Client - Berlingua Language School (Joanna Staines) Other party - Simon Burnett, Burnett TV Supplies

Facts

Ms Staines (Director of Studies, Berlingua) bought a new satellite system (including built-in hard drive) at 50% of the normal price from Burnett TV Supplies for educational use. She mainly wanted to use it to record foreign-language TV programmes for use during lessons.

When she first set it up and tried to record, she realised that the timer function was broken. This means someone has to physically press 'record' and 'stop' whenever they want to record something.

Ms Staines has asked for a replacement, but was told that she couldn't expect it to work perfectly at such a cheap price. They have refused to replace it, but have offered to repair it at a cost of £130.

Legal issues

Defect not pointed out at time of purchase; if reduction due to imperfections, seller MUST inform client (Sale of Goods Act).

Advice/Action

Ms Staines is entitled to either a full refund or a replacement system (her choice). I outlined the options, Ms Staines is considering which to go for. I'm pretty sure that it will only take one letter from us before Burnett backs down - he'd have no chance in the small claims court!

!l»

Now turn to Case Study 1: Contract lawon page 118.

Language Focus

1 Word formationComplete this table.

2 PrepositionsComplete the following sentences about contract law using the prepositions in the box.

against for for in mte to to under

1 An individual or a business may enter.......... into........ a contract.

2 Anyone who is not a party....................... the contract is considered a third party

and cannot be obligated to do anything required.......................... the contract.

3 If one of the parties breaches a contractual obligation, the non-breaching party may file a lawsuit the breaching party.

4 Furthermore, a party will not be required to perform its contractual obligations if another party is breach.

5 Damages are awarded...................... a party........................ any loss that the party

has suffered as a result of a breach of contract.

6 However, a party will not always be able to recover all losses when suing
..................... damages.

3 Language functionsUnscramble the following phrases for asking for clarification.

1 that What mean? does What does that mean?

2 I you follow don't

3 that I understand don't

4 I means don't what that know word

5 make That sense to doesn't me

4 Verb-noun collocationsChoose the correct verbs.

1 My client has requested me to make /(f\\e)/ award a lawsuit against you for breach of contract.

2 You accepted / awarded / admitted the offer my client made to you.

3 When you signed the contract, legal rights were called / claimed / created which are enforceable under the law.

4 Since you have not carried out your obligations under the contract, you have clearly assigned / rejected / breached the contract.

5 My client intends to claim / accept/ enforce damages for all of the losses incurred as a result of the breach.

Tort law

THE STUDY OF LAWLead-in

The word fort is usually unfamiliar to learners of English. As with other legal English terms, many native speakers of English who do not work in the law would not know the word either. What do you think it means?

1 a The area of tort law covers a wide range of cases. Match these case

descriptions (1-3) with the case names (a-c).

1 A civil case for wrongful death which followed an unsuccessful criminal prosecution for murder

2 An urban legend about a woman who sued a company for damages because the instruction manual for her microwave oven gave no warning against the way she used it

3 A 1994 case in which $2.7m in damages were awarded

a Liebeck v. McDonald's Restaurants b The People v. OJ Simpson c Hubbard v. Speedicook

b What do these cases have in common?

2 Complete the definition below using the words in the box.

act damages harm party

Tort:a wrongful 1)................................ that causes 2)................................... to

another person for which the injured 3).................................. may request

4)...................................

Reading i: Tort law

3 Read the text on page 29 on tort law and answer these questions.

1 According to the text, what are the two main objectives of tort law?

2 An injured party can sue for damages or for an injunction. According to the text, what types of loss can be compensated by an award for damages?

3 What does the term injunction mean? Use the Glossary if necessary.

4 A manufacturer produces a dangerous toy train. What category of tort is this?

4 Match the adjectives (1-6) with the nouns (a-f) they collocate with in the text.

1 civil a damages

2 contractual b wrong

3 injured c misrepresentation

4 fraudulent d party

5 medical e relations

6 monetary f expenses

A tortis a civil wrongthat can be remediedby awarding damages (other remedies may also be available). These civil wrongs result in harm to a person or property that forms the basis of a claim by the injured party. The harm can be physical, emotional or financial. Examples of torts include medical negligence, negligent damage to private property and negligent misstatementscausing financial loss.

There are many specific torts, such as trespass, assaultand negligence.Business torts include fraudulent misrepresentation, interference in contractual relationsand unfair business practices.

Torts fall into three general categories: intentional torts(e.g. unfair competition), negligent torts(e.g. causing an accident by failing to obey traffic rules) and strict liability torts(e.g. liability for making and selling defective products).

Why some wrongs are dealt with by tort law (or the law of torts) and others considered criminal offences is the subject of some debate. However, there are certainly overlaps between tort law and criminal law. For example, a defendant can be liableto compensate for assault and battery in tort and also be punished for the criminal law offence of assault.

Differences between tort law and criminal law include: the parties involved (the state brings an action in crime, a private individual brings an action in tort); the standard of proof(higher in criminal law); and the outcomes (a criminal action may result in a convictionand punishment, whereas an action in tort may result in liabilityon the part of the defendant and damages awarded to the claimant¹).

The primary aims of tort law are to provide relief for the harm suffered and deter other potential tortfeasorsfrom committing the same harms. The injured person may sue forboth an injunctionto stop the tortious conductand for monetary damages.

Depending on the jurisdiction, the damages awarded will be either compensatory or punitive. Compensatory damagesare intended, as far as it is possible, to put the victim in the position he or she would have been in had the tort not occurred. Punitive damagesare awarded to punish a wrongdoer. As well as compensation for damage to property, damages may also be awarded for: loss of earnings capacity, future expected losses, pain and sufferingand reasonable medical expenses.

(US) plaintiff

5Use the collocations you formed in Exercise 4 to complete these sentences.

1 While a crime such as murder or shoplifting is a wrong committed against society, a tort is a............................................................. committed against an individual.

2 Torts are handled in the civil courts, where the..................................... brings an

action against the wrongdoer.

3 In most cases, the injured party is entitled to remedies under the law, such as

4 In medical malpractice cases, the damages awarded to the injured party may include lost wages and........................................................

Unit 3 Tort law

5 The tort of................................. occurs when one of the parties to a contract

makes a false statement about a fact and knows it is not true, and this fact is acted upon.

6 When a person stops parties from entering into a contract, for example, this
person is said to interfere in......................................

6 What do you think these types of tort mentioned in the text mean: assault
negligence, trespass'? What kinds of acts do they cover? Give examples of
what someone has to do to be liable for each of these torts in your country.

Reading 2: Case note

Law students often read or write case notes¹ to prepare for classroom discussion at university. A case note is a short summary of the most important information about a case. As such, it is a useful study tool. The format and contents of a case note can vary, but usually it includes the following sections: case, facts, procedural history, legal issue, ruling and reasoning.

7 Quickly read through the case note below of an important tort law case and
match the headings (1-6) in the brief with these descriptions (a-f).

a relevant point of law

b information about the parties and the case

c what the court decided

d what happened

e why the court came to that decision

f how the lower courts decided

1 CASE:Palsgrafv. The Long Island Railroad Company, 248 N.Y. 339; 162 n.e. 99; Court of Appeals of New York [1928] ^___

2 FACTS:Plaintiff² was standing on a platform of defendant's railroad when a train moved off from the platform. Even though it was already moving, a passenger ran to catch the train.The man, who was carrying a package wrapped in paper, appeared to lose his balance while trying to board the moving train. An employee of the railroad reached out to help him.This act caused the package in the man's arm to fall onto the rails. Unknown to the employee, the package contained fireworks. When it fell, the fireworks exploded, causing some large equipment on the platform to strike and injure the plaintiff.The plaintiff sued the railroad, claiming that her injury resulted from the negligence of the employee.

3 PROCEDURAL HISTORY:The trial court found for the plaintiff. Defendants appealed, and the appellate court affirmed the judgment.The railroad then appealed to this court.

4 LEGAL ISSUE:Did the railroad's negligence proximately cause plaintiff's injuries?

5 RULING:No.The Court of Appeals of New York reversed the decision.

6 REASONING:Negligence is not a tort unless it results in the commission of a wrong. If the harm was not deliberate, it must be shown that the act could have been dangerous. Since in this case the harm to the plaintiff was not wilful on the part of defendant, it had to be shown that the act of dropping a package had the apparent possibility of danger. As there was nothing on the outside of the package which would cause the reasonable person to believe it contained explosives, there was no negligence. It was the explosion that was the proximate cause of plaintiff's injuries, an act which could not have been foreseen.Therefore the railroad was neither negligent nor the proximate cause of plaintiff's injuries.The judgment of the appellate court was reversed.

¹ (US) case briefs ² (UK) claimant (The word plaintiff ms also used in English law until the new Civil Procedure Rules (CPR) came into force in April 1999.)

8 Read sections 1 and 2 of the case note and answer these questions.

1 What is the name of the case?

2 Who is the defendant?

3 Who is the claimant?

4 What is the defendant alleged to have caused?

9 Read the rest of the note and answer these questions.

1 What was the lower court ruling?

2 What happened when the case was appealed?

3 The word proximate means 'direct' or 'immediate'. What did the court determine is the proximate cause of the injury?

Key terms i: Reporting procedural history

10 The procedural history section tells what happened when the case was tried in the lower courts. Other sections of a case note give information about the decision of the highest court at which the case was tried. Which sections of the case note above contain this information?

11 Find words in the case note above to complete these definitions. You may need to change the verb forms.

1 The person who brings an action in a court of law is called the

2 The person against whom an action is brought in a court of law is known as the

3 When a case is decided in favour of a certain party, the court that party.

4 To bring a case before a higher court so that it can review the decision of a lower court is to a case.

5 A court which hears appeals from lower courts is called an.................................

................................ or a....................................................................

6 When a court states that a judgment of a lower court is true, it 1 that judgment.

7 When a court changes the judgment of a lower court to its opposite, it that judgment.

peaking i: Case discussion

With a partner, discuss the phases in the procedural history of the Palsgrafv. The Long Island Railroad Company case and agree on a simple account of what happened in the courts.

Discuss what you think might have happened if this case had been brought to court in your jurisdiction.

Listening i: Frivolous lawsuits

Law students are expected to know the most important facts of a large number of cases, as well as the legal issues involved and the procedural history of these cases.

14 You are going to hear a discussion between two law students, Maria and Fabio, about a well-known product liability case. Maria mentions compensatory damages and punitive damages. What is the difference between these types of damages? Which should be the highest In a case involving serious negligence?

15 ^$3.1 Listen to the discussion and answer these questions.

1 What does Fabio mean by the words frivolous lawsuit?

2 What injury did the plaintiff suffer?

3 Why did McDonald's refuse to settle out of court?

4 How much did the court award Liebeck in compensatory damages? How much in punitive damages?

5 How much did Liebeck finally receive in damages?

16 ^$3.1 Complete the procedural history section of this excerpt from a case note
using words you have studied so far in this unit. Listen to the discussion again
if necessary.

CASE:Liebeck v. McDonald's Restaurants, P.T.S., Inc., No. D-202 CV-93-02419,1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. Aug. 18,1994)

FACTS:In 1992, Stella Liebeck, a 79-year-old woman from Albuquerque, New Mexico, bought a cup of coffee from the drive-through of a McDonald's restaurant. Liebeck placed the coffee cup between her legs and opened it. She spilled the entire cup of coffee on her lap. Liebeck was wearing cotton sweatpants which held the hot liquid against her skin, burning her lower body severely. At the hospital, it was determined that she had suffered third-degree burns on six per cent of her skin. She stayed in the hospital for eight days.Two years of treatment followed.

PROCEDURAL HISTORY:After several attempts to reach a 1)............. failed, the claimant sued

the 2).................. for gross negligence.The jury 3)................... the claimant, determining that the

defendant was 80% responsible and the claimant 20%. Claimant was 4).................. $200,000 in

compensatory 5).................. , which was then reduced by 20% to $160,000. $2.7 million in

6).................. damages were also awarded.These damages were then reduced to $480,000.

The decision was 7)................. by both claimant and defendant. However, an out-of-court

settlement for less than $600,000 was finally reached.

Speaking 2: Frivolous lawsuits

17 Discuss these questions.

1 The Liebeck v. McDonald's case inspired a journalist to create the Stella Awards, which are awarded to 'frivolous lawsuits'. They are meant to be amusing, but they also have a serious purpose. What do you think it might be?

2 Can you name any examples of cases from your jurisdiction which you think might be awarded a Stella?

3 What do you think of the Liebeck v. McDonald's case? Do you think it deserves its reputation as a frivolous case?

LAW IN PRACTICE

Lead-in

Tort law covers many legal problems, from everyday accidents to deliberate attempts to harm a person's reputation or business interests. Because of this, tort is one of the most litigated areas of law.

Seeking the advice of a lawyer, taking a case to court or defending yourself in a lawsuit can be very expensive. Law clinics can provide a free alternative to consulting a lawyer in a private firm.

Reading 3: The Kent Law Clinic

18 Read the online introduction to the Kent Law Clinic and answer these questions.

1 Who does the legal work at the Kent Law Clinic?

2 Do clients have to pay for the advice given?

3 What kinds of practical skills can be learned at the law clinic?

p>f)e>

CD

The Kent Law Clinic

the first in Britain to

open a law clinic and to develop a 'clinical legal studies' programme as part of its undergraduate curriculum. A new Kent Law Clinic was established in 1992, and it offers a unique opportunity for law students to practise law while still undergraduates. Students regularly represent clients in a wide range of tribunals and have, in recent years, successfully assisted litigants-in-person¹.in the Court of Appeal. The clinic offers

free legal advice to its clients, with all the legal work being done

by law students under the supervision of qualified lawyers. You deal with real clients rather than with fictional seminar problems, which means you can develop and refine your legal skills and learn other practical skills, such as interviewing, negotiating and advocacy. Equally importantly, you have the opportunity to experience the actual (rather than the theoretical) way the law and the

19 Find words or phrases in the text to match these definitions.

1 A court or assembly with judicial (or quasi-judicial) functions

2 Someone who represents himself or herself without a lawyer in a court

3 When a lawyer acts on someone's behalf during proceedings

Would you be interested in working as a student lawyer in such a law clinic? Why (not)?

isteninq 2: Student lawyer-client interview

ck, a student lawyer, has decided to join his university's law clinic, and is about to conduct 1 first lawyer-client interview.

4 c 3.2 Listen to the first part of the interview and answer these questions.

1 What kind of product is at the centre of this dispute?

2 What was wrong with the product?

3 Why did Carmecom refuse to replace the product?

4 What options do you think Charles had after Carmecom had refused to replace the product? What would you have done in this situation?

(US) pro se

Unit 3 Tort law ( 33

22 ^$3.3 Listen to the second part of the interview and answer these questions.

1 What did Charles threaten to do?

2 What did Charles do when he left the shop?

3 What did the letter that Charles received say?

Language use: Asking for information

23 Read the audio transcripts for audios 3.2 and 3.3 (pages 126-127) and highlight all of the questions that Nick and Charles ask each other.

24 Match the descriptions of the three main ways of asking for information (a-c) with the headings (1-3).

1 Open questions

2 Negative questions

3 Closed questions (asking for a yes or no response)

a

...

We use these questions if we think the answer will be no: Can't I just speak to a lawyer directly?

b ..............................................

These questions use an auxiliary verb as the first word in the question. They

require either a positive or a negative answer:

Did you leave the shop without the laptop?

We can also ask these kinds of question by making a statement and adding

a question mark at the end (in writing) or using rising intonation (in speech).

They require either a positive or a negative answer.

You left the shop without the laptop?

c ..............................................

We use these questions to find out more information, rather than a simple

yes or no:

What did they say?

We do not need an auxiliary verb when who, what or which is the subject of

the sentence:

What happened next? (Not: What-did happen next?)

25 Put these words in the correct order to form questions that Charles might ask Nick.

1 If / to / retraction, / have / I / sign / go / the / court? / don't / will / to / I

2 How / think / long / do / last? / would / you / a / trial

3 What / winning? / chances /would / of / my / be

4 Would / anything / have / defence? / to / pay / I / for / my

5 What / consequences / are / the / case? / lose / if / I / the

6 Do / computer? / me / chance / getting / think / you / is / a / of / there / a / new

Text analysis: Initial lawyer-client interview

To conduct an effective initial lawyer-client interview, a lawyer must:

c c

C put a client at ease O

listen to what the client has to say

explain things clearly

find out what action the client wants to take, not take decisions for the client

tell the client what has to be done next.

A lawyer should not assume that he or she has all of the information needed from a first meeting. The WASP approach to planning, structuring and carrying out an interview helps ensure that nothing is left out. WASP is an acronym for:

p Welcome the client

ft Acquire information

fe Supply information and advise

C Part

26 This table gives some advice about conducting a WASP interview. Complete it using the points below (a-l).

1 Welcome	2 Acquire information	3 Supply information and advise	4 Part
• Meet, greet and seat	• Use open questions	• Consider the merits	• Confirm that your
your client.	to encourage your	of the case.	client wishes you to
	client to tell you everything in his/her own words.		act for him/her.

a Explain what action must be taken.

b Only use closed questions to confirm your understanding of what your client

has already told you. c Explain that you will write to your client summarising what has been

discussed within a certain number of days. d Use sympathetic body language and active listening techniques (for example,

go on, uh-huh, I'm listening) to encourage your client to go on speaking. e Consider the legal and non-legal options.

f Check that your client has no further matters or questions to discuss. g Avoid questions which only allow a restricted range of answers and leading

questions which expect a particular answer (e.g. / imagine simply replacing

your computer would no longer be acceptable?). h Explain the risks involved in taking legal action. i Explain the purpose of your meeting: to get details of the situation from your

client, give legal advice, discuss options and give information on costs. j Periodically summarise and confirm what your client has said so far. k Explain what your client has to do. I Confirm that your client understands the costs and risks involved.

[27 What else is important for an effective lawyer-client interview?

28 Consider the points made in Exercises 26 and 27. How effective was Nick's first interview? Is there anything that he could have done differently?

Unit 3 Tort law

Reading 4: Letter threatening legal action

29 Read the letter that Charles received from Carmecom and answer these questions.

1 What do you think defamatory means?

2 What must Charles do in order to avoid legal action?

Dear MrTholthorpe