Wk4: Using Legal rules and employing legal argument Flashcards
rDifference between counsellor and advocate
‘counsellor predict likely judicial or other official response to particular rule extracted from precedent’ They advise clients by interpreting rule in precedent and whether they will apply to their clients case
‘Advocate aims to persuade particular court of a particular result and acceptance of his/her interpretation of law and of precedents.
Arguing case
How many level of generality influence counsellors and advocates?
When counsellors focus on lower level of generality ratios, then they will advise client not to take litigation as it will be too risky
Higher level of generality, counsellors will give advise to pursue litigation
Advocates when using low level of generality will have less arguments to make whereas, higher level of generality, gives them more arguments to persuade the court
adversarial system of justice
The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of each advocate representing his or her party’s positions and involves an impartial person, usually a jury, trying to determine the truth of the case.
As opposed to that, the inquisitorial system usually found on the continent of Europe among civil law systems (i.e., those deriving from Roman law or the Napoleonic Code) has a judge (or a group of judges who work together) whose task is to investigate the case.
The adversarial system is the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.
How may advocates use plausibility?
Present the most plausible interpretation to the court, or even, give discretion to the court to select the interpretations consistent with the result
Role of judge?
Interpret case and reach decision in case
Can interpretations of ratios change over time?
Indeed, interpreations change over time. These past decisions can be incorporated into the future interpreter’s argument
What is a common practice in legal reasoning?
Interpreting series of precedents rather than isolated cases
Intepreted and reinterpreted in various context of various other factors
