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Litigation WS 2013

Introductory notes Time : Wednesday, 6:00 pm to 7:30 pm; no break. Beginning: 9 October 2013, 6 pm Homework : see http://www.heinz-mayer.com/lehre_institut.htm; deadline: next Wednesday, 10:00 am. Addressee: wolf.okresek@univie.ac.at Phone Number Mrs Plattner: 4277/35421. Introduction What does the word litigationmean? Websters New Encyclopedic Dictionary explains the word litigate as follows: 1: to carry on a legal contest by judicial process 2: to contest in law [Latin litigare, from lis, lit-is lawsuit + agere to drive, act, do]. Usually the term litigation is associated with civil litigation but it also makes sense for other areas of law. In our Praktikum we shall deal with litigation before the European Court of Human Rights (ECHR) and the Court of the European Union (ECJ). Effective litigation demands besides knowledge of the substantial legal content of the case also knowledge of the relevant procedural and organizational provisions. A litigation strategy should be considered already at the domestic level, for example as regards the exhaustion of domestic remedies before lodging an application to the ECHR or suggesting a referral to the ECJ asking for a preliminary ruling. See for example Joint Cases C-465/00, C-38/01 and C-139/01 where the persons feeling violated in their private life were concerned by a domestic legal regime (with the rank of a constitutional law). They succeeded in achieving a preliminary ruling by the ECJ which was followed by a ruling of the Constitutional Court that the regime in question was not applicable because it was in contradiction with Community- law (now Union-law). Procedure before European Courts comprises principally written and oral procedure. Before the ECHR written procedure is the rule, oral procedure is used very rarely. Rhetoric, Legal Advocacy and Legal Reasoning Recommended books: Antonin Scalia, Bryan A Garner, Making your Case: The Art of Persuading Judges (2008) Posner, Overcoming Law (1995) Posner, The Problems of Jurisprudence (1990) According to Richard Posner the chef doevre in this field remains Aristotles Rhetoric, beyond which more than two millennias worth of subsequent literature has made few advantages. The Platonian Counterpart to Aristotels book is the dialogue Gorgias, which tries to illustrate the subject from a Socratic perspective.

According to Aristotle successful rhetoric reqires logos. ethos and pathos. Logos [word, reason; narration, account] means that a speech must be logic (based on reason, make the case credible to the audience). Ethos [custom] means a personal awareness of virtue, of fundamental values common to a specific culture stemming from personal insight and reflection. Pathos [suffering] aims at raising emotions in the audience by using specific words.

As an example for a display of these qualities (tools) the submissions of Paul Gallagher, Attorney-General in the case of A, B, and C v Ireland (application no. 25579/05) before the ECHR could be mentioned.
Posner stresses the fact, that Rhetoric does not produce knowledge. The rhetorician works with the material he is given (Overcoming Law p 528). Written and oral submissions In written submissions as well as in oral pleadings there is always the question how to present the available arguments in the most efficient manner. The goal of rhetoric must not be to make the weaker appear the stronger argument but to find out and to show what makes a cause appear convincing. The short formula is: To convince and not to persuade ( see The Art of persuading Judge mentioned above). One should always have in mind that besides the legal aspect there is usually also a factual aspect which must be argued as well (cf questions of the evaluation of evidence). In the Brstle Case (C-34/10) before the ECJ those appearing before the

Court (as well as the judges) had to study carefully scientific biologigal questions to apply the terms of the relevant legal provisions in the right way. Empirical data (eg statistics) can play an important role in reinforcingthe legal arguments in a given case.. Posner identifies certain tools or manners of argumentation used by lawyers giving the following examples for specific techniques for rhetoric, legal advocacy and legal reasoning: Analogy Arguing by analogy (in a broad sense) generally means to apply legal norms or maxims or legal theories developed for other cases to the case at issue. Casuistry (case-based reasoning) Casuistry means case-based arguing; it is a method of case reasoning. Usually it is argued that a decision in a specific case also proves right for another case (Wikipedia).. Metaphor According to Wikipedia a metaphor is an analogy between two objects or ideas, conveyed by the use of a word instead of another. Metaphors sometimes can illustrate very well a specific issue of a case. A famous example for a metaphor in philosophie is Platos cave allegory.

An example for a metaphor used in a legal context is Lord Dennings description of of the nature of Community Law: the flowing tide of Community law is coming in fast. It has not stopped at the high water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.
Metaphors are not used in abundance but they may be helpful as a tool in rhetoric. Posner says the following: Even if the truth value of metaphors is irrelevant [M]etaphor plays a useful cognitive role in jolting a person out of its existing frame of reference by getting him to look at something in a fresh, and perhaps a more illuminating way (Posner, Overcoming Law 523) . European Courts use metaphors in their case-law in a manner which may be compared with shorthand symbols (cf public watchdog for describing the role of the press or chilling effect for characterising the effect which interferences of the State into the freedom of expression might have. Another example is the metaphor of the Convention to be regarded as a living instrument. An example for the use of metaphoric speech as an instrument to highlighting a specific position in legal advocacy is the following:

In the oral hearing in the case of Mosley (application no 48009/08) before the Lord Pannick, QC for Max Mosley. accused British tabloid newspapers of invading the bedrooms of consenting adults and breaching their privacy like some journalistic Taliban.
Metaphors may give legal advocacy a certain literary dimension (cf the dissenting opinions of some justices of the USSupreme Court) but they are not so often used in proceedings before European Courts. The style in these proceedings is much more functional and technical (matter-of-factedly). Informative Articles: Levels of Metaphor in Persuasive Legal Writing, by Michael R. Smith* http://www2.law.mercer.edu/lawreview/files/58309.pdf The Art of Advocacy, Lemon of a metaphor, by Paul Mark Sandler: http://www.attorneyadvocacy.com/2009/08/lemon_of_a_metaphor_1.html Making sense of metaphors, by Professor Bernard Hibbits, University of Pittsburgh Schol of Law http://www.attorneyadvocacy.com/2009/08/lemon_of_a_metaphor_1.html

Authority Usually it is the authority of supreme courts decisions to which reference is made to. .Legal decisions are authoritative not when they command a consensus among lawyers, corresponding to a consensus among scientists, but when they emanate from the top of the judicial hierarchy (Posner, Problems, 79). The practice of taking resort to authority may also be applied in relation to (supreme) court decisions in other legal systems. For instance the ECHR has referred to decisions of the US Supreme Court or of the Canadian Supreme Court. Authority may also be sought from the teachings of qualified publicists.

European Court of Justice and General Court See the background documents and the Rules of Procedure on the website of the ECJ: http://www.curia.europa.eu/en/instit/presentationfr/cje.htm Recommended Book; Craig/de Burca, EU Law Text, Cases and Materials, 5th edition, 2011

European Court of Human Rights See the background documents and the Rules of Procedure of the Court on the website of the Court: www.echr.coe.int Recommended books Harris, OBoyle & Warbick (eds) Law of the European Convention on Human Rights, second edition, 2009 Leach, Taking a Case to the European Court of Human Rights, third edition, 2011 Reid, A Practitioners Guide to the European Convention on Human Rights, fourth edition 2012 Jacobs, White, and Ovey, The European Convention on Human Rights, fifth edition, 2010 Van Dijk, van Hoof, van Rijn, Zwaak, Theory and Practice of the European Convention on Human Rights, fourth edition, 2006 Links: http://www.motherjones.com/politics/2009/06/sonia-sotomayors-prose-problem (questions on style) http://echrblog.blogspot.co.at/ (ECHR Blog)