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. Continue reading

New article by Alissa Hartig: “Intersections Between Law and Language: Disciplinary Concepts in Second Language Legal Literacy”

alissahartigIntersections Between Law and Language: Disciplinary Concepts in Second Language Legal Literacy” is a recent article published by Alissa Hartig in Studies in Logic, Grammar & Rhetoric (The Journal of University of Bialystok) that discusses a distinction between discourse-structuring concepts and discourse-relevant concepts in ESP. Don’t be intimidated by the linguistics terminology, though. The article describes her work with two LLM students from China and two from Saudi Arabia and provides concrete examples of the complex issues and dynamics at play when teaching them in a law school context.

Hartig is an Assistant Professor of Applied Linguistics at Portland State University. She is the author of a forthcoming book titled Connecting language and content in English for Specific Purposes: Case studies in law. (Publisher: Multilingual Matters) Her previous research and writing on the intersection of law and linguistics includes a 2016 article titled “Conceptual blending in legal writing: Linking definitions to facts” and a 2014 article titled “Plain English and legal writing: Comparing expert and novice writers,” both published in the journal English for Specific Purposes.