NEVER a Dumb Question?
As I said in Part 1—we’ve all heard and used this saying, but have also felt (especially as competitive law students) that, yes, there probably IS some question that is dumb, and it’s probably the one we’re about to ask. At Pace Law School, we’d never call a question “dumb”, but certainly there are some that are not very well thought-out and are common student pitfalls. Here is Part 2 of some examples of not-dumb but also some not-thought-out questions:
Not a dumb question:
What is a statute?
Statutes are laws that were passed by a legislative body. A legislative body is a group of people formed (usually elected) that has the power to pass (and amend and repeal) laws. In the United States, when we’re talking about a legislative body we usually mean one branch of the federal government or the state government. (Towns and Cities and other municipal governments can pass laws too, of course, but in law school usually you will read state or federal statutes and cases with state or federal statutes.)
For example, in your first year you will take two semesters of “Civil Procedure”. (A good term to look up! See Part 1.) In those classes, you will study the Federal Rules of Civil Procedure (the “FRCP”). Those rules are statutes: they were enacted by a legislative body and are written down a book you will read. So, all you really need to know at this point is that some laws are written down and enacted by government and are called “laws” and “statutes” interchangeably. Laws that have come about through the courts (see Part 1 on the common-law system) are equally “the law” but just were never written down (except by in a judge’s opinion), voted upon and enacted; the way they were “born” was through the court system.
In law school, understanding whether the case you’re reading is a judge interpreting a statute or is a judge discussing common law will help you understand the rule of the case. That is, the case ended up in your book for a reason; that reason is usually so you can learn a rule that will be generally applicable to other similar situations (otherwise known as the hypotheticals on your exams). Often the case rule will be an explanation of a part of a statute: the statute still stands as written, but the facts of the particular case required the judge to determine whether one part of the statute should or should not include the situation presented. While reading the case, you have to understand what part or parts of the statute the judge is discussing and how that discussion integrates with the rest of the statute.
To make up an example following up on our cow escape situation from Part 1:
Imagine there was a statute that stated: “Any property owner who removes a fence between his property and the property of another shall be liable for the worth of any farm animal that dies as a result of that removal.” We would then read a case that explained at least one term of that statute because the facts of the case brought one term into dispute. Here are the possible terms and many of the possible factual scenarios that could put those terms at issue in a situation where your cow escaped and died:
“property owner” – how does someone legally own land? Or, does the property owner himself have to remove the fence? What if it’s his employee? Or just someone who thinks he’s doing the owner a favor? Etc!
“removes” – remember from Part 1 we considered what if the fence just fell down due to lack of maintenance; in that situation, the judge would have to interpret the word “removes” and decide if lack of maintenance was or was not removal. Once the judge has ruled whether or how much the property owner has to do to keep up his fence (and therefore avoid paying if a neighbor’s animal dies after escaping), that would help us understand how any future similar case would come out. Therefore, from reading that case you’ve learned a rule about what we mean in that statute when we use the word “removes”. You can then use that rule in a future hypothetical that requires you to discuss the legal term “removes”.
“a fence” – all kinds of things could come up here! Is any kind of division “a fence”? Can a fence be wood or cement? A hedge?
“between his property and the property of another” – we can tell that this was meant to be between the neighbor’s property and yours, as in our example in Part 1. But what if there’s a small space between the neighbor’s property and yours that is owned by the state? Does the state’s strip of land between your two properties mean the neighbor has no obligation to your animals? What if the neighbor didn’t even know the state owned that strip of land before he removed the fence? What if the owner of the strip isn’t the state but is instead another person?
“any farm animal” – again, we might imagine that this would extend to our cow, but does this also include cats and dogs, who can be found on farm? What about a tiger that you use in a private zoo that you call a farm?
“that dies as a result” – again, all kinds of things could come up here! What if the animal broke its leg and you had to shoot it, does that mean the death was “as a result of that removal” or was it a result of your action? What if the animal didn’t die but lost all of its worth to you because it never gave milk again after its trauma? What if the cow was never found, can it be presumed dead?
In the (imaginary) case you’d read on this (imaginary) statute, one of those terms would have been integral to the issue the judge was trying to decide and the judge would therefore give guidance on how the term should be interpreted. Your job would be to understand which term the judge was writing about and how the judge decided. Why the judge ruled as he did in that particular fact pattern will give you the judge’s reasoning; that reasoning it what another party would use in another case.
To make our example more specific:
Your directly adjoining neighbor removed a previously well-maintained hedge between your two properties and your cow immediately ran off and died after falling into a ditch on your neighbor’s property. You sue under the statute. The neighbor argues that a hedge is not a fence. The judge could reason that while a hedge is in fact not a fence under any ordinary, dictionary meaning of the word, it served as a barrier between the properties that kept your cow on your side, where there was no danger of her death. He would look at what he believes the legislature meant to do with the statute, which (he will state he believes) was to allow you to know your cow wouldn’t have access to another property and any dangers on it. He might look at how “fence” is used in other, similar statutes in your state or even another state. He would look at any other cases that discussed “fence” under this statute, maybe a case where another judge decided hay bales could be a “fence” and yet another judge decided that a stream was not a “fence”. The judge would then rule that a human-made and maintained barrier is a “fence” under the statute and you’d win. In class, you’d discuss how and why the judge came to his decision about the human-made part being important.
You would also have to understand in that example that the rest of the statute was not argued about by the parties, but could have been. That is, the facts must meet the entire statute–not just the fence part—even though the entire case focuses on the word “fence”. So, you as the plaintiff would have also had to show your facts met the rest of the statute: “Any property owner who removes a fence between his property and the property of another shall be liable for the worth of any farm animal that dies as a result of that removal.” The judge would briefly discuss in his decision that you met the rest of the statute in that you proved: your neighbor was a property owner, he removed the “fence”, the “fence” was between his property and your property, a cow is a farm animal, and your cow died as a result of the removal of the “fence.” The judge may even refer to other cases where it was decided by another judge what those terms meant. Usually, the case you read will focus on one term but just keep in mind that all parts of the rule must be met to prove what the lawsuit alleges.
In this way, law is sort of like those books where you can pick the ending—the slightest change of facts, or what term is at issue, changes the entire story.
(General hint: remove “statue” as a correctly spelled word from your spell-checker because you will rarely need to use the word “statue” in law school but you will very often use the word “statute” and won’t notice if you accidently write “statue” but the professor will.)
A question that is not-thought-out:
I’ve heard we should avoid legalese in legal writing, so can I use colloquial and/or slang terms?
No, you cannot use colloquial or slang terms. Don’t write “the defendant will be on the hook for the murder” or “the plaintiff went the whole 9 yards in complying with the contract” or “this case is a slam dunk because” or other such colloquial or slang sayings. The law is precise—we mean what we say. There is no need to mix up terms like in English class where you shouldn’t say “reasonable” eight times on a page and were supposed to change it seven of the times to other words like “rational” or “sensible”. You will use the word reasonable a million times in your legal career. (To bring the cows back into it and use a forbidden colloquial saying, “you’ll use the term “reasonable” until the cows come home.” Sorry, couldn’t resist!) Reasonable has a specific legal meaning and other words that the thesaurus considers equivalent are not, as far as lawyers are concerned.
A similar problem is to use “they” to refer to companies or other entities: “I go to Pace Law School because they have a great faculty.” An entity is an “it” not a “they”. (Note—I’m not part of the faculty so am not being self-congratulating! However, I did go here, so I am being accurate! )
A time when colloquialisms and slang tend to crop up is in emails. Keep in mind that how you text or email your friends and family is NOT how you should be emailing or texting people you know professionally—whether professors, staff, supervisors, alumni, future employers (this could include upper level students), etc. In any professional communication, you should try to spell words correctly, use proper grammar and be clear and organized about what you’re trying to ask or state. Your electronic presence is as important as your in-person or on-paper one!