However, before previous cases can be considered as potential ratios, they need to be located according to whether or not they are similar to the present case. Sometimes, counsel for the litigants will strenuously argue that previous cases are not precedents because they can be distinguished on their facts. In other words, they are not similar; the court may agree out of persuasion or policy. In this way extremely subtle ‘differences’ are found between two cases. It is difficult if not impossible to come up with a clear formula that will always work for ascertaining the ratio of a case. But a reasonable idea of the difficulties in ascertaining the ratio is a necessary and revealing step for any interpreter engaged in the search for a ratio. Appreciation of the difficulties prevents simplistic case analysis which will ultimately lead to simplistic and inadequate construction of legal arguments. If an argument is being made on weak, tenuous or stretched grounds, it is better to know than be ignorant as to the basis of the case one is constructing. One of the major difficulties involved concerns the different types of information and skills that have to be utilised in deciding whether a case is a precedent. To provide some light relief, work through the questions in the chart in Figure 4.6, below. It is an over-simplistic chart asking some of the necessary questions to decide if a previous case constitutes a precedent to be followed in a current case. As mentioned above, the law tends to work through generalised rules which have to be applied to specific circumstances. This is why lawyers spend so much time comparing, contrasting and differentiating situations, for they are constructing arguments based upon similarity and difference. Legal rules are, by convention and necessity, expressed as general rules. Lawyers have to reason from the generality of the rule to the specificity of the situation. At times, lawyers have to research previous cases meticulously to assist in predicting the outcome of the current case. After all, there is no point in going to court if the exact point the client wishes to make has already come before a court and been determined to his detriment. Part of the lawyer’s particular expertise is knowing how to look quickly through past cases to find relevant decisions either supporting or opposing a client’s case. The location of materials is relatively easy given the range of on-line databases available. Unfortunately, students often do not have unlimited access to training in how to use such databases. So, there is a need to rely on one of the citators to locate relevant cases. Searches can be made, first, to pinpoint cases dealing with specific legal rules; secondly, a range of cases with similar facts can be located through analysing the first trawl of data. These cases then need to be carefully read and analysed. The lawyer has to construct an argument and predict the opponent’s arguments. This is done by, initially, checking relevant cases. It must be evident by now that the ability to locate and subsequently analyse law reports is extremely important. After careful reading, the lawyer has to construct detailed arguments concerning similarities with other cases that help the client’s position, and arguments need to be constructed demolishing the potential precedential value of cases not helping the client. This latter skill is called distinguishing, and it is a particularly important skill for those who wish to ensure that a precedent is not followed.

DOI link for However, before previous cases can be considered as potential ratios, they need to be located according to whether or not they are similar to the present case. Sometimes, counsel for the litigants will strenuously argue that previous cases are not precedents because they can be distinguished on their facts. In other words, they are not similar; the court may agree out of persuasion or policy. In this way extremely subtle ‘differences’ are found between two cases. It is difficult if not impossible to come up with a clear formula that will always work for ascertaining the ratio of a case. But a reasonable idea of the difficulties in ascertaining the ratio is a necessary and revealing step for any interpreter engaged in the search for a ratio. Appreciation of the difficulties prevents simplistic case analysis which will ultimately lead to simplistic and inadequate construction of legal arguments. If an argument is being made on weak, tenuous or stretched grounds, it is better to know than be ignorant as to the basis of the case one is constructing. One of the major difficulties involved concerns the different types of information and skills that have to be utilised in deciding whether a case is a precedent. To provide some light relief, work through the questions in the chart in Figure 4.6, below. It is an over-simplistic chart asking some of the necessary questions to decide if a previous case constitutes a precedent to be followed in a current case. As mentioned above, the law tends to work through generalised rules which have to be applied to specific circumstances. This is why lawyers spend so much time comparing, contrasting and differentiating situations, for they are constructing arguments based upon similarity and difference. Legal rules are, by convention and necessity, expressed as general rules. Lawyers have to reason from the generality of the rule to the specificity of the situation. At times, lawyers have to research previous cases meticulously to assist in predicting the outcome of the current case. After all, there is no point in going to court if the exact point the client wishes to make has already come before a court and been determined to his detriment. Part of the lawyer’s particular expertise is knowing how to look quickly through past cases to find relevant decisions either supporting or opposing a client’s case. The location of materials is relatively easy given the range of on-line databases available. Unfortunately, students often do not have unlimited access to training in how to use such databases. So, there is a need to rely on one of the citators to locate relevant cases. Searches can be made, first, to pinpoint cases dealing with specific legal rules; secondly, a range of cases with similar facts can be located through analysing the first trawl of data. These cases then need to be carefully read and analysed. The lawyer has to construct an argument and predict the opponent’s arguments. This is done by, initially, checking relevant cases. It must be evident by now that the ability to locate and subsequently analyse law reports is extremely important. After careful reading, the lawyer has to construct detailed arguments concerning similarities with other cases that help the client’s position, and arguments need to be constructed demolishing the potential precedential value of cases not helping the client. This latter skill is called distinguishing, and it is a particularly important skill for those who wish to ensure that a precedent is not followed.

However, before previous cases can be considered as potential ratios, they need to be located according to whether or not they are similar to the present case. Sometimes, counsel for the litigants will strenuously argue that previous cases are not precedents because they can be distinguished on their facts. In other words, they are not similar; the court may agree out of persuasion or policy. In this way extremely subtle ‘differences’ are found between two cases. It is difficult if not impossible to come up with a clear formula that will always work for ascertaining the ratio of a case. But a reasonable idea of the difficulties in ascertaining the ratio is a necessary and revealing step for any interpreter engaged in the search for a ratio. Appreciation of the difficulties prevents simplistic case analysis which will ultimately lead to simplistic and inadequate construction of legal arguments. If an argument is being made on weak, tenuous or stretched grounds, it is better to know than be ignorant as to the basis of the case one is constructing. One of the major difficulties involved concerns the different types of information and skills that have to be utilised in deciding whether a case is a precedent. To provide some light relief, work through the questions in the chart in Figure 4.6, below. It is an over-simplistic chart asking some of the necessary questions to decide if a previous case constitutes a precedent to be followed in a current case. As mentioned above, the law tends to work through generalised rules which have to be applied to specific circumstances. This is why lawyers spend so much time comparing, contrasting and differentiating situations, for they are constructing arguments based upon similarity and difference. Legal rules are, by convention and necessity, expressed as general rules. Lawyers have to reason from the generality of the rule to the specificity of the situation. At times, lawyers have to research previous cases meticulously to assist in predicting the outcome of the current case. After all, there is no point in going to court if the exact point the client wishes to make has already come before a court and been determined to his detriment. Part of the lawyer’s particular expertise is knowing how to look quickly through past cases to find relevant decisions either supporting or opposing a client’s case. The location of materials is relatively easy given the range of on-line databases available. Unfortunately, students often do not have unlimited access to training in how to use such databases. So, there is a need to rely on one of the citators to locate relevant cases. Searches can be made, first, to pinpoint cases dealing with specific legal rules; secondly, a range of cases with similar facts can be located through analysing the first trawl of data. These cases then need to be carefully read and analysed. The lawyer has to construct an argument and predict the opponent’s arguments. This is done by, initially, checking relevant cases. It must be evident by now that the ability to locate and subsequently analyse law reports is extremely important. After careful reading, the lawyer has to construct detailed arguments concerning similarities with other cases that help the client’s position, and arguments need to be constructed demolishing the potential precedential value of cases not helping the client. This latter skill is called distinguishing, and it is a particularly important skill for those who wish to ensure that a precedent is not followed.