Legal English. Avv. Francesco L. Bellman March, 20th 2013

Transcription

1 Legal English Avv. Francesco L. Bellman March, 20th 2013

2 Glossary Aknowledge [to] Affidavit Act ADR

3 Glossary riconoscere, dare atto dichiarazione di parte, formale e giurata, gen. utilizzata come prova legge approvata sulla base di un bill Alternative Dispute Resolution (arbitration, mediation, negotiation)

4 Glossary Barrister/solicitor Breach of contract Burden of proof Bad faith

5 Glossary avvocato giudiziale/stragiudiziale inadempimento (contrattuale) onere della prova malafede

6 Glossary Case Law Consideration Conveyance Copyright Custody

7 Glossary insieme di precedenti giudiziali vs. teoria causale del negozio giuridico compravendita immobiliare diritto di autore gen. affidamento dei minori

8 Glossary Damages Deed Defendant Demand Letter Deposition

9 Glossary risarcimento atto formale tipico della common law convenuto diffida ad adempiere escussione del teste

10 Glossary Liquidated / stipulated damages general / actual damages reliance damages punitive / exemplary damages special / consequential damages expectation damages / benefit of the bargain damages restitution damages

11 Glossary risarcimento predeterminato contrattualmente (clausola penale) gen. danno emergente (vs. lucro cessante loss of profits) risarcimento dovuto alla parte che incolpevolmente ha fatto affidamento sulla regolare esecuzione del contratto danni punitivi c.d. punies è un compensatory damages (come il general damage ) gen. limitato dalla foreseeabilty rule nella resp. contrattuale (sim. lucro cessante) (n.b. general damages e special damages si invertono in contract law and tort). risarcimento teso a porre la parte adempiente nella posizione laddove il contratto fosse stato adempiuto. restituzione da parte della parte inadempiente di quanto ottenuto in ragione del contratto

12 DAMAGES EXAMPLE A supplier agrees to supply a ton of concrete mix to a builder in exchange for 100 so that the builder can use it to build an office for a client. The supplier delivers the concrete mix, but it has become damp and turned into solid concrete. The builder is unable to start work on building the office for 2 weeks while he is waiting the new concrete mix the builder takes the supplier to court seeking recovery of the 100 for the faulty concrete mix (general or actual damages = the natural result of the breach) as well as 2.000,00 for the cost of the 2 week delay (special or consequential damages). The 2.00,00 is subject to the foreseeability rule: the court must ascertain whether the supplier could have foreseen the breach (and therefore made alternative preparations, such as keeping a spare ton of concrete mix in stock for emergencies). In addition to these 2 types of expectation damages (=attempt to compensate the non-breaching party for the loss of the benefits it would have received if the contract had been performed) the builder might seek punitive damage. Please note - mitigation of damages Also note reliance principle ( if one party incurs in costs in the reasonable expectation that the contract will be honored by the other party, he is entitled to recover those costs).

13 Glossary Dissent [to] Divorce Estoppel Evidence

14 Glossary discostarsi da una majority opinion divorzio gen. regole sulla tutela dell affidamento prova

15 Glossary Exhibit Goodwill Habeas Corpus Indictment Infringement

16 Glossary prova introdotta davanti alla corte avviamento Habeas Corpus sim. rinvio a giudizio emesso dal Grand Jury violazione di diritti legati all IP

17 Glossary Landlord Lease Liability Libel Lien

18 Glossary proprietario di un bene immobile contratto di locazione (Landlord v. tenant) responsabilità diffamazione (se orale slander ) privilegio, diritto di ritenzione

19 Glossary Manslaughter Murder Mandatory Mortgage NDA Offence UK, offense USA

20 Glossary omicidio (colposo o sim.preterintenzionale) omicidio volontario imperativo sim. ipoteca patto di riservatezza reato (negli S.U. felony v. misdemeanor)

21 Glossary Paralegal Parole Plaintiff Public Domain Power of attorney

22 Glossary qualifica a metà tra segretario e avvocato libertà condizionata attore pubblico dominio delega, procura alle liti

23 Glossary Retainer Stare decisis subpoena Tender Tort

24 Glossary gen. accordo avvocato/cliente (fondo spese) obbligo della corte a rispettare il precedent ordine di esibizione ( sim. art. 210 c.p.c.) Tender (sim. offerta formale di adempimento) (n.b. perfect tender s.o.g.) fatto illecito (resp. extracontrattuale)

25 Glossary Trademark Venue Verdict Void Voidable Writ

26 Glossary Marchio d impresa gen. luogo di una corte, venue jurisdiction comp. territoriale Verdetto della giuria nullo annullabile documento ufficiale della corte, ad es. writ of certiorari (n.b. writ of summons / vs vocatio in ius)

27 Glossary vizi del consenso - meetings of mind errore - mistake violenza - duress/threat dolo - misrepresentation/fraud

28 Glossary binding precedent persuasive authority n.b. percolation

29 Glossary amended complaint and amended answer the pleadings definizione del thema decidendum

30 Glossary motion to dismiss motion for summary judgment motion to strike motion to transfer venue

31 Glossary witness depositions, interrogatory subpoena duces tecum, subpoena ad testificandum, motion to quash motion to compel (in caso di stallo)

32 Omit surplus words WRONG: a trial by jury was requested by the defendant RIGHT: the defendant requested a jury trial

33 Exercise 1 The testimony that was given by Reeves went to the heart of the defense that he asserted, which was his lack of the specific intent to escape. In the event that there is a waiver of the attorney-client privilege by the client, the letters must be produced by the attorney for the purpose of inspection by the adversary party.

34 Answers Reeve s testimony went to the heart of his defense, that he had no specific intent to escape. If the client waives the attorney-client privilege, the attorney must produce the letters for inspection by the adversary party.

35 Exercise II The parties were in complete agreement with respect to the amount of rent due and also as regards the due date. At this point in time, I cannot recall what the letter was with regard to.

36 Answers The parties were in complete agreement about the amount of rent due and about the due date. I cannot now recall what the letter was about

37 Exercise III The ruling by the trial judge was prejudicial error for the reason that it cut off crossexamination with respect to issues that were vital

38 Answer The trial judge s ruling was prejudicial error because it cut off cross-examination on vital issues.

39 Exercise IV In many instances, insofar the jurors are concerned, the jury instructions are not understandable because they are too poorly written

40 Answer Often, jury instructions are too poorly written for the jurors to understand

41 Exercise V The fact that the defendant was young may have influenced the jury. There were no reasons offered by the court for denying punitive damages.

42 Answers The defendant s youth may have influenced the jury. The court offered no reasons for denying punitive damages.

43 Use base verbs, not nominalizations EXERCISE IV We are in agreement with your position, but if it is your intention to cause delay, we will stand in opposition to you. If there is a continuation of this breach, my client will effect an immediate termination of the contract.

44 Answer We agree with your position, but if you intend to cause delay, we will oppose you. If the breach continues, my client will terminate the contract immediately.

45 Prefer the active voice PASSIVE: The ball was kicked by John ACTIVE: John kicked the ball

46 Exercise VI Clients funds that have been received by an attorney must be put into the Client Trust Account. This agreement may be terminated by either party by thirty days notice being given to the other party.

47 Answer An attorney who receives clients funds must put them in the Client Trust Account Either party may terminate this agreement by giving thirty days notice to the other party

48 Arrange your Words with care Remember to follow the normal English world order: first the subject, next the verb, and then the object. Do not make the reader leap wide gaps between the subject and the verb and between the verb and the object.

49 Exercise VII This agreement, unless revocation has occurred at an earlier date, shall expire on November 1, 2008 A response must, within twenty days after service of the petition has been made, be filed with the hearing officer

50 Answers Unless sooner revoked, this agreement expires on November 1, 2008 A response must be filed with the hearing officer within twenty days after the petition is served

51 Also Put short conditions at the beginning the sentence. Put long conditions at the end of the sentence. When necessary, tabulate

52 Sample tabulation You can qualify for benefits under 104 if you meet any one of the following conditions: you are 64 or older; you are blind; or you are permanently disabled. Note: use or (if the list is disjunctive) or and (if the list is conjunctive)

53 Choose your words with care DO NOT WRITE LIKE THIS: The statement for professional services that you will find enclosed herewith is, in all likelihood, somewhat in excess of your expectations. In the circumstances, I believe it is incumbent upon me to avail myself of this opportunity to provide you with an explanation of the causes therefor. It is my considered judgment that three factor are responsible for this development.

54 Choose your words with care BUT WRITE LIKE THIS: The bill I am sending you with this letter is probably higher than you expected, and I would like to explain the three reasons why.

55 Avoid language quirks Avoid elegant variation Avoid noun chains Avoid multiple negatives Avoid sexist language

56 Homework 1. Imagine you work for an international law firm called Thompson Law. You represent clients who suffered damages from air pollution. Write an of at least 70 words (the calculation excluding the subject, the date and the greetings) to Mrs Jacobs, your counterpart s lawyer. Tell her why you intend to start a legal action against Fletcher & Co., the company she represents. Invent all the other details. Try to avoid legalese expressions in favour of plain English ones.

57 The Bluebook What is the Bluebook? Why citations are so important in common law jurisdictions?

58 Case Brief 1. CASE HEADING 2. PARTIES 3. PROCEDURAL HISTORY AND OUTCOME 4. FACTS 5. ISSUE 6. HOLDING 7. REASONING 8. NOTES, DISSENTS

59 examples taken form Plain English for Lawyers by Richard C. Wydick, Carolina Academic Press.