Legal Toolkit For Problem Solving Process

Stages of Approaching a Legal Problem

Discuss about the Legal Toolkit for Problem Solving Process.

While approaching a legal problem a lawyer has to go through various stages to ensure that all aspects of the problems are adequately addressed. The initial and primary requirement to approach a legal problem starts with understanding the legal issue. The lawyers must start understanding legal issues by separating them from regulatory issues. For the purpose of legal reasoning the lawyers should take a planned approach.  The lawyers can do rule based reasoning for the purpose of solving legal issues. In the subsequent stage the lawyers must find out the relevant rules of the case and apply them to the facts himself to come to an expected conclusion. In the next stage after the rules have been analyzed the lawyers must rebut their own arguments to find out its defects and find ways to solve such problems. Critical thinking is of utmost importance with respect to lawyers. They must know both the pros and the cons of the approaches taken by them towards solving the legal problem. After analyzing all the pros and cons lawyers must come to a precise conclusion which should be be in the best interest of their clients.

While analyzing the relevant rules of the case a lawyer must know how to reason through analogy that is ratio decidendi and obiter dicta. Two cases can never have same facts but the same rule may be applicable on them. For instance in a case where a person has a wolf as pet is liable to all actions of the wolf as it is a wild animal, the rule will also be applicable in the case where a person has a pet Pit-bull who is not a wild animal but still he would be accountable for its actions. The concept of inductive legal reasoning has to be adopted by the lawyers towards approaching a legal problem. In this approach the claims made by a lawyer has to be supported by judicial provisions. A lawyer in this regard has to analyze the decision of the court taken in different situation and apply such decisions of the present case. The lawyers towards approaching a legal problem must know how to find out differences between two cases having similar facts.

The significance of understanding the use of technical languages towards approaching a legal problem is also very important to a lawyer in the stage of legal reasoning. Understanding legal language is not as difficult as it appears, it is important for lawyers to understand a few significant characteristics of legal languages. Lawyers must not use any abstract concepts with respect to the language they use in solving the legal problems. Abstract words like “anyhow” should not be used by lawyers while drafting a file for a particular case.  A good lawyer should also understand that legal language often contain foreign language  phrases like French and Latin phrases and it is important for lawyers to understand its meaning sop that they can ensure an appropriate approach towards problem solving.

Understanding Legal Language

One of the major principles in relation to common law is the doctrine of precedent.  According to this doctrine the courts are required to follow the decisions and ruling made by the higher courts in similar situations. All lawyers have different approach and discipline towards solving legal problems. There are various methods for determining what law is applicable in a situation and one of such methods is the doctrine of precedent. The law of precedents is one of the major theories used by lawyers to solve a legal problem. This doctrine is explained totally by the lain phrase of “state decisis” which literally means one should abided by the decisions made by the higher court and not to disturb matters which are settled.  However it has to be noted in this case that the decision of court at the same level are not binding on then. For instance the decision of the district court of New South Wales will not be binding on the district court of West Australia. The decisions of higher courts outside the jurisdiction of the smaller court would also not be binding on the court and would act only as guidance. The first thing which a lawyer has to keep in mind before using the doctrine precisely is the level of the court. This has to be done because the court at a higher level does not follow the decisions provided by a court at a lower level. Another thing the lawyers must have in mind towards the doctrine of stare decisis is that not all courts follow the practice of being bound by their own decision.

There are several matters which a lawyer has to come across in his professional career.  Most of the matters are of such nature which has already been addressed by the courts at some point of time. The decisions relating to such matters help the lawyers to construct a logical argument with respect to the present issues they are dealing with.

Sometimes a judge may use a different method to solve a particular case and avoid following a precedent which would have been bound to follow. This method is generally used by the judges when they find that the material facts of the present case are different as compared to the law of the case they are bound to follow. This concept allows the courts to differentiate between the previous decisions from the present case which could have become a precedent for the courts to follow. It has to be noted in this case that the court have to prove that such difference between the facts of the cases exist in order to not to be bound by the precedent even if the court does not agree with the reasoning of the precedent. The concept of judicial precedent has to be complied with strictly in case legal distinction is not proved.

Doctrine of Precedent

Two cases which are used to explain the concept of distinction most commonly are the cases of Merritt v Merritt (1971) and Balfour v Balfour (1919). The common factor in both the cases was that the wife had made a claim against her husband in relation to the breach of contract. In the case of Balfour v Balfour the court decided that the wife is not entitled to claim breach of contract as the element of intention was absent in the contract and therefore the contract was not formed. The court in this case ruled that the agreement was not a contract and merely a domestic agreement.

In the case of Merritt v Merritt the claimant and defendant were divorced and thus the court found that their relationship was more distant and different as compared to the previous case. This fact explained the reason why they opted to form the agreement in writing and therefore the court held the claim.

Lawyers must allocate adequate time and reasoning in order to determine material differences between two similar cases. The concept of distinction between cases is essential for the lawyers to effectively use the doctrine of precedent.

According to the principle of the Rule of Law, the nation has to be governed by the law and not arbitrary decisions of people at influential government positions. The main aim of this rule is to bring out the significance of law in society and particularly restricting arbitrary behavior by government officials. The rule implies that all citizens are equal before law and even lawmakers are not above the rule of law.  This rule abolishes the practices of dictatorship, oligarchy or autocracy where rules made by government officials are above the law.

According to Aristotle it is more beneficial if people are not ruled by a single citizen, and even if the supreme power of law is placed in a single person than the person must act merely as a servant of law. The rule abolishes the idea of divine rights where rulers were held to be above the law. This rule is used to determine the main dimensions of good governance within a country. The rule of law promotes confidence and trust within the nation as the people know that law will be applied consistently and equally. In Australia the main aim of the rule of law is to provide the citizens with a fair trial and promote equity. It is the duty of lawyers to promote the rule of law and use it efficiently to solve problems related to their cases.

I have conducted research on various topics to appropriately complete my assignment. This research has given my considerable theoretical knowledge on how to solve legal problems. I have gained considerable knowledge on how to differentiate between cases having similar facts. I learned that I can distinguish between two cases based on both facts of the case and policies used in solving the case. I gained knowledge that in order to effectively apply the doctrine of precedent it is very important to determine the facts of present case and compare it to the facts of the case whose precedent is likely to be applicable.  I did not have any idea that distinction is so important in order to anticipate and critically analyze the outcome of the present case. I would allocate adequate time to fide out small and significant details which might be different as compare to the case whose precedent is to be applied. I will also analyze the relevancy of the different material facts as compared to the precedent.

References

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Butt, Peter. Modern legal drafting: a guide to using clearer language. Cambridge University Press, 2013.

Craig, Paul P. “Pringle: legal reasoning, text, purpose and teleology.” Maastricht Journal of European and Comparative Law (2013).

Douglas, James, Eleanor Atkins, and Hamish Clift. “Judicial Rulings with Prospective Effect in Australia.” Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions. Springer International Publishing, 2015. 349-358.

Gageler, Stephen, and Brendan Lim. “Collective irrationality and the doctrine of precedent.” Melb. UL Rev. 38 (2014): 525.

Gibbons, John. Language and the Law. Routledge, 2014.

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Levi, Edward H. An introduction to legal reasoning. University of Chicago Press, 2013.

Lindsay, Geoff. “Building a Nation: The Doctrine of Precedent in Australian Legal History.” Historical Foundations of Australian Law: Institutions, Concepts and Personalities (2013): 267.

Sternberg, Robert J., and Peter A. Frensch. Complex problem solving: Principles and mechanisms. Psychology Press, 2014.

Vines, Prue. Law and Justice in Australia: Foundations of the legal system. Oxford University Press, 2013.