Projekt okładki i stron tytułowych Edwin Radzikowski

Wydawca Michał Zgutka

Redakcja Zespół

Recenzent Barbara Niepytalska

Produkcja Mariola Iwona Keppel

Skład wersji elektronicznej na zlecenie Wydawnictwa Naukowego PWN: Marcin Kapusta / konwersja.virtualo.pl

Publikacja dofinansowana przez Szkołę Języków Obcych Uniwersytetu Warszawskiego

Książka, którą nabyłeś, jest dziełem twórcy i wydawcy. Prosimy, abyś przestrzegał praw, jakie im przysługują. Jej zawartość możesz udostępnić nieodpłatnie osobom bliskim lub osobiście znanym. Ale nie publikuj jej w internecie. Jeśli cytujesz jej fragmenty, nie zmieniaj ich treści i koniecznie zaznacz, czyje to dzieło. A kopiując jej część, rób to jedynie na użytek osobisty.

Szanujmy cudzą własność i prawo.

Więcej na www.legalnakultura.pl

Polska Izba Książki

Copyright © Monika Takeuchi

Copyright © by Wydawnictwo Naukowe PWN SA

Warszawa 2013

eBook został przygotowany na podstawie wydania papierowego z 2013 r., (wyd. I)

Warszawa 2017

ISBN 978-83-01-19421-5

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Table of Contents

Wstęp

1. LAW AND LEGAL PROFESSION

Test yourself

Case law in common law system

Judicial precedent

Rule of law, judicial review, due process

Retroactive law

Access to a lawyer

Solicitors and barristers

Attorney’s duty

Charter of Core Principles of the European Legal Profession

Principle of privilege

No win no fee

Notaries

Jury

2. CIVIL LITIGATION

Test yourself

Civil Procedure

From the judgement in Anthony O’Shea v R (2010)

Brandt v American Bankers Insurance

Without prejudice

Burden of proof in a civil case

Supreme Court rules party must pay fees for frivolous claims alone

BP v Halliburton

From Jodie Bullock v Philip Morris USA, Inc.

Civil evidence case

Contributory negligence

Sean Lane et al. v Facebook, Inc. et al.

Product Liability in Poland

Guantanamo Petitions

3. CRIMINAL LAW

Test yourself

Contempt of court

Habeas corpus

Plea bargain

Criminal procedure case

Types of evidence

Self-incrimination

Prosecutors

Reversal of conviction

Police can collect DNA samples from arrestees

Extracts from the Resolution of the XVIIIth International Congress of Penal Law 2009

Doli incapax

Necessity

Consent

Judgment and sentence for direct criminal contempt

Three strikes law

Motion to dismiss

4. INTERNATIONAL AND EUROPEAN UNION LAW

Universal Declaration of Human Rights

Rules of International Court of Justice

United Nations Charter

Principles of the European Union

Excerpts from Judgments of the European Court of Human Rights

From Fourth Additional Protocol to the European Convention on Extradition (2012)

From Agreement between the European Community and the Council of Europe

Cross border disputes

European arrest warrant

EU succession and wills

Jurisdictional immunity of the state

ECHR Jurisdiction

DNA data ruling

European Commission v Poland

5. CONTRACT LAW

Essential elements of a contract

Parts of a conctract

The language of clauses

Employment contract

Personal property sales contract

Assignment

Stock redemption agreements

Reading clauses

Cases

Paul D. Ceglia v Mark Elliot Zuckerberg

6. PROPERTY LAW

Property case

Personal property

Popov v Hayashi

Real property

Real property case

Intellectual property

Intellectual property assignment case

Passing off

Breach of confidence case

Trade mark case

Cease and desist

7. BUSINESS LAW

Test yourself

Fraud and breach of fiduciary duty

From the Articles of Association

Certificate of Incorporation

Purchase and sale of private shares

The Code of Commercial Partnership and Companies

A company in Poland

Procedure for bankruptcy in the UK

Personal bankruptcy now available in Poland

Financial regulation case

Finance case

The debt crisis and the legacy of leaving the Eurozone

Promissory note

8. MISCELLANEOUS

Facebook and data protection law

Human rights case

Civil and criminal proceedings

Witness immunity

Posthumous reproduction

Impeachment of President Nixon

Violent video games

True or false

Match each extract with the type of documents it comes from

Explain the meaning of each extract

9. LETTERS AND FORMS

Correspondence

Forms

10. LEXICAL EXERCISES

Word formation

Latin terms

Formal verbs

Prepositions

Phrasal verbs in legal context

Match the definition with the term it describes

Words with special meaning in Legal English

Complete the sentence with the correct word

Choose the correct option

Identify and correct any mistakes

Translate into English

11. GLOSSARY

English – Polish

Polish – English

ANSWER KEY

ACKNOWLEDGEMENTS

Wstęp

Książka English in Legal Context przeznaczona jest dla prawników i studentów prawa, którzy, osiągnąwszy zaawansowany poziom znajomości języka angielskiego, pragną skutecznie go używać i rozumieć w pracy zawodowej. Praca ta jest zbiorem tekstów i ćwiczeń językowych mających na celu rozwinięcie słownictwa i doskonalenie rozumienia angielskiego języka prawniczego.

Ze względu na szeroki zakres tematyczny i zróżnicowany charakter zadań językowych może być wykorzystywana w ramach kursu językowego lub też do samodzielnej pracy, pod warunkiem, że korzystający z niej opanował ogólny język angielski w stopniu pozwalającym na rozumienie tekstu na poziomie B2/C1.

English in Legal Context stanowi przydatny zbiór tekstów i ćwiczeń dla osób przygotowujących się do egzaminów TOLES oraz ILEC, jak również dla tłumaczy. Pomimo że książka podzielona jest na rozdziały traktujące o poszczególnych działach prawa i zawierające pewne informacje ich dotyczące, w żadnym razie nie może być traktowana jako podręcznik prawa.

Autorka pragnie wyrazić podziękowanie profesorowi Alojzemu Z. Nowakowi, Prorektorowi Uniwersytetu Warszawskiego ds. Badań Naukowych i Współpracy, za dofinansowanie publikacji oraz Barbarze Niepytalskiej za kilka cennych uwag.

Monika Takeuchi

1

LAW AND LEGAL PROFESSION

Test yourself

Case law in common law systems

Judicial precedent

Rule of law, judicial review, due process

Retroactive law

Access to a lawyer

Solicitors and barristers

Attorney’s duty

Charter of Core Principles of the European Legal Profession

Principle of privilege

No win no fee

Notaries

Jury

Most English-speaking countries follow the common law system, which originated in England. What do you know about that system?

Test yourself

I. Mark the following statements true (T) or false (F).

1. The system is called ‘common law’ because law applies to every citizen.

2. Initially common law was founded on social customs.

3. Common law is also called case law.

4. Judges make law.

5. A precedent is a judicial decision which always has to be followed in subsequent cases.

6. Court judgments in civil law jurisdictions are longer.

7. Another word for ‘precedent’ is ‘authority’.

8. The ratio of a case is, in other words, its rationale.

II. Match the term with its definition.

ruling

binding

statute

legislature

legislation

prior

rationale

discretion

venue

judiciary

a. the system of courts that interpret and apply the law

b. compulsory, mandatory, conclusive

c. the elected law-making branch of government

d. freedom to act or judge on one’s own

e. previous

f. the place where a court sits

g. fundamental reasons; the basis

h. judgment; judge’s decision

i. a written piece of legislation; a law passed by a legislative body

j. an act passed by a legislative body

III. Decide which verbs cannot be used with the given nouns.

1. to apply / to refer / to establish / to overrule / to distinguish   a precedent

2. to enact / to enforce / to lay down / to introduce / to overthrow   a law

IV. Complete each sentence with the correct word from among those listed below.

exercises   returns   enacts   vested   adopted   observes   binding   comes into

1. A statute is __________ by parliament.

2. The judicial power is ____________ in courts.

3. A judge _____________ discretion.

4. Law _______________ force.

5. Decisions of the Supreme Court are______________ on all subordinate courts.

6. A law-abiding citizen ______________ the law of the country.

7. A jury ____________ a verdict.

8. Parliament ___________ a statute.

Legal profession

Bar

adwokatura, palestra

be called to the Bar

zostać powołanym do adwokatury, przyjętym do palestry

counsel

adwokat

to instruct a counsel / solicitor / barrister

ustanawiać adwokata

to retain a counsel

zaangażować prawnika

contingent fee (US) conditional fee (UK)

wynagrodzenie wypłacane prawnikowi w przypadku wygrania przez niego sprawy

legal professional privilege

tajemnica adwokacka

a right of audience

prawo występowania przed sądem

to disbar

skreślić z listy adwokatów

a brief

akta sprawy

Case law in common law system

Task I. Fill in the blanks with the words provided.

bound   rule   applicable   distinguished   prior   review   consistent   question

In the common law tradition, courts decide the law (1) ___________ to a case by interpreting statutes and applying precedents which record how and why (2) ___________ cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are (3) ___________ by their own previous decisions in similar cases, and all lower courts should make decisions (4) ___________ with previous decisions of higher courts.

A lower court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope that a higher court or the legislature will reform the rule in (5) ___________. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either (6) __________ that the precedent is inconsistent with subsequent authority, or that it should be (7) ___________ by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate court will have the opportunity to (8) ___________ both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority.

Task II. Some phrases or clauses have been removed in the following passage and listed underneath. Decide where to use each.

The different roles of case law in civil and common law traditions create differences in the way (1) ___________. Common law courts generally explain in detail (2) ___________, with citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles. The necessary analysis (called ratio decidendi) then constitutes a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority (3) ___________. By contrast, decisions in civil law jurisdictions are generally very short, referring only to statutes. The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is somewhat difficult (4) ___________.

Law professors in common law traditions play a much smaller role in developing case law than professors in civil law traditions. (5) ___________ and not amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals.

a) but are not technically binding

b) that courts render decisions

c) to apply previous decisions to the facts presented in future cases

d) because court decisions in civil law traditions are brief

e) the legal rationale behind their decisions

Judicial precedent

Find 10 mistakes in the text (involving 2 prepositions, 2 adjectives, a noun, an adverb, 4 verbs).

The doctrine of judicial precedent is based on stare decisis, i.e. the standing near previous decisions. Once a point of law has been decided in a special case, that law must be applied in all future cases containing the same material facts.

In order for the doctrine of judicial precedent to work, it is unnecessary to be able to determine what a point of law is. In the course of delivering a judgment, the judges will set out their reasons for getting a decision. The reasons which are necessary for judges to reach their decision amount to the ratio decidendi of the case. The ratio decidendi forms the legal principal which is a binding precedent, meaning it must be obeyed in future cases containing the same material facts. It is important to separate the ratio decidendi from the obiter dicta. The obiter dicta is things stated in the course of a judgment which are not necessary for the decision.

In addition to binding precedents, there exists persuasive precedents. These consist of judicial statements which are not binding but may be taken to account. A form of persuasive precedent is obiter dicta.

Hierarchy of the courts

There exists a hierarchy of the courts. The basic rule is that courts must follow the precedents from a higher court, but they are not binding to follow decisions from courts lower in the hierarchy. This is the basic outline of the hierarchy:

*

European Court of Justice

* *

Supreme Court (formerly House of Lords)

* * *

Court of Appeal

* * * *

Divisional Courts

* * * * *

All other courts (County, Crown, Magistrates, tribunals) have no power to create precedents.

Where the precedent was set by a court of the same level, the court is generally bound by the previous decision, but this is subject to exceptions. Different considerations apply depending on the level of court as for whether the court may depart from a previous decision of a court of the same level.

Rule of law, judicial review, due process

Task I. In the text, find the words corresponding to the definitions below:

a. greatest in status or authority or power

b. despotic or dictatorial

c. characterised by wrong or improper use

d. the obligation to bear the consequences for failure to perform as expected; answerability

e. the system of law courts that administer justice

f. being suitable or fitting for a particular purpose (noun)

g. treated unjustly

h. to reach a decision after thought and investigation

i. to refer (a matter or legal case) to another committee or authority or court for decision

j. subordinate

k. went in different directions from a common point; branched out

l. preserved, continued

According to the philosophy of rule of law, the law of the land is supreme over the acts of the government as well as private persons and the relationship between the state and the individual are regulated by the law of the land. Rule of law signifies a legal-political regime to protect the rights of citizens from arbitrary and abusive use of government power. The rule of law guarantees government accountability and protects the social rights of individuals. The existence of an independent and transparent judiciary is a fundamental aspect of the rule of law.

Judicial Review definition:

A process where a court of law is asked to rule on the appropriateness of the decision of an administrative agency or tribunal.

Judicial review enables a person aggrieved by an administrative decision (or action) to seek review by a court of the lawfulness of that decision.

The court will not review a decision in order to determine whether or not it was the right decision to make (this would be a “review on the merits”). The court will only review a decision so as to determine whether it was a lawful decision (i.e. whether it was within the power of the decision-maker).

If the court finds that the decision was not a lawful decision, it may set aside that decision. Normally, the court will then remit the decision back to the original decision-maker to be made again.

Due process is the legal principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land protecting individual persons from the state. When a government harms a person without following the exact course of the law it constitutes a due process violation which offends against the rule of law. Due process developed from clause 39 of the Magna Carta in England. When English and American law gradually diverged, due process was not upheld in England, but did become incorporated in the Constitution in the United States.

Task II. In the following text, there are 8 mistakes involving wrong verbs (3), wrong prepositions (2), a wrong prefix, an adjective and a wrong part of speech. Identify and correct them.

The World Justice Project on Monday relieved its second annual report ranking countries by their adherence for the rule of law. The Rule of Law Index (RLI) is a tool by which the international legal society evaluates whether government officials are kept accountable under the law, whether the laws are clear and protect fundamental rights, whether the laws affordable due process to citizens, and whether adjudicators and representatives have the resources to adequately administrate justice. Countries in Western Europe and North America received the highest ranks in most categories, but showed weakness with respect for discrimination and accessability of the civil justice system, especially for marginalized groups. Several Latin American and Caribbean nations displayed strength in government accountability and openness, but crime remains rampant and governments unefficient.

Retroactive law

An ex post facto law (from the Latin for “from after the action”) or retroactive law is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the (1) ___________ of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may (2) ___________ a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment (3) ___________ for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or (4) ___________ possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

1. a) establishment

b) enactment

c) eligibility

2. a) mitigate

b) aggrieve

c) aggravate

3. a) prescribed

b) proscribed

c) inscribed

4. a) allevate

b) alleviate

c) abate

A law may have an ex post facto effect without being technically ex post facto. For example, when a law (5) __________ a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali, particularly in European continental systems.

Some common law jurisdictions do not permit retroactive criminal legislation, though new precedent generally applies to events that occurred prior to the judicial decision. Ex post facto laws are (6) __________ forbidden by the United States Constitution. In some nations that follow the parliamentary system of government, such as the United Kingdom, ex post facto laws are technically possible as the doctrine of parliamentary (7) __________ allows Parliament to pass any law it wishes. However, in a nation with an entrenched (8) _____________ of rights or a written constitution, ex post facto legislation may be prohibited.

5. a) repels

b) repeals

c) invokes

6. a) expressly

b) expressively

c) inherently

7. a) superiority

b) dominance

c) supremacy

8. a) bill

b) code

c) scope

Access to a lawyer

Use the correct form of the word in brackets.

Today, the European Commission has adopted a proposal for a directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. The Council of Bars and Law Societies of Europe (CCBE) welcomes this proposal, which creates for the first time an EU (enforce) _____________ right to have early and (continue) __________________ access to a lawyer throughout criminal proceedings.

The CCBE is the representative organisation of around 1 million European lawyers through its member bars and law societies from 31 full member countries, and 11 further associate and (observe) ___________ countries.

The CCBE will begin to examine the proposal in detail, but it welcomes the (include) ______________ and (recognise) _____________ of the importance of guaranteeing the (confidential) _____________ of all communications between a lawyer and client. Also noteworthy and to be welcomed is the fact that the directive will apply to surrender proceedings based on a European Arrest Warrant.

“This proposal demonstrates the European Commission’s (commit) _____________ to ensuring that citizens have the same basic rights in their dealings with criminal justice systems, (regard) ___________ of the country where the person is suspected or accused of having committed a criminal offence”, said Georges-Albert Dal, the CCBE President.

from CCBE Press Release, 8 June 2011

Solicitors and barristers

Complete the text with the words listed below.

binding   audience   immunity   prescribed   bound   observed

required   conduct   misconduct   liable   offered   disbarred

There are some similarities and some differences between the two branches of the legal profession.

The main similarities may be summarised as follows: Both solicitors and barristers have a legal (1) _____________ in respect of actions and statements made during the lawful (2) _____________ of their clients’ lawsuits. For example, they cannot be sued for slander in respect of anything which they say in the course of a trial. Both are (3) ___________ not to disclose facts affecting their clients which come to their knowledge in the course of professional dealings with their clients. Both are (4) _____________ to censure and penalties for unprofessional conduct, by the Law Society and the Senate of the Inns of Court respectively.

The main differences may be stated as follows: A solicitor can make a (5) ___________ contract with his client for his fee, but a barrister cannot do so. A barrister is ethically bound to take any brief (6) ____________, if he is not in a conflict of interest, the brief is within his skill set, and the solicitor is willing to pay the barrister’s usual fee. A solicitor deals directly with his client, but professional etiquette demands that a barrister should deal only through a solicitor. A solicitor is an officer of the court, and as such is subject to disciplinary action by the judge presiding in a court. A barrister is not an officer of the court, and therefore is not subject to his control, although he may be (7) _______________ or suspended by the Senate on the Inns of Court if found guilty of professional (8) _______________. The qualifications of solicitors, and control of their conduct, are largely (9) _____________ by statute, but for barristers the qualifications (10) ___________, and the etiquette to be (11) ___________, are dependent mainly on the traditions and customs of the Inns of Court. A solicitor has a right of (12) ___________ only in certain courts, but a barrister may appear in any court.

Attorney’s duty

In Re Himmel 125 Ill. 531, 633 N.E.2d 790 (Ill. 1988)

Task I. Decide whether the statements underneath are true (T) or false (F).

Brief Fact Summary. Respondent is an attorney who reached a settlement agreement with his client’s prior attorney for his misappropriation of his client’s funds rather than reporting him to the state bar association. Respondent is now being considered for disciplinary action for failing to inform the bar of this misconduct.

Synopsis of Rule of Law. An attorney’s duty to report the misconduct of another member of the bar.

Facts. Motorcycle accident victim Tammy Forsberg’s prior attorney, John Casey, had wrongfully withheld a portion of her settlement check. She retained Respondent, James Himmel, to recover the remaining amount. Respondent did so by reaching a negotiated agreement with Casey, which he later breached. Respondent then brought suit to enforce the agreement and eventually recovered so little that he did not receive a fee for his work. Casey was later disbarred for an unrelated matter, and a complaint was filed against Respondent for failing to disclose Casey’s misconduct in the Forsberg case.

Issue. May a lawyer be disciplined solely for failing to report the misconduct of another lawyer?

Held. Yes. Respondent’s choice to settle rather than report Casey’s misconduct was “ill-advised” and he should be held responsible for it. One-year suspension.

Discussion. This is the first case in which a lawyer was disciplined solely for failing to report the misconduct of another attorney. While this may seem unusual enough on its face, it is further complicated by the fact that the settlement was actually the best thing for his client – and was actually instigated by her request – and that reporting might have actually interfered with her ability to recover from Casey.

1. Pozwany przywłaszczył sobie pieniądze klientki.

2. W rozmowie z klientką adwokat zgodził się na zwrot zawłaszczonej sumy.

3. Casey został skreślony z listy adwokatów.

4. Sąd postanowił ukarać dyscyplinarnie pozwanego.

Task II. Decide which of these words does not contain a prefix.

disclose

disbarred

misconduct

interfered

recover

misappropriation

Charter of Core Principles of the European Legal Profession

Task I. Replace the underlined words in the text with their synonyms listed here.

permits   essential   founded   instructed   plead   fulfils

In a society (1) based on respect for the rule of law the lawyer (2) performs a special role. The lawyer’s duties do not begin and end with the faithful performance of what he or she is (3) asked to do so far as the law (4) allows. A lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is the lawyer’s duty not only to (5) argue in favour of the client’s cause but to be the client’s adviser. Respect for the lawyer’s professional function is a (6) necessary condition for the rule of law and democracy in society.

the CCBE’s Code of Conduct for European Lawyers, article 1.1

Task II. Ten nouns which have been removed from the text are listed underneath. Decide where to put each of them.

independence    regulation    treatment    administration    dignity

avoidance    competence    cornerstone    secrecy    loyalty

On 25 November 2006 the CCBE (Council of Bars and Law Societies of Europe) unanimously adopted a “Charter of core principles of the European legal profession”. The Charter contains a list of ten principles common to the whole European legal profession. Respect for these principles is the basis of the right to a legal defence, which is the (1) ________ of all other fundamental rights in a democracy.

Principle (a) – the (2) ______________ of the lawyer, and the freedom of the lawyer to pursue the client’s case.

Principle (b) – the right and duty of the lawyer to keep clients’ matters confidential and to respect professional (3) ___________.

Principle (c) – (4) ___________ of conflicts of interest, whether between different clients or between the client and the lawyer.

Principle (d) – the (5) ___________ and honour of the legal profession, and the integrity and good repute of the individual lawyer.

Principle (e) – (6) ___________ to the client.

Principle (f) – fair (7) ___________ of clients in relation to fees.

Principle (g) – the lawyer’s professional (8) ___________.

(...)

Principle (i) – respect for the rule of law and the fair (9) ___________ of justice.

Principle (j) – the self-(10) ___________ of the legal profession.

Principle of privilege

Task I. Read and answer the questions.

In R v Seaton [2010] EWCA Crim 1980, the Court of Appeal reviewed the law of legal professional privilege in the context of police station advice, and appears to have developed the law regarding the way in which ‘no comment’ interviews may be handled by advocates at trial.

It also appears to take a more restrictive approach to the use of privileged material, even if there has been a waiver.

The principles established are:

• Legal professional privilege is of paramount importance. There is no question of balancing privilege against other considerations of public interest;

• Therefore, in the absence of waiver, no question can be asked which intrudes upon privilege.

That means, among other things, that if a suggestion of recent fabrication is being pursued at trial, a witness, including the defendant, cannot, unless he has waived privilege, be asked whether he told his counsel or solicitor what he now says is the truth.

Such a question would require him either to waive his privilege or suffer criticism for not doing so.

If any such question is asked by an opposing party (whether the Crown or a co-accused) the judge must stop it, tell the witness directly that he does not need to answer it, and explain to the jury that no one can be asked about things which pass confidentially between him and his lawyer.

For the same reasons, in the absence of waiver, the witness cannot be asked if he is willing to waive his privilege;

• However, the defendant is perfectly entitled to open up his communication with his lawyer, and it may sometimes be in his interest to do so.

One example of when he may wish to do so is to rebut a suggestion of recent fabrication. Another may be to adduce in evidence the reasons he was advised not to answer questions. If he does so, there is no question of breach of privilege because he cannot be in breach of his own privilege.

What is happening is that he is waiving privilege;

• If the defendant does give evidence of what passed between him and his solicitor he is not thereby waiving privilege entirely and generally.

That is to say he does not automatically make available to all other parties everything that he said to his solicitor, or his solicitor to him, on every occasion.

He may well not even be opening up everything said on the occasion of which he gives evidence, and not on topics unrelated to that of which he gives evidence.

The test is fairness and/or the avoidance of a misleading impression. It is that the defendant should not, as it has been put in some of the cases, be able both to ‘have his cake and eat it’;

• If a defendant says that he gave his solicitor the account now offered at trial, that will ordinarily mean that he can be cross-examined about exactly what he told the solicitor on that topic, and if the comment is fair, another party can comment upon the fact that the solicitor has not been called to confirm something which, if true, he easily could confirm.

If it is intended to pursue cross examination beyond what is evidently opened up, the proper extent of it can be discussed and the judge invited to rule.

1. Are any public considerations more important than the legal professional privilege?

2. Can a witness be asked to tell about his communications with his counsel?

3. In what situations might it be advantageous for a defendant to waive the privilege?

Task II. Fill in the missing prepositions or conjunctions.

New codes

With regard (1) ____________ conditional cautions, a new Code of Practice for Crown Prosecutors in relation to adults came (2) ____________ force on 26 January 2010. The important change is that the guidance does not require an admission to be made by the offender prior (3) __________ the prosecutor determining whether a conditional caution is an appropriate remedy.

This also has the effect that the prosecutor must be satisfied that there is sufficient available evidence without that admission to meet the full test (4) ___________ the Code for Crown Prosecutors. This is (5) _________ particular assistance to solicitors representing defendants in the police station where they have doubts about the strength of the prosecution case or the attitude of a prosecutor (6) ________ the handling of the matter.

The new code applies (7) ________ all crown prosecutors including those in the Revenue and Customs division, associate prosecutors and to police officers when making charging decisions.

This edition of the code contains important changes and significant new paragraphs.

Paragraph 4.6 provides that a prosecutor making the decision (8) _________ a prosecution is in the public interest shall have regard to any information that he or she has about the defence that might be put (9) __________ by the suspect.

Paragraph 4.12 provides that a prosecution will usually take place (10) ________ the prosecution is sure that there are public interest factors tending against the prosecution which outweigh those tending (11) _________ favour, or unless the prosecution is satisfied that the public interest may be properly served in the first instance by offering the defendant an opportunity to have the matter dealt (12) __________ by an out-of-court disposal.

No win no fee

Identify 8 mistakes in the following text (2 adjectives, 2 adverbs, 3 nouns, 1 missing word).

Typically in a criminal case in the United States the plaintiff’s attorney receives his compensation in the shape of a contingent fee. Under this system, the attorney gets a share of the reward if his client wins and nothing if his client loses. It is common to use a sliding scale: the attorney gets one-third if the case is fixed without trial, 40% if the plaintiff wins at trial, and 50% if a judgement for the plaintiff is afirmed on appeal.

In Europe contingent legal fees were highly forbidden by the ethical code of the European association of lawyers. Notwithstanding, market pressure has led some countries to allow conditional fees, whereby the lawyer gets a premium if the case is won and nothing if the case is lost. In the English system, it is referred as NO WIN NO FEE. The United Kingdom started introducing conditional fees in the nineties, followed by Belgium and the Netherlands. Spain, France, Italy, and Portugal are considering the imposition of conditional fees.

Notaries

Task I. Some parts of the sentences have been removed from this text. Fit each of them into the appropriate space.

a. with the state providing protection from unnecessary damage to individuals

b. comply with strict formal rules and are enforceable in court

c. written evidence can be crucial and notarial acts are enforceable

d. with which the market is to be allowed to operate

e. charged by the respective nation-state with varying statutory functions within its non-contentious jurisdiction

f. state-controlled and determined according to perceived need

Historically, the institution of the notary is rooted in the transnational tradition of Roman law. Wherever Roman law has retained a strong influence, i.e. in civil law countries on the continent of Europe and elsewhere, notaries (also referred to as ‘Latin notaries’) have retained a central role as an independent legal profession (1) _________. The main official task of notaries is to prevent litigation in the context of areas such as property, inheritance, family, commercial and company law. ‘Notarial acts’ are drawn up after consultation with the parties concerned. They include detailed information on the legal consequences of the planned action, (2) ________. In their capacity as state officials (the extent of which varies from country to country), civil law notaries have traditionally enjoyed some form of statutory monopoly. Their numbers are small, (3) _______. Their incomes are generous compared with those of comparable professions, and they have traditionally been mainly male.

This emphasis in civil law countries on the state’s responsibility (discharged by the creation of notariats) to protect individuals from the need to engage in litigation contrasts sharply with the emphasis in common law countries on individuals’ responsibility for their own decisions and actions, even if this results in the need to defend their rights in court. The contrast between the two legal cultures is heightened further by differing traditions regarding the laws of evidence. In civil law courts, (4) ________. In common law courts, oral evidence takes centre stage and notarial acts are at best given enhanced credibility but are not enforceable. For these reasons, common law notaries are of marginal significance within their own countries, but they are needed to serve clients requiring notarial certification to satisfy civil law systems abroad.

In both the civil law and the common law systems and legal administrations the focus is on individuals’ rights and on compatibility with a liberal society and a market economy. The difference between the two systems in our context is rooted in their opposed views of the exclusiveness or otherwise (5) _______, and the appropriateness or otherwise of state interference in the legal services market. While civil law countries tend to subscribe to an interventionist model, (6) _____ and from disruption in legal interactions in society at large by the creation of the institution of notarial acts, common law countries advocate a minimalist role for the state and see no need for what they regard as an obstacle to commerce and individuals’ freedom to decide for themselves.

Task II. Word formation.

VERB

NOUN

ADJECTIVE

comply

perceive

contentious

enforceable

require

enhance

emphasis

engage

defend

generous

vary

prevent

inheritance

retain

Jury

Task I. Reading the following text about jury service in England, decide which word to use in each blank.

A couple of months ago, Andrew Prynne QC turned (1) _____ for jury service at the Old Bailey. In doing so, he made a little bit of legal history. No one relishes receiving a jury (2) _____, and now that ministers have closed up the (3) _____ allowing professionals to (4) _____ performing their (5) ____ duty, only two classes of people are (6) ______ from service – lunatics and criminals.

1. a) over

b) up

c) in

2. a) summons

b) subpoena

c) draft

3. a) holes

b) gaps

c) loopholes

4. a) swerve

b) dodge

c) escape

5. a) civic

b) civilian

c) civil

6. a) discharged

b) exempt

c) released

Earlier in the year, the Government changed the law in an attempt to (7) _____ down on the so-called “middle class opt-out” from jury service. Not only do a number of professionals previously excluded – such as judges, lawyers, the police and others connected with the justice system – have to serve, but it is much harder to avoid duty by claiming professional (8) _____. Most lawyers welcome the Government’s efforts to bolster juries with a wider cross-section of society.

7. a) run

b) come

c) clamp

8. a) undertakings

b) charges

c) commitments

So what does Prynne make of (9) ______ the prohibition on lawyers? “I’m a great believer in the jury system and one of the reasons why people have had such confidence in it in the past is because lawyers weren’t allowed”, he says. “The system worked on the basis that the lawyers ran the trial and a judge presided over it, but the (10) _____ decision-making was left to the layman. That’s a very important feature that has been completely (11) _____.”

Criminal defence practitioners also point out that there are other (12) _____ reasons for maintaining the exemption. Jeremy Dein QC, a member of the Criminal Bar Association’s education sub-committee and a member of 25 Bedford Row, says: “I can foresee real difficulties, in that lawyers who sit on juries may not necessarily agree with legal directions and decisions that the judge is making and, as a consequence, they’re put into a compromising position. It seems to me, and many of us, that this is a difference that makes the idea, when put into practice, a hard one to agree with.”

9. a) scraping

b) scrapping

c) scribbing

10. a) highest

b) ultimatum

c) ultimate

11. a) overseen

b) undermined

c) overlooked

12. a) compelling

b) compulsive

c) commanding

Task II. Find ten grammatical words which have been removed from this text.

from Jury Instructions

Rules for deliberation

These are some general rules that apply your discussion. You must follow these rules order to return a lawful verdict:

1. You must follow the law as it is set in these instructions. If you to follow the law, your verdict will be a miscarriage of justice. All of us are depending you to make a wise and legal decision in this matter.

2. This case must be decided only upon the evidence that you have heard from the testimony of the witnesses and these instructions.

3. This case must not be decided or against anyone because you feel sorry for anyone, or are angry at anyone.

4. Remember, the lawyers are not trial. Your feelings about them should influence your decision in this case.

5. Your duty is to determine the defendant has been proven guilty or not, in accord with the law.

6. Whatever verdict you render must be unanimous, that is, juror must agree to the same verdict.

7. Your verdict should not be influenced by feelings of prejudice, bias or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions.

Task III. Fill the blanks with the words defined in brackets and listed underneath.

composed   awarded   followed   inferences

appropriate   summoned   considered

The Role of Juries

A jury is a group of people (requested to appear) (1) __________________ and sworn to decide on the facts in issue at a trial. The jury is (made up) (2) _____________ of people who represent a cross-section of the community.

The jury listens to the evidence during a trial, decides what facts the evidence has established and draws (conclusions) (3) _________________ from those facts to form the basis for their decision. The jury decides whether a defendant is “guilty” or “not guilty” in criminal cases, and “liable” or “not liable” in civil cases.

When cases are tried before a jury, the judge still has a major role in determining which evidence may be (analysed) (4) _____________ by the jury. The jury is the fact-finder, but it is left to “find” facts only from the evidence which is legally admissible. The judge instructs the jury on the legal principles or rules that must be (obeyed) (5) ____________ in weighing the facts. If the jury finds the defendant guilty or liable, it is up to the judge to sentence the defendant.

The function of the jury is to weigh up the evidence and to decide what the true facts of the case are or what actually happened. If it is a criminal case and the jury has given a verdict of guilty, then the judge will decide on (suitable) (6) ______________ sentence. In civil cases, juries function is to decide on how much money should be (given as legally due) (7) ____________ in damages.

Task IV.

a) In the first extract from court proceedings choose the correct alternative for the words in bold.

from Minnesota v Philip Morris

TRANSCRIPT OF PROCEEDINGS

VOLUME 5, PAGES 843-1032

JANUARY 26, 1998 PROCEEDINGS.

http://www.tobacco.org

(...)

THE COURT: This is an action by the state of Minnesota and Blue Cross Blue Shield of Minnesota, the plaintiffs in this case, to uncover / recover health-care expenses / expenditure plaintiffs have paid to heal / treat diseases caused by smoking and defendants’ misdemeanour / misconduct. Plaintiffs also seek other relief / recovery. The plaintiffs claim that the defendants, conversely / contrary to their promises, misrepresented / misapprehended and concealed damaging / hurtful evidence that they knew about the health hazards of smoking. Plaintiffs also claim that the defendants illegally targeted / aimed adolescents in advertising and promotional campaigns and manipulated cigarettes to apply / exploit the addictiveness of nicotine.

b) In the following extract, there are 10 mistakes involving grammar and vocabulary. Identify and correct each.

THE COURT (to the jury):

Now let’s give me just a very brief outline of how we’ll be proceding here. Will have, first of all, what we call an opening statement by the plaintiffs, which purpose is to outline the evidence that the plaintiffs intend to present you regarding their claims. When that opening statement is completed, the defendants may then choose to have an opening statement or they cannot make it at a later time. I expect the defendants will make an opening statement right after the plaintiffs.

When that’s finished, then we will proceed with the evidence in the case, first of all by the plaintiffs. The plaintiffs will submit you their evidence that they have regarding their claims. When that is complete, the defendants will have an opportunity to submit their evidence.

When the defendants complete that, we’ll have what we call final arguments, first of all by the defendant and then by the plaintiff; that is, analyzing and summarizing the case from their respectful points of view. That will follow by the instructions that the court will give you; that is, the law that your to apply with the evidence that you have heard in this case.

2

CIVIL LITIGATION

Test yourself

Civil Procedure

From the judgment in Anthony O’Shea v R (2010)

Brandt v American Bankers Insurance

Without prejudice

Burden of proof in a civil case

Supreme Court rules party must pay fees for frivolous claims alone

BP v Halliburton

From Jodie Bullock v Philip Morris USA, Inc.

Civil evidence case

Contributory negligence

Sean Lane et al. v Facebook, Inc. et al.

Product Liability in Poland

Guantanamo Petitions

Test yourself

I. Think of the adjective for each of these nouns:

− procedure

− judgment

− satisfaction

− discrimination

− libel

− dispute

− defence

− discretion

− negligence

− justice

II. Circle the word which does not form a collocation with the given verb.

1. to file

an action / a claim / a summons

2. to subpoena

a judgment / a witness / an individual

3. to hear

a testimony / a case / interest

4. to rule

a judgment / against the defendant / that he must pay

5. to seek

a case / a judgment / justice

6. to exercise

power / evidence / discretion

7. to vacate

a judgment / a ruling / a motion

8. to submit

a form / an article / a witness

9. to dismiss

a witness / a ruling / an application

10. to claim

damages / an allowance / testimony