COMPREHENSION QUESTIONS ON LEGAL SPEAKING 2

UNIT 1
LEGAL TERMS

Question 1
¬ Distinguish between civil law and common law.
- common law:
legal system which is the foundation of the legal systems of most of
the English-speaking countries of the world, based on customs, usage
and court decisions (also case law, judge-made law)
- civil law:
legal system developed from Roman codified law, established by a
state for its regulation

¬ Distinguish between civil law and criminal law.

- criminal law:
area of the law which deals with crimes and their punishments,
including fines and/or imprisonment (also penal law)
- civil law:
area of the law concerned with non-criminal matters, rights and
remedies

Question 2
Distinguish between adversarial system and inquisitorial system.
The inquisitorial system, which is employed in most civil-law
jurisdictions, can be defined by comparison with the adversarial
system used in the United States and Great Britain.
« adversarial system
In the adversarial system, two or more opposing parties gather
evidence and present it, and their arguments, to a judge or jury. The
judge or jury knows nothing of the litigation until the parties present
their cases to the decision-maker.
Furthermore, in a criminal trial, for example, the defendant is not
required to give testimony.
The goal of both the adversarial system and the inquisitorial system
is to find the truth. But the adversarial system seeks the truth by
pitting the parties against each other in the hope that competition
will reveal it. The adversarial system places a premium on the
individual rights of the accused.
« inquisitorial system
 In the inquisitorial system, the presiding judge is not a passive
recipient of information. Rather, he or she is primarily responsible for
supervising the gathering of the evidence necessary to resolve the
case. g the He or she actively steers the search for evidence and
questions the witnesses, including respondent or defendant.
Attorney questioning is often brief because the judge tries s to ask all
relevant questions. Attorneys play a more passive role, suggesting
routes of inquiry for the presiding judge a following the j e judge's
questioning with questioning of their own.
The goal of both the adversarial system and the inquisitorial system
is to find the truth. But the inquisitorial system seeks the truth by
questioning those most familiar with the events in dispute. The
inquisitorial system places the rights of the accused secondary to the
search for truth.

Question 3
Distinguish: bill, directive, ordinance, regulations, and statutes.
1 regulations: rules issued by a government agency to carry out the
intent of the law; authorised by a statute, and generally providing
more detail on a subject than the statute
Ex: According to the regulations concerning working time,
overtime work is work which is officially ordered in excess of 40
hours in a working week or in excess of eight hours a day.
2 ordinance/by-law: law enacted by a town, city or county
government
Ex: The Town Council will conduct a public hearing regarding a
proposed ordinance concerning property tax.
3 bill: draft document before it is made into law
Ex: Early this year, the government introduced a new bill on
electronic commerce to Parliament.
4 statutes: legal device used by the European Union to establish
policies at the European level to be incorporated into the laws of
the Member States
Ex: A number of changes have been made to the federal statutes
governing the seizing of computers and the gathering of
electronic evidence.
5 directive: formal written law enacted by a legislative body
Ex: The European Union directive on Data Protection established
legal principles aimed at protecting personal data privacy and the
free flow of data.
Question 4
Distinguish appellate court, crown court, high court, lower
court,and juvenile court.
appellate court (or court of appeals, appeals court): This is where a
case is reviewed which has already been heard in a lower court.
crown court: This is where serious criminal cases are heard by a
judge and a jury in the UK.
high court: This is usually the highest court in a jurisdiction, the court
of last resort.
lower court (or court of first instance): This is the court of primary
jurisdiction, where a case is heard for the first time.
juvenile court: This is where a person under the age of 18 would be
tried.

Question 5
Distinguish magistrates' court, moot court, small-claims court, and
tribunal.
magistrates' court: This is where small crimes are tried in the UK.
moot court: This is where law students argue hypothetical cases.
small-claims court: This is where cases involving a limited amount of
money are handled.
tribunal: This is where a group of specially chosen people examine
legal problems of a particular type, such as employment disputes.

Question 6
Distinguish affidavit, answer, brief, complaint, and injunction.
affidavit: a written statement that somebody makes after they have
sworn officially to tell the truth, which might be used as proof in
court
answer: the principal pleading by the defendant in response to a
complaint
brief: a document or set of documents containing details about a
court case
complaint: in civil law, the first pleading filed on behalf of a plaintiff,
which initiates a lawsuit, setting forth the facts on which the
claim is based
injunction: an official order from a court for a person to stop doing
something

Question 7
 Distinguish motion, notice, pleading, and writ.
motion: (kiến nghị ) an application to a court to obtain an order,
ruling or decision
notice: ( thông báo ) a document providing notification of a fact,
claim or proceeding
pleading: ( biện hộ ) a formal written statement setting forth the
cause of action or the defence in a case
writ: ( a document informing someone that they will be involved in a
legal process and instructing them what they must do

READING/LISTENING TEXT SUMMARIZING

Law firm structure
Listening D

Mr Nichols: So, at this point, I'd like to ask you if there is anything you'd
like to ask me? About the firm, for example.

Linus Walker: Of course. I do have some questions. Um, I guess ''d like to
know what it’s like to work here. Er, I wonder if you could describe the
firm’s culture for me?

Mr Nichols: Well, as you certainly know, we're a relatively small

commercial firm. We're what's known as a law boutique, since we
specialise in two areas of the law: real property and debtor - creditor.
Since we're specialists, we try to maintain high standards in our work. As
for the firm's culture, I'd have to say we're pretty traditional. People
dress quite formally, in suits, and we don't call the partners by their first
names. All in all, it’s a good place to work, definitely friendly, but people
are serious and work very hard.

Linus Walker: Mm-hm. That sounds good to me. Perhaps you could tell
me something about the structure of the firm.

Mr Nichols: Well, the firm is headed by the two senior partners, Mr

Robertson and Mr Michaels. They founded the partnership 30 years ago.
They're still quite active, especially with the older clients, but the day-to-
day affairs and the finances of the firm are managed by the full partners,
that's Ms Graham and myself. We also oversee the two departments.
But a salaried partner is in charge of each of them.
Linus Walker: I see. And how are the departments structured?
Mr Nichols: Well, in the Real Property Department, there are three
associates who report to the partner, and they're assisted by two
paralegals. In the Debtor-Creditor Department, there are two associates
and two paralegals. There is also one secretary for each department who
basically assists the partner who heads the department, but who does
on occasion do work for the associates as well, since they're responsible
for all the clerical work that needs to be done. Of course, there are
always summer associates or clerks working at the firm, on average four
of them, not just during the summer, but also during the term breaks.
Er, right, I guess that's all there is to say about structure. How does that
sound to you?

Linus Walker: Very interesting. Er, actually, the size sounds ideal - not
quite as small as the firm I worked for in Cambridge, where I did my
summer clerkships, but not too big, either. And nowhere nearly as large
as the European Commission where I worked last!

Legal profession
Listening E

1 I'm a newly qualified lawyer and I just landed a job as an associate at a

mid-size law firm. The firm offers a wide range of commercial law
services. Our lawyers provide advice on many different legal areas,
including banking law, corporate law and corporate tax, employment
law, commercial litigation, property law, to name a few. In the next
few months, I'll be rotating through some of the departments to get an
idea about the different practice areas. At present, I’m working in
commercial litigation and am enjoying it. My duties include a good deal
of client liaison, lots of research, and some writing of briefs and letters.
While I'm at this firm, I intend to specialise in an area of the law that
involves a lot of trial work, because I think I'd really like to be a
litigator.

2 I'm a sole practitioner in the area of employment and labour law in a

small city. Some of the legal issues I commonly deal with are wrongful
termination, sexual harassment, and discrimination on the basis of
gender, age, religion, disability, national origin or race. I also handle
wage and overtime disputes, employment contracts, public-sector
employee issues, and disability and workers’ compensation issues. I
 counsel clients about their rights and options. I also provide advocacy
for them, including representation in mediations, arbitrations and
litigation. My clients are primarily individuals. They usually need advice
in handling personnel matters and resolving disputes. Two paralegals
assist me in my work at my office.

3 As an attorney, I protect the innovations and inventions of my clients. I

represent both plaintiffs and defendants in trade- mark, trade-secret
and copyright infringement suits in both state and federal courts. I
have a good deal of experience in domain-name disputes. I carry out
international trade-mark and service-mark registrations and do
availability searches and clearances of marks, trade names and logos.
My work also involves providing counselling to photographers,
architects, graphic designers and creators of fine art. I try to give them
an understanding of the laws and procedures that affect them and
their businesses. I also serve as a trial consultant and expert witness in
IP law. For bigger cases requiring additional staffing and resources, I
have a good working relationship with a large IP firm and can arrange
representation under this firm if a client requests it. However, this
requires a separate retainer agreement.

4 I'm a senior partner in a large law firm. My main areas of expertise are
competition law and international trade law. I advise domestic and
international clients on all aspects of competition and international
trade laws, including domestic and multi-jurisdictional merger
transactions, criminal cartel cases, and trade and pricing practices. I
also represent clients before the Competition Tribunal in merger
transactions. I advise clients on a regular basis with respect to
restrictive trade practices under the Competition Act. Some of the
industries my clients come from include transportation, steel, pulp and
paper, telecommunications, media and a entertainment, financial
services, electronic products and services, food services, and consumer
products. On a regular basis I write papers and hold presentations for
business and professional audiences on various topics dealing with
competition and international trade law.

5 I'm a partner in my firm and am head of my firm’s Litigation Division. I

represent landlords, tenants, developers and contractors and have
tried many cases (mostly to successful conclusion) in court or
arbitration. I assist clients with all types of real-estate-related
 litigation, including lease and contract disputes, mortgage
foreclosures, property-tax disputes and land-use disputes. My practice
also involves all types of real-estate transactions. In addition to
lecturing and writing about real-estate issues for professional groups, ~
including lawyers, accountants, lenders and real-estate professionals, I
teach courses on real-estate law for law students at the local
university. I am an active member of several professional
organisations, including the state and national bar associations, to
name but two.

Listening F

Hi, for those of you who don’t know me yet, my name’s Richard Bailey.
I'm here to tell you about my experience doing summer and winter
clerkships. In law school, the professors will always tell you that it's
important to do some sort of work experience because it'll improve your
future job opportunities. Have you heard that yet? Well, it's definitely
true. I'm now in my last year here, and I started doing summer and
winter clerkships in my first year. It's been a tremendous learning
experience.

Most of my clerkships have lasted for a period of four weeks. I've tried
to vary the firms I work for, from a small two-man firm right through to a
huge global firm. Each firm was different. At smaller firms, I was
expected to be more independent and was responsible for more things. I
liked that a lot. Since I was usually the only clerk there at the time, I'd
have to do whatever work needed to be done.

Working at the bigger firms was quite different. I was usually one among
many clerks. The work I performed there tended to concern bigger cases
that were quite important and so they had more ‘prestige’. That was
really interesting. At the larger firms, I usually had a chance to move
between groups in different practice areas, helping out where needed.
This allowed me to gain some insight into what was involved in the legal
work carried out in these teams and in the different practice areas.

At the smaller firms, I wrote case briefs for the partners and associates,
and all kinds of correspondence with clients from the first day on, which
I liked doing. At the bigger firms, I was asked to do research and to help
to maintain court books. That was a useful learning experience, too.
In my opinion, the main advantage of a clerkship at a large firm is that
you meet a lot of new people. There is a big network of people, so many
different lawyers and clients. There’s also a greater emphasis on learning
and developing the various skills a lawyer needs in courses and
seminars. I must say that both the larger and the smaller firms tried to
give me a sense of being part of the company, as if I really belonged to
their team. At the larger firms, I was even invited to some of their social
events, and that was really fun. However, the smaller firms definitely
made you feel more comfortable; everything was more friendly and
relaxed. But in both types of firms I never felt that I was wasting my
time.

My advice to you all is that it’s really important to try to do clerkships,

starting in your first year of law school. I also think it's valuable to get to
know a variety of firms, with different practice areas and different sizes.
I’m sure it'll help you decide what kind of law you want to practise later,
and what kind of law firm you'd feel most comfortable in.

Presentation: individual

Discussion: pairwork

CASE STUDY + COMPARISON

Listening C

Studying law in Germany is quite different than in the US. In the US, you
have to have completed an undergraduate degree before going to law
school, which is at a post-graduate level. The only prerequisite for the
German law student is the Abitur, which means they have graduated
from the Gymnasium, a rough equivalent of high school.

The curriculum in the German system is divided into three types of

course and deals with the following three subjects: civil law,
administrative law and criminal law. The student needs to complete a
cycle of courses for each subject twice, once at a beginner's level and
once at an advanced level.

First, there are the basic lectures. Here, there is little interaction
between teacher and student, unlike the Socratic method used in the
first year of American law studies, when a professor asks a student at
random to paraphrase and then defend the court’s argument in a
specific case. Attendance is not mandatory, so students attend those
lectures which they feel are interesting or important for the practice of
law.

The second type includes required courses in which students are given
assignments and take tests. Tests are hypothetical cases which the
students are asked to resolve in class using only the statutes themselves.
This is certainly different from the US, where emphasis is placed on legal
precedent and case law. Specifically, at an early stage, American law
students are expected to understand the difference between law and
fact, and be able to analyse why different judgments are rendered by
the court based on very similar facts. This ability to analyse fact and see
important distinctions in similar cases is invaluable to lawyers practising
in an adversarial system.

The third type of course involves working in groups in which students go

over the three subjects under the guidance of senior students (called
Referendare) who have completed the law curriculum and have passed
the first part of the German equivalent of the bar examination, which is
called the Erste Staatsexamen.

Finally, the student takes the Erste Staatsexamen, which is administered

by the State. The exam consists of seven five-hour written tests: four in
civil law, two in administrative law and one in criminal law. It’s pretty
tough, but I guess you would say that about your bar examination, too.

After passing, the student has the title of Referendar. For a period of two
years, the Referendar rotates between clerkships both with the state
and private lawyers. (This is also different than in the US, where you
don’t have to do a clerkship as part of your education.) During this time,
when doing the clerkships, the Referendar takes the Assesorexamen, the
second part of the bar exam. Passing this exam entitles you to practise
law.

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Presentation: individual
Discussion: pairwork