The legal “Issue” of present tense vs. past tense

case-briefFacts: Earlier today, I was teaching LLM students about reading and briefing cases. The previous week they had examined a number of case briefs and noticed various features and characteristics. For example, after reviewing the Facts section of several case briefs, they were able to confidently conclude that nearly all verbs were in the past tense. This will help them be cognizant of tense when they write the Facts sections of their own briefs, and it will also give them a grammar-based strategy to help them more successfully identify what the facts are and are not when they read a court opinion and attempt to write a case brief.

The previous week the students also came to notice characteristics of the Issue section of the briefs. They noticed that sometimes the Issue was written in present tense and sometimes in past tense.

Today I gave them two different case briefs of the well-known Contract law case Lefkowitz v. Great Minneapolis Surplus Store, Inc. and, among other tasks, asked them to analyze and compare the Issue section of the briefs. They quickly noticed that one was past and the other was in the present.

  • Past: Did Defendant’s advertisement constitute an offer?
  • Present: Under what circumstances does an advertisement for the sale of goods constitute an offer?

Issue:

  1. How do you decide if the Issue section of your brief should be in present tense or past tense?
  2. What are the implications in terms of meaning and in terms of grammar and syntax?

Rule: Past tense is used to indicate events that already happened and are completed. Present tense is used to indicate something that is generally or always true.

Holding: In connection with the Issue, past tense seemed to be used when the writer wanted to focus on the specific facts of the case. Present tense was used when the writer wanted to address a larger principle.

Discussion/Analysis: When writing the Issue section of a case brief, the writer faces choices regarding how to frame the Issue. Is it more important to focus on the facts of the specific case? Or is it more important to focus on the general principle at stake? Or should you try to do both? And if so, what are your grammatical and syntactical options?

Let’s look at the first example sentence:

Did Defendant’s advertisement constitute an offer?

I asked my students to take that sentence and turn it into a more general statement using present tense. Here are two sample sentences they came up with:

  1. Whether an advertisement can constitute an offer.
  2. Does an advertisement constitute an offer?

In order to compare apples to apples (and also to get them comfortable toggling between the two most common syntactical options for writing the Issue), I asked them to convert sentence #1 into a question rather than a “whether” statement, which led to:

  1. Can an advertisement constitute an offer?
  2. Does an advertisement constitute an offer?

My next question was: Do these two sentences have the same meaning?

After some brief discussion, the students were able to articulate that the “does” sentence suggests that the issue is whether all advertisements constitute an offer. However, the “can” sentence was more accurate in limiting the scope of the issue question by questioning whether it’s possible to have a situation where an advertisement constitutes an offer.

Next, I asked the students to work with the “does” sentence and add something to make it more accurate and more specific to the case. They offered several sentences which I put up on the board such as:

  1. Does an advertisement of first-come-first-serve constitute an offer?
  2. Does an advertisement posted by the surplus store constitute an offer to the customers?
  3. Does a first-come-first-serve advertisement constitute an offer?
  4. Does an advertisement constitute an offer in this specific case?
  5. Does an advertisement constitute an offer when it promises something in exchange for a clear and definite action?
  6. Does an advertisement constitute an offer when the advertisement includes language about first-come-first serve?

By this point they started to get a sense of the various strategies for framing an issue in a way that makes it accurate and complete as well as the language they need to consider to accurately convey their meaning.

Conclusion: From a legal English perspective, it’s important that students be aware of the two directions they can go with their Issue–specific or general. It’s also important for students to notice, think about, and absorb the language needed to form the different sentence options in order to build their control over the language, particularly in the legal profession where the need for accuracy requires a high degree of control over language used.

Disposition: Affirmed, that using noticing in combination with authentic models of legal language such as case briefs is a powerful tool for helping students think about discourse and language they need to effectively comprehend and produce the kind of language needed in the U.S. law school LLM environment.

It also can be helpful when teaching grammar to LLM students to approach grammar and syntax not as a series of self-justifying rules embodying the Platonic ideals of language but rather as connected to communication functions. One implication of this approach is that the correct grammar and syntax–the grammar and syntax that will help LLM students sound like a law student or lawyer–is whatever law students and lawyers actually do in their writing. And an effective way to unlock this knowledge is to notice the grammar and syntax of authentic models of legal writing and try to figure out the communication purpose of the various grammar and syntax choices made in order to help LLM students develop a sense of how to make the right grammar and syntax choices in their own communications.

One thought on “The legal “Issue” of present tense vs. past tense

  1. Pingback: What part of the case brief? | St. John's Legal English Blog

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s