FOUNDATION IN LAW/ARTS/BUSINESS ASSIGNMENT COVER SHEET Student Name Alyssa-Mae Foo Ching Mynn Student Number 14984 NRIC no / Passport no 020827-07-0508 Intake & Year FIL KL APR 2020 Subject (Module) Practical Legal Skills Assignment Title Lecturer Ms. Ophelia Tutor (if applicable) Word count (length) 4700 Assignment due date 15 January 2021, 5pm Date Submitted 15 January 2021 OFFICE USE ONLY Date Received Grade/Mark Lecturer’s remarks A SIGNED COPY OF THIS FORM MUST ACCOMPANY ALL SUBMISSIONS FOR ASSESSMENT. STUDENTS SHOULD KEEP A COPY OF ALL WORK SUBMITTED. Note: There are penalties for the late submission of assessments. Plagiarism: the unacknowledged inclusion of another person’s writings or ideas or works, in any formally presented work (including essays, examinations, projects, laboratory reports or presentations). Declaration of Authorship I declare that all material in this assessment is my own work except where there is clear acknowledgement and appropriate reference to the work of others. Signed……………………………………………………… Date………15 Jan 2021…………..... 1|Page TABLE OF CONTENTS CONTENTS PAGES Cover Page 1 Table of Contents 2 Assignment Details 3-4 Question 1: You are to advise Mr & Mrs Brown using the techniques a good 5 - 15 lawyer would employ. Question 2: Mr. & Mrs. Brown decide to bring a claim in the courts against 16 - 20 Mrs. Betty, which court would be the court of first instance and should that court reject their claim which court would be the appropriate appellate court Explain your answers in detail on the jurisdiction of each of the appropriate courts. References 21-22 2|Page ASSIGNMENT DETAILS Course title Practical Legal Skills Course Code Programme Foundation in Law Intake April 2020 Lecturer in Charge Ophelia Ann Fredericks Date of Assignment Date of Submission Assessment weight 25 % Learning Outcome PLO1 PLO2 CLO 1 √ √ CLO 2 √ √ CLO 3 √ PLO3 PLO4 PLO5 PLO6 √ √ √ Details of PLO and CLO can be obtained from the PAD Assignment Learning Outcomes: Students will be assessed on the following abilities to: • evaluate information and identify the issues; • analyse the issues with reference to what has been taught • prepare an opinion to the client on appropriate legal redress. • use accurate, fluent language and appropriate legal items in written communication 3|Page ASSIGNMENT QUESTION: You act for Mr & Mrs. Brown. They recently purchased a beautiful house from Mrs. Betty on the 1st of January 2020 in an elite neighbourhood, the main attraction of which is the ceiling to floor glass windows. The contract specified that all “existing fixture & fittings” would be included in the sale price. These items however were not itemized nor were they specified in the contract of sale. You client informs you that the real estate agent one Mr. Adam had told them verbally that a car would be included as part of the package. On signing the agreement and obtaining the keys, Mr & Mrs Brown discovered to their astonishment that no car was on the premises of the house. They have now approached you as they wish to sue Mrs. Betty for breach of contract. When they brought the matter to the attention of Mrs. Betty, she told them in a very rude and sarcastic and loud manner that the car was not part of the sale and they were already purchasing her house at a bargain. She then threw a stone at the front door of the house shattering the glass doors. Mrs. Brown felt most insulted and traumatized by this incident and sought medical treatment. Your Task : Mr & Mrs Brown have appointed you as their lawyer. Brown is traumatized and the couple seek your legal advice. 1. You are to advise Mr & Mrs Brown using the techniques a good lawyer would employ. (10 marks) 2. Mr. & Mrs. Brown decide to bring a claim in the courts against Mrs. Betty, which court would be the court of first instance and should that court reject their claim which court would be the appropriate appellate court Explain your answers in detail on the jurisdiction of each of the appropriate courts. (15 marks) INSTRUCTIONS: • • • • • • Your assignment must be typed on both sides of A4 paper FIL Standard Cover page must be used Title of contents must be drawn Correct alignment and page numbering must be present Bibliography ( Harvard Referencing Style – must be in alphabetical order) must be in place Font size 12. Times New Roman and double – line spacing must be used. 4|Page QUESTION 1 You are to advise Mr & Mrs Brown using the techniques a good lawyer would employ. “Lawyers throughout the world are specialised professionals who place interests of their clients above their own and strive to obtain respect for the Rule of Law. They have to combine a continuous update on legal developments with service to their clients, respect for the courts and the legitimate aspiration to maintain a reasonable standard of living.” This excerpt has been quoted from the International Bar Association’s International Principles on Conduct for the Legal Profession which sums up the vital role lawyers play in this society and the huge responsibilities they have. Lawyers should understand the importance of maintaining high professional standards and aware of their main duties while being ethical. The Principle 12 of the Un Basic Principles on the Role of Lawyers stated that “Lawyers shall at all time maintain the honour and dignity of their profession as essential agents of the administration of justice.” Thus, being a great lawyer requires the technical skills like the combination of high intelligence; strong analytical and advocacy skills; an ability to communicate effectively (both verbally and in writing); understanding clients’ objectives and advocate on that basis (not on the law in isolation). A great lawyer should also be ethical as a reputation for integrity is eventually more important than any technical skill. According to the question above, Mr & Mrs Brown have appointed me as their lawyer as a good lawyer and I would do my absolute best to provide the best legal advice to them. My client, Mr and Mrs Brown, called my office number to inform me that they would like to appoint me as their lawyer to seek legal advice from me. I politely requested them to select a particular time and date for an appointment to meet in order to discuss about me being their 5|Page lawyer and to ask about the matter that is bothering them. They picked to meet the next day at 3pm sharp to meet at my office. The interviewing process is an important step towards building a lawyer-client working relationship which is assumingly vital. The prime objective of conducting an interview is to obtain the background knowledge of the matter at hand, to better understand the challenges that would be encountered when prosecuting or defending a claim and most importantly to obtain my client’s instructions on the course of action to pursue. It is significant and worthwhile for me to consider that before I begin my interview process with my clients who would be coming would be coming in with a basket of emotions because of said problem in the back of their minds. I would guess the emotions they bear would be of anger, anxiety, stress, confusion, frustration or even embarrassment. The main trait that I will always prioritise in meeting and greeting my clients in a way that would ease them out of their bundle of nerves. Another trait that I will always abide to is being on time as most interviews have been arranged for a particular time and I would rather avoid making my clients to wait past the appointed time. This is because seeing clients on time shows the basic respect and indicates to them that I consider their time important. I have also developed a habit of meeting my clients I the waiting room of my office and the aims I developed this habit because it enables me to break the ice with my clients by chatting about trivial matters as I walk them into the meeting room and to enable introductions to take place in a less formal environment which would make the clients less anxious and more relaxed. As my clients enters my law firm, I greet them with an introduction like “Hello, I’m AlyssaMae Foo and you can address me with my first name.” I will give my clients the benefit of calling them by their surnames to show respect: “Come this way, Mr and Mrs Brown.” This 6|Page aspect of meeting and greeting my clients before the interview is an opportunity to engage in simple niceties and an early demonstration to them that I am interested in them and their narrative and not just treating them as a legal problem to be solved quickly. Once my clients and I are in the interview room and seated, a simple opening question would be used to begin the interview, such as: “How can I help you today?” or “What can I do for you?” I would also try to maintain as much eye contact I can with my clients all the way through in order to enable judging how they react as the interview progresses and my clients will be able to decide if I am trustworthy while developing the rapport between us. Before starting on the substance of the interview, I feel it is worthwhile for me to provide my clients a brief introduction on myself and how the interview will run. It is also ethically proper to discuss the matter of legal fees and disbursement that would be involved from the preparations of the case to the final closure of the case and this is known as a “Retainer”. Once your client has agreed to the retainer, the next step would be to prepare the “Warrant to Act”, which is a onepage document stating in clear unequivocal terms that my clients has appointed your firm to represent him. I would apply the well-known three-stage process of interviewing in my interview with my clients, Mr & Mrs Brown. The first stage of the interview is listening which requires me to simply listen to my clients’ problem. It means I should not jump in and ask questions at this early stage of the interview to obtain a global view and understanding of the facts of the case by just listening. I would allow my clients to tell me the whole story in his own words, allowing a free flow of the story, a complete narrative from them. While my clients narrate the entire set of facts surrounding the issue at hand, I would take out my notepad to jot down notes of key points from the facts. I as an interviewer would be applying the method of competent interviewing which encompasses me empathizing with my clients with gestures of 7|Page understanding for example like giving a simple nod to them. This way would give the clients encouragement to the them to proceed without feeling that they may be judged. Clients may be in a mood of rage or sadness, so I would ask my clients if they would like a moment or a glass of water if I observe them looking distraught or their voice starting to raise with anger as they mention about their problem. As soon as my clients completed narrating the whole story of events to me and my notes have been jotted down completely, I will then advise my clients to identify the key issues at hand. If I seem to have identify any gaps or inconsistencies in the facts from the narrative of my clients, I would ask them to help me clarify them. This is common for clients to present themselves in the best light when narrating, therefore identifying irregularities in narratives from clients is a skill lawyers will develop and it will be enhanced through the many years of experience in the future. In sll client situations, if an interview begins with good listening, clients will develop confidence and trust a lawyer’s professionalism quickly. This trust and respect would lead on to the lawyer taking control of the situation and to the client starting to make informed decisions which builds the foundation of an ethically-stable lawyer-client relationship. The second stage of the interview is questioning which is the most logical way of understanding my clients’ problem and dealing with it. I always have a mental note to be prepared if my client’s narration of their case is not a chronological order as it would have to be my task to set up a chronology of the events surrounding the case at hand. Once the chronology of events and facts presented to me by my clients have been prepared, the second stage can now commence. It is time for me to pinpoint on clarifying some of the points issued and this can be accomplished by asking open-ended questions. These are questions which are wide, non-specific, descriptive and they require the clients to provide an explanation or elaboration on issues. Examples of open-ended questions are like: “What happened next?” or 8|Page “What did you do after that?” Once my clients have their input provided, I would then narrow down to asking close-ended questions which are precise and refined which just require the clients to provide a “yes” or “no” answer. Examples of close-ended questions are like: “Was anyone else a witness during the incident?” or “Did you proofread the contract?”. The reason why I will use the funnel sequence of questions is to allow my clients to provide clear, explicit and descriptive answers that would paint a clear picture of the problem faced, the background that leads up to the event and the occurred issues. After the questioning, I would look at the notes I have made throughout both phases. Full and accurate recording of facts during the initial stage of listening is essential but detailed notetaking only occurs at the questioning stage of the interview. I will make sure that my file note of the interview contains these few key items. The first item is the date and time as the time spent on the interview is essential for costing purposes. The second item is a sufficiently detailed and legible record of the interview. It does not have to be a record that states every word of all that has been discussed but it should be comprehensive enough to allow someone who is not familiar with the file to understand the facts’ substance, the discussion and advice given. Once I am satisfied that I understand of my clients’ story in full and in correct chronological order wand any inconsistencies resolved, I would sum up the case with a drafting of the summary of what I understand and provide the summary to my clients. The reasons for doing so because it enables my clients to correct any facts, names, time sequences and priorities that I may have gotten wrong and it shows my clients that I have been listening to their story in its entirety. 9|Page Before I can advice my clients, I need to have a thorough understanding of the facts my clients have presented so I will need to do a thorough cycle of preparation and research. I will prepare a “to-do list” that will help me keep in track progress step by step. The list will consist of things that I will have to do such as identifying relevant statutes that can be applied and research on case laws plus precedents which I would need to depend on whilst preparing on my clients’ case. I even put the possibility of me requiring to engage with a specialist who may assist in building the case or even the possibility of needing to speak with other people connected to the case which of course help to gather more evidence and understanding. After all these tedious works, I have identified a few relevant issues from my clients’ case. The first issue is where Mrs Betty who was the seller did not provide precise detail on the contract and there was no specified itemization in the contract. These actions are wrong because a seller should make a sales message that is clear to the customer regarding what you intend to sell to them in the contract. In the contact my clients signed, the phrase “existing fixture and fittings” was stated and this should be explained correctly by the seller to the customers before they sign. Referring to the UK law, this is known as misrepresentation of a contract where the meaning of “existing fixtures and fittings” was not specified. Furthermore, the real estate agent, Mr Adam, made a statement which is untrue as he said that there would be a car included as part of the package when my clients sign the contract to purchase the house. Looking into the Misrepresentation Act 1967, section 2 is seen to regulate damages that might be available for a misrepresentation. Section 2 (1) states that where a fraudulent misrepresentation creates a loss for the claimant, then that individual would be able to claim for damages unless the party that made the representation had reasonable grounds to believe that this statement or representation was true at the time of making the contract. Therefore, my client can charge Mrs Betty with misrepresentative of 10 | P a g e fraud as she is responsible for the actions of Mr. Adam who is the real estate agent that handles the contract. The second issue is where Mrs Betty’s action has caused property damages and personal damages in tort that affected my clients. When people are hurt or their property is damaged, it falls under the area of law known as tort law. There are two kinds of torts: intentional, where the person intended the act that caused the harm; and accidental, which is usually called negligence in the legal field. After my clients had signed the contract of buying the house, this means that the ownership of the house has shifted from Mrs Betty to my clients. Mrs Betty is no longer the owner of the house when she threw the stone which caused the breaking of the front door that was made by glass. This can be used as evidence for my clients to have the right to claim property damage. When Mrs Betty insulted my clients and threw the stone toward their glass doors, it impacted my clients especially Mrs Brown. She felt insulted and traumatized by this incident which made her sought out medical treatment. My clients can claim for general damages as the actions of Mrs Betty caused suffering towards my client. The last issue in this case is that the agreement of the presence of a car will be given was said verbally and not stated in the contract. My clients have narrated to me that Mr Adam who is the real estate agent had informed them verbally that a car would be included with house if they sign the contract. When they found there was no car at the house they just bought, then only they realise that a car was not stated in the contract. My clients tried to seek an explanation from Mrs Betty but she did not cooperate with them instead lashed out onto them. In the UK law, it is written that verbal agreements do exist and are valid so my client is 11 | P a g e able to sue Mrs Betty for failing to meet the requirement of the contract even though the agreement was communicated verbally. After identifying the issues and preparing the case, I can move on to the last step of the threestage interview which is providing advice to my clients. Once my clients’ case has been prepared, I would present my opinion to my client. I would show them the issues that I have found in their case and the solutions I have come up that I would apply to the case in an attempt to obtain judgement that would favour my clients. Next, I would present options on the resources available to my clients. The main point to note for myself is I must never tell my client which option should they pursue instead I must present all options to my client and leave it to them to decide and instruct me as their lawyer. I have listed the resources’ options and the factors that should be considered in a grid and I will present it to my clients. This enables them to clearly understand and consider which resources they would like to pick. If I present the options in a lengthy essay format, my clients may struggle to completely comprehend the words stated. The grid helps in dividing the points and facts clearly so I feel the clients will be less confused and can consider which pick is best for them. An example of the grid I would present has been included below: Litigation/Alternative Court Mediation Negotiation It is less expensive. Client only has to Dispute Resolution Cost It is expensive. (Going to court will (Mediation will be in pay the fees that the be the expensive most between because both because lawyer charge parties will my clients will need need to pay for a 12 | P a g e to pay for court fees, mediator Legal fess to assist hiring witnesses, them) Expensive Relatively Cheaper inexpensive to going to court or compared mediation Time Long and slow Speedy resolution Speedy resolution process Future business The relationship relationship Parties are able to Parties are able to between both parties maintain their maintain their will after relationships after be damaged relationships quite badly. the dispute has been the dispute has been resolved Emotional factors resolved Stressful and tiring Less stressful if both Less stressful as both for both parties parties are willing to parties are able to give and take and be even cooperative negotiate without being face to face with each other I would not assume that my clients have considered all the ramifications of taking a particular course so it will be my job to point them out and ensure that my clients factor them into their decisions. I would suggest to my client to proceed using proceeding in court. For example, I will advise them to go to the county court because it’s cheaper than the higher court and the county court is specific for the civil jurisdiction. 13 | P a g e As a good lawyer, I should be ready to acknowledge that I am not an expert in every field of law or another discipline. I will not allow my client to manipulate me into making a decision or into advising in an area in which are not comfortable about my level of knowledge or expertise. I need to be familiar with the work of other professionals who may be able to assist my client and I should be prepared to provide appropriate referrals to such people. My task is to help the client make decisions that are right for them. Legal counselling requires guidance or direction, but inevitably it is my client who must make the decision about how to resolve their problems, based on a range of factors (legal and non-legal) that are unique to each client. I will need to monitor the way I advising my client in the decision-making process. It is my client’s right to make an informed decision, within the law, based on their particular circumstances, motives, and outcomes that are best for them, not for me. Once my clients have made a decision on the option and course of action they have decided to pursue, it is then incumbent upon me as their lawyer to immediately prepare a letter stating clearly the option that they have “instructed” me to pursue. It is advisable to provide a timeline of the steps that I shall be taking hereon after. The letter I prepare must be signed by my clients thereby indicating that they understand the option they have chosen and that the instructions to pursue the case in a particular manner is entirely the choice of my clients after a careful consideration. In conclusion, client interviewing is a structured process. If you approach each initial interview with a clear sense of structure you are going to follow and of the objectives of the interview, you will be confident of your ability to achieve a professional result and your client will have confidence in you. After completing the two stages which are listening and questioning, you can move to the third stage which is advising. Advising clients on the law 14 | P a g e and helping them to make decisions that may have a number of serious and diverse consequences is one of the most onerous responsibilities of a practising lawyer. Whether I am giving advice in an initial interview or in a telephone conversation the evening before the hearing of a case is to begin, I must approach the task with a thorough understanding of all the factual, legal and other ramifications of the problem and acute awareness of the ethical implications of the advice that I give. 15 | P a g e QUESTION 2 Mr. & Mrs. Brown decide to bring a claim in the courts against Mrs. Betty, which court would be the court of first instance and should that court reject their claim which court would be the appropriate appellate court Explain your answers in detail on the jurisdiction of each of the appropriate courts. In practice, it is vital for a lawyer to be familiar with the overall structure of the courts of the country and to differentiate between the civil courts and criminal courts in the legal system. It is also important for lawyers to know which type of judges will be presiding in the various courts which are given the role to hear and decide in any civil or criminal cases brought before the court. Civil courts are given the jurisdiction to resolve any dispute that are between citizens or between a citizen and the state. The disputes mostly would involve examples like breach of contract, liability for injury in the law of tort, property rights, family disputes or the wrongful exercise of power by a public authority. The person bringing the claim is the claimant while the person who is defending the claim is the defendant. The civil courts usually order the defendant to pay monetary compensation for the damages caused if the defendant is liable. Criminal courts are given the power to hear and determine guilt or innocence according to the parameters of the criminal law. The case will be brought by the prosecution against a defendant. If the defendant is found guilty, the criminal court would dispense punishment to the convicted in the form of imprisonment or a fine. The courts operate a very rigid doctrine of judicial precedent which has the effect that every court is bound to follow any decision made by a court above it in the hierarchy. The hierarchy 16 | P a g e of courts for civil cases starts with the most superior court which is the Supreme Court or formerly known as the House of Lords. The court following it is the Court of Appeal of the Civil Division and next is the High Court. The High Court although is known as one court, it has three divisions which are the Queen’s Bench Division (QBD), the Chancery Division (ChD) and the Family Division (Fam). The lowest court for civil cases is the County Court. The hierarchy of courts for criminal cases starts with the Supreme Court moving down to the Court of Appeal of the Criminal Division and the next court is the Queen’s Bench Divisional Court to Crown Court and the lowest is the Magistrates Court. For both civil and criminal cases, once a decision has been given by the court, it is still possible to appeal against that decision to a higher court. There are two categories the courts are split into which are the first instance and the appellate category. Courts of first instance hears cases ‘at first instance’ which is when the first time a case is heard in court before any appeals. Courts of first instance rarely create precedents and they follow the decisions of the courts above them. Appellate courts will normally consider any appeal from one or the other party to either a civil or criminal case in order to decide whether to affirm the decision of the lower court of first instance or to reverse the decision of the court of first instance. According to the question above, Mr. & Mrs. Brown decide to bring a claim in the courts against Mrs. Betty. Before the case is handed to court, as a lawyer to the couple, I will prepare the case. I will select facts that would present my clients in a more positive light so that the judgement would lean into their favour. Next, I would look into the proper language and key terms that would convince the judge to pass a judgement that benefits my clients. Opening lines, facts that are relevant organised in a chronological manner, key points to etch 17 | P a g e into the judge’s memory, laws that are applicable and statutes will be chosen by me to help my clients to have a chance at winning the case. The court of first instance that Mr & Mrs Brown will need to go is the County Court. The judges who sit in the county courts are known as circuit judges, recorders and district judges. The jurisdiction of the County Court is relatively broad as it deals with civil cases that arise from a plethora of matters like contract, tort, insolvency and probate. The County Court mainly deals with civil matters which means non-criminal matters. Before trying a civil case in the county court, the judge would read the relevant case papers. Judges also play an active role in managing civil cases once they have started by ensuring the case will proceed as quickly and efficiently as possible. Once the judge has heard the evidence from all parties involved and any submissions (representations) they wish to put forward, he or she delivers his or her judgment. As Mr & Mrs Brown ‘s lawyer, there are a few reasons why I would suggest the County Court to them. Firstly, is the legal expertise that the judge has as the judges who sit in the county court have acquired tons of experience of the legal system over the years. They would be able to guide the parties through the court process vigilantly and a detailed description of the law plus an explanation of the case’s result will support the final decision that would be given by the fair judges. Next is the County Court is the cheapest compared to other higher courts as the higher the cost is when the higher the court is. Furthermore, there is the availability of public funding where the community legal service overseas the granting of public funding for civil cases. Public funding is available for certain civil cases like a financial claim, so this can help my clients to spend less on the cost of going to court. 18 | P a g e The County Court deals with three different tracks of cases which are small-claims, fast track and multi-track cases. I would suggest my clients to apply for the fast track as it is a streamlined and standardised procedure for handling of middle value cases where significant sum of money is at stake. The civil claims is required to be over £1,000 and not over £25,000 to be dealt with. Fast track means that the court will set down a very strict timetable for the pre-trial matters. This is aimed at preventing one or both sides from wasting time and running up unnecessary costs. Once the case is set down for hearing, the aim is to have the case heard within 30 weeks. The actual trial will usually be heard by a Circuit Judge and will take place in open court with a more formal procedure than for small claims. In order to speed up the trial itself, the hearing would be limited to a maximum of one day and the number of expert witness restricted to only one. In an attempt to keep the costs down, fixed costs for fast-track trials have been introduced but the introduction of pre-trial fixed costs has been delayed until additional information is available on the revised costs regime. If the county court rejects the case, it is because there are some disadvantages when my clients went to the county court. The first disadvantage may be because of the lack of technical knowledge where the judge may have limited knowledge of the subject matter of the dispute. It would seem irregular where when the judge would have to rely on the view of an expert appointed by the court and not advise through their own expertise. The count court may also have rejected the case due to the fact of the clients lacking evidence. For example, there were no other witnesses who were around to witness the events other than my clients. Due to that, I would suggest to go to an appellate court to appeal their case and the court I suggest them to proceed to is the High Court. The high court handles civil cases and appeals of decision made in the lower courts. Some parts of the civil work of the division of the High 19 | P a g e Court are handling the contract or tort cases that are mainly unsuitable for county courts which are small as the cost is higher and the complexity of the cases are higher. Whether or not cases are heard by the County Court or by the High Court usually depends on where was the dispute was lodged originally and the subsequent exercise of gatekeeping powers of the court to transfer a matter to the high court. The basic general rule is lower value or less complexed cases are heard by the county court and the high court hears a higher value or more complex case. In a nutshell, as the lawyer of my client, Mr & Mrs Brown, I am certain that the best path to take this case to a court proceeding is by starting it from the civil jurisdiction’s lowest court as it was the cheapest and fastest. I will then suggest my clients to appeal their claim to the high court if the court rejects my client’s claim. This is because the high court is more strict with their judgement and they are very thorough when advising. 20 | P a g e REFERENCES Anon., 2021. courts and tribunals judiciary. [Online] Available at: https://www.judiciary.uk/you-and-the-judiciary/going-to-court/county-court/ [Accessed Wednesday January 2021]. Cara O'Neill, a., 2016. NOLO. [Online] Available at: https://www.nolo.com/legalencyclopedia/mediation-six-stages-30252.html [Accessed 1 January 2021]. Commission, E. a. H. R., 2020. Equality and Human Rights Commission. 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