Discussion11-Research & opinion writing

Discussion11-Research & opinion writing - Legal...

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Unformatted text preview: Legal research and writing opinions m .46?!” As.” .J/trrf nafiawwmr’ AW; ;lvz"';vwzltwmr/I* r/g/ “bar/~91? By Anton Kok 8.1 Introduction You would have realised by now that “the law" is an extremely wide-ranging and complex field. It is un ikely that you will in all cases be able to advise a client immediately and som times you will have to under- (Y .[[ J take substantial rese rch to reach a satisfactory 0” m me _to answer. You will need to develop the ability to do Jewel-0P tfie (151m) effective research. Most often, you will have to come to do qfiéctive up with an answer in a short space of time. It is likely “seam/i that your supervisor in the law clinic will request you to set out the results of y ur research in a written office memorandum. It may be that your supervisor will query one or more of the recommendations and you may be asked to supplement the research. Eventually, the office memorandum may serve as the basis of a letter to the client, setting out the results of the research, the recommendations, andlsubstantiation of the recommendations. ' 8.2 Legal research in a law clinic Legal research in a law clinic differs from academic research. Academics can usually afford the luxu of spending weeks or months researching a particular topic. Practitioners facfy pressure from their clients and their opponents, once a summons has been i sued to settle a matter or to push it to trial. During the consultation, you need to form a clear picture of what it is that the client desires. You then need to undertake research to ascertain whether the law provides a remedy. The client willleventually want a relatively “clean” answer. From a plain- tiff‘s perspective, this ould refer to the possible cause(s) of action and the pros- pects of success; from a defendant’s perspec- tive, this would refer to the possible defences to the plaintiff‘s claim; and from an accused’s per- spective, this would refer to the possible de- fences to the charges brought. Your research consequently needs to be highly focused. Aca- demic research sometimes has the explicit pur- pose of advocating legl reform. In a law clinic, the main aim is to find the existing law and solve the clien 's immediate problem. In a law clinic, t/ié‘: main aim is to fimf tfie aficisting [21w amfsofve‘ tfie qfient’s immediate proE m. '.;M*.‘,.)mV/fl,.y/Al% "yr/1'7 'flwfifi:.,M%’n.‘u;7wi.mwz!.mxrz‘ .w/‘yab‘w'a‘ew we“? WV." ,.',?7.’A'»",Wr' my”. "2:75 “12V 34”," 15;“ “2“” ,Y" 129 : .. .¥%\‘—1r‘—:E—+i AWVL") ~ Clinical Law in South Africa .w’V/‘V" 6-J7{‘:/ 4.7% 41.15:" ,zY/r' ,ozya' .5435?" rat/1“” 147/!” 242".» “av/r 4354* u/AZ/(V say/K. ,eVA'E" dawn/NW“) Aer/N Jaw" mW-r' err/r Jaw.” . 8.3 Suggested research method1 8.3.1 Identifying the subject area(s) « Review the chapter on interviewing skills before I studying this section. During the interview, you must Identzfi’ tfie 4730(5) ~ establish what it is that the client wants by identifying qf 51w tfiat may 1,513, the relevant facts. During the interview with the . I. , client, you must also identify the area(s) of law that ‘1 ml; m 50[wng tfie may play a role in solving the client’s problem. cfient's pro6l'em. Remember that the South African national law may V be divided into substantive law and adjective law.2 Adjective law consists of law of criminal procedure, law of civil procedure, law of evidence and interpretation of statutes. SubstantiVe law may be divided into private law and public law. Public law consists of constitutional law (including human rights law), administrative law and criminal law. Private law may be divided into law of patrimony, law of per- sons. family law, law of personality and indigenous law. Law of patrimony may be further subdivided into property law, law of succession, law of obligations (delict and contract) and law of intellectual property. Commercial law subjects are some- times applied to private law, for example third-party compensation law, and some- times have a public law character, for example tax law. You need to identify the relevant subject areas to assist in your research (for example books in the univer- sity library will be sorted according to the Dewey Decimal Classification system, and the various subject areas have been accorded a particular call number; for example, “343” would be public law, “346" private law and “347" civil procedure). The university library will contain a list of the further Subdivisions. This. however, is only a start. It should be relatively easy .to identify the broad subject area. You now have to focus on the particular issue(s) affecting the client. For example, five minutes into your consultation with the client may make it clear that the law of delict is the relevant subject area. The client may, for example, have been sued as a result of a motor collision he was involved in. You should ' then keep asking questions and collating information. You should also try to narrow down the research task by formulating crisp. to-the-point legal questions that arise from the consultation. A number of issues may arise, for example: the plaintiff's locus standi (civil procedure); the client‘s alleged; negligence (delict); the amount being claimed; and the calculation of the amount,(law of damages). Perhaps the client admitted liability immediately after the collision and promised to pay the plaintiff's excess insurance payment (law of contract). Perhaps he paid the excess to the plaintiff a week later. You should then establish the effect of such payment on the insurance company’s right to sue the defendant (insurance law). 1 See Kleyn and Viljoen (2002) Beginner's Guide for Law Students at 330-342; Kok, Niena— ber and Viljoen (2002) Skills Workbook for Law Students at 41—70; Campbell, Fox and Kew- Iey (1998) at 1—15; Maisel and Greenbaum (2001) Introduction to Law and Legal Skills at 97-102. 2 See Kleyn and Viljoen (2002) at 96—110. wuwr-vum“ 3'!wa t.rm?aAWMrimWfl/crrWIWA‘IWJWMM acmearr/mVimttcméIzmwwmmmmm“Uz’wfi-‘wvmc 'uymi’xAWfifl/M’v 130 L gal research and writing opinions mam» marz- MW; Hume“ Wm” Maw . air/,9! “374% vii/4:" ewes Mar” 3w.“ y/z’s': .521" “:71.” . .mM «2.7” .45,“ ,;'=~ "My gym 8.3.2 A convenient starting point: The Law of South Africa (LAWSA) The Law of South Africa (LAWSA) is a 35-volume legal encyclopedia and should be available in most uni ersity libraries.3 It is a convenient starting point for re- search as LAWSA con ins concise summaries of particular subject areas. The f00tnotes contain helpful references to other sources. Your research would start with the index volume ( lume 34). Identify possible appropriate keywords in the index and find the relev nt volume. LAWSA also has a “Current Law” issue that consists of a "review" a a looseleaf section. “Current Law” is issued every four weeks and aims at upd ting LAWSA insofar as it is not already updated by the LAWSA “annual cumulative supplement". It is important to remember that LAWSA, as is the case with all secondary sources. is at best persuasive authority in a court of law. Assuming you do not know the answer to the last question posed under 8.3.1: “What is the effect on the insurance company’s right to sue a defendant if the defendant had paid the plaintiff's excess payment?”. you have to find volume 34 of LAWSA in the university library, and page to the index entry “Insurance”. It will look somewhat as follows: INSURANCE I Comprehensiver 12: see detailed index in volume Additional references: arbitration clause in 1r 419 3 aviation insurance: common law principles 1r 595 domestic air services 1r 589 international air services 1r 582 interpretation of warranty 1r 595 business see INSURANCE COMPANIES conflict of laws on domestic policies 2r 472 fn 10 contracts: generally see POLICIES by minor 20(1)r 371(a) The index refers you to volume 12 of LAWSA. A comprehensive index appears at the back of this volume. Think of keywords that may assist in finding the relevant information. An insurance company’s right to sue in the name of the insured is known as “subrogation”. Find the index entry: Stamp duty on cession of policy 436 payable on policies 136 continued 3 See Kleyn and Viljoen at 334-335. VAHWIS‘€3W5f2WWflW£¥LIH¢wa‘chAWQ‘W‘tDWl/fliwmQM'QMPZ‘“. ‘w'z'a‘flf‘uJI'Z’JR-‘mim‘? i7!” 7457M". ’uu‘lZfW‘I 113W!“ WW" Swab"? 131 Clinical Law in South Africa " <42" .ETZ’” Mir/w "1:7 973W: "hwygmwugzn may? mew/I 45/ 13.3% .2” arm" Subrogation doctrine 373 . basis for 377 cession distinguished 378 constructive trust created 375 origin 374 purpose 376 salvage distinguished 379 duty of insurer: preservation of insured’s claim 394 to bear costs of proceedings 395 effect on third parties: defences available 396 settlement and release 397 provisions in contracts: ......................... .. adding to rights of insurer 398 denying subrogation: legality 399 reforms proposed: independent right of insurer 402 shortcomings of doctrine 400 transfer of rights by operation of law 401 The entry "effect on third parties" seems promising. References in LAWSA are to paragraph numbers, not pages. Paragraphs 396 and 397 (highlighted in the rele- vant passages) in volume 12 read as follows: 396 Defences available to third party Since the action against the third party is for the enforcement of the insured‘s rights against him. the third, party may, irrespective of who is bringing the action raise any defence which would hav been av 'lable 2353?? place.1 WW?” "F" ‘i m WT” I a, it , l ,, ,- ,_ _ afififiifié W However, the) third party cannot put forward the argument that the sured has suffered no loss because he has been indemnified by his insurer,5 unless it can be proved that the insurer intended to discharge the debt of the third party by paying the insured.6 . . . 1 Commercial Union Assurance Co of SA Ltd v Golden Era Printers and Stationers ISA 165 B)172; 1998 2 SA 718(8). .214" “an”! WWW LAW" 1;»,va ..«Z"" .451 Legal research and writing opinions r» “new Harri.“ 72'7" Ian/‘7‘ Jisz elm/4 wiWV‘ nfim’erm' Merl» rln‘ff’ 7 W : ". ‘ ' v. . 5 Weber v Africander Gold Mining Co (1898) 5 OR 251; Ackerman v Loubser 1918 OPD 31 35; Mil/ward v Gla er 1949 4 SA 931 (A); Teper v McGees Motors (Pty) Ltd 1956 1 SA 738 (C) 742; Van‘ yk v Cordier 1965 3 SA 723 (0) 725A. Cf Mutual and Federal Insurance Co Ltd v S nepoel 1988 2 SA 1 (A) 8—9; Standard General Insurance Co Ltd v Dugmore [1996] 4 Al SA 415 (A); 1997 1 SA 33 (A). constitute breach of contra towards the insurer.3 . . . v Spooner supra. See par 391 ante. See Clarke The Law 0 Insurance Contracts par 31—601. On the doctrine of notice. see Cussons v Kroon [2002] 1 All SA 361 (SCA); 2001 4 SA 833 (SCA). 1 This question must be answered by applying the principles of agency. The footnotes contain rferences to other sources, primarily case law and text- books. Find these sour s and read them as well. 8.3.3 Textbooks Textbooks are another ‘ nvenient starting point for research.4 it is also a secon- dary source of law and oes not constitute binding authority in a court. As is the ,case with LAWSA, gold textbooks contain very helpful references to other sources in the footnotes nd in the bibliography. Most, if not all, university libraries use a computer-based catalogue system. (It may be that older textbooks are accessed with a card catalogue system.) Access your university's search tool on a computer and select tHe “keyword” or “title” option and type in the word(s) that may facilitate the search. You should then find the book and use the table of contents and index to ‘arrow the search. For example. you could type in the keywords "insurance" an “law” on the university’s electronic-search catalogue. It may be that some of the following titles appear on the computer screen: Dobbyn JF Insurance in a n shell St Paul West Pub Co 1989 (call number 346860973) Gordon G (Davis DM) Sout African law of Insurance (Gordon and Getz on the South African law of Insurance) Cape T‘ wn Juta 1983 (call number 346860968) Lowry JP Insurance lam doctrines and principles Oxford Hart 1999 (call number 346860941) Reinecke MFB General principles of insurance law Durban LexisNexis Butterworths 2002 (call number 346860968) ' 4 Kleyn and Viljoen (2002) at 335; Kok. Nienaber and Viljoen (2002) at 54—59. 7" 4"” :52” 4.77;“ 9455743“ All?” syn/.7 My" “W” ..'.'W“' wW" 71”” .43“ .rfiw' r"; 133 Clinical Law in South Africa .»z.‘zr"vymrrr' new :71" ,mnmmv «(z/7: ,wyaw 4,729? oer wM'.»/4rx4 r/zvvv’ ‘a/Ks‘f'fl. Print the references or make a note of the necessary details and find the books in the library. You may decide to start with Reinecke. As you page through this textbook, you will note that it is a replica of volume 12 of LAWSA. Then continue with the search in the other sources. Focus on South African sources, remember- ing that you are not undertaking academic research. In principle, South African courts rely on South African authorities. You may decide to consult the Gordon textbook. It may appear as follows: ,THE SOUTH AFRICAN LA w OF INSURANCE SECOND EDITION GERALD GORDON QC, BA, LLB (CAPE) Advocate of the Supreme Court of South Africa; Of the Middle Temple, Bam'ster-at-Law Co-Author of The Law of Compulsory Motor Vehicle Insurance in South Africa Assisted by WS GETZ BA, LLB (CAPE), BA (OXON) Of Gray's Inn, Bam'ster-at—Law Advocate of the Supreme Court of South Africa JUTA & CO, LIMITED CAPE TOWN WYNBERG JOHANNESBURG 1969 It is clear from the title that this book relates to South Africa. The publisher is also based in South Africa. This particular source, however, is very dated as it was published in 1969. Take note of what is mentioned in this textbook but follow up on other leads to ascertain whether the book still sets out the current South African position. The table of contents and index are helpful search tools: CONTENTS PREFACE ............................................................................................................................. ..v KEY TO AUTHORITIES .................. .. ' TABLE OF STATUTES ................... .. TABLE OF CASES ............................................................................................ ..xxiii PART I: SOURCES 1 Sources of South African and Rhodesian Insurance Law ..... .. ......................................... ..1 PART II: INSURERS AND INSURANCE BUSINESS 2 Control of Insurers and Insurance Business ...................................... ............................ ..9 3 Judicial Management and Winding-Up of Insurers ........................................................ ..47 L continued Viewer/me" ‘ 32025 2133174: .wmvaJT/MJIJWB ,WMTfi/xiw. ameuzp/Iflwmcmmcammma var/aw W/wmr/fl Iswm‘wmflivw'f 134 mm“: /a7iw new" “war, 'Hzfivwwzl/flum/ninseam-WW.IWMQAIMM immiwmrfigamame/mwmr “:2”! 4-372“ 1m” «wt/r way/n iv/AV’fwsl/J" WW" “4214* aid" Leia! research and writing opinions PART III: GENERAL PRINCIPLES OF INSURANCE LAW The Nature of the Contra ‘t ............................................................................................ ..75 Insurable Interest ........... ................................. .. ....... .. The Duty of Good Faith ..., ........................................................................................... ..104 Formation of the Contract.. Agents ......................................................................................................................... ..133 Duration of the Contract ................................... ......................................................... ..147 The Risk ............................................................... .. The Premium ............................................................................................................... ..172 Terms of the Contract.. Warranties ........................................................................................................ .. .192 Interpretation ................. ..I ........................................................................................... ..213 Measure and Effect of the‘lndemnlty .......... .. Reinstatement I 18 19 20 4. m n» in}. LL m Rights and Duties of Third ersons under the Contract. Reinsurance ................................................................................................................ ..256 Over-insurance and Under-insurance ............. .. STOCK-IN-TRADE insurance of, proposal for, 119 STOPPAGE IN TRANS/TU English law of. incorporated, 2, 95 insurable interest of- unpaid seller, 95 SUBJ ECT contract, of, 83 insurance, of, 83, 160 change in identity of, 163 definition of, fundamental, 160 SUBJECT—MATTER over-valuation of, effect of, 2 tag-64 undervaluation of, effect of, 2 value of, calculation of, 222—6 t. contractual claims, in, 232 defences of third party on, 235 dellctual claims, in, 232 enforceable rights essential to, 232—3 essentials of, 230 funeral insurance, in, 346 general average, in, 373 VMWWfiym’flizf/fl5153Wflwminvlflfinmsz/flvwfiNW/tftfl‘lwfldiiiflv"rll;iiwlhwifi’fi'wiwfi}.WK?"‘AWW’fiEévWAEJwXFV ‘ 135 agar/r VA” Clinical Law in South Africa Legal research and n’ting opinions 4 ' «.17:er Hazy/r «at. fizz/wow.» mzmr'uww Lax/r “iii/w “mew” 927%” .zsw my," "at-'5?" ,,W*‘ “7251* MW we! Jew/Prey» «KW/i“ “it!” .12!” MW” m7” mwv az/ ~ Page to the indicated page in the textbook and start reading: 8.3.4 Law journals Sometimes law journals iontain useful articles on a particular topic.5 If it is a well- CH. 17 SUBROGATION ' 235 researched article, the a icle will contain numerous references to other sources 7. DEFENCES AVAILABLE To THIRD PARTY _ as well. Follow up those references. In the action between the insurer and the third party, the latter may raise any defence which would have been available against the insured himself had he sued.36 it is not a defence available to the third party that the insured has suffered no loss because he has been indemnified by the insurer.37 Thus in Weber and Others . . . ISAP (Index to South African Periodicals) may be accessed at . sabinet.co.zal. Click on “Academic and Library Division Website”, then type in the institution's User ID and password. Select the “ISAP” database. Proceed by typing in keywords that w'll narrow down the research to a sufficient degree. If you ' ' ’ ' ‘ type in “insurance”, you ill likely get a very long list of "hits". (When the authors 236 GENERAL PRINCIPLES PT’ '” . attempted this on 29 May 2006, the search listed 5 212 articles!) If you type in 8- INSURED MUST NOT PREJUD'CE INSURER ' ' ~4- “subrogation” a more manageable list wil) appear. (The authors’ search turned up The insured must not prejudice the insurer’s right of subrogation-43 He may not renounce 0r g 28 articles.) From this list, select the articles that seem to provide an answer to compromise any right of action he has against a third party by the exercise of which he can y' _ the problem: I diminish his loss. If he does he will render himself liable to his insurer.“ in... In Phoenix Assurance Co v Spooner. . . Atkins NG "subrogation" 1991 (21) Businessman’s law 7 Van der Linde K “Right to cession or subrogation prejudiced” 1994 De Rebus 205 CH. 17 SUBROGATlON Visser C “Insurance law: general principles“ 1994 Annual survey of South African law 435 B. PAYMENT BY THIRD PARTY .3 INSURED CANNOT RECOVER MORE THAN HIS Loss A (Also see paragraph 8.3.7 "Use of computers and the internet” below.) V , A more laborious method would be to find (hard copy) index volumes to particular PAyMENT By THIRD pARTY AFTER pAYMENT UNDER poLle ‘ lawjoumals. These indexes usually sort articles according to author and/or topic.6 . . . 7 238 GENERAL PRINClPLES PT. Ill 8.3.5 Case law 3. PAYMENT BY THIRD PARTY BEFORE PAYMENT UNDER POLICY Hopefully, the searches in the secondary If, before...
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