The layman vs the lawyer

P_1

An interesting thought came to me earlier today. In a nutshell trials come down to one lawyer being able to make a more compelling argument than the other.

I think a fun 'game' to play here would be to take one user who is trained in the Law, another user who isn't, chose a hypothetical case, assign sides, argue away and have a mod act as the judge.

Any takers?

Procrastastudy

P_1 wrote: »

An interesting thought came to me earlier today. In a nutshell trials come down to one lawyer being able to make a more compelling argument than the other.

I think a fun 'game' to play here would be to take one user who is trained in the Law, another user who isn't, chose a hypothetical case, assign sides, argue away and have a mod act as the judge.

Any takers?

Mooting by post - interesting. However it's not the most compelling argument - that's debating. There is a debating forum but it's overly complicated and not used much. In fact the humanities forum is much close to what the debating forum should be.

I think it's a great idea but you have to bear in mind for the lay person there would be a lot of reading!

P_1

Procrastastudy wrote: »

Mooting by post - interesting. However it's not the most compelling argument - that's debating. There is a debating forum but it's overly complicated and not used much. In fact the humanities forum is much close to what the debating forum should be.

I think it's a great idea but you have to bear in mind for the lay person there would be a lot of reading!

Well I'm a lay person who has an interest in the law, I'm more than willing to be taken to school by one of you educated types

Procrastastudy

P_1 wrote: »

Well I'm a lay person who has an interest in the law, I'm more than willing to be taken to school by one of you educated types

Hang round here and you'll realise I'm far from that.

Start with an understanding of the sources of law; (not exhaustive)

Constitution
Common Law
Statute Law

a wikipedia of the last two and a read of the first one should suffice. Then I'd start looking at the concept of Stare Decisis.

P_1

Procrastastudy wrote: »

Hang round here and you'll realise I'm far from that.

Start with an understanding of the sources of law; (not exhaustive)

Constitution Actually had a good read of that in college, time for a refresher perhaps though
Common Law off to Wikipedia I go
Statute Law off to Wikipedia I go

a wikipedia of the last two and a read of the first one should suffice. Then I'd start looking at the concept of Stare Decisis.

Cheers for that, I look forward to trying to match wits at some stage

drkpower

P_1 wrote: »

An interesting thought came to me earlier today. In a nutshell trials come down to one lawyer being able to make a more compelling argument than the other.

I think a fun 'game' to play here would be to take one user who is trained in the Law, another user who isn't, chose a hypothetical case, assign sides, argue away and have a mod act as the judge.

Any takers?

Not a bad idea; but being a lawyer (even a litigator) is not so much about formulating and delivering arguments. Its more about identifying the issues, investigating them, choosing and preparing the right witnesses, managing people and expectations and a million other things.

As Procrastastudy says, what you seem to be looking for is debating which is not something that a lawyer should necessarily be much better at than anyone else.

P_1

drkpower wrote: »

Not a bad idea; but being a lawyer (even a litigator) is not so much about formulating and delivering arguments. Its more about identifying the issues, investigating them, choosing and preparing the right witnesses, managing people and expectations and a million other things.

As Procrastastudy says, what you seem to be looking for is debating which is not something that a lawyer should necessarily be much better at than anyone else.

Good point, in theory a salesperson 'could' be able to give a lawyer a good run for their money. Both would require similar skill sets.

A salesperson would need to identify their potential customer, their needs, how to address these needs, choosing and preparing the right products and prices, managing people and expectations and a million other things.

Guess what I do for a living?:pac:

Procrastastudy

drkpower wrote: »

As Procrastastudy says, what you seem to be looking for is debating which is not something that a lawyer should necessarily be much better at than anyone else.

Going by SADSI and Kings Inns teams they're not great at debating (NB I got knocked out in second round (IT) there was KI teams in the Semi to be fair!)

P1 also look at Tort law - lots of moots in that area. I'm just going to dig up last years national moot competition. The only issue with it is it was a Judicial review so there is yet another thing to look up!

In fact here's the link.

The other issue with debating, mooting and I dare venture real life (I'm not a lawyer) is you might not end up on the side you want to be on.

***

So given the link above what do you think? Was Judge Murtagh right in placing the restriction he did on the applicant? Disclaimer: I did this moot so won't argue it - I'm happy to *try* and gove you some pointers though.

***

On the sales point - I come from that background - it's helpful is some ways but not in others.

P_1

Again, thanks for the link.

Right I'll throw my hat into the ring, any trained folk fancy taking this upstart to school?

Give me a few days to read up on things, pick a topic and nominate a judge and lets see if all those years at Law School have made you any better than the common man

Procrastastudy

Mods may have issue with the material - please delete the link if you think it inappropriate. That said I'm sure DCU and MOP won't mind a bit of free publicity!

NoQuarter

Procrastastudy wrote: »

Mods may have issue with the material - please delete the link if you think it inappropriate. That said I'm sure DCU and MOP won't mind a bit of free publicity!

Wouldnt be so sure about "MOP's"

johnnyskeleton

Procrastastudy wrote: »

Going by SADSI and Kings Inns teams they're not great at debating (NB I got knocked out in second round (IT) there was KI teams in the Semi to be fair!)

P1 also look at Tort law - lots of moots in that area. I'm just going to dig up last years national moot competition. The only issue with it is it was a Judicial review so there is yet another thing to look up!

In fact here's the link.

The other issue with debating, mooting and I dare venture real life (I'm not a lawyer) is you might not end up on the side you want to be on.

***

So given the link above what do you think? Was Judge Murtagh right in placing the restriction he did on the applicant? Disclaimer: I did this moot so won't argue it - I'm happy to *try* and gove you some pointers though.

***

On the sales point - I come from that background - it's helpful is some ways but not in others.

Is the only condition possible under the probation of offenders act that a person be of good behaviour generally? If so, it being a penal statute, it must be construed strictly and therefore the condition is ultra vires. Is that the answer?

P_1

Ok so initial thoughts.

1 - On the father's 'expense' argument.
He has to pay an arrears of €19k maintenance as per the order and he works as a hospital porter. http://www.careerdirections.ie/ShowJobFull.aspx?job_id=125 tells me that the average pre-tax salary of a hospital porter is between €22k and €28k. Lets assume that his monthly net wage is in and around the €2k mark, this could be investigated to get a solid figure prior to going to court.

Now what isn't apparent is how much he has to pay on a monthly basis, what percentage of the €2k would that make up? How is he supposed to pay for rent, food, bills etc on top of the maintenance?

The mothers allege that he drives an 'expensive' car. What does this mean? Is it expensive to run? Does he have to pay massive insurance premiums for it? Or are they basing that on the book value of it? The mothers also allege that he took 3 'expensive' holidays. Again, how does one define an expensive holiday. Do they have any evidence to back this up?

2 - On the constitutional argument
Bunreacht na hEireann has a provision that states in Article 41.2.2 - Page 162 that:
"The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home." Have the mothers been forced to find work in order to feed and clothe the father's children? I don't see any evidence of this in the source provided.

Two points that need to be expanded on but based on my initial thoughts I would disagree with the Judge's decision based on
1 - Has it been proven that the father could afford the payments?
2 - Has it been proven that the mothers need the payments in order to properly care for the children.

Now feel free to tear me to shreds

ResearchWill

Mmmmmmmm I have one serious issue with that moot problem. The Defendant is only the Judge, no mention of Ireland and the Attorney General. Bonus points if anyone can tell me why that is a issue.

P_1

ResearchWill wrote: »

Mmmmmmmm I have one serious issue with that moot problem. The Defendant is only the Judge, no mention of Ireland and the Attorney General. Bonus points if anyone can tell me why that is a issue.

Pure guesswork but is it because there is a potential to challenge the Constitution in the Supreme Court case?

ResearchWill

P_1 wrote: »

Pure guesswork but is it because there is a potential to challenge the Constitution in the Supreme Court case?

Nope it's way more important than that, you can not get costs from a Judge in such a case, so to make sure you can get a cost order you must sue Ireland.

The most important thing about a moot is making sure you have the right issue. A JR is not an appeal, it is not was the decision made in the lower court factually correct. It is simply is there a serious flaw in the decision, has the court acted within jurisdiction, in other words has the judge the power to order that this guy does not have any more children.

P_1

ResearchWill wrote: »

Nope it's way more important than that, you can not get costs from a Judge in such a case, so to make sure you can get a cost order you must sue Ireland.

The most important thing about a moot is making sure you have the right issue. A JR is not an appeal, it is not was the decision made in the lower court factually correct. It is simply is there a serious flaw in the decision, has the court acted within jurisdiction, in other words has the judge the power to order that this guy does not have any more children.

Really? Actually now that I think of it

Civil law = when one side is trying to get a reward from the other side
Criminal law = when one side is trying to have the other side punished for an illegal act.

Now is this moot a civil or criminal case?

ResearchWill

P_1 wrote: »

Really? Actually now that I think of it

Civil law = when one side is trying to get a reward from the other side
Criminal law = when one side is trying to have the other side punished for an illegal act.

Now is this moot a civil or criminal case?

It is both, the matter was originally civil, but the non payment of a debt can have a penal sanction. But only if its wilful refusal to pay the debt as per Mc Cann -v- Judges of Monahan District Court & Ors, [2009] 4 IR 200. That case led to the law being changed,byway of http://www.irishstatutebook.ie/pdf/2009/en.act.2009.0021.pdf

Now the matter is before the court by way of Judicial Review, that is a way theHigh Court reviews the decisions of lower courts and tribunals even ministers.

The full title of the McCann case,



BETWEEN

CAROLINE MCCANN

PLAINTIFF
AND

THE JUDGE OF MONAGHAN DISTRICT COURT, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE CHIEF EXECUTIVE OF THE IRISH PRISON SERVICES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS
AND

HUMAN RIGHTS COMMISSION AND MONAGHAN CREDIT UNION LIMITED

NOTICE PARTIES

Procrastastudy

johnnyskeleton wrote: »

Is the only condition possible under the probation of offenders act that a person be of good behaviour generally? If so, it being a penal statute, it must be construed strictly and therefore the condition is ultra vires. Is that the answer?

Well if it was they didn't let on!

I think the 1907 act does allow the judge to attach any condition he sees fit given certain considerations.

On the one side we argued breach of various constitutional rights, ECHR and unreasonableness given a proportionality approach should have been adopted (as per Denham in Meadows)

On the other we argues G v DPP (I'm not quite sure why - I didn't write that side) and that the Keegan/O'Keefe standard applied (as per Hardiman in Meadows) and that Murtagh did have some evidence to arrive at his decision so the JR should fail.

I have to admit I don't think we explored the power being ultra vires.

We didn't make it through to the semi :pac:

ResearchWill

Procrastastudy wrote: »

Well if it was they didn't let on!

I think the 1907 act does allow the judge to attach any condition he sees fit given certain considerations.

On the one side we argued breach of various constitutional rights, ECHR and unreasonableness given a proportionality approach should have been adopted (as per Denham in Meadows)

On the other we argues G v DPP (I'm not quite sure why - I didn't write that side) and that the Keegan/O'Keefe standard applied (as per Hardiman in Meadows) and that Murtagh did have some evidence to arrive at his decision so the JR should fail.

I have to admit I don't think we explored the power being ultra vires.

We didn't make it through to the semi :pac:

I would have argued that the 1907 Act did not apply as "Where any person is charged before a court of summary jurisdiction with an offence punishable by such Court and the court thinks that the charge is proved"

The Applicant was never charged, also the 2009 act does not in my opinion allow such action, a DJ gets his power from Statute the 2009 Act does not give him the power he exercised. If the court went against me then I would have moved onto unconstitutional order to stop having babies, if the court was going to argue marriage etc. then I would have said the order was flawed as it did not allow him to have babies if married.

Just because a judge has evidence to arrive at a decision does not mean the JR would fail, it is only in very limited circumstances that the HC would take any notice of the actual facts of the case, the issue is was the decision made correctly, not was the decision correct.

Procrastastudy

ResearchWill wrote: »

Just because a judge has evidence to arrive at a decision does not mean the JR would fail, it is only in very limited circumstances that the HC would take any notice of the actual facts of the case, the issue is was the decision made correctly, not was the decision correct.

That was what I was attempting to convey. For the decision to be arrived at correctly the only requirement is there is some evidence to support the decision as opposed to no evidence which would render it unreasonable under O'Keeffe. Notwithstanding that a JR only looks at the form of the decision and not the merits.

johnnyskeleton

Procrastastudy wrote: »

Well if it was they didn't let on!

I think it is because while a suspended sentence under s99/cja2006 allows a court to impose such conditions as it considers appropriate in addition to good behaviour, the probation act is much more limited.

234

Procrastastudy wrote: »

That was what I was attempting to convey. For the decision to be arrived at correctly the only requirement is there is some evidence to support the decision as opposed to no evidence which would render it unreasonable under O'Keeffe. Notwithstanding that a JR only looks at the form of the decision and not the merits.

That's only if you are doing reasonableness review. If you want to argue the not charged point then it's not reasonableness and O'Keeffe doesn't apply.