basis of the social goals that the decision will promote, and the purposes behind the particular rules.

Policy arguments can be categorized in many ways, but one useful system is to divide them into four basic groups: normative arguments - that is, arguments about shared values and goals that a law should promote; economic arguments - which look at the economic consequences of a rule; institutional competence arguments - that is structural arguments about the proper relationship of courts to other courts and to other branches of government; and judicial administration arguments - arguments about the practical effects of a ruling on the administration of justice. These categories are not, of course, mutually exclusive.

Policy analysis involves a three-step process:

Step 1 – InvestigativeThe underlying purpose of the rule used by the court is investigated and declared. This consists of the subjective values the rule implicates. There are of necessity two opposing values underlying every rule. Every rule is a line drawn between two ever-competing social, economic, political or moral values and it is your assignment to find it. Controversies between courts; assuming the proper rule is identified is typical in legal analysis. Legal analysis, as we will see, is largely guided by the values which are brought to bear.

12

Step 2 – Predictive and EvaluativeThe consequences flowing from each value is predicted and evaluated. This means an assessment of what is good or bad; advantages or disadvantages and the priority of the interests served.

Step 3 – Drawing the lineThe court will then draw a line between the two opposing values. Rarely if ever there is a rule that totally embraces one value to the exclusion of the other. This is expressed in the nature of the conditions attached to the rule for its application. The whole process of legal reasoning is the process whereby the line is constantly being shifted and the conditions constantly reshaped.

While policy underlies each and every decision, since rules are value based, it is not often expressed and therefore it is one of the challenges for the lawyer or judicial research assistant is to articulate the policy underlying the legal analysis in the authorities that are cited in any research or research report undertaken with respect to solving a legal problem.

*Policy Exercise for Tutorials

Read the following case taken from Shapo in Writing and Analysis in the Law which illustrates how to extract the underlying policy for inclusion in a brief.

Paugh v. City of Seattle 588 P.2d 1351 (Wash. 1979)

The plaintiff is the father of two boys who died at ages six and eight when they drowned in a pond on city-owned land. Mr. Paugh sued the city for the deaths of his sons. The city successfully moved for summary judgment and this appeal followed.

The pond is about 100 feet wide at its widest point. It is shallow at the edges, and slopes gently to six feet at its deepest point. Its bottom is muddy and the water is murky. It is located in unimproved bushy terrain about 300 yards from the housing development where the plaintiff lives, and is accessible by a dirt road. The sheriff described it as an ordinary pond, just like the many others in the area. The pond is popular with nearby residents for fishing and swimming and the plaintiff himself had taken his sons there four or five times to fish. He had told them to go only with him and to stay out of the water. There are no witnesses to the drownings. The city had not taken any measures against trespassers. There are no warning signs around the pond, and the evidence is that a fence all around would be prohibitive in cost and probably not possible without levelling the trees and the uneven ground. The city is now contemplating draining the pond and estimates the cost at $25,000.

The general rule is that a landowner owes no duty to trespassers except to not wilfully cause their injury. Mail v. Smith Lumber Co., 287 P.2d 877 (Wash. 1955). There is an exception, however, for child trespassers, the attractive nuisance doctrine, which has been adopted in this state. This doctrine reflects public concern for the welfare and safety of children. The requirements for this doctrine to apply are:

(1) The condition must be dangerous in itself, that is, it must be likely to, or probably will, result in injury to those attracted by it; (2) The condition must be attractive and enticing to young children; (3) The children, because of their youth, must be incapable of understanding the danger involved;

13

(4) The condition must have been left unguarded at a place where children go, or where they could reasonably be expected to go; and (5) It must have been reasonably feasible either to prevent access or to render the condition innocuous without destroying its utility.

PolicyThe purpose of the attractive nuisance doctrine is to protect the welfare and safety of children, who are unprotected under the general rule governing a landowner's liability to trespassers. However, the condition on the landowner's premises must be a dangerous one; that is, likely to cause injury. Ponds and other bodies of water are so common and widely used without injury that they are not dangerous.

Other considerations here are first that ponds are environmentally important; if the water is drained or fenced off, the water is neither available to wildlife, nor available for recreation for others. Moreover, this duty would be unduly burdensome on landowners, and would shift responsibility to protect children to them from the children's parents. The court will do that only if the condition is dangerous. Finally, the state by statute encourages landowners to allow the public to use recreational lands, not to fence them off or make them unusable.

Based on this policy analysis, in whose favour would you rule?

3. Sample of a Case Brief

TITLE: Wendell Swann v Attorney General of the Turks and Caicos Islands

CITATION: [2009] UKPC 221

FACTS: In 2003 and again in 2005, the appellant was appointed Chairman of the

Public Service Commission (‘PSC’) pursuant to the 1998 Constitution of the Turks and Caicos

Islands. The post was part time and he was paid an allowance. When the new Constitution came

into force on August 8, 2006, the post became full time and the appellant claimed that he was

entitled to and was in fact paid $8,640 per month based on a remuneration of $90,000, a year. In

his affidavit, the appellant alleged that he had a conversation with the Governor and Chief

Secretary in which they invited him to continue as Chairman on a full time basis at the salary of

$90,000 a year which he accepted, including leaving home and taking up residence in Grand

Turk.

However, on December 5, 2006, the appellant was told that at a meeting of Cabinet presided over by the Governor it was decided to reduce his remuneration to $30,000 a year. Accordingly, he was paid $2,500 monthly from December 2006 to February 2007.

On January 26, 2007, the appellant filed a notice of application in the Supreme Court for leave to apply for judicial review seeking an order quashing the decision to reduce his remuneration and

1https://web2.westlaw.com/result/default.wl?rltdb=CLID_DB9820342279126&srch=TRUE&db=UK-RPTS- ALL&sv=Split&service=Search&eq=search&fmqv=s&sskey=CLID_SSSA9976654279126&action=Search&method=TNC&origin=Search&query=SWANN+%26+TURKS&mt=208&fn=_top&vr=2.0&rlt=CLID_QRYRLT50155279126&rp=%2fsearch%2default.wl&ifm=NotSet&rs=WLW10.06 date accessed November 3, 2013

14

for several declarations aimed at the unlawfulness of the decision to reduce his salary. However, on February 21, 2007, he left the post of Chairman of the PSC as he appointed a member of the House of Assembly.

The Supreme Court denied his application for leave on the grounds that:(1) His claim was essentially for damages for breach of an agreement as it related to the

applicant’s salary that could be enforced by ordinary action;(2) The judicial review procedure was neither unnecessary nor appropriate; and(3) Even if there was a collateral public law issue and the appellant had sufficient interest to

pursue it, it would refuse leave as a matter of discretion.

The appellant’s appeal to the Court of Appeal was dismissed at the hearing of the appeal without giving reasons.

The appellant appealed to the Privy Council.

DECISION: Appeal dismissed

ISSUE 1: Is the claim by the appellant essentially a private law claim enforceable by writ rendering leave to apply for judicial review inappropriate? [YES]

HOLDING: A claim essentially sounding in breach of contract or even estoppel based on a conversation or a series of conversations, turning on oral evidence is a straightforward private law claim and does not entitle a litigant to the public law procedure of judicial review.REASONING: The appellant's complaint is that he was wrongly deprived of his remuneration of $90,000 a year for a period of three months which can only be established on the basis that he had an enforceable right to be remunerated at that rate. The basis for the appellant’s claim to entitlement is a conversation or a series of conversations that he describes with the Governor and Chief Minister and therefore his claim is a classic private law claim based on breach of contract or conceivably, estoppel. Therefore he is not entitled to the public law procedure of judicial review.

ISSUE 2: Does the allegation that the reduction of the appellant’s remuneration did not comply with the requirements of the Constitution justify a judicial review claim? [NO]

HOLDING: A public law claim such as breach of the Constitution can only exceptionally be permitted to be raised in what is essentially a private law claim where the public law issue is of particular importance to the applicant or where they should be aired in the public interest.REASONING: The argument that the reduction did not comply with the requirements of the Constitution does not justify an investigation of that claim as the appellant’s claim is for recovery of sums owed to him and he has a right to bring an action to recover that sum. That he was not paid the sums to which he was entitled cannot possibly justify investigating public law issues which the appellant seeks to raise in his judicial review application. Public law issues may be raised in what is essentially a private law claim

15

where they public law issues are of particular importance to the applicant or where they should be aired in the public interest. There is no suggestion that either of those exceptional factors apply to this case.

ISSUE 3: Is a finding that the Cabinet was not entitled to overrule the Governor’s agreement to pay the appellant at the rate of $90,000 a year affect the appellant’s claim to judicial review? [NO]

HOLDING: A finding of illegality which has no effect in private law does not justify leave to apply for judicial review.REASONING: If appellant had an enforceable commitment by the Governor to pay him at the rate he alleges then even if Cabinet has the right to reverse the Governor’s decision. This would not undermine his ability to enforce that commitment. Therefore, appellant’s contention that the Cabinet was not entitled to overrule the Governor’s agreement with is irrelevant to a claim to judicial review.

ISSUE 4: Does a public law argument on the ground of legitimate expectation entitle the appellant to bring his claim by way of judicial review? [NO]

HOLDING: A public law claim, such as legitimate expectation, that amounts to a ‘fallback contention’, based on the same evidence and much of the same argument as the private law claim will not give a litigant an entitlement to leave to proceed by way of judicial review.REASONING: The appellant’s ability to mount an argument based on the public law ground would be ‘a fallback contention’ or an alternative to the primary claim of breach of contract and his possible estoppel ground which itself would be an alternative to his primary claim based on the same evidence and much of the same argument. Consequently, the possibility of such a contention being advanced can scarcely justify the appellant’s claim being brought by way of judicial review.

ISSUE 5: Does the fact that the budget approved by the legislature was arrived at on the basis that the appellant was to be paid at the rate of $90,000 a year give him an enforceable right to be paid at that rate so as to bring his case into the realm of public law? [NO]

HOLDING: The fact that the budget approved by the legislature sanctioned the payment of salary to an official at a certain rate does not give an enforceable right to be so paid.REASONING: The fact that the budget approved by the legislature was arrived at on the basis that the appellant was to be paid at that rate does not give him an enforceable right to be so paid and therefore this argument does not take the appellant’s claim for judicial review any further.

ISSUE 6: Does the Supreme Court have discretion to deny leave to apply for judicial review where it was arguable that there was a collateral public issue and the applicant had sufficient interest to pursue it? [YES]

HOLDING: Where there is an alternative remedy in private law the court has the discretion to refuse leave to apply for judicial review to investigate a collateral public law issue.

16

REASONING: In this case the court was entitled to refuse leave and to make no further order, thereby leaving the appellant to issue a writ if he wished to pursue the matter further.

ISSUE 7: Did the Supreme Court err in failing to convert the application for leave to seek judicial review into a writ action? [NO]

HOLDING: The court is justified in refusing to convert an application for leave to seek judicial review into a writ action where the application for leave sought inappropriate relief and does not stand on satisfactory pleading and therefore converting would not assist the applicant significantly and if at all, and would have ensured that the action began on an unsatisfactory basis from the point of view of the court and of the respondent.REASONING: Determining whether to make an order converting the application for leave to seek judicial review into a writ action is essentially a case management decision with which an appellate court should be slow to interfere as the application sought inappropriate relief and did not expressly seek any payment and the supporting evidence was too vague in the essential passages to stand as a satisfactory pleading. Converting the claim to a writ action would not therefore have assisted that appellant at all and it would have ensured that the action began on an unsatisfactory basis from the point of view of the court and of the respondent.

ISSUE 8: Did the Court of Appeal fail to do its duty by not giving reasons for its decision to dismiss the applicant’s appeal? [YES]

HOLDING: A court of appeal has a clear duty to give not only a decision but also the reason for that decision in the absence of the parties expressly or impliedly agreeing to do otherwise.REASONING: Any court giving a decision after submissions have been made has a clear duty, at least in the absence of the parties expressly or impliedly agreeing otherwise, to give not only a decision but also reasons for that decision. In this case the Court of Appeal failed to do its duty and this should not happen again.

POLICY ANALYSIS: Judicial review is an extraordinary remedy that pits the judiciary against the state and is to be sparingly exercised. So where no injustice is done to the applicant because he has an alternative and satisfactory remedy in private law; judicial review should be refused, except where the issue is of great public importance. In this way, both the judicial restraint on exercising control over governmental agencies and the litigant’s ability to enforce a claim are served.

17

4. Brief Writing Practice Exercise

Write a case brief of Evon Smith v The Queen (Persons with last name beginning A-L) or Attorney General v Cavanaugh (persons last name beginning M-Z).

A hard or soft copy of your case brief must be brought to class on Wednesday at 10:00 a.m.

(a) The following headings must be used, paying strict attention to the instructions for completing a case brief on this worksheet and the sample(s) found on Our VLE and TWEN:(i) Title(ii) Citation (iii) Facts(iv) Issues(v) Decision (vi) Holding(vii) Reasoning(viii) Policy

(b) Format for Writing Assignment:

The assignment must be:

-Typed, double spaced, single side on letter-size (8 ½ x 11) paper, with one-inch margins; you must use 12-point Times New Roman or a comparable size font-Include a title page with the course code and title [LAW 1230-Legal Methods Research and Writing] and your student ID number-Do not include covers or any lines, boxes or designs (including the University crest)-Pages numbered at the bottom centre of each page starting with page one-Pages must be stapled together with one staple only in the upper-left corner-Non-conforming papers will be penalized with a 2% deduction for each non-conformity

There is no pre-set limit of your paper. Precision and concision are two of the standards which are rigorously used to judge your work and your judgment as to how much is enough is an independent skill you must develop and by yourself.

Leighton M. JacksonSeptember 28, 2015

18