Summary of Legal Method

Christopher Enright1

Introduction Organising Law Forming Law Using Law Communicating Law References

Introduction
This paper describes methods or technique for working with law. Knowing how to use these techniques furnishes two major advantages to a lawyer or a law student. Studying legal technique provides rigorous intellectual training. Learning a good technique helps a student to learn law and a lawyer to work with it in their professional life. There is a strong motive to have a good technique when working with law. In the 21st century the amount of information to be processed is increasing as is the rate of increase, while the time potentially available to process this information stays the same. One of the major means of dealing with this situation is to make better use of available time by improving techniques for working with information. Doing this for law will enable legal information to be delivered in a clearer way by those who prepare it, and processed more efficiently by those who use it. Tasks Working with law involves two primary sets of tasks forming law which incorporates making and interpreting law, and using law which encompasses litigation and transaction. Working with law also incorporates a secondary or ancillary task, communicating law, which consists of writing and reading law. Thus there are three fundamental categories of tasked involved in working with law forming law, using law and communicating law. Logically, this would be the way to structure the presentation of techniques for performing these tasks. In fact, this is how it is done, but subject to a qualification. The qualification arises in relation to a task that so far has not been discussed,

Christopher Enright is a chartered accountant, barrister and solicitor. 1

2 Summary of Legal Method

organising law. Organising law has two aspects, micro and macro analysis. Micro analysis of a legal rule is an inherent part of using law. If this is all there was to organising law, it would be best treated as part of using law which constitutes the natural home for micro analysis. In fact organising law is treated separately at the commencement of discussion and this is done for several reasons. First, while micro analysis is naturally part of organising law, it is necessary for the reader to know about micro analysis to enable them follow the account of forming law which precedes the account of using law. Second, macro analysis of law, which is the task of organising an overall area of law as to facilitate a more detailed consideration of the area, is not part of using law. For this combination of reasons, organising law is treated separately and at the outset. Method The methods that are outlined here are as close to algorithmic in their overall structure as can be achieved. Each step taken properly and in its proper sequence will lead to an effective and efficient performance of the task in question. However, the algorithmic nature of the method cannot be fully sustained in the actual performance of these steps since these involve judgments and processes that are not cut and dried.

Organising Law
Introduction Organising law can also be called structuring or analysing law. There are two aspects: macro analysis micro analysis Macro Analysis Macro analysis involves looking at the big picture or the overall shape, boundaries and structure of a subject and showing how it hangs together. The form that this takes can vary from area to area of law, although there can be common patterns. For example, areas of that consist of remedial laws have a similar macro form.2

2 Remedial law consists of action provisions, which create a cause of action (the element being substantive law and the consequences remedial law), establishment provisions, which establish a court, tribunal or office, jurisdictional provisions that indicate which court or tribunal or official can make the decision, and procedural provisions, which prescribe the rules for making the decision.

Summary of Legal Method 3

By giving the big picture, macro analysis makes learning an area of law much easier than it would otherwise be. It gives a framework or structure that allows a person to relate each law or rule to some other law or laws. This is beneficial because understanding and remembering are both enhanced when we know the relationship between items. Micro Analysis Micro organisation or analysis is performed on each law or rule within an area of law. Structurally, micro analysis takes the same form for most rules. This is the case because a legal rule has to be structured in a particular way to perform its function, which is to change part of the world by visiting it with legal consequences. To perform micro analysis of a rule one breaks a legal rule into three parts: (1) Elements: a check list of elements. In simple terms, an element is a required fact, that is, a type of fact that must be present for a legal rule to apply. An element depicts a type or category of facts and is satisfied by a set of facts when one of the facts in that set falls within the category designated by the element. Taken together the elements depict the overall category of facts to which a rule applies. Thus a rule applies to a set of facts only when the set of facts contains facts that fit within each of the categories delineated by the elements. (2) Consequences: the consequences that apply to the parties involved when each of those elements is satisfied by the facts in a particular case. For example, when a rule of criminal law applies the defendant is guilty of a crime and is liable to punishment. When a rule of tort law applies the defendant is liable to pay damages to compensate the plaintiff for their injury. In a transaction the consequences vary. For example in the case of a sale of land the consequences are that the seller no longer owns the land since the purchaser now owns it. (3) Conditional Statement: a conditional statement that links elements and consequences. Elements describe the overall category of facts to which a rule applies. Consequences describe how the parties to those facts will be legally affected when the rule applies. These are joined in a conditional statement that takes the form: When facts of the kind delineated by the elements occur, the consequences designated by the rule apply. Therefore satisfying an element is a necessary condition for a rule to apply to a set of facts. When each of the elements is satisfied the rule applies and brings legal consequences to the parties involved. This means that the elements together constitute the necessary and sufficient conditions for the rule to apply.

4 Summary of Legal Method

Micro analysis of a legal rule can be conveniently illustrated in a diagram which takes the following form:
Law Element 1 Element 2 Element n Consequences

As the diagram reveals, one component consists of a list of elements or requirements. These are labelled Element 1-n. Elements can be divided and subdivided into subelements, sub-subelements and so on. For example, Element 2 could be divided into subelements, Element 2.1, Element 2.2, and Element 2.n. Similarly, Element 2.3 could be divided into sub-subelements, Element 2.3.1, Element 2.3.2 and Element 2.3.n. This is done as much as is necessary until all of the law is organised, analysed or structured in this way. A second component of the diagram consists of the legal consequences that follow when each element is satisfied by the facts in a case. This is represented by Consequences in the diagram. The third component of this diagram consists of the arrow that joins elements and consequences. This represents the nature of a legal rule as a conditional statement to the effect that if or when the elements are satisfied by the right facts, the consequences designated by the rule follow.

Forming Law
1.6.3.1 Introduction Legislatures make statute law and courts make common law. Courts also make law, but in a restricted way, when they interpret law. In this paper, these tasks are collectively referred to as forming law. Making and interpreting law can be explained by a model with three components or steps: # Step 1: Options. These are the options facing a legislature or court about to make law, or a court about to interpret law. # Step 2: Reasons. Legislators and courts engage in a reasoning process to choose between the options. # Step 3: Decision. The final step is a decision by a legislature or court to choose one of the options.

Summary of Legal Method 5

This model guides both legislatures and courts in the actual process of making and interpreting law, and lawyers in ancillary or consequential tasks such as reading a case or writing an opinion on a question of interpretation. Step 1: Options Options facing a legislature or court about to make law or a court about to interpret law have two parts: (1) The possible laws (statutes of common law rules) which a legislature or court can make, or the meanings of an ambiguous provision in statute or common law that a court has to interpret. (2) The effect that each will cause. This is the effect that each law will cause if it is made, and the effect that each meaning will cause if it is chosen as the correct meaning of the ambiguous provision. In discussion in this paper, as is the case in the preceding paragraph, there is reference to a version of a law or a meaning of an ambiguous provision causing an effect. Before the legislation is actually made and before the provision is interpreted, this reference to causing an effect is shorthand for saying that it is predicted that they will cause this effect. We can set these options out in tables. The first table shows the options for a legislature about to make a statute on a subject (such as urban planning, health care or education), although the options for a court about to make a common law rule would be in similar form:
Statutes Statute 0 Statute 1 Statute 2 Statute n Effects Effect 0 Effect 1 Effect 2 Effect n

In the table the left hand column sets out the possible versions of the statute. The range of statutes consists of Statutes 0-n. Statute 0 is the option not to enact a statute and to leave things as they are. Statutes 1, 2 etc are different possible versions of the statute. The right hand column sets out the effect that each statute will cause, more accurately it is believed it will cause, if it is enacted. Thus Effect 0 is the effect caused by Statute 0, Effect 1 is the effect caused by Statute 1 and so on. While Effect is written in the singular it is shorthand for the range or raft of effects that a statute or its interpretation will cause.

6 Summary of Legal Method

In a similar way we can use a table to set out the options before a court that has to interpret an ambiguous provision in common law or statute law. This is the table:
Meanings Meaning 1 Meaning 2 Meaning n Effects Effect 1 Effect 2 Effect n

In the left hand column are the possible meanings of the ambiguous provision, designated as Meanings 1-n. (There is no Meaning 0 because a court generally does not have an option not to interpret an ambiguous provision when it is an issue in a case). The court may choose one or any of these meanings in the range of Meanings 1-n as the correct legal meaning of the ambiguous provision. In the right hand column are the effects that each meaning will cause if the court chooses it as the correct legal meaning. These effects are Effects 1-n to correspond with Meanings 1-n, so that Meaning 1 causes Effect 1, Meaning 2 causes Effect 2 and so on. Step 2: Reasons The second step is the process of reasoning that legislators and courts use in order to choose between the options. On the surface there are three main sources of reasons: policy, precedent and maxims (alternatively called rules) of interpretation. Legislatures use only policy. Courts use all three sources. Analysed more deeply, however, it can be seen that the only proper sources of reasoning is policy; consequently precedent and rules make sense as sources of reasons only if they are conceived as derivatives of policy. Policy When it uses policy as a means of reasoning a legislature or court will examine the list of effects, Effect 0-n for making statutes and Effect 1-n for interpreting law, and choose the effect that it believes is the best one on the basis that is constitutes the most desirable outcome. Assume, for example, that a legislature chooses Effect 2 as the best effect. In this case it will enact a statute which will bring about Effect 2. This, of course, is the statute that is designated as Statute 2. Similarly, if a court interpreting law chooses Effect 1 as the best effect, it will choose the meaning which brings this about. In our way of presenting the options, this meaning is labelled Meaning 1.3
3 It is worth noting at this point that for a court interpreting a statute there are broadly three ways of determining which effect is best although they are not

Summary of Legal Method 7

Maxims There are common law maxims that courts use for interpreting law. Although these are sometimes also referred to as rules of interpretation, they are really presumptions about the likely policy behind the statute which courts are generally free to adopt or reject as they think fit. Essentially the argument propounded here is that the maxims are packaged policy in that they represent a rebuttable presumption as to the possible or likely intention of the legislature when it enacts a statute. Precedent Precedent is used for interpreting law. Precedent consists of two decisions or rules. The first is the prior decision, the decision in the earlier case which is a precedent. When interpreting law this decision says that one meaning rather than any other meaning is the correct legal meaning of an ambiguous provision. (When making common law the decision says that there is now a new law and proceeds to state its elements and consequences.) This decision is called the ratio decidendi of the case, or just ratio. The second decision is the decision to follow this prior decision in a later case and apply the same rule or meaning in the later case as in the earlier case. This decision is incorporated into the fundamental rules that underlie precedent, the rules of stare decisis. Both of these decisions, however, are based on policy. Consequently, as will be explained later, precedent is not a separate stand-alone type of reasoning; instead it is packaged policy. Step 3: Decision The third step in the model is the decision to choose one of the options: (1) The final decision of a legislature in the legislative process is the making of a statute. (2) For a court, the final legislative decision is the making of a common law rule. This is the ratio of the case and becomes a precedent to be followed by future courts. (3) For a court that is interpreting law the final decision is interpreting the ambiguous provision by deciding that one of the meanings is the correct legal

perfectly distinct. (i) The court can exercise its own judgment in the matter. (ii) The court can abide by the judgment of the legislature and treat as the best effect the one which accords, or most accords, with the effect that the legislature sought to achieve when it enacted the statute. (iii) If the court believes that the statute was not made in a sufficiently democratic way it can interpret the statute in the way that makes it as democratic as possible.

8 Summary of Legal Method

meaning (or by deciding that two or more meanings are correct). This decision is the ratio of the case and becomes a precedent to be followed by future courts.

Using Law
Introduction Law is made to be used. Law is used in litigation and transactions. Litigation involves a claim by a party (typically called a plaintiff or prosecutor) that a legal rule applies to certain facts that they believe have occurred. Generally it involves this party proving these facts before some entity that is authorised to decide the case a court, a tribunal or an official. Thus litigation involves a party proving facts from the past before a decision maker. By contrast a transaction involves a person, often with the help of a lawyer, creating facts in present time to bring about some desired consequence such as making a will or incorporating a company. When law is used in litigation and transactions it applies to facts to give legal consequences to the parties involved. Using law is explained by a model, called the model for using law. This model is really a combination of two similar models, the model for litigation and the model for transactions. There are also three specific models within the main models, the model for organising law, the model for applying law and the model for proving facts. Model for Litigation The model for litigation can be set out in a table:
Law Element 1 Element 2 Element n Consequences Facts Fact 1 Fact 2 Fact n Evidence Evidence 1 Evidence 2 Evidence n

In the first column we have taken the relevant law (which would be a cause of action since this is a model for litigation) and divided it into the three components that all rules have. (i) The first is a list of elements, labelled Elements 1-n. (ii) The second component consists of the legal consequences that follow when each element is satisfied by the facts in a case. (iii) These components are expressed and united in a conditional statement that constitutes the rule. This is portrayed by the downward arrow between Element n and Consequences.

Summary of Legal Method 9

In the second column are the facts of the case, or more precisely the material facts (also referred to as the essential or relevant facts). These facts are labelled Facts 1-n. Element 1 applies to Fact 1, or as we can put it from the other direction, Fact 1 satisfies Element 1. Similarly, Fact 2 satisfies Element 2 and Fact n satisfies Element n. In the third column is the evidence. This is so arranged that Evidence 1 proves Fact 1, Evidence 2 proves Fact 2 and Evidence n proves Fact n. However, saying that Evidence 1 proves Fact 1 is shorthand for the proposition that Evidence 1 is the label for evidence that a party uses when seeking to prove Fact 1. Model for Transactions The model for transactions can also be set out in a table:
Law Element 1 Element 2 Element n Consequences Facts Fact 1 Fact 2 Fact n Processes Process 1 Process 2 Process n

This model for transactions is the same as the model for litigation, except for the third column. This is the case because the first and second columns perform identical functions. Since these have been explained above in the discussion of the model for litigation, we do not need to say anything more about them. The third column is headed "Processes." This creates the fundamental difference between litigation and transactions. In litigation the case involves past facts which need to be proved by evidence. In a transaction most of the facts are present facts which are established by processes. Take a transfer of land as an example. When a client comes to a lawyer, typically nothing has happened beyond the fact that the client has found a block of land which they want to purchase. To effect the purchase, the lawyer must help the client carry out the processes or steps required by law. For example, the common processes consist of signing a contract, receiving a transfer or conveyance from the seller and then registering it at the land titles office. By doing this the lawyer and client create the facts that satisfy the elements of the law. This is in contrast to litigation where the facts have all happened prior to the time when the client sees the lawyer and the lawyer's task is to help the client to prove those facts.

10 Summary of Legal Method

Other Models These models incorporate three other specific models to use when working with law: (1) The model for the micro organisation of law which is constituted by the first column. (2) A model for applying law to facts which is constituted by the first column (law) and second column (facts). (3) A model for establishing facts which is constituted by the second column (facts) and the third column (evidence or processes). Establishing facts by processes is simple one carries out the process and thereby creates the facts. By contrast, proving facts from evidence is a complex process.

Communicating Law
Introduction Communicating law consists of the related tasks of writing and reading law. Writing and reading law are complementary tasks - what is written is read because this is the reason that it is written. Therefore any technique for reading is a technique for writing looked at from the other direction. Writing and reading law are done as part of the other two major processes which we have considered, forming law and using law. For example, the final step in the process of interpreting law is for a judge to write a judgment that resolves the question of interpretation. Much legal writing occurs after some things have been done or some decision has been made. The purpose of the writing is to record what was done or to describe the process by which the decision was made along with the terms of the decision. Writing Law Good writing is clear writing and the key to clear writing is to structure it. In this regard there is a model for writing law. It is not comprehensive (for example, it does not deal directly with style) but aims instead to deal with the fundamental task which is to convey information clearly. It shows how to write clearly by assembling the necessary structure. This involves operating at six levels: (1) Level 1: Words. Choose the right word and use words in their correct sense. (2) Level 2: Sentences. Write proper sentences. To do this it is necessary to observe the rules of grammar and syntax. (3) Level 3: Linking Sentences. Link sentences properly. Ensure that each sentence flows from the one before it. (4) Level 4: Paragraphs. Form paragraphs. Gather sentences into paragraphs. The basic rule is that each paragraph must deal with one idea, the nature and scope of the idea being determined by the overall structure of the text.

Summary of Legal Method 11

(5) Level 5: Linking Paragraphs. Link paragraphs properly. Ensure that each paragraph flows from the one before it. (6) Level 6: Overall Structure. Create a coherent overall structure. In technical writing (such as law) it is important to use headings to portray this structure. Headings guide the writer because they encourage them to organise the material. Headings guide the reader because they show what that organisation is. Legal writing is distinguished from other writing by two features. The first occurs at Level 1, Words. Like other disciplines law has technical terms. To handle this it is necessary to use a good law dictionary and to be sensitive to two facts: that not all entries in a dictionary fully capture the use and meaning of a term; and that terms can move around and have a range of meanings even if these meanings are connected. The second distinction operates at Level 6, Overall Structure. The main feature that distinguishes one type of writing, such as legal writing, from another is the overall structure used to organise the text. In legal writing for primary and secondary sources of law (eg writing a statute, a judgment or a textbook) the structure that needs to be used is determined by the models which we have already described, the models for organising law, forming law and using law. Using these models in the model for writing gives us the major model for writing law. For writing tertiary sources of law and material related to law it may be possible to use these models, or it may be necessary to use some other structures. Reading Law Reading and writing, as we have stated, are complementary activities. Therefore the basic technique for reading is a technique for clear writing looked at from the opposite direction. Consequently, techniques for writing law can generally be translated into techniques for reading law. To use the most important task as an illustration, to write law clearly it is necessary to put law in a structured way (and the types of structure are discussed above). To read law the technique is to find this structure.

References
Christopher Enright is currently writing several books on legal method which will be published later in the middle of 2008: # Legal Method # Legal Reasoning # Legal Research # Legal Writing These will be available on his website both for sale and free of charge -

12 Summary of Legal Method

www.legalskills.com.au