A Model for Using Law. Christopher Enright 1

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1 A Model for Using Law Christopher Enright 1 Part 1 Introduction Part 2 Description of the Model Part 3 Uses of the Model Appendix: Labels Part 1 Introduction Introduction Lawyers use law to advise and to act for their clients in litigation and transactions. Lawyers and law students have an intuitive understanding of the basic processes in using law. However, these processes tend not to be formally articulated, so that understanding of the process is implicit rather than explicit knowledge. Quite likely this has a negative effect on the learning processes of law students and the efficacy of legal practice. There is a simple reason for this conclusion. A method or technique is more effective when it is formally or explicitly articulated than when it only implicitly understood. When a method is explicitly known it can be called in as a guide at any time. It creates a common reference point for communication. A teacher can transmit the method to students to enhance their understanding and quicken their acquisition. Flaws in the method can be detected and eliminated. Any capacity for the method to be developed or improve is likely to be realised. Its full array of uses can be known and availed of. For all of these reasons this paper sets out to lay down a model for explaining how to use law in litigation and transactions. For this it sets out the basic method in a way that reveals the nature of the major processes involved. Basic Propositions To understand what using law in these ways entails, it is necessary be familiar with some basic truths. First, law is made for only one purpose - to change the world. This happens because legal rules apply to facts to give those facts legal consequences for the parties involved. Hence, to use law, lawyers apply it to facts to bring about legal consequences. 1 Christopher Enright is a chartered accountant, barrister and solicitor. He works as a legal consultant see This article draws on his forthcoming books, Legal Reasoning and Legal Method. 41

2 Second, a person's legal position is determined by the legal rules that apply to them at any time. These laws have consequences, and these consequences define the person's legal position as is illustrated by the model for using law (which is explained below). Third, logically every law in existence either does or does not apply to a person, but in practice a lawyer usually considers only a few laws at most because the possible consequences of these laws are the reasons that the person now seeks the help of a lawyer. Fourth, when lawyers use law they affect people s legal position in some way: (1) Litigation makes one person a winner and another person a loser. The winner has vindicated a right and receives a legally indorsed remedy. The loser is liable to provide or suffer that remedy. This is in addition to the costs of the winning party that they typically have to pay. (2) A transaction changes the position of the party or parties involved. (i) Before making a will Penelope was intestate. After the transaction, and as its consequence, she has a valid will. Therefore, Penelope is now testate. (ii) In a sale of land the vendor relinquishes title to the land (in return for the purchase price) while the purchase acquires the title. Labels This paper uses labels. These labels are explained in the appendix. Part 2 Description of the Model Introduction Using law is explained with a model. This model incorporates two specific models, the model for litigation and the model for transactions. These models for using law in litigation and transactions build on a model for analysing or organising a legal rule. 2 This model is based on structures that law naturally possesses. Subject to limited exceptions that are of no concern here, each legal rule, possesses a standard structure, which consists of three components elements, consequences and a conditional statement: (1) Elements. Elements of a legal rule delineate that part of the world, the facts, to which the legal rule applies and which it therefore regulates. To perform this task an element delineates a category or type of fact, 3 so that the 2 Christopher Enright Legal Method (forthcoming) 3 Justice McHugh expressed this in Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 421 in the following way: "A rule of law enacted by statute consists of a proposition which gives rise to legal consequences when the act or omission of 42

3 relationship of an element to a fact that fits or satisfies the element is that of the general to the particular. In short, an element describes a required fact for the rule to apply. Elements are labelled Element 1, Element 2 and so on. The elements in a rule are collectively designated Elements 1-n. (2) Consequences. While elements identify the part of the world that the rule seeks to change, the way in which the rule directly and legally changes the world is through the consequences it imposes on the parties when it applies to a set of facts. Therefore, a legal rule must also state the consequences it visits upon the parties. Consequences are designated Consequences 1-n or just Consequences for short. (3) Conditional Statement. So far the legal rule has two components, elements that identify the facts to which it applies and consequences that prescribe how it will change the position of the parties to a case when the rule applies to them. To ensure the operation of the rule, something has to impose these consequences on the facts. This is done by framing the rule as a conditional statement. It takes the following form: if facts occur that fall within the classes of facts delineated by the elements, the consequences designated by the rule apply to those facts. To develop the model for litigation and the model for transactions we build on these structures in a logical way. 4 Each rule consists of elements, labelled Elements 1-n. A legal rule is so structured that the consequences designated by the rule apply in both litigation and transactions when each element of the rule is satisfied by a fact. These facts are labelled Facts 1-n to correspond with Elements 1-n. Thus Fact 1 fits within and satisfies Element 1, Fact 2 fits within and satisfies Element 2, and so on to Element n, which is satisfied by Fact n. Facts 1-n need to be established. In litigation facts occurred in past time and are proved by evidence so that Evidence 1-n proves Facts 1-n. Thus Evidence 1 proves Fact 1, Evidence 2 proves Fact 2, and so on to Fact n that is proved by Element n. In transactions some facts can occur in past time and thus need to be proved by evidence. Generally though, when a transaction commences most if not all facts have not yet happened. Parties to the transaction create facts in present time by taking the necessary processes (which are usually straightforward and within the power of parties to do). In a transaction then, Processes 1-n create Facts 1-n. some person falls within the factual outline delineated by that proposition. His Honour's analysis in this judgment was referred to with approval by a six person joint judgment of the High Court in Bropho v Western Australia (1991) 171 CLR 1 at Christopher Enright Legal Reasoning (forthcoming) 43

4 Thus Process 1 creates Fact 1, Process 2 creates Fact 2, and so on to Fact n which is created by Processes n. Model This model combines the several functions that are involved in using law. A lawyer uses evidence to prove facts (in litigation), or creates facts by following processes (in transactions). The right facts (commonly called the material facts, relevant facts or the essential facts) satisfy each element of the cause of action. When all of this happens the legal consequences apply. To explain the model in more detail it is necessary first to set out the model in a table or diagram. This diagram portrays a legal rule that consists of Elements 1-n. While it would be sufficient to portray the model using just Element 1 and Element n, the diagram also includes Element 2 to give a better sense that a cause of action is constituted by a list of elements. This diagram contains three major columns. Column 1 sets out the law or legal rule that is involved, Column 2 sets out the facts that satisfy the elements of the legal rule while Column 3 contains the evidence or processes that establish these facts. This diagram takes the following form: Law Facts Evidence/Process Element 1 Fact 1 Evidence/Process 1 Element 2 Fact2 Evidence/Process 2 Element n Fact n Evidence/Process n Consequences Consequences 1 ConFact 1 ConEvidence/ConProcess 1 Consequences 2 ConFact 2 ConEvidence/ConProcess 2 Consequences n ConFact n ConEvidence/ConProcess n Figure 1 Model for Using Law Foundation Most legal rules are structured as conditional statements for a very good reason. Legal rules that effect litigation or a transaction must be framed in this way or they cannot function. 5 This is why the conditional statement is foundational to the model. Column 1 sets out the legal rule as a conditional statement. It stipulates a condition and the consequences that flow when that condition is satisfied. This condition is that Elements 1-n are satisfied by the appropriate facts, which are 5 Christopher Enright Legal Reasoning (forthcoming) 44

5 conveniently labelled Facts 1-n in Column 2. When this condition is satisfied in a particular case the consequences stipulated by the rule, Consequences 1-n, apply to the parties in that case. Putting this in practical terms, to obtain the legal consequences stipulated by a rule, a plaintiff in litigation or a party in a transaction must satisfy the elements of the legal rule. To stress this point, for the law to apply the person must satisfy each of these elements. If they fail to do this, even on just one element, the law does not apply. Components Introduction There are five components of the model: (1) The elements of the legal rule. These elements can be divided into subelements. (2) Facts, which satisfy the elements. (3) Evidence, which is used to prove facts in litigation. (4) Processes, which are used to create facts in transactions. (5) Consequences, which apply when the each element of the legal rule is satisfied by the appropriate facts. Law: Elements Legal rules are framed as a conditional statement when certain types of facts occur, consequences apply to the parties involved. 6 These consequences are of course the remedies that the court provides to a successful plaintiff or the change in their legal position that parties receive when a transaction is successfully concluded. In the table these are labelled Consequences. To obtain the legal consequences provided by a cause of action a plaintiff or transactor must establish each and every element of the legal rule which constitutes the cause of action. An element describes a category of facts that must be satisfied for the rule to apply. In the model, elements of the rule are labelled Element 1, Element 2, and Element n, the list being Elements 1-n. To obtain the Consequences, therefore, the plaintiff must satisfy Elements 1-n. If a plaintiff or transactor fails to satisfy all of the elements, even failing with just one element, the law does not apply, so the plaintiff or transactor does not obtain a their desired outcome. Law: Subelements Elements can be divided into various levels of subelements as the law creating the cause of action requires. These levels create a hierarchy. To illustrate this, let us take Element 2 as an example, and see how it could divide into subelements. If Element 2 was divided into n subelements, the table above could be expanded 6 Christopher Enright Legal Reasoning (forthcoming) 45

6 to accommodate this, as the following excerpt (using litigation as an illustration) demonstrates: Element 2 Fact 2 Evidence/ Process 2 Element 2.1 Fact 2.1 Evidence/Process 2.1 Element 2.2 Fact 2.2 Evidence/Process 2.2 Element 2.n Fact 2.n Evidence/Process 2.n Figure 2 Subelements Subelements of Element 2 are labelled Element 2.1, Element 2.2 and Element 2.n, constituting the range Element n. Moreover, further division is possible (if the law so requires it) because a subelement at any level can always be further subdivided, so that the division and subdivision create a more elaborate hierarchy. For example, Element 2.3 might divide into Elements n. This process of subdividing elements continues until the law constituting the cause of action is fully and faithfully represented in the hierarchy. 7 As this illustration demonstrates, when an element is divided into subelements, each subelement needs to be satisfied by the appropriate fact. Thus, Facts n satisfy Elements n. Similarly, each of these facts is proved by evidence so that Facts n are proved by Evidence n (or in a transaction are created by Processes n). Consequences The first column of the model also shows the legal consequences that follow when each element is satisfied by the facts in a case or transaction. Consequences are the remedies that the court provides to a successful plaintiff or the change in legal positions that the law creates and recognises when a transaction has been successfully carried out. Consequences of a legal rule are themselves divided into elements, which in their full form are labelled Consequences 1-n. Sometimes, however, discussion of the model refers just to Consequences which is a convenient shorthand. Consequences need elements for two reasons. First, there may be more than one remedy. For example, a successful plaintiff in trespass may obtain both damages and an injunction. Second, any particular remedy can be divided into parts. An example is the remedy of damages, because there are various heads of damages, each of which becomes an element. Each head of damage is calculated as a lump sum of money. All the heads of damages taken together become the total amount of damages, which constitute the full Consequences. 7 Christopher Enright Legal Method (forthcoming) 46

7 Facts To be successful, a party must satisfy each element of the cause of action. But how do parties satisfy these elements? By facts, as indicated by the arrow between the second and first column. Each element of a law states a category of facts, and requires that there be a fact in this category to satisfy the element. Parties, therefore, satisfy Element 1-n by establishing the appropriate facts. These are conveniently labelled Fact 1, Fact 2, and Fact n respectively, so that Fact 1 satisfies Element 1, Fact 2 satisfies Element 2 and Fact n satisfies Element n. Collectively, the facts can be designated as Facts 1-n. In summary, then, Elements 1-n are satisfied by Facts 1-n. Clearly there are other facts in the case besides Facts 1-n. These may play some ancillary role in a contested case in proving Facts 1-n but they are otherwise leally irrelevant. Facts 1-n, by contrast, are the core of the initiating party s case. A party s success will rise or fall according to their ability to prove these facts. For this reason lawyers refer to Facts 1-n as material facts, relevant facts or essential facts. There are also facts for consequences. Consequences 1-n are satisfied by Con Facts 1-n. Evidence In litigation facts are proved by evidence, as indicated by the arrow between the third and second columns. 8 Evidence to prove Fact 1, Fact 2, and Fact n is conveniently labelled Evidence 1, Evidence 2, and Evidence n respectively. Conveniently and simply we say that Evidence 1 proves Fact 1, Evidence 2 proves Fact 2 and so on. This, however, is shorthand for two propositions. Before trial, Evidence X is the evidence that a party will use in an attempt to prove Fact X. After the trial, if a party has been successful, Evidence X is the evidence that actually proved Fact X. But to repeat, our shorthand for this is to say that Evidence X proves Fact X. Collectively the evidence can be designated as Evidence 1-n. In summary, therefore, Evidence 1-n proves Facts 1-n. For the consequences, Con Facts 1-n are proved by Con Evidence 1-n. The expression evidence is used this context to designate all of the methods for proving facts. These various methods fall into three categories: 9 8 This process of proving facts by evidence is explained in Christopher Enright Legal Method (forthcoming) 9 Christopher Enright Legal Method (forthcoming) 47

8 (1) Observation. In the obvious case a witness is the source of observational evidence. Observational evidence can also come equipment or from an organisation. Finally, a court can observe some facts for itself. (2) Inference. Inference can be based on patterns of behaviour or causation. (3) Deeming Provisions. Facts can be legally deemed to be true. This can happen in any of four ways - by agreement, by admission, by presumption or by statute. Observational evidence by a witness is one of the most common forms of evidence. It refers to an account of facts that a witness gives on the basis that they have observed those facts with one of the five senses (namely sight, touch, smell, hearing, and taste). To further explain and also to illustrate this, consider a typical piece of evidence, where Sally, the witness says: I saw the defendant walk on Jeremy s land. This reveals the two components of evidence. First, it consists of facts. In the example, the defendant walked on Jeremy s land. Second, it consists of a cognitive claim to truth of these facts. In the example, the witness Sally claims that the defendant walked on Jeremy s land because she saw it happen. In view of this, it can be seen that the relationship of fact and evidence is that evidence consists of facts with the addition of a claim based on observation that the facts are true. Processes Introduction To understand the nature of processes, refer to the model above. For a person s legal position to change the law has to apply to them. For this to happen it is necessary to create Facts 1-n in order to satisfy Elements 1-n. To create Facts 1- n a person carries out Processes 1-n. When the facts are established or created in this way the law applies to the facts. 10 Therefore, the consequences provided by the law follow, and the person s legal position is altered accordingly. So, in contrast to litigation where parties seek to prove past facts by means of evidence, in a transaction parties create facts in present time by means of processes. These processes involve doing whatever is necessary to create facts to satisfy the elements of the relevant law. To give an example, the rule for transferring title to land generally provides that a vendor can transfer title to land when the vendor signs a document of transfer, delivers it to the person taking title to the land (the purchaser), and puts the document or a copy of it on a register with a government agency. The elements of this rule require that these facts are established. Parties establish these facts by creating them. In this instance they would prepare a document of transfer, the vendor would sign it, 10 Applying law to facts is a deductive process based on a syllogism see Christopher Enright Legal Reasoning (forthcoming) 48

9 the vendor would deliver it to the purchaser, and the purchaser would register it with the relevant government agency. Because facts are established by following processes there is an important consequence. A lawyer can control what is done. By contrast in litigation a lawyer cannot control the result. They can only strive their best to win the case for their client. Processes can be anything that the applicable law requires. There are, however, some common types of processes, which will be mentioned by way of illustration. Expression of Intention Some transactions involve a party doing something of their own volition. Examples are making a will or a contract. In these cases, for the transaction to be effective, it is necessary that the parties express their intention sufficiently clearly. So, for example, if Annabelle and Benjamin want to make a contract they have to use words that do two things. (i) They make promises to each other of what they intend to do. These promises are distinct from mere expressions of possible interests. (ii) They indicate clearly, even if implicitly, that these promises are to be part of a contract as distinct from a mere social arrangement. Written Requirements Processes often involve using written words. There are two basic possibilities. First, the law may require that the transaction be entirely in writing. In practice, where written words are required, often the lawyer drafts a document for a party to use in the transaction. Second, the law may not require that the transaction be totally in writing, but that it is merely evidenced by a written note. This requirement was imposed, for example, by the Statute of Frauds 1677 (UK) on a number of contracts. These include a contract of guarantee for a debt, a contract for the sale of land and a contract for the sale of goods (although part performance by vendor or purchaser will exempt the need for written evidence of a contract for the sale of goods). Where a document has to be entirely in writing there may be some additional procedural requirements. Some examples are: (1) The document has to be a deed. From the point of view of formalities, to become a deed a document must be signed, sealed and delivered. From the point of view of function, to constitute a deed a document must do one of the following - (i) pass an interest, right or property, (ii) affirm or confirm some 49

10 current or prior transaction that passes an interest, right or property, or (iii) create an obligation binding on the parties. 11 (2) The document has to use some words in some set formula. (3) The document has to be on or in some special form. This is commonly the case for processes in dealing with the government, for example incorporating a company or registering title documents to land. (4) The document must be in writing of a certain minimum size. Such a requirement is often imposed on contracts to protect consumers from terms hidden in the fine print. (5) The document must be in writing of a certain coloured ink. Such a requirement was once imposed by the Book Purchasers Protection Act 1899 (NSW). Section 5 applied to contracts for the purchase of books - the contracts being defined to catch door-to-door sales. It provided that these contracts were not valid unless the purchaser was informed of their total liability under the contract. They had to be so informed by a notice that stated the purchaser s liability. This notice had to be written in red ink. Signature and Witness Where a document is required for a transaction, there is usually a further requirement that the party or parties sign the document. There may also be requirement for the signatures to be witnessed. There may be one, two or more witnesses required. Sometimes any one can witness a document. At other times, the witness must be a person in a special category, for example a justice of the peace, notary, solicitor or attorney. Notice Sometimes a party who is about to enter a legal transaction, or has entered the transaction, is required to give notice to another party or to some government agency. Registration A very common procedural requirement when dealing with a government agency is to lodge or register a form or document with the agency. Functions The two essential functions in using law are depicted in the model. Columns 1 and 2 together represents the application of law to facts which involves a syllogism while Columns 2 and 3 represent the process of establishing facts. 11 R v Morton (1873) LR 2 CCR 22 50

11 Application of Law to Facts Columns 1 and 2 represent the process of applying laws to facts. Each element in the conditional statement created by the rules stipulates a required fact - this is a fact that must be present in a set of facts for the rule to apply to it. The process of applying law to facts involves logical deduction in the form of a syllogism. 12 It takes the following form: Major Premise Minor Premise Conclusion Facts in the categories designated by Elements 1-n cause Consequences 1-n. The facts in this case, Facts 1-n, fall within these categories. Therefore Facts 1-n cause Consequences 1-n. Figure 3 Syllogism for Applying Law to Facts Establishing Facts Facts in a legal matter need to be established. In litigation facts are proved by evidence. This process entails three steps, which in summary are as follows: 13 # Step 1 Versions of Truth. Each party presents their version of truth to the court by way of evidence. # Step 2 Probability of Truth. Once evidence is presented, the crucial question for the decision maker is one of probability. When all the evidence is considered, how probable is it that the prosecution or the plaintiff has made out their case? # Step 3 Standard of Truth. Having determined as best it can the probability that each version of the facts is true, the court has to face the final question: has the prosecution or plaintiff established their case according to the required degree or standard of probability, called the standard or proof, as stipulated by the applicable rules? At common law, the standard of proof for a criminal prosecution is proof beyond reasonable doubt while the standard in civil matters is proof on the balance of probabilities. Establishing facts in a transaction is generally much simpler than doing so in litigation. In a transaction, it is normally not necessary to prove past facts as happens with litigation, but instead to create facts in present time by following stipulated processes. In the model, Processes 1-n are the processes that will create Facts 1-n. To furnish an example, frequently a process will require a party to fill in and possibly sign some form. To comply with this requirement, the party either composes the form in the stipulated way, or they obtain a template for it, fill in the required details and sign the completed form. To emphasise the point, these 12 Christopher Enright Legal Reasoning (forthcoming) 13 Christopher Enright Legal Method (forthcoming) 51

12 processes are usually within the complete control of the party, so that a successful outcome for a transaction is commonly assured. Part 3 Use of the Model Introductions The model for using law has several practical uses. These will be discussed separately for litigation and transactions. Litigation Introduction The model for litigation explains the overall task of litigation. Since it performs this function, it can also be deployed in the classroom, in the courtroom, in the office and in chambers (of a judge or lawyer) for many of the specific task involved in litigation. Overall Task Most fundamentally, the model illustrates the overall picture of how litigation functions. For the plaintiff to win they must prove facts constituting or satisfying each element of the cause of action. In the version of the model above a plaintiff must prove Facts 1-n to satisfy Elements 1-n. A plaintiff seeks to prove Facts 1- n by Evidence 1-n. Therefore, a defendant wins by rebutting the plaintiff s proof of at least one of the facts necessary to satisfy the elements of her case. This can be done, as illustrated above, by disputing law or facts, or both. Specific Tasks Because the model for litigation provides a means of organising litigation according to a framework or structure, it furnishes assistance on many of the specific tasks that arise with litigation. Put simply, this structure provides guidance or direction for these tasks. Prominent examples are the following: (1) Taking a statement from a witness. (2) Identifying and formulating issues of fact, law and discretion. (3) Managing litigation. (3) Identifying gaps in the evidence and guiding the search to fill these gaps. (4) Advising a client. (5) Presentation of a case. (6) Opening and closing addresses. (8) Reading and writing judgments. (9) Reforming pleading and procedure. Outline To illustrate uses of the model this discussion will first show how the model provides an overall organisation of litigation. Then it will discuss by way of illustration how the model assists some of the specific tasks with litigation 52

13 taking a statement from a witness, explaining issues of law and fact, and reforming pleading and procedure. Overall Guide Most fundamentally, the model illustrates the overall picture of how litigation functions. For the plaintiff to win they must prove facts constituting or satisfying each element of the cause of action. In the version of the model above a plaintiff must prove Facts 1-n to satisfy Elements 1-n. A plaintiff seeks to prove Facts 1- n by Evidence 1-n. Therefore, a defendant wins by rebutting the plaintiff s proof of at least one of the facts necessary to satisfy the elements of her case. This can be done, as illustrated below, by disputing law or facts, or both. Thus the model is a fairly comprehensive and constant guide to litigation. It can help in most aspects because it structures and therefore directs the task. For example, it provides a lawyer with a list of the elements of the cause of action. This indicates the type of facts that must be established to prove the case because the elements are generalisations of these facts. It also alerts the lawyer to the need to present evidence to prove the facts that will satisfy each element. How the model organises law by furnishing a framework can be illustrated with a case involving a plaintiff Stuart Little and a defendant Mary Grand. In this illustration the model will be used for organising the information into amenable form. Interview with Lawyer Stuart Little visits his lawyer and describes his grievance in the following way. I live in 12 Big Street, Smallville. Mary Grand lives two houses up the street from me in number 16. She has always been envious of my garden. On Wednesday, 5 April Mary s envy finally got the be er of her. At hours (high noon) she entered my garden in the front yard, walked across my prize lawn in her hobnailed boots and took a lemon from the lemon tree, leaving by the front gate. I have never given her permission to do this. I have obtained a valuation of my loss from Grassy Green who runs a nursery. The lemon would be worth $3. It will cost $38 to repair my lawn - with those boots it is no wonder Mary cannot tap dance. [Stuart writes an occasional column on the performing arts for the local newspaper, the Smallville Examiner.] Researching the Law The lawyer then does some research and finds the following account of the tort of trespass to land in a textbook entitled Walker on Trespass. The learned author says as follows: 53

14 Trespass is an ancient action although it is not much used now. Trespass protects land owners and holders. A plaintiffcommi ts trespass when they intentionally interfere with land without permission; trespass is actionable by a plaintiffwho has a right to possess the land. Defences to trespass are provided by common law and statute. A successful plaintiffwi ll obtain damages. Damages are awarded to compensate for the invasion or interference per se calculated according to the circumstances, and to compensate for actual loss occasioned by the trespass. Additionally, a plaintiffmay, at the di scretion of the court, be awarded an injunction. Generally to obtain an injunction a plaintiffneeds to show that there is a reasonable possibility that the trespass will be repeated. Investigating the Facts The lawyer then investigates the facts. During the investigation she finds that none of the defences apply. She also discovers the following. (i) Stuart owns the house at 12 Big St Smallville. He lives there with his wife, Gladys, and his triplets, Faith, Hope and Charity, who are studying theology at Notre Dame University. (ii) Just before midday on the day of the trespass Sally, a neighbour in No 14 (the house between Stuart and Mary) saw Mary walking past her house towards Stuart s house. However, since she was peering through the curtains at the time Sally did not see whether Mary entered Stuart s front yard. About five minutes later, Sally saw Mary walking in the opposite direction toward her own house at No 16. Mary was carrying a lemon that she was tossing in the air at the same time displaying a triumphant look on her face. (iii) On Wednesday evening at about hours Mary was seen in the Boiler Room at the Railway Hotel by Front Line Freddy, who reports on sheep dog trials for the Smallville Examiner newspaper. Freddy heard Mary say: I finally fixed that obnoxious man Little Stuart as I call him. I will keep doing what I did until he takes that smug look off his face. (iv) On Saturday morning, at hours Mary was seen by Nosey Parker bringing a lemon meringue tart to her parish fete, held in the grounds of the Church of St Jude the Obscure in Smallville. Organising the Law To prepare and assess this case the lawyer can utilise the organising framework provided by the model for litigation. To initiate this, it is first necessary to divide the cause of action, trespass to land, into its elements and consequences. This can be presented in the following table: Elements Element (i) Land There is land. Element (ii) Possession The plaintiff has a right to possess the land. Element (iii) Interference The defendant interferes with the land. Element (iv) Intention The defendant interferes with the land intentionally. Element (v) Permission The plaintiff has not given the defendant permission 54

15 to interfere with the land. Element (vi) Defences There are no defences available to the defendant. 14 Consequences (i) Damages (i) Interference. These damages are calculated by reference to the circumstances of the interference. (ii) Loss. These damages compensate the plaintiff for their actual loss. Consequences (ii) Injunction Generally to obtain an injunction a plaintiff needs to show that there is a reasonable possibility that the trespass will be repeated. Figure 4 Elements and Consequences of Trespass to Land Organising the Case: Model for Litigation We can now proceed to organise this case according to the model for litigation. This illustrates how each element of the cause of action needs to be satisfied by the appropriate fact and how each fact needs to be proved by evidence: Law Facts Evidence (i) Land The house and land at 12 Big St Smallville The house and land can be tendered in evidence. (ii) Possession Stuart Little owns and lives in the house. It is his family home. (i) Stuart Little can produce the title documents for his house to prove ownership. (ii) Stuart Little can give evidence himself that he lives in the house and that it is his family home. (iii) Interference Mary Grand enters Stuart Little s back yard and takes a lemon from his lemon tree. Wednesday, 5 April about (i) Sally in No 14 Big St sees Mary Grand from No 16 walking towards Stuart Little s house at No 12. (ii) Five minutes later Sally sees Mary walking back towards her own house at No 16. Mary was carrying a lemon which she was tossing in the air, at the same time displaying a triumphant look on her face. Wednesday, 5 April about (iii) Front Line Freddy hears Mary say I finally fixed that obnoxious man Little Stuart as I call him. Saturday, 8 April about (iv) Nosey Parker saw Mary 14 Defences could be fleshed out more but it is not done. None of the defences apply here and a fuller account is omitted in the interests of brevity and simplicity. 55

16 (iv) Intention Mary Grand interferes with the land intentionally. (v) Permission Stuart Little has not given Mary Grand Consequences (i) Damages 15 permission to do this. (A) Interference Entering the plaintiff s yard, walking across the lawn, plucking and taking a lemon from the lemon tree and then leaving. (B) Loss (a) Damage to the lawn: $38. (b) Loss of the lemon: $3 bringing a lemon meringue tart to her parish fete, held in the grounds of the Church of St Jude the Obscure in Smallville. This intention can be inferred from the circumstances of the interference. Stuart Little can give direct evidence that he did not give Mary Grand permission to do as she did. (A) Interference Evidence of the interference is given above in connection with Element (iii) Interference. (B) Loss Grassy Green who runs a nursery can give evidence that damages are calculated as follows: (a) Repair of the lawn - $38 (b) Replacement of the lemon - $3 (ii) Injunction Fear of repetition Wednesday, 5 April About Front Line Freddy hears Mary say: I finally fixed that obnoxious man Little Stuart as I call him. I will keep doing what I did until he takes that smug look off his face. Figure 5 Model for Litigation: Organisation of a Case Statement from a Witness Each witness is, directly or indirectly, assisting a party to prove their case according to the relevant standard of proof. A lawyer taking a statement needs to have one eye on the elements of the cause of action. As the witness tells their story, guided by the lawyer, the lawyer is first and foremost interested in proof of the material facts, the facts that directly satisfy an element. The lawyer may also be interested in some other facts. For example, these facts may illuminate their case so that they can better explain it to the court, they may 15 In the interests of brevity and simplicity only compensatory damages are considered. 56

17 portray their client as a good person which wins sympathy of they may assist in making their client s story more credible in some way. Issues The simple form of the model for litigation can be developed or expanded to explain both issues of law and issues of fact. Mention will also be made of issues of discretion. Issue of Law Let us use Element 4 of some cause of action to illustrate an issue of law in a hypothetical case. Element 4 has three meanings, which are designated Element 4M1, Element 4M2 and Element 4M3, the range being Elements 4M1-3. These can be set out in an excerpt from a developed form of the model in the following way: Element 4 Fact 4 Evidence 4 Element 4M1 Element 4M2 Fact 4M2 Evidence 4M2 Element 4M3 Figure 6 Issues of Law As set up for this illustration, Element 4M2 is the version of Element 4 that favours the plaintiff. Element 4M2 is satisfied by Fact 4M2 which in turn is proved by Evidence 4M2. Element 4 raises an issue of law in this case because two necessary conditions are satisfied concerning the plaintiff. First, they possess evidence which can prove a fact that satisfies a version of Element 4; in the illustration the plaintiff possesses Evidence 4M2 which can prove Fact 4M2, which in turn satisfies Element 4M2. Second, they do not possess evidence to prove facts which would satisfy other versions of Element 4; in the illustration they do not possess Evidence 4M1 or 4M3 to prove Facts 4M1 or 4M3 which would satisfy Element 4M1 or Elements 4M3. Since these conditions are satisfied, there is an issue of law. When the court hears the issue, the plaintiff wins on this point, and satisfies the disputed element, Element 4, only if the court holds that Element M2 is the correct legal meaning of Element 4. If, however, the court decides that some other meaning is correct, that is, Element 4M1 or Elements 4M3, the defendant succeeds. They win because the only evidence the plaintiff has is Evidence 4M2, and this will not prove the fact needed to satisfy the version of Element 4 which the court has decreed is correct. 57

18 While the model indicates the nature of an issue of law, it does not explain how the issue is resolved. This is done by another model, the model for interpreting law. 16 Issue of Fact Let us use Element 3 of some cause of action to illustrate an issue of fact in a hypothetical case. As set up for this illustration, there are two versions of Fact 3, Fact 3P alleged by the plaintiff and Fact 3D alleged by the defendant. Fact 3P satisfies Element 3. Fact 3D, however, does not satisfy Element 3. Instead it establishes the absence of Element 3, namely Non Element 3. These can be set out in a developed form of the model in the following way: Element 3 Fact 3 Evidence 3 Element 3 Fact 3P Evidence 3P Non Element 3 Fact 3D Evidence 3D Figure 7 Issues of Facts In this hypothetical case the plaintiff has Evidence 3P which might prove Fact 3P, while the defendant has Evidence 3D which might prove Fact 3D. This shows the basic point, that an issue of fact is a contest between two sets of evidence. One will establish a fact that satisfies an element of the cause of action, while another will establish a fact that will not satisfy this element. Thus, the question is, in simple terms, whether the court accepts Evidence 3P rather than Evidence 3D. More precisely, factoring in the standard of proof, the question is whether the court is sufficiently satisfied of the existence of Fact 3P by Evidence 3P to discharge the relevant standard of proof. Questions of fact are resolved according to a model for proving facts. 17 Issue of Discretion A typical cause of action such as there is with tort and contract law involves a right. If a plaintiff wins they receive the remedy as of right. A cause of action, however, can also be based on a discretion. Here, the remedy issues at the discretion of the decision maker (who may be a court, a tribunal or an administrative official). Issues of discretion are discussed in another publication Christopher Enright Legal Method (forthcoming) 17 Christopher Enright Legal Method (forthcoming) 18 Troy Simpson and Christopher Enright (2009) Winning More Cases 2nd ed 58

19 Reforming Pleading and Procedure This model for litigation portrays a structure for litigation that is both natural and simple. Yet presently, litigation in many first world countries is beset by problems of cost and delay. One means of reducing these problems, even reducing them substantially, might be to reconstruct the rules of pleading and procedure to ensure that the case of each party is presented at the outset in a way that conforms to this structure. This would enable a court to manage better the large amount of information that a case generates. Presently this information seems to lie in a tangled heap. By managing information better, court may be able to manage litigation better so that they reduce cost and delay. 19 Transactions Introduction Like the model for litigation, the model for transactions is a comprehensive and constant guide. It contains a comprehensive checklist of the elements of the law. Each element is satisfied by the right facts. Parties create these facts as they carry out the appropriate process. When this has been done, the legal consequences for the transaction follow. This is what the client wants. They want to be in the legal position defined by those consequences. Since this model for transactions explains how a transaction works it can be used for many tasks in carrying out a transaction. Thus it can be used to write a practice manual that describes how to perform a transaction. The model structures the task for which the manual is used so the author can also use it to structure the manual. There is obviously an immense benefit in using the model to structure the writing of practice manuals because it makes them so clear and easy to use. This happens because a properly written guide to a transaction has three basic characteristics it is a step-by-step guide, it explains the functions that the steps perform, and it gives practical advice. Steps Each element of the law that effects the transaction is satisfied by a fact that is created by processes. Essentially, these processes constitute the steps to be taken to perform a transaction. Hence the basic format of advice on how to carry out a transaction is to state each of the processes or steps involved. This means that the manual should do the following: (1) Identify and state the element of the legal rule which requires the step. (2) Describe the step. These steps are simply derived - do whatever is necessary to create the facts that satisfy the elements of the transaction. This may involve the parties performing an operation that is covered by a standard 19 This is the subject of a book Christopher Enright Pleading for Change: Managing Litigation by Managing Information (2007) Branxton Press: Sydney 59

20 form, or it may involve doing something specific to the particular transactions. (3) Indicate any official or published forms used or required for any step in the transaction. (4) Give details of administrative requirements and processes. For example, state the address opening hours of any relevant government office. Functions A manual describing how to carry out a transaction should ideally state the function that each step or process performs. There are several good reasons for this. First, it should help the lawyer to perform the task better. Second, it will also help them to cope with change. When the steps are changed they usually changed for a reason. If a lawyer is trained to see the steps in a process as performing a function they will be able to see the function performed by the new steps and so adapt to them more quickly. Third, sometimes a step may require special care and attention. While many steps in transactions are simple and can be followed almost in a mindless way, this is not always the case. Some steps can be complicated, and so will require special care and attention. In these cases, it is vital that a lawyer know the function that the steps in a transaction must perform. This means that a transaction can be analysed by functions, with each function performed by one or more steps. We can illustrate this by stating the main functions of a transaction for the purchase of land: (1) Making the contract. This entails the parties being clear what they want and what they are agreeing to before purchasing (2) Identifying the land by a survey. This ensures that the land that the purchaser agreed to buy is the land that they inspected. (3) Confirming title by a title search. This ensures that the vendor has title to sell the interest in land that the purchaser has agreed to buy. In a basic sense this involves searching the title in the land titles office to see that the vendor owns the land (or has some lesser interest that they have agreed to sell). It also entails other checks. One example is checking that there are no orders for resumption or compulsory purchase. Another is making sure that the vendor has complied with any covenants that attach to the land. A third is making sure that there are no undisclosed charges on the land. In many cases these consists of charges imposed by statute for the benefit of government authorities. This is an aspect of title because the authority can sell the land to discharge the debt. (4) Securing receipt of title documents at settlement. This ensures that payment is made only when title documents are handed over. (5) Registering title documents when received. This shores up the purchaser s title. Some jurisdictions provide that the purchaser does not obtain full legal title 60

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