Genre Descriptions of Law Reports and Some Implications for EAP Richard Badger, CELT, University of Stirling

Law Reports

Law reports are key texts for students who wish to study law in England. This paper investigates what kind of linguistic description of law reports might be useful in inform practice in the English for Academic Legal Purposes classroom. A sample summary of the law report of Williams v Roffey is given at the end of this paper

One possible approach to description is offered by genre analysis. A well known example of this is Swales’ description of the introduction of research articles. See table one

Table one
A genre analysis of research article introductions (Swales 1990:141)

Various commentators have produced similar descriptions of law reports. See Bhatia, Maley and Bowles (table 2-4 below)

Table 2
Bhatia’s description of the structure of law reports

Table 3
Maley’s description of the structure of law reports

Table 4
Bowles’ description of the structure of law reports

When I tried to apply these descriptions to the EALP classroom they did not seem to have a direct application. My initial response was to question whether these descriptions were accurate and so I produced my own description of law reports based on a corpus of 17 newspaper law reports and three All England Law Reports.

My findings are summarised in table 5.

Table 5
A description of the genre structure of newspaper law reports

This is based on seventeen law reports which appeared in The Guardian and The Times and three which appeared in the All England Law Reports.

While my own findings identified some differences with the descriptions mentioned above in large part it confirmed what other commentators had said and so I then started to examine whether the approach to description might in some way be inadequate and to this end I returned to some of the original definitions of what is meant by the term genre.

The following is a selection of some quotes on genre.

Genre entails purposes, participants and themes, so understanding genre entails understanding a rhetorical and semiotic situation and a social context. (Devitt 1993: 575-576)

a class of communicative events, the members of which share some set of communicative purposes. … exemplars of a genre exhibit various patterns of similarity in terms of structure, style, content and intended audience. (Swales 1990: 58-59)

We are using the word 'genre' more widely than it might be understood in a literary sense. For us, it refers to the staged purposeful social processes through which a culture is realized in language. (Martin and Rothery 1986: 242)

While recognizing that genres can be characterized by regularities in textual form and substance, current thinking looks at these regularities as surface traces of a different kind of underlying regularity. .... All the formal features specified above can be understood to derive from and relate to the writer’s social motive in responding to a recurrent social situation of a certain type. (Freedman & Medway 1994b: 2-3)

While several of these quotes refer to the important of discourse and syntactic structure a more significant aspect of genre would seem to be that they are intended to fulfil some social function and to play a role in a communicative event. We might summarise these three aspects as

A functional approach

In order to investigate the function that law reports are intended to achieve it seemed appropriate to ask the relevant discourse community. The following are some quotes about the purposes of law reports from some text books aimed at law undergraduates.

What really matters is the legal principle involved, and not the specific facts of the previous case. This legal principle – the ratio decidendi – is the part of the decision which constitutes the binding precedent. (Harris 1988:185)

What the doctrine of [binding] precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur; but the legally material facts may recur and it is with these that the doctrine is concerned. (Williams 1982: 67)

These suggest that the primary function of law reports is to establish legal principles or rationes decidendi. This conclusion was supported by consultation with four law lecturers.

It is unlikely that there is a clear linguistic signal of the legal principle in law reports. However, it is likely that principles of law will be stated in general terms and English has various grammatical signals of generality so I looked at my corpus to find if these signals of generality might be linked to the ratio decidendi. There seemed to be some grammatical features linked to the rationes decidendi but these are generally ambiguous. However, it would seem that these might be of use to students trying to identify the legal principles in law reports. The signals are summarised in table 6.

Table six
Lexico-Grammatical evidence of Generality and Specificity

Law reports as conversation

The next area that I wanted to investigate was how law reports fit into communicative events. As Freadman (1994:63) puts it

My text is not a game, but a move in a game. It expects an uptake.

In order to investigate what uptake a law report expects I asked twelve second year law undergraduates how they used law reports. These students were self selected and I am not sure to what extent they are representative of law undergraduates but their responses were remarkably similar and the main use seemed to be in answers to problem questions. A sample problem question follows.

A sample problem question
Armadillo plc make a contract with Badmovers Ltd, under which Badmovers agree to transport 3,000 rolls of material from Armadillo’s warehouse in London, to Armadillo’s factory in Leicester. The contract specifies that the material is to be delivered at a rate of 150 rolls per week for 20 weeks. The contract price is £40,00. Just before deliveries are to start, Badmovers realise that it is only possible to carry 100 rolls at a time on their lorry. They ask Armadillo to agree to deliveries being made over 30 weeks. Armadillo, who are suffering from a fall in business, agree. After five weeks, Armadillo sign a very valuable contract for the production of T-shirts which will require their factory to operate at full capacity. They ask Badmovers to return to delivering 150 rolls per weeks, and say they will pay an extra £10,000 on completion of the contract. Badmovers hire an additional small lorry and complete the contract at 150 rolls per week. Armadillo, who are now in financial difficulties, refuse to pay more than £40,000. Badmovers accept and are paid this, but now want to bring an action to recover the additional £10,000 which they say they are owed.

These questions are used as assignments and in examinations and require students to give advice to one of the parties in the problems about their legal situation and this response will normally include several reference to law reports.

On the basis of my interviews with law undergraduates I would suggest that the following illustrates some possible law report conversations.

A law report conversation

I supplemented the interviews by an examination of some sample problem questions and answers (Brown & Chandler 1996). This suggested that there are three ways in which law reports are used in problem answers, the fullest use is where the facts, decision and principle are given but there are also examples where the principle or some part of the principle is given and where the name of the case is used to reinforce an argument based on another case. Illustrations of these categories now follow.

Facts + Decision + Principle

1. In Williams v Roffey , however, the Court of Appeal seemed to weaken, if not destroy the Stilk v Myrick principle. The main contractors on a contract for the refurbishment of a block of flats, promised one of the sub-contractors, who was on the point of abandoning the contract through financial pressures, extra money if they continued with the contract. When the sub-contractors sued to recover some of these promised payments, the defendants, the main contractors, resisted on the basis that no consideration had been provided. The Court of Appeal, however, said that there was consideration in that it was to the benefit of the defendants that the contract should continue. They would not then have the trouble and expense of finding others to complete the work. They would also avoid having to make payments under the main contract in relation to delay in completion.

Principle

2. Since, in this case, as in Williams v Roffey, the initiative for the increased payment came from the promisor, and was not in any way the result of pressure from the promisee, there would be no reason not to hold the promisor to it.

Relation to other cases

3. Finally, it should be noted that in Re Selectmove (1994), the Court of Appeal refused to apply the more flexible approach to variation of contracts taken in Williams v Roffey (1990) to the situation of the remission of a debt, and re-affirmed Foakes v Beer.

The view of law reports as part of a conversation suggests that teach EALP students need to learn about the different ways in which law reports are used in problem answers.

Some possible implications

This paper has argued for a view of genre analysis that does not focus exclusively on structure but also gives a high priority to the fact that genres serve social functions and play a role in communicative acts. I would argue that this view of genre analysis could go some way to avoiding Kamler’s (1995:9) comment that

there are enormous difficulties with the genre based work, in particular its formulaic implementation, its narrow focus on language and text and its lack of attention to the instructional and disciplinary contexts in which texts are constructed

and could inform all kinds of EAP and ESP.

References

Badger, R.G. (1999) The student as linguist: a technique for helping students produce genre specific grammatical descriptions in H. Bool and P. Luford Academic standards and expectations: The role of EAP. Nottingham: Nottingham University Press.

Badger, R. G., & White, G. (2000). A process genre approach to teaching writing. ELT Journal., 54(2), 153-160.

Bhatia, V.K. (1993) Analysing genre: language in professional settings. London: Longman.

Bowles, H. (1995) Why are newspaper law reports so hard to understand? English for Specific Purposes 14 (3). 201-222.

Brown, I. & Chandler, A (1996) Blackstone’s Law Questions and Answers. London: Blackstones.

Devitt, A. J. (1993) Generalizing about Genre: New Conceptions of an Old Concept. College Composition and Communication Volume 44 No 4. 573-586

Freadman A. (1994) Anyone for Tennis. in Freedman, A. & Medway, P. (editors) Genre and the New Rhetoric London: Taylor and Francis. 43-66.

Freedman, A. & Medway, P. (editors) (1994) Genre and the New Rhetoric London: Taylor and Francis.

Harris, P. (1988) An Introduction to Law London: Weidenfeld and Nicolson.

Kamler, B. 1995. ‘The Grammar Wars or What do Teachers Need to Know about Grammar’. English in Australia 114: 3-15.

Maley, Y. (1985) Judicial discourse: The case of the legal judgment. Festschrift in honour of Arthur Delbridge. Beitrage zur Phonetic und Linguistik 48, 159-173.

Martin, J. R. & Rothery J. (1986) What a Functional Approach to the Writing Task Can Show Teachers about 'Good Writing'. In B. Couture (editor) Functional Approaches to Writing: Research Perspectives. London: Frances Pinter. 241-265.

Stone, R. (1998) Q & A Series: Contract Law. London: Cavendish Publishing.

Swales, J. (1990) Genre Analysis: English in Academic and Research Settings. Cambridge: Cambridge University Press.

Williams, G. (1982) Learning the Law London: Stevens.

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Williams v Roffey Bros & Nicholls (Contractors) Ltd <title>

COURT OF APPEALS CIVIL DIVISION PURCHAS GLIDEWELL AND RUSSELL
LJJ
2, 3, 23 NOVEMBER 1989

<summary>
Contract-Consideration-Performance of contractual duty- Performance of existing contractual - Agreement to pay additional money to ensure performance of existing contractual duty – Whether sufficient consideration for payment of additional sum – Whether promise by plaintiff to fulfil existing contractual duty good consideration - Whether defendant obtaining benefit from payment of additional sum - Whether obtaining of benefit amounting to consideration for payment - Whether agreement to pay additional sum enforceable.

<facts>
The defendant building contractors entered into a contract to refurbish a block of 27 flats and subcontracted the carpentry work in the refurbishment to the plaintiff carpenter for a price of £20,000. It was an implied term of the sub-contract that the plaintiff would receive interim payments related to work completed. After completing the carpentry work on the roof and nine flats, and carrying out preliminary work on the remaining flats, for which work he received interim payments of £16,200, the plaintiff found that he was in financial difficulties because the price was too low and he had failed to supervise his workmen properly. Furthermore, he had by then received over 80%. of the sub-contract price but still had far more than 20% of the work to complete. The defendants, who were liable under a penalty clause in the main contract if it was not completed on time, were aware of the plaintiff's difficulties and that the sub-contract had been underpriced. They called a meeting with the plaintiff at which they agreed to pay the plaintiff an extra £10,300 at the rate Of £575 per flat on completion to ensure that the plaintiff continued with the work and completed on time. The plaintiff continued work and completed eight further flats while the defendants made one further payment of £1,500. The plaintiff stopped work on the remaining flats and brought an action claiming £10,847. The defendants denied that they were liable and in particular denied that any part of the additional £10,300 could be claimed because the agreement to pay it was unenforceable since it was not supported by any consideration. The judge held that the plaintiff was entitled to eight payments of £575 less a small deduction for defective and incomplete items, together with a reasonable proportion of the amount outstanding under the original contract, making a total, after deduction of the further £1,500 which the plaintiffs had already paid, of £3,500. The defendants appealed.

<argument>
Held - Where one party to a contract agreed, in the absence of economic duress or fraud, to make a payment to the other party to the contract over and above the contract price in order to secure completion of the contract by the other party on time and thereby obtained a benefit, such as the avoidance of a penalty payable to a third party if the contract was not completed on time, the obtaining of that benefit could amount to consideration for the payment of the additional sum. Accordingly, the advantages which from a pragmatic point of view the defendants hoped to obtain by agreeing to make the additional payment of £10,300 to the plaintiff, namely to avoid a penalty under the main contract or having to engage another sub-contractor, amounted to consideration for the extra payment even though the plaintiff was not required to undertake any work additional to that which he had originally undertaken to do.

<decision>
It followed that the plaintiff was entitled to claim the extra payments. The defendants' appeal would therefore be dismissed (see p 21 j to p 522 b d g h, p 524 d to h and p 527 d to h, post).
Stilk v Myrick (1809) 2 Camp 317 approved.

Items in angle brackets have been added to highlight the genre structure.
This is the headnote. The full text can be found at the reference at the top of the page.

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