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California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: June 1, 2004
Latest Update: June 1, 2004

E-Mail Icon jeannecurran@habermas.org
takata@uwp.edu

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One of the principles of our system of justice and fairness is that the law is not fickle, but applies to everyone equally. In order to preserve that concept of fairness, courts rely on precedent, similar cases that have been decided before. To this end, when lawyers argue cases, they argue not only the statutes and constitutional law, but also the holdings of previous cases with similar facts.

If the earlier case came out with the result your client wants, then you compare the facts of your case to that earlier case, showing how similar they are. If the earlier case came out with a result your client wouldn't be happy with, then you distinguish the cases. That is you show how the fact pattern in your case is not similar to that of the earlier case. Now this distinguishing and showing of similarity are what you pay the lawyer for, for the skill to argue well enough to convince the court that your case is different from the ones with results you don't like, and similar to ones with results you do like.

This is why "the facts, just the facts, ma'am" are so important. The holding of the case, the court's decision as to the result, depends on how much like or unlike your case is to earlier cases or precedent.

Now, think about this in terms of citing your sources. As our moot court project moves beyond simple legal case argument, we are still bound in our argumentation as social scientists by the facts and by precedent. Even if we are not bound by another higher court, we are bound to ethical and fair findings by our colleagues and the academic and scientific communities, at least, in theory.

So where in the courtroom if you rely too much on the facts, you can expect to be chided by a judge: "We know the facts, Counsel. What does the law say?" And, if you rely too much on the law, the same judge will chide: "We know the law, Counsel. How does it apply to the facts in the case at bar?"

The only difference in our Moot Court is that we will go beyond cases to include scholarly authorities of which the court may take judicial notice. That means knowledge and authorities that the court considers trustworthy or, as we say in school, the sources of your information. Our panelists will be more likely to say, "We know the facts, Counsel. What do knowledgeable sources say? Or we know the sources, Counsel. How do they apply to the issue at bar?



Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, June 2004.
"Fair use" encouraged.