Notes on Lost in translation : Oral Advocacy in Land without Binding Precedent

1. Comparisons of common law and Civil Law

Common Law Civil Law

Louisina, Quebec , Puerto Rico Western Europe, Central and South America, Asia and
Africa

Common law is a body of law comprising of Civil Law is a tradition originating in Roman Law.
precedence.

Precedence ( stare decisis) - command judges to apply

the law as it has been set out in a prior case when a
higher, or sometimes equal court made the prior
decision.

Rely on Stare Decisis on Consistency Rely as the sources of law on

Constitution,
Codes (Civil, Commercial, Civil Procedure, Penal &
Criminal procedure),
Specific statutes & decrees,
International Treaties

Judges rely on Precedence Civil law judge- applies the applicable code provision.
Judges make law
required to resort to rule making in order to decide in
the case

Judge decision doesn’t become the source of law.

2.
3. Advocacy - the process of trying to convince your audience through the technique of
persuasion. Oral advocacy is an interactive effort that requires a well-organized presentation of
an advocate’s case as well as spontaneous responses to the judge’s questions.
4. Oral Arguments - presents a valuable opportunity to convince the courts of the merits of your
case and to dispel any doubts a judge may have after reading the briefs.
1. Parts of oral Arguments
1. Opening Statement- a. Greetings, b. Procedural posture of the case, c. What the advocate ask
of the court: ( affirm, reverse, remand), d. Ask the court if the court would like a brief
statement of the facts.
2. Road map - contains the outline of the issues the advocate will argue to supports her position
on the case. Statements of the points in affirmative and persuasive manner. Presentation of
the strongest points first in the argument
3. Body of the Argument - anticipation of questions and answers should be framed to address
the judge concern. Contains also other questions and rebuttal.
4. Conclusion - summary of important points and gratitude for the judge hearing the case.
- the structure of oral arguments of common law system and civil law legal system is the same except on
the body of the argument.
Oral Advocacy Comparison

Common Law Civil Law

Dominant style of reasoning
Inductive - courts interpret and
synthesize earlier court decisions
to create general legal principles
and then apply those principles to
the facts of the case before them.
deductive: courts apply general
legal principals to specific
situations by reasoning with
guidance from scholars.

Focus Fact patterns to make the applicable code and

treaty provisions central to the
In the body of her argument she body of her argument.
must analyze cases presenting
similar but not identical facts. She
must, from those cases, extract
the specific rules, and then through
deduction, determine the often
narrow scope of each rule, and
sometimes proposes new rules to
cover facts that have not yet
presented themselves.
Organization of the Body organized with appropriate attention Adheres closely as possible to the
to the facts and the law.
fashion the body of the argument
from a close study of prior cases.
The advocate should make a
connection between the two as
much as possible.
Role of the judges Generally, judges do not feel free
to impose their own views of
policy and morality. Instead, they
endeavor to fit a case into the
body of precedent by taking into
account the rationale behind the
rules.
code
advocate must build the body of
her argument around legal
principles tracing their history,
identify their function, determining
their domain of application, and
explaining their effects in terms of
rights and obligations
Advocate should refrain from using
an appeal to precedent.
Doing so would essentially be
requesting the creation of
amorphous case law, a concept
which is inconsistent with the
guiding values of the Civil Code
and, therefore, incompatible with
the civil law
The body of her argument cannot
solely rely upon and make
reference to earlier decision.
Rather, her argument must also
find support in scholarly doctrines
and notions of customary
international law, consisting “of
rules of law derived from the
consistent conduct of States acting
out of the belief that the law
required them to act that way."
Civil law requires the judge to
search for legal concepts in the
Civil Code delineating a pattern
of competing interests closely
resembling the interests pressing
for recognition in the instant case.
civil law judge applies general
legal principals to specific
situations by reasoning with
guidance from scholars.158
Steps on judicial Reasoning (1) recognition of a similarity A civil law judge applies the law, he
between cases; (2) interpretation does not create it
of a rule fashioned from the
material facts of the first case; and
(3) application of the rule to the
second case.

Form of Argument Appeal to precedent

An argument using precedent is

essentially reasoning by analogy

Rational of the Argument like cases must be treated alike if

a legal system is to be even
minimally fair.

Measure of Success will depend on persuading the The goal of an advocate is to

court of the accuracy of the convince the court that her client
analogies the advocate suggests should prevail. To achieve this
between her client's situation and goal, the advocate must
that of the precedent she cites. understand and appreciate the main
goals of oral argument–persuasion
advocate must also persuade the and education
judge that the advocate's
interpretation of existing case law
accurately reflects prevailing
contemporaneous legal standards,
and that the accumulated body of
relevant precedent compels the
court to rule in favor of the
advocate's client

Core of an advocate argument
must not be merely drawing the
court's attention to favorable
precedent. It is equally important
to demonstrate why unfavorable
precedent is not relevant.127
Thus, common law advocates
engage in complex factual triages,
distinguishing as factually
different and distant those cases
whose outcomes would militate
against their client's interest
effective civil law argument
requires, (1) an understanding of
the purpose of the oral argument,
as well as the governing rules of
the court or tribunal hearing the
argument; (2) an appreciation for
the role of the judge hearing the
argument; (3) a broader grasp of
what the common law considers
secondary authority;( legal
scholarly works) and (4) an
awareness of the applicability of
non-binding precedent.