LEGAL WRITING
Language is the professional tool that enables a lawyer to communicate well with his
audience so language is an important aspect to be considered and to be given much
weight so it is important to learn on how you can effectively communicate with your
audience also language will enable you to put forward your argument with articulation.
PROBLEMS IN WRITING
• Poor planning
• Lack of care
• Inability to capture and maintain the readers’ interest
• Lack of structure
• Poor grammar
IMPORTANT CLUES IN WRITING
Clarity: Your writing should make a reader to understand what you have written with
minimum efforts, your statements should be clear and free from ambiguity.
Simplicity: use simple but relevant legal terminologies or language. Avoid long and
complex sentences unless it is necessary.
(1) Use one idea in one sentence
(2) Avoid using difficult words
(3) Avoid technical jargons
Accurate and precision: write something that is exact and free from errors, being very
careful.
Persuasive: try to convince your reader on what you are writing.
CITATION OF AUTHORITIES:
MANNER OF CITING AUTHORITY
Legislation: there is section, subsection, roman and paragraph. 42(2) (e)
Constitution: there is Article, sub article, roman and paragraph
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Subsidiary Legislation: Rule or regulation, example Regulation, sub regulation, roman
number and paragraph.
Rule- Sub rule, roman number and paragraph
CITING BOOKS
Immediately after the name of the author the year comes, the title, edition, place
where it is published and the publisher.
Author’s name
Year of publication
Title of the book
Edition if any
Place of publication
The publisher
Example Fintch, J. D, (1974) , Introduction to legal theory, (2nd edition) , sweet and
Maxwell.
IMPORTANT HINTS IN CITING
When the book is written by more than 1 author you write the name of the 1st author
then you write “et al” meaning and others.
If the book is compiled with an article 1st start with the writer of an article and the
title of the article, then continue with the editor of the book. Example Engels, A.,” The
origin of family, private property and the state, “in Max, C and F. Engels, selected
words, progress publishers, 1968, PP. 20-35.
CITING AN ARTICLE IN A JOURNAL: it is a compilation of articles. In citing an article
in a journal start with the author of the article, the title of the article, the year and
volume number of the journal, and page number.
Example: Fridmann,G., “ The intention of Tort and contract”
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LEGAL REASONING
Legal reasoning is the process by which lawyers think about any legal problem and
reason is the life of the law. Legal means something that is catered for within the
confines of law. Legal reasoning is summarized in a formula known as IRAC (which stands
for issue, rule, analysis and conclusion). This formula forms a fundamental building
block for legal reasoning and allows a lawyer to reduce the complexities of law to a
simple equation. In dealing with legal reasoning, its cardinal principles should always
be remembered in order to know its applicability and methodology especially in the
legal frame work.
These principles as mentioned above include;
ISSUES
This is the legal issue and it does not ask just any interesting question that arises out
ones minds but only asks whether the law has anything to say about a particular topic
in question between the parties.
An example would be of this potential legal client who comes in and says that her boss
is mean and rude, he yells and screams and makes work wholly unpleasant. The client
wants to know if she has a claim. I (as a legal consultant) already know that there is no
law (no rule) that prohibits a boss from being a behaving in such deeds. However, as a
legal consultant experience tells me that the question should be: “is this boss engaging
in conduct which is unlawful discrimination?”
Therefore this only gives a party to a case in any question to know whether the law has
any relevance to an issue in question.
RULE
Under this principle there are two rules which normally exist and they are state the
rule and cite the rule.
State the rule should be taken with great care because in every civil and criminal
litigation despite the jurisdiction, lawyers and even judges are required to state what
the law is so as to make their arguments binding and even persuade the judges to rule
in favor of those who clearly articulates on the principle hence giving justice to one
who clearly states what the rule is in law.
Cite the rule is a situation where the law is based on existing rules even when a decision
is based upon what is “fair” it’s because there is a rule that says the decision of this
type of issue will be based on fairness.
FACT
There are lots and lots of facts that make up the client’s story. For the purposes of
legal analysis, we look for material facts of a case so as to be guided on principles.
these are facts that fit the element of the rule and it should be remembered that a fact
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cannot be rebut table because facts are normally supplemented by availing evidence
to the judges in order for them to be satisfied.
ANALYSIS
At this stage the legal fraternity is normally interested in knowing if the material facts
fit the law before coming up with the decision. If the analysis corresponds with the
material facts of a case then it is in good faith for justice be decided in the party that
has availed and supported his argument to the satisfaction of the judges.
WHY LEGAL REASONING:
It helps to employ the faculty of mind in order to understand principals, rules and
propositions of the law. This will enable lawyers and judges to reach at a good judgment
by evaluating well the facts, evidences and arguments.
METHODS OF REASONING:
INDUCTIVE REASONING: this is the reasoning from a particular rule to the general one
that is a conclusion.
This is process of reasoning that involves making a number of observations and then
proceeding to formulate a principal which will be of general application. It is similar to
scientific experimentation where if the same thing happens repeatedly it is assumed
that there is a principal which ensures that it will always do so. Example
In Heaven v Pender (1883) 11 QBD 503. The decision was based on inductive reasoning
as the judge used examples of cars, ships and train to arrive at his major propositions
known as Brett’s major propositions. However, there is a weakness that however many
observations support the conclusion, there remains a possibility that some other
observation may refute the conclusion. Example in law the doctrine of (per incuriam)
may refute the conclusion. It is sometimes called synthetic reasoning that is the building
up of a general rule from many particular observation, the observations or assumptions
upon which the reference is made are called premises of assumptions.
NB: inductive reasoning is based on some common assumptions such as that the future
will follow the same pattern as the past
That a sufficiently large number of observed objects give us round to attribute
something to another object which you have not yet observed in the case of Home
Office V. Dorset Yacht Company limited [1970] AC 1004. He said the justification of
the court in giving effects of law to the judges conception of a public interest in the
field of negligence is based on the cumulative experience of the judiciary of the actual
consequences of lack of care in particular instances. And the judicial development of
the law of negligence rightly proceeds by seeking first to identify the relevant
characteristics that are common to the kinds of conducts and relationships which have
been held in previous decisions of the court to give rise to the duty of care. The method
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adopted at this stage is analytical and inductive. It starts with an analysis of the
characteristics of the conducts and relationships involved in each of the decided cases
This may come to the test (INDUCTIVE REASONING READ THE CASE ABOVE)
DEDUCTIVE REASONING: is the process of reasoning from the general to particular rule
to arrive at a conclusion. In deductive reasoning propositions are asserted and then are
used as the basis of reasoning, refer to Bret’s major propositions in givens v. Pender,
thus deduction is a process of reasoning in which reasons are given in supporting a
claim. The reasons are the premises or justifications. The premises support the
conclusion in such a way that it would be impossible for the premises to be true and for
the conclusion to be false. The process of deductive reasoning involves stating one or
more propositions and then reasoning your way to a conclusion by applying established
principals or logic.
Deductive reasoning is typified by the mathematical method where propositions are
asserted and then used as the basis of reasoning, thus if A = B it falls that 2A=2B and
that A- B is equal to 0 and so on
REASONING BY ANALOGY: the process of reasoning by analogy involves saying that, if
a number of different things are similar to each other in a number of different specific
ways, they are, or should be, similar to each other in other ways as well. This process
maybe seen operating in the doctrine of precedent, which requires that cases with
similar facts should be treated as being similar in law, the problem with reasoning by
analogy is to identify which points need to be similar and how similar they need to be
STAGES IN ANALOGICAL ARGUMENT
Looking for similarities between the case before the judge and the other cases that
have been decided.
Pronouncing the rule of law that is the (RD) that is inherent in the previously decided
cases. Applying the rule of law (RD) found in the decided case to the current case before
the judge example
The court made analogy by looking at the facts in the case of Donoghue V. Stevenson
[1932] A.C. 562 and tried to see whether they were relevant to the case of Grant V.
Australian knitting mills [1936] AC 85.
NB: it is not necessary for the whole case to be the same but even 1 fact or rule in 1
case can be used in another case.
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IN CONCLUSION
Elements of Legal Reasoning
Legal reasoning reveals why and how the court, lawyer or judge came to their decision
or argument on the case.
There are core elements that must appear and be addressed in the reasoning:
The question or the legal issue before the court
The relevant facts of the case
The legal rule
Other considerations that may be brought before the court
As such, there is the burden to address the stated elements clearly and concisely. This
may be done using a deductive or analytical reasoning.
Deductive Reasoning
Deductive reasoning: this is a reasoning from general rule to specific situations that is
to say it involves the application of a ready-made principal to individual cases.
This is a means of drawing out ruling from another judicial opinion, or existing
constitution, legislative provision and applying it in another case. The rule statement
is mostly broad rather than narrow when using deductive reasoning. This approach is
mechanical and is therefore effective only in ideal situations and often unsatisfactory.
The approach faces many challenges among them being:
Semantic difficulty – due to the various meanings that words hold, it is often
impossible to attribute one particular meaning to a specific word and so to be
understood by all parties
There may arise unremunerated circumstances that would demand a different
legal treatment
The occurrence of obstacles preventing the upholding of previous rule
statements
Rules based on ontological principles being insufficient to determine between
conflicting interests
Analogical Reasoning
Analogy reasoning: is the reasoning by comparison or by examples. Meaning comparing
two cases by saying that the case of so and so have the same products as the case of so
and so.
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This involves the identification of the similarities and differences of the facts in the
precedential and the case to be determined. After the identification, then deciding
whether the case to be determined is similar or different from the precedent in the
important aspects with regards to the matter being decided. Following the findings,
the case precedent may then be followed or distinguished.
It is important to note that there are peculiar situations where both of the above
methods will not suffice in determining a case, and the judge may then rule according
to personal preference.
Circumstances that may prompt such a treatment include but are not limited to:
Where the law is obscure: the rules are too fragmentary, imprecise or partial to
describe the present case facts
Where there are no rules provided
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FINDING AND READING CASES
• Read Holland and Webb chapters 2 & 5.
INTRODUCTION
In Ugandan Law a major source of law is case law, the principles laid down by
the courts in decided cases. As will be seen, there is in Ugandan Law a system of
judicial precedent where the courts within certain limits are bound to follow
earlier decisions.
Such a system of precedent can only operate where there is a well-established
system of law reporting.
The origin of law reporting can be found in Year Books containing collections of
decisions, the earliest around 1285. Fuller accounts began to be produced. These
private or nominate reports were produced mainly by private reporters and bore
their names.
Most of these reports were reprinted in either the 178 volumes of the English
Reports or the 152 volumes of the Revised Reports.
The present system of law reporting stems from 1865 and from 1870 has operated
under the aegis of the Incorporated Council of Law Reporting for England and
Wales. This is augmented by various official and commercial series.
The reference to a case in the law reports is known as a citation. Finding a Case
A well-known contract case is Carlill v Carbolic Smoke Bell Co. [1893] 1 QB 256.
The parties to the case known as the plaintiff and defendant respectively. The
letters QB stand for Queens Bench Division, and refer to a frequently used series
of the law reports.
The Citation refers to the relevant law report using an abbreviation, together
with its volume and page reference.
Each series has its own abbreviation. Here are the most common of these:
The Law Reports
(By convention these are the preferred series to use in court)
Appeal Cases AC
Chancery Division Ch
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Family Division Fam
Queens Bench QB
(Kings Bench when a King is on the throne)
The Weekly Law Reports WLR
EU Reports
Common Market Law Reports CMLR
European Court Reports ECR
Commercial Reports
The All England Law Reports All ER
Specialist Reports (Some examples only)
Criminal Appeal Reports Cr App R
Industrial Relations Law ICLR
Industrial Tribunal Reports ITR
Road Traffic Reports RTR
In addition, summaries of recent cases can be found in The Times, The Guardian,
The Independent and The Financial Times and in the various professional journals
such as the Criminal Law Review, the Law Society Gazette and the New Law
Journal.
There are various indexes available to obtain the citation of a case such as the
Current Law Citator. Particular series of law reports such as the All England have
indexes.
It is always important to check whether a case has been overruled or
distinguished in subsequent case. A simple way of checking is to consult the
Current Law Case Citator.
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Read Learning Legal Rules pp56-64 which explains the features of an English law
report. When you have completed this task read pp64-71 which explain the
features of European Community Law Report.
ASSIGNMENT
READING A CASE
Merritt v Merritt [1970] 2 All ER 760
1. Read the facts of the case and state what you consider to be the material
facts.
2. (a) From which court is this case reported?
(b) From which court had the appeal come?
3. Can you explain the titles of the judges?
- Lord Denning MR
- Widgery and Karminski LJJ
4. What was the outcome of the appeal?
5. Was the decision unanimous?
6. In the paragraph beginning “Held” – what do you think it means when it
says that Balfour v Balfour, Gould v Gould and Jones v Padavatton were
distinguished?
7. What arguments were put forward on behalf of Mr Merritt to support his
appeal?
8. What presumption normally applies where agreements are made between
husband and wife?
9. In what other relationships does this case indicate that the same
presumption might apply?
10. As a result of the appeal being dismissed, what is the eventual outcome
for Mrs Merritt?
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Read Learning Legal Rules pp68-77 which explains the features of an English law
report. When you have completed this task read pp77-84 which explains the
features of a European Community report
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