Anglais synthèse Q1 et Q2 final PDF

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Anglais juridique et usuel Unit 1 the practice of the law Civil law and common law Civil law : - Legal system developed from Roman codified law, established by a state for its regulation-area of the law concerned with non-criminal matters, rights and remedies. It tradition developed in continental Europe during the Middle Ages and was applied in the colonies of European imperial power such as Spain and Portugal. ( droit privé) Common law : Legal system which is the foundation of the legal systems of most of the English-speaking countries of the world, based on customs, usage and court decision ( Also case law, judge-made law ). It tradition emerged in England during the Middle Ages and was applied within British colonies across continents. Criminal law : Area of the law which deals with crimes and their punishments, including fines and/or imprisonment ( Also penal law )

Common law

Civil law

Anglo-Saxon countries ( former British European countries ( former colonies of colonies ) these countries ) The judges are bound to follow precedents applicable

The judges have to refer to the legislation

uncodified

codified

Judicial decision

Legislative decisions

Types of lawyers 1

Anglais juridique et usuel Country

W o r d ( s ) u s e d w i t h Description reference to a lawyer

Britain

Solicitor

Deals directly with the client but does not act as an advocate in court or only in lower courts (mag ist rares’cour ts), prepares the case, researches the case but does not argue it. They will give advice ( general or specific). If you need more specialist advice or need to go to court, solicitor will instruct a barrister. They usually work in partnerships.

Barrister

Pleader/litigator, represents the case in court, engaged in trial word, only they lay argue cases before a high court. He will litigate your case. Barristers have the right of audience in all courts. They have a cab rank rule so have to accept any work excepted if they don’t have enough time. They are self employed

Scotland

Advocate

Trial lawyer

USA

Attorney

No distinction solicitor/ barrister Is now authorized to exercise all the functions of a practising lawyer.

Canada

Lawyer

All law yers are both solicitors and barristers

Three origins of law : Court decision Constitution Statutes ( = law voted by a parliament ) Lawyer : One whose profession is to give legal advice and assistance to clients and represent them in court or in other legal matters

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Anglais juridique et usuel

Types of law firm : A commercial practice : advises clients on corporate and commercial matters and may also negotiate transactions and solve business problems A large law firm : can have 50 or more lawyers working on complex maters for large organisations. A law clinic : gives students an opportunity to deal with real clients and to develop their legal skills. A partnership : is managed by partners who share profits and responsibility equally A sole practitioner : works on his or her own, has no partner and usually handles smaller cases.

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Anglais juridique et usuel

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Anglais juridique et usuel How are laws made in the UK?

§1 Laws are rules that everyone in the country must obey. In a democracy, like the UK, nobody is above the law. About one hundred new laws are passed each year. How does Parliament make new laws? §2 A proposed new law is called a Bill. Bills must be agreed by both Houses of Parliament and receive Royal Assent from the Queen before they can become Acts of Parliament which make our law. §3 The Bill is introduced by a First Reading. This is simply an official notice that a Bill is going to be proposed and what it's about. It gives MPs time to prepare and discuss it. §4 Shortly afterwards comes the Second Reading. At this point the principles are considered on the floor of the House. The Bill is then sent to be looked at by small groups of MPs who examine the Bill in detail. §5 At the Third Reading the Bill is debated and there is a vote. If the Government has a majority, the Bill is then passed to the House of Lords. §6 Once a Bill has passed through both Houses, it is sent to the Queen for the Royal Assent. Once it has Royal Assent the Bill becomes an Act of Parliament. It is the law of the land. §7 Since 1952, The Queen has given Royal Assent to 3135 Acts of Parliament. Interesting fact: Up until the end of the 17th century, British monarchs were executive monarchs. This means that they had the right to make and pass laws. Since the beginning of the 18th century, the monarch has become a constitutional monarch.

Who runs the UK? §8 The British government runs the UK. The leader of the government is the Prime Minister. Great Britain is a parliamentary democracy with a constitutional monarch as Head of State. The principle behind British democracy is that the people elect Members of Parliament (MPs) to the House of Commons in London at a general election, held no more than five years apart. Most MPs belong to a political party, and the party with the largest number of MPs in the House of Commons forms the government 5

Anglais juridique et usuel

Great Britain is a parliamentary democracy with a constitutional monarch as head of state. People elect members of the parliament (belongs to a political party) to the house of commons in London at a general election for five years. The party with the largest number of members in the house of common forms the government. The Scots have their own parliament in Edinburgh. The welsh their own national assembly in Cardiff. Parliament is where politicians meet to decide laws and make decisions for the United Kingdom. It is not the same as the government, which runs the country. The parliament also check if the government is running the country properly. The parliament is made up of the house of lords ( people who inherited family titles and those who have been given titles because of their outstanding work in one field or another => peer), they have to double check new laws to make sure there are fair and will work and the house of commons, they are discussing policies and making laws.

Dispute resolution

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Anglais juridique et usuel

disputes

litigation

mediation

pre-trial

trial

post-trial

plaintiff fill a complaint with the court ( au près de la court )

hearing/ trial is conducted

judgment is enforce, enforcement stage

parties try to reach a settlement (out of court)

the court delivers judgement

mediator facilitates negotiation and agreement

disputing party

disputing party

reach an agreement

discovery phase

pleadings and motions are filed. Defendant files an answer

final pre-trial conference is held (meeting with the judge

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Anglais juridique et usuel Phase of litigation: •

Pre-trial phase: when a dispute arises, one party will usually have their lawyer send a letter to the other party in an attempt to reach a settlement. This party makes a demand of the other, who will then send a response. Informal discussions often follow. If the parties cannot reach an agreement, formal action may be started and a suit is filed.

•

Discovery phase: one of both parties gathers evidence about the dispute by taking the testimony of witnesses, examining documents or physical evidence, or requesting evidence from the other side.

•

Trial phase: the facts of the case are heard by a judge, or by a judge and a jury. The court delivers a judgment in the case.

•

Enforcement phase: The losing party may file post-trial motions to convince the judge to amend the judgment, or may decide to appeal to a higher court. The winning party has the task of collecting the judgment. 1. Plaintiff /claimant commences civil action by filling a complaint with the clerck of the court.

Pré-trial

2. Personnal juridiction is obtained over the defendant (service of process) The deliver a legal document (notification ou signification en droit) 3. The parties meet and confer with one another in order to identity issues, discuss the possibility of settlement and prepare a plan for discovery and disclosure 4. The court conducts an early pre-trial conference (scheduling conference) or else issues a pre-trial scheduling order 5. Defendant may file motions. Some motions must be filed in the first responsive pleading (the answer of pleading) Other motions may be

Trial

1. The court conduct the trial

1. Go appeal or not go appeal Post-trial

Steps if case go to appeal

2. Appeal may be taken. Depending on the situation, judgment may or not may stayed (when judge stay the judgement, they stop until new 1. Appeal is considered based on either briefs (écrits) or after oral argument 2. Judgment is rendered on the appeal

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Alternative dispute resolution ADR is the collective name given to several methods of dealing with disputes without going to court. 1. Mediation, it’s a method the most commonly used in ADR. This procedure involves the use of a neutral third party to encourage and facilitate, but not impose a solution to the dispute.

❖ Quick >< lawsuit is public. Can be advantage in civil case and drowback in criminal case ❖ Cheap >< Lawsuit is expensive for initiating/filing lawsuit ❖ Encourage the parties to work out an acceptable settlement!: the parties can have speak + neutral third party who help the parties to resolve the dispute >< in litigation, the lawyer want to win the case. More effective because the parties participate to find agreement. Not lose, not win 2. Conciliation, this procedure involves the use of a neutral third party to encourage and facilitate, but not impose a solution to the dispute. Advantages: •

Quick as opposed to lawsuit (scheduled within a few weeks, most sessions last only a few hours).

•

Helps to remain on good term between parties(in contrast lawsuit tend to ruin relationships).

•

It’s confidential (lawsuit is public). It’s a major advantage.

•

The cost of filing a lawsuit is cheaper.

•

It encourages parties to work out an acceptable settlement (it’s cooperative, the mediator is there to help the parties to resolve the disputes. In contrast, lawyers, their primary objective is to win the case.

•

It’s more effective than litigation when it comes to carrying out the decision because the parties actively participated in its making and are more likely to stand by it as a result. 9

Anglais juridique et usuel

3. Arbitration, it’s out of court and the judge is only in arbitration, it’s a specific judge. Arbitrator is different of arbiter!!!

Arbitrator 1. A judge only in arbitration proceedings 2. Great expertise

Arbiter 1. A more general term and it may refer to a judge of anything. 2. A judge of morals ( the censor board is the arbiter of morals for films..) 3. A j u d g e o f t a s t e ( Vo g u e magazine is the arbiter of fashion, US supreme court is the final arbiter in legal cases )

4. Adjudication; when, in business, there are several competitors and we look which one is right. Se dit aussi en français. 5. Expert determination They are similar to the court process in the sense that they involve the imposition of a solution by a third party rather than the facilitated negotiation of a settlement. Arbitration : L'arbitrage est un mode alternatif de résolution des conflits, dans lequel un arbitre intervient pour prendre des décisions qui engagent les deux parties qui font appel à ses services. C'est un mode non étatique de règlement des litiges. L'arbitrage est un mode de résolution des conflits par l'intermédiaire d'un tribunal arbitral composé d 'un ou de plusieurs arbitres ( en général 3 ). L'arbitre est un véritable juge dont la décision peut s'imposer aux plaideurs. L'arbitrage permet donc de régler un litige ( sans passer par les tribunaux de l'Etat mais par une juridiction arbitrale), en confiant le différend à un ou plusieurs particuliers choisis par les parties.

§1 In England there are two legal practitioners - solicitors and barristers. If you have a problem and need legal advice you go to a solicitor first of all. This contrasts with the United States where there is only one type of lawyer. American lawyers are often referred to as attorneys. §2 Solicitors will give you advice - general or specific - depending on your problem. If you need more specialist advice or need to go to court, your solicitor will instruct a barrister. As a pleader, the barrister will litigate your case. §3 Solicitors can usually only advocate in the lower courts, such as the Magistrates’ Courts; they can pursue higher rights of audience should they wish to do so when they

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Anglais juridique et usuel have taken the appropriate training and qualifications. Barristers have the right of audience in all courts. §4 Not all solicitors practise or do advocacy work – about 25% of them work in-house for companies and other profit or non-profit making organisations and the government. §5 Barristers are self-employed and they are responsible for all their own paperwork such as VAT, tax and expenses which is why they work together in chambers to share the costs. Solicitors are usually employed. §6 The client’s contact with their Barrister is through the solicitor who will usually choose which barrister to instruct and act as an intermediary. §7 For solicitors there is a contractual relationship with the client and they can be sued for professional negligence and breach of contract. As a result of a decision of the House of Lords in 2000 it was determined that solicitors are liable for their advocacy in court as well as their work out of court; this ruling also applies to barristers. §8 Barristers only specialise in a particular area of law, solicitors can also specialise but usually do general work as well. §9 Barristers cannot turn down work as their Code of Conduct has a ‘cab rank’ rule – they must accept any case they are offered subject to availability of time, suitability within their own speciality or giving a good reason. A barrister is supposed to provide services if requested, unless there is good reason not to. The fees involved can mean that for most clients a highly experienced barrister is very expensive and their fees can increase substantially if the barrister is a QC (Queen’s Counsel). A QC is appointed by the Lord Chancellor (the head of the judiciary and also a cabinet minister and member of the Government) from barristers

who have been practising for at least 10 years since they were ‘called to the bar’ (or qualified as a barrister). A QC is also called ‘a silk’ as once they are appointed they ‘take silk’ and wear a silk gown in court. §10 The normal way to become a solicitor is to obtain a law degree then pass the Legal Practice Course (LPC); this is a further course of study, designed to prepare you for work in a solicitor’s office which takes a year. After this you then spend two years working in a solicitors’ office under a training contract. If you don’t have a law degree then you first of all must take a Graduate Diploma in Law (GDL) then take the LPC. You must have a law degree to train as a barrister.

Unit 2: tort law Tort law 11

Anglais juridique et usuel The person who committed the tort is a tortfeasor or a wrongdoer.

There are four types of torts: •

Intentional torts : wrongdoer deliberately performing wrongful act while reasonably foreseeing that harm could occur Example : Fraud, assault, defamation, trespass, false imprisonment,

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Negligent torts : refers to accidents or incidents committed unintentionally but that nevertheless cause physical, emotional or financial harm. It’s by far the most common type of tort action. Example :medical negligence, car accident. To prove negligence : prove duty of care (Example : prouver que la personne téléphonait en conduisant) + breach of duty + causation.

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Strict liability torts : total liability for an offence which has been committed. Negligence doesn’t need to be proved . Liability = Legal responsibility , Strict = automatic Example : selling defective products.

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Products liability actions: claims arise when a person is using a manufactured product in the proper manner for which it is designed and for a proper purpose but the person suffers an injury.

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Anglais juridique et usuel Example: you buy a new car, the first day you are driving it, the steering wheel comes off in your hand. Products liability cases allows the injured party to sue both the manufacturer and the dealer. To tell the fact of a case, it makes sense to use past tense.

Compensation culture It’s dumb case, like the cat in the microwaves. Lawsuits like Donoghue v. Stevenson have sometimes given lawyers a bad name. As a matter of fact, some lawyers are said to encourage clients to file lawsuits against defendants with deep pockets in the hope to be awarded as much compensation as possible. But the grounds for seeking those damages often seem very thin and sometimes even ludicrous. This practice, which has become common in the U.S. and to some extent in the U.K., has given rise to the creation of the phrase “compensation culture”.

What is a case note? Important cases are often recorded in series of books called law reports or reporters. They contain among other things the judicial opinions laid out by the judges handling those cases. The texts published in law reports are often lengthy and technical. A common assignment for law students in Northern America or in the Commonwealth is to boil down the information provided in such reports to a summary including the most significant parts of the case. Those summaries are called case notes (UK) or case briefs (US). Although variations are possible, they typically consist of these six sections: case, facts, procedural history, legal issue, ruling, and reasoning.

Liebeck vs McDonald’s Background Burn incident On February 27, 1992, Stella Liebeck, a 79-year-old woman from Albuquerque, New Mexico, ordered a 49-cent cup of coffee from the drive-through window of a local McDonald's restaurant located at 5001 Gibson Boulevard Southeast. Liebeck was in the passenger's seat of a 1989 Ford Probe owned by her grandson Chris, which did not have cup holders, and Chris parked the car so that Liebeck could add cream and sugar to her coffee. Liebeck placed the coffee cup between her knees and pulled the far side of the lid toward her to remove it. In the process, she spilled the entire cup of coffee on her lap. Liebeck was wearing cotton sweatpants; they absorbed the coffee and held it against her skin, scalding her thighs, buttocks, and groin. Liebeck was taken to the hospital, where it was determined that she had suffered thirddegree burns on six percent of her skin and lesser burns over sixteen percent. She remained in the hospital for eight days while she underwent skin grafting. During this period, Liebeck lost 20 pounds (9! kg, nearly 20% of her body weight), reducing her to 83 pounds 13

Anglais juridique et usuel (38!kg). After the hospital stay, Liebeck needed care for 3 weeks, provided by her daughter. Liebeck suffered permanent disfigurement after the incident and was partially disabled for two years. Pre-trial Liebeck sought to settle with M...