Legal Writing and Analysis

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 Recaps
Legal Writing

Legal Analysis

Legal Materials
Working with
Precedents/Statutes/
Facts
Principles
Brief
of Legal Writing a Brief
Cases
writing

Writing a
Factum
IRAC
3
 Legal terms
Common Court Federal
Civil law Caselaw Judgement Tribunal Battery State law
law decision law

Judge-made Appellate Delegated Authority

Legislation Precedent Ordinance High court Constitution
law court legislation bodies

Local
Bodies of The The
Types of law Custom The claimant By-laws Parliament Government
law defendant respondent Authority

Legislative The Decrees Legal Natural

Rule Morality The plaintiff The barrister
power advocate person person

Executive Judicial The The Legal

Tort law The solicitor Compensation Remedy
power power counsellor paralegal entity

Legal Hear the Rights and

Statute Law Trial An affidavit A complaint Liability Damages
interpretation case duties

Separation
Judicial Procedural Non-legal Legislative Judicial
Criminal law Written law Legal rule of state
decision law rule
powers
branch branch

4
Legal Substantive Executive The Legal
Legal codes Bill Public law Private law
disputes law branch Cabinet consequences
 1. Legal What to
What law is
understand the
analysis = relevant
law
thinking like a
lawyer
How to apply the
Statute law
law to the
situation at hand

Case law

6
Common Law and Civil Law
 Common Law and Civil Law
COMMON LAW CIVIL LAW
(English Law) (EC Law)/ Statute Law
Countries applied: UK, US, Canada, Countries applied: Most of
British colonies Western Europe, Africa, most of
Asian countries

Based on precedents, customs and Based on written codes (legal

judicial interpretation document or legislation)
(judge-made law or case law or
precedent)
→ product of executive power
and judicial power → product of legislative power

Judges can interpret law Judges can apply law

 State power
Legislative Executive Judicial
power power power
The power to The power to The power to
make and alter manage public decide and
laws affairs and to pronounce a
implement the judgment and
law carry it into
effect between
persons and
parties who
bring a case
before it for
decision
 Legal document
Legislation Delegated legislation

• Legislation is created by • Delegated (secondary/ subordinate)

Parliament/Congress/NA legislation is enacted by authority
• Legislation can be referred to bodies.
in one of three ways: • Usually, delegated legislation gives
legislation, statute, and acts guidelines to implement legislation
of parliament • Ex:
• Ex: Constitution (US), Sale of - Regulations by Government
Goods Act (UK), Uniform Departments/ Ministers
Commercial Code (US), Law on
Enterprises, Civil Code (VN) - By-laws/ Ordinances made by Local
Government Authority
 The system of legal documents in VN
Name State Authorities
The Constitution National Assembly

Codes, laws National Assembly

Ordinances Standing Committee of the NA

Resolutions National Assembly, Judicial Council of the People’s

Supreme Court, People’s Councils of provinces
Orders President

Decisions President, Prime Minister, People’s Committees of

provinces
Decrees Government

Circulars Ministers, Heads of Ministerial-level agencies, Chief

Justice of the People’s Supreme Court
 Precedent
• As a common term, precedent is an action,
situation, or decision that has already
happened and can be used as a reason why
a similar action or decision should be
performed or made.
• As a legal term, precedents is a Court’s
decision about a particular legal case that
makes it likely that other similar cases will
be decided in the same way.
 ???

Court Precedent/
decisions case law

New
stituation
No law

Law is The role of

unclear judge
 Precedent arises under the conditions:
• - When there is no law but the court still has to try to
ensure justice and that judgment becomes a precedent,
meaning it becomes the law for similar cases. Once the
judgment has been declared, it must be considered a
solution to similar problems in the future; the judge must
follow the judgment of a similar case that was tried before.
• - When the law is unclear, the judge must perceive,
interpret the law and express his perception in the
judgment. The judgment becomes the law for similar
situations.
• - There is a law but a new situation arises that the law has
not foreseen, so the judge must apply the current law to
that new situation.
Procedure for recognition of
precedents in Vietnam
 Caselaw
• Employment vs. Smith
• Precedent Set: A state can deny unemployment benefits to a worker
fired for using illegal drugs, even if used in a religious ceremony.
• This 1990 Supreme Court case began when two Native American men
working in Oregon were fired for using peyote after failing a drug test.
Even though they’d used it in a religious ceremony, peyote was still an
illegal drug. The men filed for unemployment benefits, but the state of
Oregon denied their request, citing the drug use exception to the state’s
requirement to provide unemployment benefits. The case reached the
Supreme Court, and the Justices voted in favor of the state. In his
opinion, Justice Antonin Scalia argued that allowing exceptions to laws
on religious grounds “would open the prospect of constitutionally
required exemptions from civic obligations of almost every conceivable
kind,” like paying taxes or fulfilling vaccination requirements.
 Precedents in Vietnam
Resolution 04/2019/NQ-HDTP of Council of Justices of
Supreme People’s Court on process for selecting, publishing,
applying precedents
• Definition:
Precedents are arguments and rulings in legally
effective judgments or decisions of the courts that
are selected by the Council of Justices of the
Supreme People’s Court and published by the
Chief Justice of the Supreme People’s Court in
order for other courts to study and apply them when
deciding later cases.
 Procedure for recognition of precedents in Vietnam

Proposing judgments to be developed - Individuals, agencies

into precedents and organizations
- People’s Courts/
Military’s Courts

Seeking consultation on judgments Supreme People’s Court

developed into precedents

Establishing The Chief Justice of the

Precedents Advisory Board Supreme People’s Court

The consultation of the Precedent The President of the

Advisory Board Precedent Advisory Board

Ratification of precedents Council of Justices of

Supreme People’s Court

Publication of precedents The Chief Justice of the

Supreme People’s Court
 Precedents in Vietnam
72 legally effective precedents

Marriage and Bussiness,

Criminal Administration Civil Labour
Family trade

17 4 35 5 9 2
Common law characteristic
Statute law Case law
1.Name sources of common law?
2.Which one was born first?
3.How the judge made law in the UK?
4.Which one is unwritten?
5.Which one prevails the other in case of
discrepancy?
 International Court
of Justice

1. Who founded ICJ and when? Does ICJ belong to any country?
2. Where is the ICJ?
3. Can the ICJ hear the cases among parties from different countries?
4. What are roles of the ICJ?
5. Who are judges in the ICJ? The condition of judges in ICJ?
6. The meaning of “confidential”? Why?
7. What kinds of cases are often brought to the ICJ? Take an example of a case
that has been judged in ICJ.
8. When can the ICJ hear a case?
9. What should the winner do if the loser refuse to obey the decision of the ICJ?
10. What are the source of law which ICJ can apply to hear the cases?
Documents in Court
Common law characteristic
Statute law Case law
1.Name sources of common law?
2.Which one was born first?
3.How the judge made law in the UK?
4.Which one is unwritten?
5.Which one prevails the other in case of
discrepancy?
1.1. Case analysis

Determining the relevant of cases,

reading cases and synthesizing
them into a statement of law

• Does the case apply to the situation?

• What does the case say?
• What does the case mean?
(1) Relevance of Case

Which cases
are similar?
How to do
answer such
questions?

Are cases are

binding or
persuasive?
 What is precedent?
Precedent is the reasoning behind a judge’s decision
that establishes a principle or rule of law that must
be followed by other courts lower in the same court
hierarchy when deciding future case that are similar.

As Defined in Black’s Law Dictionary, “precedent” is

a “rule of law” established for the first time by a
court for a particular type of case an thereafter
referred to in deciding similar cases (Black’s Law
Dictionary P1059 5th 1979) 32
 How to use precedents
when resolving specific cases?
Brief your case
Similar

Find precedents Binding

Persuasive

Compare precedents/ cases

Select precedent → the rule

for your case
 Similar/binding/persuasive precedents
Court level: What is the court level? Is the decision from a higher
level court?

Jurisdiction: What is the jurisdiction? Is the decision from the

same jurisdiction?

History: What is the history of the decision? Has the decision

been appealed or overturned by another court?

Judicial Consideration: Has the decision been considered by

another court?

Currency: Has the decision been superseded by legislation? 34

 COMPARING CASES
Case 1 Case 2 Your facts

Binding or Persuasive

Facts - Parties
- What happen?
- Claim?

Issues

Decision

Reason and Ratio

Commentary
 Tasks
30 minutes of group working
and 5 minutes of
presentation

Work UK court system

out
the
system Australian court system
of
courts: US court system
36
 Sale of Goods Act
1896 (Qld)

Sale of Goods Act 1923 (NSW) Goods Act 1958 (Vic)

Competition and Consumer Act 2010 (Cth) AUSTRALIA

6 states & 2 territories
50 states and Washington D.C. & 7 territories
 The rule of

(1) Relevance of Case Stare decisis precedent

Doctrine
o Stare decisis = to stand by things decided.
o Stare decisis is the doctrine that courts will adhere to precedent
in making their decisions.
o Stare decisis Doctrine is principle but no a rule cannot be broken
o Obligation of court to look for precedents to follow when
making decisions for the similar cases.
o Court has to follow their own previous rulings and rulings from
other higher courts within the same court system

Same
Higher
Similar court
courts
system
 Binding
precedent

Obiter Persuasive
dictum precedent

Judicial
precedent

Distinguishing Overruling
precedent precedent
1.Binding precedent: This is a precedent that must be followed by
lower courts in the same jurisdiction. For example, a decision made
by the US Supreme Court is binding on all lower federal courts in the
United States.
2.Persuasive precedent: This is a precedent that is not binding, but
can be used as a guide by judges in deciding similar cases. For
example, a decision made by a higher court in a different jurisdiction
may be considered persuasive, but not binding.
3.Overruling precedent: This occurs when a higher court decision
explicitly overturns a previous decision made by a lower court. For
example, if a US Supreme Court decision overrules a decision made
by a lower federal court, that lower court must follow the new
precedent set by the Supreme Court.
4.Distinguishing precedent: This occurs when a court decides that
a previous case is not applicable to the current case because of
differences in the facts or legal issues. For example, a court may
distinguish a previous case because the legal issue at hand is
different or the facts of the case are not sufficiently similar.
5.Obiter dictum: This is a statement made by a judge in a court
opinion that is not necessary for the decision of the case. Obiter
dicta are not binding precedents, but they may be persuasive in
future cases.
Basic format of a case brief
1. Style of Cause/ Name and Citation of the case
2. Procedural History
3. Facts (Parties? What happen? Claim?)
4. Issues
5. Decision/ Judgment
6. Reasons/ reasons provided by the court for the
answers to the legal issues
7. Ratio Decidendi/ Rule of law for which the case stands
8. Commentary/ personal views on the case and
connection to other cases 44
 Exercise
Do the case brief for Christie v. Davey,
1893, 1 Chancery Division 316
Note: Apply the basic format of brief introduced earlier.

45
 Christie v. Davey, 1893, 1 Chancery Division 316
• Christie (plantiff) – Davey (defendant)
• Plantiff gave music lessons 17 hours per week as well as practised the
piano, violin and singing daily. In the evenings, musical performances
were held for the inhabitants of the house and the occasional musical
party was hosted. The violoncello was practised often until eleven at
night.
• Plantiff lived in a house separated from the adjoining house of the
Defendant by a party wall
• Sept 30 the Defendant sent a letter of complaint to the Plantiff
• The plaintiffs did not respond and next day the Defendant began
making shrieking, banging, whistling, and pounding noises in his house
whenever music was being played
• Plantiff filed an injunction to prevent Defendant from making noises.
• Defendant filed a counterclaim to prevent Plantiff from making
constant music.
 Issue
• Were the claimant’s deliberate attempts to
annoy the defendant a nuisance?
• Were the defendant’s musical activities a
nuisance?
• Can the occupier of property engage in an
ordinarily legitimate activity on his property if
the sole purpose for engaging in the activity
is to deliberately annoy his neighbour?
5. Decision
• The Court held in favour of the plantiff. The musical activities were not a
nuisance because they were reasonable in duration and volume.
• Injunction granted against Defendant to restrain him from making noises in
the house to annoy the Plantiff, except for noise related to his engraving
business and musical evenings that existed before the dispute.
6. Reasons/reasons provided by the court for the answer to the legal issues
• Plantiff was making reasonable use of their home, evidenced by no
complaints by Defendant in the past 3 years
• Defendant was making unusual noises to disrupt in a deliberate and
malicious manner
7. Ratio Decidendi/Rule of law which the case stands
An occupier of property may not engage in an activity on the property in a
manner ordinarily legitimate if the sole purpose of the activity is to
deliberately annoy the neighbour
8. Commentary/personal views on the case and connection to other cases
… (Factor determining reasonable use of property; The state of mind of the
defendant)…
Practice!
• Facts: Bianca goes into a shop and sees a price label on a
CD for £15. She takes the CD to the checkout, but the till
operator tells her that the label is misprinted and should
read £20. Bianca maintains that she only has to pay £15.
What should you advice her?

Case 1: Partridge v Crittenden 1968

Case 2: Fisher v Bell 1961
Case 3: Carlill v Carbolic Smokeball Co 1893
What is possible Synthesis?
How to apply to the Facts? 49
Partridge v. Crittenden [1968] 1 WLR 1204
Facts:
• The defendant advertised for sale a number of Bramblefinch cocks and hens, stating that
the price was to be 25 shillings for each. Under the Protection of Birds Act 1954, it was
unlawful to offer for sale any wild live bird. The Royal Society for the Prevention of Cruelty
to Animals (RSPCA) brought a prosecution against the defendant under the Act. At his trial,
the defendant was found guilty of the offence by the magistrates; he appealed this
conviction.
Issue:
• The issue on appeal was whether the advertisement was properly construed as an offer of
sale (in which case the defendant was guilty) or an invitation to treat (in which case he had
committed no offence). A further issue was whether it was appropriate to adopt a different
interpretation of the phrase ‘offer for sale’ in the context of criminal law than was accepted
in the context of contract law.
Held:
• The court held that the advertisement was not an offer but an invitation to treat, and as
such the defendant was not guilty.
• The court also rejected the suggestion that the court should adopt a stricter interpretation
of the phrase ‘offer for sale’ in the criminal context compared to the contractual context,
reasoning that to do so would usurp the legislative function. The legislature had chosen
the phrase ‘offer for sale’ based on its existing understanding, and to alter this
understanding under the pretext of ‘interpretation’ was not the proper role of the court.
 Fisher v Bell [1961] QB 394
Facts :
• The defendant shopkeeper displayed in his shop window a flick knife accompanied by
a price ticket displayed just behind it. He was charged with offering for sale a flick
knife, contrary to s. 1 (1) of the Restriction of Offensive Weapons Act 1959.
Issue:
• The issue was whether the display of the knife constituted an offer for sale (in which
case the defendant was guilty) or an invitation to treat (in which case he was not).
Held:
• The court held that in accordance with the general principles of contract law, the
display of the knife was not an offer of sale but merely an invitation to treat, and as
such the defendant had not offered the knife for sale within the meaning of s1(1) of
the Act. Although it was acknowledged that in ordinary language a layman might
consider the knife to be offered for sale, in legal terms its position in the window was
inviting customers to offer to buy it. The statute must be construed in accordance
with the legal meaning, as
• “…any statute must be looked at in light of the general law of the country, for
Parliament must be taken to know the general law” (per Lord Parker C.J. at para. 4).
• It is well established in contract law that the display of an item in a shop window is an
invitation to potential customers to treat. The defendant was therefore not guilty of
the offence with which he had been charged.
Facts
• The defendant, the Carbolic Smoke Ball Company, placed an advertisement in a
newspaper for their products, stating that any person who purchased and used their
product but still contracted influenza despite properly following the instructions would be
entitled to a £100 reward. The advert further stated that the company had demonstrated
its sincerity by placing £1000 in a bank account to act as the reward. The claimant, Mrs
Carlill, thus purchased some smoke balls and, despite proper use, contracted influenza
and attempted to claim the £100 reward from the defendants. The defendants contended
that they could not be bound by the advert as it was an invitation to treat rather than an
offer on the grounds that the advert was: mere ‘puff’ and lacking true intent; that an offer
could not be made ‘to the world’; the claimant had not technically provided acceptance;
the wording of the advert was insufficiently precise; and, that there was no consideration,
as necessary for the creation of a binding contract in law.
Issue
• Whether the advert in question constituted an offer or an invitation to treat.
Held
• The Court of Appeal found for the claimant, determining that the advert amounted to the
offer for a unilateral contract by the defendants. In completing the conditions stipulated
by the advert, Mrs Carlill provided acceptance. The Court further found that: the advert’s
own claim to sincerity negated the company’s assertion of lacking intent; an offer could
indeed be made to the world; wording need only be reasonably clear to imply terms
rather than entirely clear; and consideration was identifiable in the use of the balls.
 2 3
1

General principle of law

(Ratio decidendi)
Advertisement and display of goods with price tag do not constitute
offers, but invitations to treat.
Any methods of introducing goods with information of its price
or
cannot be considered as a binding offer, unless there is an
intention to be bound clearly expressed through these methods.
 Practice with IRAC
On Friday 27th Nov. Buyer sends a telex to Seller offering to
buy 1,000 tones of sugar at the current market price. The telex
is received in Seller’s offices after a short delay at 5 pm. Since
the telex operator has gone home for the weekend, Seller posts
a letter in the last post on Friday, accepting the offer. This
letter reaches Buyer at 2.30 pm on Monday 30th Nov.
Meanwhile, at 9.30 am on 30th Nov. Buyer sends a further
telex to Seller withdrawing his offer. This reaches Seller and is
read by him immediately at 9.45 am on 30th Nov. Advise the
Seller!

30 minutes of writing using IRAC

55
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