related to the ambiguous word are mistakenly thought to be ambiguous. Or the
attempt to state the ambiguity may just be confused or confusing. When the
court has failed in one of these ways it is all the more reason for you to state
the ambiguity, and to state it properly.
(2)
Reasons. Consider all possible arguments or reasons for and against
each of those meanings. Ideally the court will have done this, but sometimes
this is not the case. In any event, when the case is not looking at precisely the
same issue as the earlier case different arguments may be required. Or different
reasons may arise because of changed circumstances.
(3)
Decision. Try to predict how a court will respond on the next occasion
when the same issue or a related or derived issue comes up.
Difficult Cases
While it is clear in principle what constitutes the ratio of a case, it is not always
clear as to precisely what is the ratio. This diminishes the value of the case as a
predictor of how the court will respond on a future occasion.
In these circumstances many lawyers make the unwarranted assumption that
tortuous and wanton passages in judgments always rest on some rational and
legal foundation – and if only the reader was as clever as the judges they could
understand it. If the lawyer accepts this false assumption they then respond in
one or both of two ways. They blame their own lack of ability for not sorting
the thing out, or they search for an unstated rule or explanation that
draws
everything together in a coherent and rational scheme.
This approach is based on the false assumption that legal reasoning is always
logical or coherent. Instead the better response is to appreciate that a judgment
may be hard to read because for some reason it is not clearly considered and
written. For example the judges have misconstrued the problem so they are off
course from the beginning, the judgment is not organised (whereas if it was set
out according to the model for legal reasoning it would be organised), the
court did not clearly and correctly identify the ambiguity or it did not canvass
all possible arguments.
All of this means that there is probably no underlying rule which draws
everything together and makes the judgment coherent (although this is the way
in which
many text writers operate). Instead the problem with the judgment is
that it is poorly reasoned and in consequence also poorly written.
To handle a difficult case there are three steps. First, use the three components
of the model –
meanings, arguments and decision –
as tidy baskets to try to
clarify the judgment by rearranging the content in a better order.
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