06 April 2012
NOTICE: Defabritiis on Oral Advocacy in a Land without Binding Precedent
Sabrina Defabritiis, ‘Lost in translation: Oral advocacy in a land without binding precedent’, now available on SSRN and forthcoming in the Suffolk Transnational Law Review, might be of interest:
Robert Frost first famously penned “Poetry is what gets lost in translation.” In the world of advocacy, persuasion is what gets lost in translation. This article examines the distinctions in the common law and civil law methods of legal reasoning. It analyzes why, in form and substance, the traditional common law oral argument methods are neither effective nor persuasive when presented in a civil law jurisdiction. Although the common law and civil law legal traditions share similar social objectives, arguing based on stare decisis is incompatible with the Code-based method applied by civil law courts. This article explores how to transfer common law advocacy skills to create an effective civil law oral argument. By making this transition, a common law advocate will be able to garner a greater awareness of the civil law system, including an understanding of the rules that govern the court or tribunal that will be hearing the argument, an appreciation for the role of the judge hearing the argument, and an appreciation for the role of scholars in the civil law system. As a result, common law practitioners can hone their ability to effectively craft a persuasive civil law argument.