4.

3 Legal Documents and their Uses

Legal document is a document that states some contractual relationship or grant some rights. 1

legal documents are everywhere. Sometimes you can find them in the small print at the bottom
of an advert, or on a receipt for something that you purchased. Other times a legal document is
something personal to you, like a will or a contract.

This section explains situations where you might need a legal document and their uses

Do I need a legal document?

There are many types of legal documents covering different situations. Depending on your issue
you might need one created for you.

They can help to protect you – for example you may need a legal document to put in writing
something you have agreed with someone else.

It can be very important to set down the full details of what has been agreed in writing so, if
things go wrong, you can prove what was agreed between you and the other person. A
legal document may say exactly what will happen if either one of you breaks the agreement.

Examples of Legal documents

There are situations where you must have a certain type of document for legal reasons. Some of
these have to be prepared in a certain way.

Some legal documents that you might come across include:

 Wills – these explain what you want to happen to your belongings, or how your family
will be cared for after you die
 Deeds of Trust – if you buy something together with other people, like a house, you can
use this type of document to set out what the responsibilities of each person will be

1
http://www.thefreedictionary.com/legal+document. Accessed on Feb, 2016
  Contracts – you can use this to set out the exact details of what has been agreed between
you and someone else
 Tenancy agreement – this is an example of a contract, and is a document that sets out the
arrangements where a tenant rents a property from a landlord
 License or Permit– these are used to give someone else permission to do something, and
they often set out how long someone may act for you or be allowed to do something, as
well as the fee they will pay if there is one
 Witness Statement – this is used to set out what a person states happened in a situation
 Pleadings –these documents are prepared to explain to a court what a persons’ case is and
what they want the court to do
 Statutory Declaration – these are often prepared to set out and confirm the truth of
specific information that is required, and they must be signed in a special way before a
lawyer
 Court Order – if an agreement is reached in a civil court the details may need to be set
out in a document for the judge to approve
 Consent Agreement –these are used in divorce cases, or dissolving of a civil partnership,
to set out the details of agreements between the couples about the things they own that a
court can then formally record in a court order

Lawyers can create documents like these for you and make sure you can rely on them when you
need to.

They can also help you in other ways with legal documents. For example some legal documents
must be signed in a specific way – sometimes in front of other people who are known as
witnesses, or sometimes in front of another lawyer
TOPIC 5: Reading, Analysis and Summarizing Statutes and Cases.

5.1 Outlining Statutes and Cases

Outlines are simply condensed summaries of the rules of law. The outline serves three primary
functions.

First, it helps tremendously in getting you to think like a lawyer. You synthesize your class notes,
briefs, reading and secondary sources into one coherent body of law.

Second, you remember the rules better by restating it in your own words. It will help you
memorize the material by rewriting and reorganizing it.

Third, the outline is your primary tool in tackling the exam. In the final week before the exam,
you out your casebook and class notes on a shelf and concentrate only on your outline. The
outline makes you more efficient by giving you focus. Even if your professor allows an open
book exam, you'll want to outline in order to be more efficient in using notes during the exam.

Outlining Statutes
Outlining a Statute Outlining a statute is not easy to learn. But once you learn how, you will
probably do it instinctively for the rest of your career, whenever you read an unfamiliar and
complicated statute.
Step 1: Decide how many legal rules are in the statute
Remember that legal rules are either mandatory (require something), prohibitory (forbid
something), discretionary (permit something), or declaratory (state something). Look for
requirements, prohibitions, permissions, and declarations. Those lead you into the individual
rules within the statute.

Step 2: Digest each rule in the statute to figure out what it means for each rule you have
identified;
 First, break the rule down into its parts .
 Second, look at each of those small parts separately
 And third, Put the rule back together in a way that helps you use it
Outlining Cases
Outlining or Briefing cases involves a structured way of reading and questioning individual cases
by forcing yourself to respond to a prescribed form. There are in fact some differences in the way
instructors suggest a case brief should be put together, but there is common agreement on the
major elements. A good case brief should contain the following elements, each of which is
described in more detail below.
 Case Citation
 Page Statement of the Case
1. Statement of Facts
2. Procedure
 Issue(s)
 Result Holding(s)
 Analysis
The Case Citation on which the case is found are obvious components to identify the precise case
being briefed. For example, Mwinyijuma v. R [1971] HCD n.61

The statement of the case is designed to give the factual background of the case without
including any legal analysis of that background. It is divided into two subsections:
(1) the statement of facts-The statement of facts should present the basic, relevant journalistic
facts or events upon which the case is based -- who did what to whom. These are the facts that
occurred outside the courtroom before anyone filed suit. Students are often instructed to include
only the legally relevant facts in this section
(2) the procedure- The procedure section of the brief is intended to describe the significant legal
steps taken in court from the time the suit was filed until it reached the appellate court deciding
the case.

The statement of issue(s) in a case brief is often the most difficult part of the brief to formulate.
Basically the issue represents the question(s) to be disposed of by the court. It should generally
be framed so that it has both a factual and a legal component. It is a good idea to begin a
statement of the issue with the word whether.
The holding of the case is what lawyers and non-lawyers often refer to as to as the rule or legal
principle extracted from the case opinion. The holding should be framed to parallel the issue
statement and there should be one holding for each issue statement. The holding should be
framed to concisely explain and justify the conclusion reached by the court in the case.

The analysis - In the analysis (or rationale, as it is sometimes called) portion of the brief, you
should outline the basic flow and logic of the court. The goal, however, is not to focus on the
court's language, but to understand its reasoning and analysis, a process which, of course,
involves a careful understanding of the language but, also, the ability to paraphrase the court's
logic.

5.2 Paraphrasing Statutes

Paraphrasing is the rephrasing of sentences while essentially keeping their meaning the same as
they were originally(McCarthy et al, 2009).This is important for individuals pursing academic
studies as it can facilitate comprehension and conceptualization of text passages.
Legal readers dislike quotations especially long quotations so much that they often merely skim
them and they sometimes skip over them entirely. Paraphrasing allows legal writers to attribute
credit properly where they rely on the ideas of others, both preserving credibility and
demonstrating the strength of their arguments, and it is frequently more effective than a direct
quotation.

Ralph Waldo Emerson is credited with saying “I hate quotation. Tell me what you know.” In
other words, paraphrase.

By paraphrasing, a statute you can tell your reader the meaning and importance of the idea in the
context of your own argument.

Exception to paraphrasing

 Where language of the statute is necessary. In legal writing, the most obvious examples
of quote- worthy language appear in contracts and enacted laws. A contract dispute will
focus on the precise wording of a contract, so quoting the words is essential. Similarly, a
dispute involving statutory interpretation will require a close reading of the law’s text, so
the reader will need that language to understand the arguments and analyze the issue.
  Judicial decisions. Fact documents and other sources can call for quotes as well. For
example, quoting a common law test created by the state’s highest court is wise.
 Quoting a short passage from a highly regarded law review article could help explain the
analysis of a cutting edge issue.
 And quoting the exact words of a key witness might win a case.

5.3 Reading Case Reports/ Summaries for comprehension

Cases are recorded in law reports, when reading cases one will need to make a summary of the
case. Here are the steps in preparation of case summary or case note.

1. Citation of the case

2. Identifying facts/material facts
3. Law, cases and or other persuasive
4. Evidence presented
5. Argument of the parties
6. Reasoning of the judges and justices
7. Obiter dictum
8. Holding/Orders

1.Citation of the case

The first thing to do in a case note is writing down, precisely the citation of the case. The citation
must contain the following;

i. Name of parties involved in a case

ii. Year of the series of the law report in which the case is reported.
iii. Law report in which the case is reported. The name of the series of often abbreviated.
If there are volume of the same year, the volume of the case required is indicated.
iv. The page number at which the case commences or in other reports number of the
same case. i.e HCD n. or LRT n.
For examples;
Mwinyijuma v. R [1971] HCD n.61
Halden v. Halden [1966] W.L.R.1481
2. identifying material facts from facts

Usually material facts are drawn from a complainant, victim, accused, witness or any person
responsible.

The material facts are identified against

 the legal principle or law(s) involved at issue

 facts of the case
 the case to be referred
 arguments linking the information given to a certain rule of law already made or
proposed

An extract of facts;

While driving in the city traffic, Shushu found that, despite repeated attempts, he could not brake
to avoid injuring anyone, he ran into a pole. An investigator later found that parts of a rubber
gasket from the air filter had gotten into carburetor. Kimberlee sued Shushu for dangerous and
reckless driving. He brought an expert witness who did not criticize the design of the gasket,
carburetor or air filter but did say the positioning of parts might have been better. No one
testified that the air-filter housing was unreasonably dangerous from the time of installation.

3. The law and cases to be involved to resolve the case

a) The Trafic Act,…

b) …………………

c) …………………

4. Issues

What should be the issues or questions that the court will direct itself in making the decision

a) whether the expert opinion is sufficient evidence to support Shushu’s case

b) whether Shushu is liable for reckless and dangerous driving
c) the question before the court is….to what relief are the parties entitled?
5. Evidence submitted in court

This is the part that you will need to explore from the judgement or any other court document fit
to be called judgment of the court. Eg. Rulling, court order e.t.c.

In our case it is obvious that there are evidences like,

 expert opinion
 rubber gasket
 carburetor
 air filter

6. Argument of parties

Here you will need to explore from the judgement, rulling or order of the argument of parties on
all issues before the court

Therefore you will be needed to provide in a summary form, what are the arguments of the
parties, defendant counsels or submissions

7. Reasoning of the court

This is the part where the court starts to make its findings;

 after analysis of the parties submissions.

 By connecting facts, material facts, laws cases authorities or rules involved.
 By analogies, comparison, distinctions, and arguments of parties in respect of the law,
cases, environment and any other things to make a rule.

8.Obiter dictum

In short, these are by the way statement of the court which tries to relate into the facts of the case
but for the time being do not make only binding decision.

9.Holding

This is simply a decision of the court. After making a through reasoning, the court comes to a
holding. i,e the decision of the court or others wish to call it the ration decident.
Note; a person when reading a case may extract main points by outlining or may make a
summary. However in integrating case notes and case citation in essay is done by inserting the
names of parties to the case then the rest of citation will be reflected in the reference such as foot
note of end note.

For example,

In civil case: the person bringing the action is called Plaintiff , comes first, followed by the name
of the defendant- the person complained against. E.g Obongo v. Municipal Council of Kisumu2

In criminal cases: usually the citation ‘R’ v. Smith. ‘R’ is the abbreviation for the latin word
“Rex” (king) or “Regina” (queen) or Republic( in Tanzania after independence) the charge is
Republic against the Accused person.i.e Mwinyijuma v. R 3

2
[1071] E.A.91
3
[1971] HCD n.61