Our client: Jaycee Loushe

We are instructed by the above named in connection with her employment with your company.

We understand that our client has been employed by you since 13 January 2007, and that on 26 February, while attending to her duties with a colleague, she was accused by Mr David Tyler of stealing confidential information from your offices. Our client strenuously denies these accusations.

We are informed that there had been no previous criticism of our client's work. In fact, Mr Tyler recently informed her that she was a positive asset to the company and suggested that a promotion, together with a substantial increase in her remuneration, would shortly be forthcoming.

In light of your actions of 26 February, it is clear that our client would be fully entitled to resign and bring a tribunal claim for constructive dismissal. Due to the circumstances under which the allegations against our client were made, we have also advised Ms Loushe that she would stand excellent prospects of success should she decide to pursue a claim for exemplary damages² and/or defamation.

However, our client would be prepared to discuss alternative means by which this matter might be resolved. Our instructions are to commence proceedings against you if we do not receive satisfactory proposals for settlement of this matter within 14 days.

Yours faithfully

Minchin & Lacey Solicitors

Minchin & Lacey Solicitors

¹ (US) also constructive discharge

² Compensation in excess of actual damages awarded in cases of malicious or wilful misconduct designed to punish the breaching party (also punitive damages.

24 Read the letter again and answer these questions.

1 What is the purpose of the letter?

2 What are the facts of the case?

3 What legal actions might the recipient face?

4 What must the recipient do to avoid litigation?

Text analysis: Letter before action

Lawyers will try to avoid having to pursue a claim through the courts if at all possible. A letter before action is used to advise a party as to how legal proceeding against them can be avoided.

25 Which of these would you expect to find in a letter before action? Match each of the
paragraphs in the letter (1-5) with one of these examples (a-i).

a details of the legal remedies available

b full details of any supporting case law and/or legislation

c what must be done to avoid legal action

d details of the pleadings filed with the court

e the instructing client's complaint

f the date on which the defendant must appear in court

g the names and addresses of any witnesses the instructing client intends to call

h an initial reference to the instructing client

i an outline of any evidence supporting the instructing client's view

26 Discuss these questions with a partner.

1 Do you think Ms Loushe would be prepared to go back to work for David Tyler Construction Ltd? Support your opinion with reasons.

2 What kind of settlement do you think would be acceptable to Ms Loushe?

Language use 2: Formality in legal correspondence

?gal correspondence is often more formal than business correspondence. However, the level of armality will depend on the situation and type of correspondence.

17 What features of the letter in Exercise 23 make it a very formal piece of writing? How would this letter differ from an email to a colleague summarising the issues?

Find the highlighted phrases in the letter that correspond to these less formal

equivalents.

1 her work for you

2 because of the way you accused her

3 acceptable suggested compensation

4 concerning

5 probably win if she sues

6 to sue you

7 she would soon get a large pay rise

8 acting/working for Ms Loushe

9 following

10 a good worker

11 have been told

.istening 2: Lawyer-client interview

^58.2 The recipient of the letter in Exercise 23, Mr Tyler, arranges a meeting with his solicitor to discuss his options. What extra information will the solicitor need before she can advise Mr Tyler? Listen to the first part of the lawyer-client interview and check your answer.

^8.2 Listen again and decide whether these statements are true (T) or false (F).

1 Mr Tyler has dismissed Ms Loushe.

2 Mr Tyler dismissed his previous secretary on the grounds of her pregnancy.

3 Mr Tyler's firm is in financial difficulties.

4 Mr Tyler has no proof that Ms Loushe is guilty of the theft of confidential documents.

5 Mr Tyler has contacted other local building firms to warn them not to employ Ms Loushe.

Unit 8 Litigation and arbitration

31 i J 8.3 How convincing do you find Mr Tyler's case? Based on what you have heard so far, how would you advise him? Listen to the second part of the interview and check your answers.

32 ^c8.3 Listen again and answer these questions.

1 If the case goes to tribunal, what must Mr Tyler provide in order to avoid having to pay damages?

2 How would Ms Cooper advise Ms Loushe if Ms Loushe was her client?

3 What is Mr Tyler's best chance of avoiding litigation?

4 How are damages for unfair dismissal calculated?

5 What is the current maximum compensatory award in unfair dismissal cases (in England)?

Language use 3: Establishing the facts

Litigation can be very stressful, and clients often become emotional during the initial lawyer-client interview. While a lawyer must show understanding, it is also his/her job to conduct the interview as effectively as possible in order to establish the relevant facts of a case. Only then can a lawyer give informed legal advice to a client.

33 The first part of the conversation in Listening 2 (audio 8.2) includes several
examples of language the lawyer uses to establish the facts and to encourage
her client to focus on the relevant issues, e.g. Could you tell me exactly what
happened? Underline the examples of this kind of language in the audio
transcript on page 136.

Writing 1: Responding to a letter before action

The initial response to a letter before action is often to test the potential claimant's will by strongly denying any claims. Alternatively, an initial offer may be put forward (often below what the potential claimant might wish for].

34 You are the lawyer acting on behalf of Mr Tyler. Write a letter in response to the
letter outlining Ms Loushe's case (see Exercise 23). Use some of the features
of formal legal correspondence outlined in Exercises 27 and 28. Include the
following:

O an appropriate greeting and introduction

O your response to the claims made against your client

0 any clarification of the facts as presented by Ms Loushe's lawyers

0 a proposed settlement (if you wish to make one)

0 an appropriate ending and sign-off.

Speaking 2: Lawyer-client interview

35 Role-play this situation with a partner.

Student A:Turn to page 116. Student B:Turn to page 117.

Writing 2: Letter before action

36 Write a letter before action to your client's former employer based on your
discussion in Exercise 35. Use the letter in Exercise 23 as a model.

'"■► Now turn to Case Study 3: Litigation and arbitration: an employment law case

on page 122.

Language Focus

1 CollocationsMatch the verbs (1-5) with the nouns in the box they collocate with. Some of the verbs go with more than one noun.

an agrccmont a dispute a judgment a lawsuit an outcome / a settlement

1 to reach an agreement, ...

2 to file

3 to deliver

4 to decide on

5 to settle

2 Word formationComplete this table with the correct forms.

3 Collocations with dispute Use the words in the box to complete the collocations.

alternative legal

resolution resolve/settle

1 disputing.......... £<«$$>.........

2 to.................................. a dispute

3 a.................................. dispute

4.................................. dispute..........

4 Question openersUnscramble these phrases for beginning a question.

1 us was if tell wondering you I could ...

I wcls wondering i/f you could bell us ...

2 that You mentioned ...

3 the point Could back about go you to ...

4 about I'm afraid said understand I didn't what you ...

5 Sentence collocationMatch the halves of these sentences a lawyer would use
when discussing the facts of a case with a client for the first time.

1 First, we need to establish

2 Please do give as much

3 Try not to avoid any facts which may

4 It's probably best just to stick

5 I think you'd better tell me just what

ato the facts.

byou suspect.

cdetail as possible.

dthe relevant facts.

ebe uncomfortable.

O j Intemationallaw

JJ

THE STUDY OF LAW

Lead-in

The term international law can include public international law, private international law and, more recently, supranational law.

1 Discuss these questions.

1 What is the difference between public international law and private international law? Which bodies or organisations are involved?

2How can a nation statebe compelled to obey international law? Can you think of any examples of a country that has violated international agreements?

3 What are the consequences if a private individual or company breaks the laws of another jurisdiction?

Reading i: International law

2 Read the text and answer these questions.

1 What are the three main sources of public international law?

2 What are the two principal questions which private international law is concerned with?

3 What is meant by a supranational legal framework?

In its widest sense, international law can include public international law, private international lawand, more recently, supranational law.In

its narrowest meaning, the term international law is used to refer to what is commonly known as public international law. Private international law is also referred to as conflict of laws.Conflict of laws can also refer to conflicts oetween states in a federal system, such as the USA.

Public international law is the body of rules, laws or legal principles that govern the rights and duties of nation states in relation to each other. It is derived from a number of sources, including custom,legislation and treaties. Article 2 of the Vienna Convention on the Law of Treaties (1969) defines a treaty as 'an international agreement concluded between States in written form and governed by international law ...'. These treaties may be in the form of conventions, agreements, charters, framework conventionsor outline conventions.Custom, also referred to as customary international law,is another binding source of law, and originates from a pattern of state practice motivated by a sense of legal right or obligation. Laws of war were a matter of customary law before being codified in the Geneva Conventions and other treaties.

International institutions and intergovernmental organisationswhose members are states have become a principal vehicle for making, applying,

implementing, and enforcing, public international law, especially since the end of World War II. The best-known intergovernmental organisation is the United Nations, which develops new advisory standards, e.g. the Universal Declaration of Human Rights. Other international normsand laws have been established through international agreements such as the Geneva Conventions on the conduct of war or armed conflict, as well as by other international organisations, such as the World Health Organisation, the World Intellectual Property Organisation, the World Trade Organisation and the International Monetary Fund.

Private international law refers to the body of rights and duties of private individuals and business entities of different sovereign states. It addresses two main questions: 1) the jurisdiction in which a case may be heard, and 2) which laws from which jurisdiction(s) apply. It is distinguished from public international law because it governs conflicts between private individuals or business entities, rather than conflicts between states or other international bodies.

Supranational law, or the law of supranational organisations, refers to regional agreements where the laws of a nation state are not applicable if in conflict with a supranational legal framework.At present, the only example of this is the European Union, which constitutes a new legal order in international law where sovereign nations have united their authority through a system of courts and political institutions. The East African Community, currently a customs unionin East Africa, has ambitions to become a political federation with its own form of binding supranational law by 2010.

Date: 2015-12-24; view: 6001