future when the same, a similar, a related or an analogous point arises. To illustrate
how cases are used in this way, assume that a lawyer has to advise her client on a
contentious
point
of
law
involving
interpretation
of
a
common
law
rule
or
a
statute. Let us call this ‘Advice 1’. In advising her client the lawyer has to try to
predict how the point will be decided if it goes to court. Obviously the lawyer
cannot predict this accurately all of the time. Assume then that the matter does
go
before
the
court
and we call the resulting case ‘Case 1’. Case 1 will settle
the dispute between the parties. To some extent the case may clarify and settle
the law. But frequently a case will be ambiguous, leave some issues undecided
or even open up other issues that it does not resolve. Assume that a lawyer is
advising his client on one of these points. Let us call this ‘Advice 2’. To give
Advice 2 the lawyer will read Case 1. As with the first lawyer in the first case,
he can only predict or guess how the point will be decided. It may go to court
or it may not. We call this (possible or actual) case, ‘Case 2’.
This foregoing illustration should make the point. Cases are used for decision
making under
uncertainty. Case 1 was used by a lawyer to give Advice 2
which was trying to predict how Case 2 would be decided if it went to court.
If Case 2 went to court Case 2 would be used to give Advice 3 which is trying
to predict how Case 3 will be decided. And
this process goes on and on.
Moreover, as each case is decided it considers and possibly reappraises
former cases so that their standing and interpretation alter over time. In this
way, case law develops in a line that can be ever changing.
Thus the purpose of reading a case is to assist us to predict judicial choice.
We wish to understand one case as a guide to predicting how the court will
respond when the issue, or a related or similar issue, comes up in the next
case. Thus, in reading a case the ultimate concern is the issue in the case rather
than the case itself.
Strategic Advice
If one had unlimited time one would read every case. But one has only limited
time so it is often just not possible to read every case, especially because case
law is constantly
expanding.
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Therefore it may be unrealistic for a lawyer to
read from start to finish every case in an area in which they are working. It is
not worth it in terms of the reward gained for the effort put in. Thus it is
necessary to make strategic decisions with regard to two related questions: (i)
782
This expansion of case law has two causes. (1) New cases are decided. (2)
There is enhanced access to
cases because cases are now electronically reported.
Before electronic reporting generally only the cases reported in the law reports
were accessible, and these were merely a selection of the cases decided by the
courts. Now, with electronic reporting, every case is accessible.
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