Advising a Client
Before a case comes to a court, a lawyer may try to advise a client of their
position. If interpreting law was a cut and dried process, a lawyer could
predict precisely how a law would be interpreted. In fact it is not cut and
dried. Although the model has three definitive steps, the processes undertaken
within these steps call for human judgment on matters that are not capable of
precise measurement or prediction. Consequently, there is uncertainty in the
task of interpreting law. Nevertheless, the model is a framework for thinking
through and predicting the possible outcomes that a court might reach. This
may enable the lawyer to cope with the uncertainty by advising the client of the
possible interpretations that the court make and furnish them with some broad
idea of the likelihood of each outcome.
Writing Law
Not only does the model guides lawyers of any ilk when they interpret law, but
also when they write on questions of interpretation be it in a judgment, an
opinion, a problem question or a textbook. The model provides a clear,
comprehensive and natural structure for presenting a question of interpretation.
Reading Law
Since reading and writing are complementary activities, the model can be
adapted to become a guide for reading texts when they interpret law. This can
be any text such as a judgment, an opinion or a textbook. Thus, for example, a
lawyer can use the model for reading a case to observe and analyse how a
court has resolved a question of interpretation. By using the
model a reader
can more easily identify the meaning which the court chose as the legally
correct meaning to decide the case. This, of course, is the ratio of the case.
Time Zones
In its various uses for interpretation the model has essentially the same three
components and the same logic, but is altered to cater for the different tasks.
These, we should note, have differing time zones –
future, present and past.
They can look to the past to see what the court has said, to the present to state
what a court
should say, and to the future to see what a court might say. To
appreciate this, consider the typical chain of events with a case:
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A lawyer interprets law. This is using the model as a prediction as
to how a court will decide a case in the future
because the lawyer uses the
model as she looks forward to how a court will interpret a provision. A
student imitates this task when answering a problem question.
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If the case comes to court the court writes a judgment. This uses
the model in the present time.
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When the judgment has been written and published in the law
reports lawyers use the model to read the judgment, that is, to look back and
understand something written in the past.
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