Transcript

NARRATOR:

It is all very well, knowing what law reports are and what each part of a law report looks like. But that is only the beginning of the story. The purpose of law reporting-- and why law reports have been written for hundreds of years-- is to provide lawyers with a record of decided cases. A record which lawyers can use when arguing cases in court.

KENNETH CAMPBELL:

The purpose of a legal argument is to persuade a decision maker to give you a particular result, the result which you want to get for your client. And in order to do that, you have to have the support of legal principle, legal precedent. And in order to satisfy the court that the precedent and the principle favour your argument, you've got to explain that by reference to the case.

NARRATOR:

So how does one use them? How does a lawyer site session cases, or any cases for that matter, in court?

LORD EASSIE:

Recently had a counsel who started to read this particular paragraph, in the middle of which was a sentence in Latin. And on reaching it, she said, I'll leave the Latin to Your Lordship. And I said, Miss, what does the Latin mean? And she said, I have no idea.

LADY DORRIAN:

Latin is often used to encapsulate a legal principle. It's not just thrown in for the sake of it. If they haven't understood what the Latin is that they're using, then they might not have understood what the legal principle is that they're seeking to take from the case.

JAMES WOLFFE:

As an advocate, it's absolutely essential that you understand what a case that you're citing is all about and why you're citing it to the judge.

JULIUS KOMOROWSKI:

You give the name of the case in full clearly to the court. And then you gave a citation. By that, I don't mean just roll off, 2010 SC 112.

LORD EASSIE:

It's very tempting, of course, for people to lapse into initials, into the SC and SLT. And I think nowadays judges don't mind too much about that. When I was young, that would be frowned upon.

JULIUS KOMOROWSKI:

You go through it with care and explain, this decision was reported in session cases for the year 2010. Let's have a page number.

COUNSEL:

My Lord, my learned friend referred to the case of Sutherland against Campbell, which is to be found at 2004 Session cases, page 179.

LORD EASSIE:

That's the easy bit. The more difficult bit is knowing whether you should cite the case.

LADY DORRIAN

Sometimes authorities are cited when they don't need to be cited at all. And sometimes a raft of authorities may be cited when one or two cases would actually suffice.

LORD KINCLAVEN:

It's not helpful to the judge or to the litigant to have someone simply come in with spadefuls of irrelevant material.

JUSTICE CROMWELL:

The skill, of course-- as it's always been-- is in using the authorities that most thoughtfully deal with the issue.

LORD EASSIE:

But also important, I think, is that when counsel come to cite a case that they should know why they are citing it.

DOROTHY BAIN:

You make sure you know the case inside out. But you identify, from the case, a particular part of the case that you're relying on. And then you explain why you're relying on it.

LORD EASSIE:

There's nothing more frustrating to the court to be taken to a case and bits to be read out. And say, yes, Mr. So-and-so, but why are you citing this case to us? And then, to get no coherent answer to that question.

KENNETH CAMPBELL

That's the sort of thing that's calculated to annoy judges. And one of the jobs of counsel is to annoy the judge as little as possible, because persuasion generally involves not annoying people.