This week’s blog post is written by Megan Campbell, 1L, and NSRLP Research Assistant.
Every law student takes a course called Legal Research and Writing. The objective of this class? You got it: to teach law students the fundamental skills required to conduct legal research and to draft the core documents required for legal proceedings.
Sounds straightforward, right? But as any law student or SRL who’s tried will tell you, it’s not. Like learning to play an instrument, legal writing is a skill and set of competences that takes time and practice to develop. One of the biggest and most intimidating assignments is composing a factum. A legal factum must contain the legal arguments you will raise in court.
After attending a number of Legal Research and Writing classes preparing me to do this, I worked hard on preparing my factum. I submitted it, the professor returned it: I did not do well – and I was very disappointed.
I’m not disappointed because of the poor mark, but because I spent long hours working on it and I really thought I had made a strong legal argument. I was so confident that I had done good work. As it turns out, in my professor’s eyes, my legal argument hardly existed. If you were to flip through my 10-page factum, you would see aggressive marks scratched across entire pages accompanying the only comment: “where is the legal authority?”. Only several short paragraphs went untouched by my professor’s pen.
So, I did what any law student (who was eager to improve) would do: I went to talk to my professor during her office hours.
I told her that I was confused. My arguments did not come out of thin air – I came to them after reading other legal decisions, using what we call case law. All my arguments were made by interpreting what I learned about insurance law by reviewing other cases and then applying this to the facts I was given.
But here was the problem: like many law students before me, I had failed to clearly articulate a specific argument rooted in the case law. Yes, the law I used gave me a general direction, but I did not show precisely enough how the case law held up my argument. Applying the general principles as I interpreted them to the given facts was not enough. I needed to concretely explain – cement, if you will – the relationship between the relevant case law, line by line where appropriate, and my facts.
The boundary between a factual argument and a legal argument is a fine one, and a judgment call. But the judge does not want a factual argument – they want a legal argument rooted in relevant case law that explains how these facts should be interpreted using current case law.
As a member of the research team working on the NSRLP’s SRL Case Law Database, my classroom factum experience has made me reflective while reading many judicial decisions involving self-represented parties. I have seen that many times an entire argument offered by an SRL is not discussed at all by the judge in the decision, because there has been insufficient legal authority provided. An argument based on facts is not enough.
The law is difficult and it takes time to learn how to use it effectively. After the one-on-one with my professor, I got to take my factum home, consult with other legal students and resources, and then deliberate, rewrite and resubmit a new factum. This is leeway that the many Canadians who find themselves self-representing in matters that are close to the heart do not get. They get, usually, only one chance to make their argument. And they do that without the expert training and sympathetic assistance I am receiving as a law student.
As a first-year law student, I am extremely humbled to be working on the SRL Case Law Database. If you are reading this post as a person who is gathering research for your own self-represented experience, I wish you luck. You truly impress me.
There is a little confusion. Law student is not self represented. How the features concerning Self Representative can be matched with law student?
OKAY
Every legal argument must be based upon relevant case law explaining how this case facts are to be Judge interpreted using current applicable case law
As a SRL I can understand that
However the problem raised now is;
I have to search all the case law, (a huge time consuming problem with out the tools Lawyers have) and all I have to do is just to find al the possibly appropriate cases, read them all to understand them thoroughly, to identify the specific case with the right associable fact, and then verify the fact is applicable, and then be able to articulate the explanation accurately to explain how the judge should apply this case law case to establish my case fact has been previously adjudicated as an appropriate precedent
WOW!
Each and every SRL is nothing more that a Cristian taken into the Roman Arena for the thrill and enjoyment of the Elite enjoyment to watch from above the “Destruption2Devastation” of the Victims of “No Access2Justice”
So as a follow up to this article
Perhaps you might write about how the SRL could address this much more difficult
Articulating how to find the right case law to be used in the explanation accurately to explain how the judge should apply this case law case to establish my case fact has been previously adjudicated as an appropriate precedent
Respectfully
The most difficult task for a SRL is getting the right case law precedent to justify their case
Second Comment
Every SRL would love to have the law students option of;
As defined in your article above
” So, I did what any law student (who was eager to improve) would do: I went to talk to my professor during her office hours.”
So perhaps
NSRLP would consider
How can an SRL obtain this type of help?
How about a way to submit their self prepared documents to date for a critique of their document preparation to date for help and guidance?
The metamorphosis to legal literacy is so awkward. It’s valuable to reflect on this as legal professionals, since we’ve all botched a law school factum or some other assignment where it was safe to fail.
Now to consider, without hubris, the jeopardy SRLs face. Little or no experience preparing pleadings or legal writing. Little or no guidance. Playing for keeps (not grades). No room for error.
“Playing for keeps. No room for error” You are so right! What no one wants to talk about, are endorsements easily “swayed” (by…?) or endorsements which find “errors” and provide “reasons” why the “errors” are due to SRL’s understanding. “The SRL cites authorities/rules, without understanding…”
A law professor may say a case is very hard to ” concretely explain – cement, if you will ” but it is so EASY to find fault – to find “errors”.
So EASY to fault the articulation or missing conjunctive. In six years of legal battles much fault was found – but NO FAULTS by the lawyers. Courts accepted lawyer’s affidavits, 3 lines of defense, no pleadings, no defense, late filings, etc, etc.
Coherence, Yes!! Critically impprtant. No point in researching a million cases if one is unprepared /unable to pull out of it a coherent theme and express that thematic thread in a way that is articulate, concise and convincing.
As someone who both grew up and later worked In the frontline trenches of low income, working class , marginalized rural and inner city communities, I harbour no naivete about the essential dynamic operating in EVERY instititional setting, be it a classroom, a courtroom, a doctor’s office etc — power. Why do people do what they do? Because they can. Who is not corrupted to some extent by power? No one. I am not a lawyer but I have learned over the years to give judges what they want –a coherent, articulate and well-organized presentation designed, first and foremost, to make their life easier because the courts ARE drowning in cases. I have nevertheless been caught at times by trickery on the part of opposing counsel as have many of you. So I choose my battles carefully. I am a warrior, not a martyr.
Second comment: IMHO, at the heart of coherence is storytelling. I believe many lawyers don’t get that. I think many of us get frustrated with lawyers precisely for that reason. I once got away as a SRL with submitting to a settlement conference judge a 10 page essay on parenting time, in which I reframed the Biblical story of King Solomon and the two women who come before him to ask which one of them is the true mother. My argument was that alternating weeks of parenting time was essentially the same as cutting a child in half. The judge got it. As humans, we are all of us hardwired for stories.