Legal Research.

Legal research skills are a vital ability that I will have to carry long through my legal studies and in to my career as a legal professional.  If I can conduct proficient and capable research, it will mean time better spent acting and advocating for my clients.

The reading for week’s eight and nine was from the textbook: A Practical Guide to Legal Research.

Chapter 1 of the textbook discusses legal problem solving and different methods to research the problem I may be facing.  In particular, it mentions a five step method (MIRAC), which is as follows:

1.              Identify the relevant or Material facts of the case;

2.              Identify the legal Issues at hand;

3.              Identify and interpret the Rules that govern the legal issues;

4.              Apply the rules to the facts; and

5.              Conclude.[1]

The information then covers several different methods of research, in particular, online research.  To be completely honest, I found the technical and online research aspects of the reading somewhat overwhelming.  There was a lot of instructional information that went over my head.  But, I am sure that these research skills and techniques are something that with plenty of practice throughout my studies I will become well acquainted with and I can definitely appreciate that it is extremely useful and will be referred to over the course of my degree.  So far, I have found AustLII and LawCite to be of great assistance in the locating of legislation and cases for my assignments this semester, and I am excited to venture in to many other online research services with the help of this text book.

I have to admit that I am ashamedly relieved to be living in this era of online technology.  I cannot imagine how much time would have previously been spent sifting through shelves upon shelves of legislation, cases and journals in the name of the legal research.  But even still, there are many things to be aware of and keep in mind when conducting research.  Even when locating relevant legislation, it is paramount to make sure that the Act I am referring to is up-to-date, that it has actually commenced, that it is relevant to the period of time of the incident I am researching, whether there have been any amendments made, whether there are any pending amendments, that I understand the purpose or meaning of the particular Act and whether there has been any judicial consideration of the legislative provision.[2]

One point that stood out to me as something I need to work on is being able to clearly state the legislative framework that a legal scenario would be included.[3]  This is certainly an area I will need to do more research and learning in.

The research that I have had to undertake up to this point I have found to be reasonably simple, but I am sure it will become more complex and complicated, and I look forward to sharpening my skills as a competent legal researcher.

---

[1] Sue Milne and Kay Tucker, A Practical Guide to Legal Research (Thomson Reuters (Professional) Australia Limited, 2010) 9.

[2] Ibid. 53.

[3] Ibid 88.

Tuh-mey-toh / Tuh-mah-toh.

Learning about the conceptualisations of legal reasoning and critical legal theories is absolutely fascinating to me.  As I was reading about the argument of formalism verse realism a lot of thought provoking questions came to mind:  Is a judge who bases a judicial decision or outcome on a personal bias, belief or intuitive or emotional response not inherently and innately human?  Can we really ever have a completely unbiased and neutral judiciary?  If we did, would this arm of power become unforgiving, indifferent and apathetic to the nature of humanity?

Personal experience is what moulds our individual characteristics and the way that we react to and assess situations.  While I do believe that an objective judgement is what is ultimately fair and just, if strict formalism was enforced upon legal reasoning, the judiciary’s requirement for statutory interpretation would be lost.  So there has to be some type of a balance and equilibrium.  Justice Michael Kirby puts it well when he states:

‘To pretend that the task is purely mechanical, strictly formal and wholly predictable may result in a few observers who love fairy stories sleeping better at night.  But it does not enhance the legal system.  It is not honest.  It is fundamentally incompatible with the creative element of the common law.’[1]

I like the view that the judiciary should aspire to take the objectivity from a formalistic process of legal reasoning and follow the rule of law as much as possible.  But I feel that consideration should be given to the realisation that it is likely that judges will at times make judicial decisions on policy choices, and the interpretation of the law is in their hands.  I think that judicial decisions may sometimes even be slightly favoured a certain way under the influence and bias of the sub-conscious.

Before delving in to legal studies, I did not realise how ambiguous the law could be and that so many different theories of what is ‘right’ were out there.  I really enjoyed the point made about the critical legal scholars who are of the view that ‘clear, fixed, stable interpretations of legal rules simply do not exist’, and there is ‘no such thing as a “legally correct decision”’.[2]  This legal theory also raised my awareness in regard to the fundamental contradictions within the legal system.  One example of a contradiction given in the textbook is that the law appears to be committed to a utilitarian approach of judgement, maximizing the overall wellbeing of society, and then also committed to the recognition and protection of individual rights.  Just some food for thought, I guess.

The information about postmodernism really caught my eye.  In particular the quote:

‘Postmodernism… insists that truth is made rather than found, and perceives reality as socially constructed.  This doesn’t mean that there is nothing “out there”.  The world is out there, but the ideas we form about it, and the things we say about it, are constructed by people.’[3]

Is truth subjective?  A person’s perception of truth certainly is.  This perception of truth is subject to our belief of what truth is, and that belief is usually greatly influenced by social conditions.  However, I do believe that there are undisputed truths out there.  Breaking free of social conditioning and exercising objective reasoning is possible, and necessary in the law.

The last thing I will mention that grabbed my attention was a view put forth by critical race theorists.  The textbook states that ‘[t]he insistence that everybody should be, can be or is treated equally by the law denies the unique voices of people from different races and cultures, voices that can and should be heard.’[4]  I do not think that there is such a thing as a universal ‘norm’.  Different cultures are going to respond differently to a judicial punishment.  Take for instance the recognition of customary law within Australia.  Our laws may not work for the Indigenous Australians and may even have a negative impact on the individual or their community.  Due consideration should certainly be given to these situations.[5]

It seems that everyone has an opinion as to how the law should be interpreted and enforced.  I am excited to find out how my opinions evolve throughout my studies and to learn how I can better equip myself to recognize the potential of the law to exact justice.

---

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 379.

[2] Ibid 389.

[3] Ibid 391.

[4] Ibid 400.

[5] Ibid 103.

Ethics.

Ethical behaviour for legal professionals is guided by legislation, rules and regulations (i.e. the Australian Solicitors Conduct Rules), but ethical behaviour cannot be restricted to the abiding of rules alone.

While laws and ethics are both rules of conduct and they both regulate human behaviour and guide human choices,[1] I feel that ethical absolutes are indefinable.  There is not one ethical dilemma that every single individual of the human population would face in an identical manner.  Ethical dilemmas are called dilemmas for a reason.  It is evident from the readings, and from work experience within law firms, that as a lawyer I will face questions of ethics regularly and I know it is something that will take practice to handle gracefully and efficiently.  The best that I can do as a legal professional, is to critically evaluate the situation, determine the relevant legal rules, determine the relevant ethical principles and consider the consequences of my decision.[2]

My personal ethics are usually dependent on consequence.  I generally will analyse the consequences of a certain choice that will be experienced by others, and also by me. This is a quality that I will most likely carry through to my legal career.  However, I am sure that this trait will mature and develop as I grow professionally and personally.

Legal rules and ethical rules usually coincide, but there are times when they will be in conflict. A conflict between professional and personal ethics is something that raises reservations with me.  I do want to maintain a distance between my personal values and professional behaviour, but I do not want to abandon or set aside my personal values completely.[3]  The textbook suggests three other approaches to these type of conflicts:  responsible lawyering, a moral activist approach and the ethic of care.[4]  It is likely that throughout my career I will have the opportunity to practice all of these approaches and determine which works best for me and the specific situation at hand.  To handle and overcome these predicaments I will need to be confident with my choices once they are made, as it is probable that there would be many opposing arguments.

Overall, as a lawyer I would like to build a reputation as a professional with integrity and ethics and I am sure that further knowledge and experience will help me to build the characteristics I desire.

---

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 443.

[2] Ibid 444.

[3] Ibid 465.

[4] Ibid 465 - 466.

Message Received.

The textbook comments that five common objects for legal communication are to understand, to explain and advise, to negotiate, to advocate and to persuade.[1]

For me to be able to understand a client, I need to make them feel comfortable and act in a manner so as to promote a trustworthy attitude and personality.  Once they feel at ease to provide me with the information needed, I will be able to ascertain their perception of the issue at hand.[2]  Another great way to assist in understanding the message that a client or colleague is trying to impart, is to exercise active listening.  I feel that this is a very effective tool to show people that you are hearing them.

Ask questions.  Double-check and confirm instructions.  Clarify your understanding of what has just been communicated.  Use attentive body language.  Respond and comment to what is being said.[3]

I must also be mindful of adjusting my communication techniques where the way I am communicating is not suitable for the particular person I may be communicating with (i.e. if English is not their first language, if they have literacy problems, they may be of a different culture or may not understand formal legal language).[4]  It may be that I am required to communicate complex legal issues in plain and simple English and I must have the flexibility and skills to do so.[5]

Effectively understanding what is being conveyed to me will help me to explain the legal issues to my client and advise them in a clear and concise manner.  While a thorough knowledge and diligent research of the law is required to advise a client accurately about their legal rights and obligations, there are many other aspects to explaining and advising.[6]  Communication skills are vital.  The textbook mentions that it is important to be clear with clients about realistic expectations in regards to the outcome of their matter.[7]  I would not want to lead a client on with the belief that they are absolutely acting reasonably by suing an entity for millions of dollars, and that they can expect to receive every penny that they assume they are owed, when it is obvious to me that it is a pipedream.  Lawyers need to be aware of the client’s desired outcome, or goal of their legal action, but being a competent advisor means letting a client know when these goals are unreasonable or unrealistic.

This leads me to another important part of explaining and advising clients.  Show empathy.  If a person requires legal advice and assistance, majority of the time, this person is not experiencing the highlight of their life.[8]  There is a fine line between showing empathy and becoming emotionally involved, and as a legal professional it is important not to become emotionally involved.  But showing genuine empathy will ensure the client feels that they have been heard and respected and will create a professional relationship based on trust and rapport.[9]

To negotiate effectively, knowledge of the client’s desired outcome is required.  Determine what the client would ideally like to achieve, and once it has been established whether it is realistic, work toward that goal.[10]  There are different types of negotiation and it would prudent to establish which approach is likely going to achieve the desired outcome.  Particularly in alternate dispute resolution, an interest-based approach would be used to provide the most mutually satisfactory outcome for the parties involved.[11]

Legal advocacy is normally performed in a courtroom.[12]  Personally, I am not interested in becoming a barrister, but advocacy is definitely a valuable quality to learn and practice, and something that will be useful in other areas of the legal profession.  The main point I got from the textbook regarding being a good advocate is to be well prepared.[13]  Research the case and related topics so that you have a thorough understanding of the facts.[14]  Plan the structure of your argument.[15]  Practice your argument.[16]  Know the substantive law and the procedural rules of the applicable jurisdiction.[17]

The textbook highlights the point that both negotiation and advocacy share a common integral aim – to persuade.[18]  This is definitely a skill I would love to sharpen.  I am eager to learn and quickly recognise logical fallacies so that I am able to avoid using them in my arguments.  The ability to recognise these fallacies will also enable me to identify flaws in arguments against my position.  This skill will also then help to make my argument more convincing to others, and will build trust and a credible reputation with clients and colleagues, as they will be able to see that my arguments are based on facts and sound reasoning.[19]  And what can be more persuading than fact?

I am determined to communicate well in both verbal and written form, to convey my message clearly and concisely, and to ultimately be an effective, appropriate and persuasive legal communicator.

---

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 309.

[2] Ibid.

[3] Ibid 326.

[4] Ibid 315.

[5] Ibid.

[6] Ibid 310.

[7] Ibid 311.

[8] Ibid 328.

[9] Ibid.

[10] Ibid 311.

[11] Ibid.

[12] Ibid 312.

[13] Ibid 313.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid 314.

[19] Ibid.

Thou Shalt Not Commit Logical Fallacies.

Visit https://yourlogicalfallacyis.com/ to see a full size copy of this poster.

Intellectual Troublemaking.

Quite recently, my personal life has thrown events my way that have required me to engage in some serious personal growth. In particular, I have learnt the invaluable yet daunting quality of critical thinking. Thinking in general is something I am a big fan of. I am generally not quick to comment, but prefer to assess my thoughts quietly until I know what I want to say for sure. I am constantly trying to improve and expand these thinking skills. Not only to grow in my knowledge of the world around me, but to be able to better evaluate the information that I receive, to be able to broaden the way that I think, to think creatively, and to constantly evolve and grow. 

The word 'critical' should not at all be viewed in a negative context in the term ‘critical thinking’. Critically thinking about a particular topic does not necessarily mean that I disagree with the opinion that has been presented to me. It is a 'careful and thoughtful questioning' and may be an 'informed criticism'.[1]

A critical thinker should be inquisitive, alert, self-confident, open-minded, flexible, fair-minded, self-honest, prudent, diligent and persistent.[2] These qualities do not come easy, but with a genuine willingness, hard work and regular self-evaluation, they are certainly attainable. 

My favourite of these qualities is self-honesty. To successfully think critically, I must be ‘honest in facing personal biases’.[3] This strikes me as being one of the fundamental and most fascinating qualities of critical thinking. It is something that only I can assess, and the fidelity to this honesty is something that will only ever be self-recognised. This impels me to believe in critical thinking as an implicit facet of my personality, and especially of my professional identity as a law student and ultimately, a lawyer. It is a quality that will benefit my peers and eventually my clients, but for the most part, it provides me with self-confidence and personal satisfaction. 

Further to these qualities, to purposefully think differently to my peers and to challenge orthodoxy and ‘go against the grain’ is extremely difficult, and takes an immense amount of courage. However, if others are able to empathise with the emotional and social vulnerability that is shown through critical thinking and un-orthodox reasoning, it could perhaps provoke interest and be persuasive to my argument. At the same time, it is important to bear in mind that people generally do not openly invite or enjoy their beliefs and understandings to be challenged, so it is vital to always exercise critical thinking skills respectfully and with a great deal of care. 

It also takes courage to consider error in my own thoughts and arguments, and to accept the fact that my knowledge and beliefs may be just as limited as any one else’s.[4] To be a lawyer who is a critical thinker, not only will I need to gain my own initial perspective of a certain claim, argument, rule, doctrine, decision or action, but I will need to maintain the openness of mind to readjust my thinking should further evidence become available.[5]

I have really enjoyed learning about the thinking skills essential to becoming a legal professional. I expect that the Bachelor of Laws course will provide me with ample opportunities to develop my critical thinking skills in a practical way. 

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 285. 

[2] Ibid 296. 

[3] Ibid 296. 

[4] Ibid 296. 

[5] Ibid 298.

Out of the Darkness.

History has seen many horrific injustices.  Tyrannical rulers, brutality, slavery… the list goes on.  Yet, I was surprised to learn about certain historic methods of dispute resolution.

For example, in the Middle Ages, one method of dispute resolution was trial by ordeal.[1]  This method was practiced several different ways, but usually, the accused was forced to participate in some kind of physically injurious act such as carrying a red-hot iron (‘ordeal of iron’) or dipping their arm into boiling water (‘ordeal by hot water’).[2]  If the person’s wounds healed within a certain period of time then the accused was deemed innocent, but if they did not heal with in the set period of time the person was guilty.[3]

Another method used during this time was trial by combat.  This saw the parties to the dispute go head to head in a gladiatorial style battle until either one of the competitors surrendered or was killed.  The winner was then declared innocent.[4]

This got me to thinking about our system of dispute resolution.  As a common law legal system our courts use the adversarial system.  The adversarial system requires that the parties involved perform their case using a competitive approach, with the judge being involved as an impartial referee.[5]  Although there are strict procedural rules put in place for this system to be run smoothly, there is one thing I feel it lacks – the pursuit of truth.

Comparatively, the inquisitorial system used in courts of civil law legal systems, is an inquiry into the truth.[6]  All parties, including the judge, are involved in the investigation of the facts to arrive at the truth.[7]

Is our current adversarial system the ideal and most just system that could be in place?  I know nothing is perfect, but it seems that it has a lot of room to improve.  It seems to me to be a system that insists parties make self-interested arguments, and while legal professionals are bound to abide by certain rules of conduct, there is the possibility that important facts of a case can often be omitted.[8]

Fortunately, everything is constantly in a state of evolution.  Unlikely as it presently seems, it may be that our current system for dispute resolution will at some point seem as barbaric and primitive as trial by ordeal.  But, for now, these are just my opinions.

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[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 171.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ray Finkelstein, ‘The Adversarial System and the Search for Truth’ Monash Law Review (2011) 37 (1) <http://www.austlii.edu.au/au/journals/MonashULawRw/2011/8.pdf>.

Week Two.

I have never taken a keen interest in Australian history, but I enjoyed week two's reading more than I thought I would have.

I honestly do not think I have ever seriously contemplated exactly what the British took away from the Indigenous Australians when they “settled” here.

The concept of terra nullius robbed the Aboriginal people of acknowledgement that their customary law was not only present at the time the British arrived, but that it was viewed by them as extremely valuable, and was something passed down from their ancestors and considered to be of the upmost sacredness.  In saying this though, I am also quite glad for the Doctrine of Reception, as I do not particularly want to live under the Customary law of the Aboriginals.

It is amazing to see the evolution of Australian law and the constant efforts to refine the maintenance of justice within the Australian legal system.  It makes me feel comfortable and hopeful that I am living in a society and country that is not only already some what advanced in freedoms, rights and equality, but is constantly working toward a better and more just future for it's citizens.

Organic Morality.

The natural law theory: the ‘intimate and necessary relationship between the law and a set of objective standards external to the law itself.’[1]  It can be quite difficult to identify these extrinsic standards, considering that in order for them to be natural traits within any given person, they should be objective, universal and unchanging.[2]  Proposals of these extrinsic standards have been put forward throughout history, and include things such as the laws of God, the laws of nature, the principles of justice, moral values, fundamental human rights, and ‘basic goods’.[3]

While different philosophers have different theories of where these extrinsic standards originate, there is one area in particular that stoked interest for me.  The Italian philosopher and theologian St Thomas Aquinas suggests that: ‘a well-made positive law is ultimately derived from the law of God and commands obedience accordingly.’[4]

I think that you may be able to see where I am heading.  I was surprised that some theories of natural law (or the ‘set of objective standards external to the law’) are unavoidably connected to religion, and the concept that some people often perceive religion as the moral compass of humanity.  This concept then raised the question for me: does morality depend on religion?  I understand that there are bounteous arguments for this question, and I do not think that it will ever have an answer that is universally agreed upon.  But, I would like to share a few points with you.

I watched this video (http://www.cbsnews.com/video/watch/?id=50151800n) recently, and if anyone has a spare 13 minutes or so, I implore you to take a look.  It discusses tests that are being conducted at Yale University in the ‘baby lab’ in regards to the morality of babies, and raises the question: are we born with an innate sense of justice?  When answering this question, it is important to bear in mind that a baby’s personal sense of justice has not yet been influenced by anything external to it's own genetics.  If a baby is found to have a sense of justice, it could well be argued to be the most natural and basic form of human justice.

Follow on questions to this topic for me include:  Where does this justice originate?  Is it part of an intelligent design?  Or is it a product of our evolution as a socially reliant species?  But, I guess these are questions for another time - and a whole other argument.

The New Lawyer stated, ‘[a]ccording to most natural law theorists, the natural law is discoverable by human reason’.[5]  This suggests that humans apply consequential ethics by analysing the consequences of their actions and using sound and logical reasoning, before making decisions.  According to English philosopher Thomas Hobbes, ‘natural law is how a rational human being seeking to survive and prosper would act’.[6]  Like the babies in the Yale baby lab, it can be suggested that we have an instinctive nature to preference the non-threatening over the threatening, and to serve both justice and punishment where it is earned, essentially to survive.  Saying this though, I agree with the idea that ‘[e]verything about human experience suggests that love is more conducive to happiness than hate is.’[7]

We are so fortunate to live in a country where religious freedom is a constitutional right.  Further, we are part of a nation that is also balanced with the uprising of a secular society that makes room for new evidence and theories.  While there are persuasive arguments for the positive aspects that religion has had on the development of humanity's morality, I believe that it does not depend upon religious teachings.

I really hope that I get to look at jurisprudence in a whole lot more depth through out the course of my studies.

[1] Nikolas James and Rachael Field, The New Lawyer (John Wiley & Sons Australia, Ltd, 2013) 54.

[2] Ibid 58.

[3] Ibid 55.

[4] Ibid 57.

[5] Ibid 55.

[6] Ibid 57.

[7] Sam Harris, Letter to a Christian Nation (Bantam Press, 2007) 24.

One.

Dear Schelt's journal,

I have recently been accepted to CQUniversity and am undertaking a Bachelor of Laws degree. What am I hoping to get out of is experience? So glad you asked.

I am so looking forward to being educated at a higher level and to learning, considering and realising many things that I have never even contemplated. I think that this contemplation will offer me an opportunity to engage in massive personal growth and development, get out of my comfort zone and increase my self esteem and self confidence. This confidence and knowledge, in turn, will equip me with a greater ability to think critically and reason well with others.

Why law? I feel that the law plays a majorly significant role in shaping our society. I think that a thorough knowledge of the law, and the way it is constructed in our country, provides a basis for understanding the past, and equips us in being able to better prepare for our future and the future of generations to come.

It will provide me with the opportunity for career advancement in a field that interests me greatly, will give me professional satisfaction and will allow me to contribute to society in a positive way.

I am not sure which particular area of law interests me most yet, but I am eager to find out.

I am expecting for there to be tough times and moments where I am ready to give up. But, I am determined, resilient, focused, excited and have a reliable support network.

This is an experience I am expecting to be life changing and invaluable.

I will keep you posted.