Is there &quot;evidence-based&quot; practice in law? &quot;Evidence-based practice&quot; (sometimes colloquially called &quot;what works&quot;) is a buzzword floating around many professions nowadays, especially medicine and education. The idea is to use scientific research to inform and continuously improve day-to-day professional practice. For example, a schoolteacher following non evidence-based practices might teach square roots the same way he has for decades and the same way he was taught them as long as nothing obviously is going wrong (e.g. a flood of parental complaints, excessive number of students flunking out, etc.). By contrast, an evidence-based teacher would keep tabs on the latest scientific journal publications in mathematics pedagogy and alter his lectures, homework assignments, tests, etc. to conform to what was shown to work best in such studies. He may even do his own studies that he then publishes. In theory, this is supposed to create a virtuous cycle of continuous improvement where everyone is sharing their research and optimizing each others' practices. Research in evidence-based practice tends to be quantitative, for example, &quot;Doing this instead of that in the classroom resulted in a 20% gain on standardized literacy test scores, a 10% rise in cumulative GPA, and 50% fewer behavioral referrals for student misconduct.&quot; Does evidence-based practice exist in the practice of law? If so, what does it consist of? Is it quantitative or qualitative? I have read legal research journals, and have found most publications to be deep-dive studies of this or that specific legal issue or area (e.g. intestate probate in California when the decedent was legally incompetent at the time of death and had a living spouse, not resident in California, who refuses to attend the probate hearing) rather than quantitative studies on whether doing X or Y will get me more wins at trial, get my clients more favorable settlements, or give me an edge getting &quot;questionable&quot; evidence not ruled inadmissible. The difference could be compared to a physician reading an essay on &quot;What is non-XYZ skin cancer?&quot; versus reading a study showing that increasing chemotherapy doses by 5% in patients with non-XYZ melanoma resulted in 10% fewer deaths among skin cancer patients at X hospital with caveats A and B and confidence interval C. In a nutshell: Non-evidence-based: Deep dive into the history of the Chewbacca Defense in criminal law from its origins in the mid-1300's to the present day, with specific notes to its successful use in a landmark Mopery case in Podunk Superior Court in 1955 and an Aggravated Creeping with Dishonest Intent case in the Supreme Court of Ruritania in 1987. Evidence-based: In a sample of Mopery cases in Podunk courts (N=235) from 1973 to 1982, defendants raising the Chewbacca Defense obtained 30% more acquittals than those using the Twinkie Defense. Among the small number of defendants who were convicted after raising the Chewbacca Defense, they, on average, received 20% lighter sentences than those who had lost after raising the Twinkie Defense. Conclusion: the Chewbacca Defense is more effective against Mopery charges than the Twinkie Defense with caveats A and B and confidence C. See Tables A and B for supporting data.
The primary field of research where the kind of studies you are thinking about are done is often called &quot;empirical legal research.&quot; There is a fairly rich literature, that a substantial minority of practitioners in the relevant areas are guided by, in the area of issues related to jury trials: how jury composition influences outcomes, how juries make decisions, the difference in outcomes between jury trials and bench trials, the fact patterns that are prone to wrongful convictions or mistakes about the facts in civil cases, techniques that influence jury decision making outcomes, and the kinds of awards juries tend to make of non-economic damages in particular kinds of cases. Another area where there is a fairly rich literature that a smaller minority of practitioners reference concerns the facts that influence likelihood of success on appeal, which in turn influences the decision to appeal or not appeal a case, or to bring collateral attacks on a trial court decision (e.g. in habeas corpus review of a criminal conviction). A third area where empirical studies guide a minority of practitioners is the more general literature on negotiation which is used to influence how both transaction negotiations and settlement discussion negotiations, are conducted. In most other areas, empirical literature is used mostly to evaluate risk, either to determine its materiality in connection with worrying about it in planning a transaction, or in the early stages of a lawsuit. In these areas this is incorporated holistically into the general career experience and life experience of the attorneys involved. For example, there is an empirical literature that demonstrates that small business bankruptcies rarely successfully reorganize a business and usually result in tax creditors receiving most of the available assets, while big business bankruptcies usually do successfully reorganize (with some industries more successful than others) and tend to pay different kinds of creditors different proportions of their claims. This literature influences the decisions of individual creditors regarding what kind of cases to pursue more or less aggressively, and also influences how lawyers familiar with this literature advise clients about the risks involved in particular investments. Likewise, there is a literature on the likelihood of small business success over particular time frames with additional other factors considered (e.g. franchise v. non-franchise).
Most class action litigation involves a whole mass of people who suffered minute injury, whereby it wouldn't be cost effective to bring individual suit. There are exceptions, as with every rule. So, for instance, (I'll use one I was involved in): BARBRI, who established the curriculum, study aids, and taught nearly all of the prep courses for the bar exams in every state, illegally colluded with Kaplan, who ran nearly all of the prep courses for the LSAT (the law school entrance aptitude test) to create unfair trade advantage by price fixing and agreeing not to offer each others' service, thereby creating a monopoly. Because of this, there was no way to cheaply prep for either of these major events &ndash; it was use BARBRI or Kaplan, respectively, or study without these invaluable classes/aids. They were expensive but necessary to excelling on these very important tests. It wasn't that they weren't great test prep courses, it was that they created an environment free of any competition where you were forced to pay whatever they were asking. I got notice of class action, didn't opt out, and about 3 years later got a check for nearly $300. Perfect from my perspective. They taught me a ton, I did good on the LSAT and the Bar Exam and the money came at a perfect time. For those exceptions to the rule, opting out may be the best course of action, but as @nomen agentis noted, it does bar you from recovery as part of the class (although that is usually nominal) if you fail to bring private action, miss the statute of limitations, or fail to recover via settlement or trial award. As a further example based on my experience with BARBRI/Kaplan: say you were a person who couldn't afford to take the bar prep course, and because of the price fixing and limit on competition (monopoly) couldn't find any other alternative review course. If you studied on your own, looked for alternative study aides/courses to no avail (there were literally no others) and then failed the bar exam, and you could show that because of this, it was more likely than not that it was the reason you failed, you might have a case individually, arguing that your quarter-million-dollar education was functionally meaningless without a license to practice, and you couldn't get a job that paid enough to repay the loans because you couldn't get a job, etc. This would be the type person to consider opting out. Typically, these (the more injured person) are the people the attorneys search for who end up named as the representing party to the class, but not everyone can be a named plaintiff that suffered more than the nominal injury. Because of this, not everyone who had a more serious injury will be adequately compensated by the class action. These suits are meant to get a lot of people a little justice and to teach a lesson, not to get a few people largely compensated for substantial injury. They are also quite nice for the lawyers who make millions, because they get a percentage of the entire pie. But, if you suffer a serious injury for which a class action suit exists, then it would probably behoove you to opt out, after consulting with a lawyer. It's important to understand that for most people it's more beneficial to be in the class. These are typically the type injuries that on the aggregate equal substantial injury, but individually, no lawyer would take on a contingency and it wouldn't be worth while to pay to litigate, as the recovery would be nowhere near the cost of the litigation/attorneys' fees. If you are (like the example above) the odd individual who suffered a much greater injury than the remainder of the class, then opting out would not be wise. However, you don't automatically get more just because you sue individually, and there is no collateral estoppel or issue preclusion because you are suing on a different theory of damage. If you opt out, you start over. If you waited, you may benefit from any admissions in court, which can be used against them, but not any findings. However, a class suit will typically run much longer than an individual, so you would probably finish your suit before the class action concluded. If you are the person who suffered substantial injury, when you get the class notice you should consult an attorney right away, to see if you have a provable case and if opting out is the right choice for you. Statute of limitations need to be examined, as well as other procedural things. Generally speaking, those other reasons for potentially opting out that are in the question are not typical considerations.
france Yes, both for civil and criminal law, but in different ways. The general principle of civil law in France (and I believe every civil-legal-system jurisdiction) is that one is liable for any damage they cause through fault. Of course, details differ greatly between what is considered a damage, what are the standards to prove causation or fault, etc. Cour de cassation, civile, Chambre civile 2, 18 janvier 2018, 16-28.392 specifically endorsed a lower court reasoning that distinguished between préjudice moral (moral damage) and préjudice psychologique (psychological damage). The latter is about quantifiable medical damage (even if mental rather than physical), while the former covers grave breaches of wellbeing. In the case at hand, a couple was assassinated when their child was two years old; the child later developed severe psychic disorders as a result of the trauma; it was found that a compensation for the préjudice moral of losing his parents at a young age did not foreclose a later suit for the préjudice psychologique of developing mental troubles (which became visible much later in his life). To be honest, I would be extremely surprised if any jurisdiction recognized no cause of action for any type of psychological damage. There might be issues of burden of proof etc. such that in practice suing for psychological damage is unviable, but a complete bar on any civil action predicated on psychic damage seems unthinkable. Regarding criminal law, many assault-type crimes are scaled by gravity. That gravity is evaluated by days of &quot;complete inability to work&quot; (search incapacité totale de travail through that section of the penal code). While the notion has been standardized by work law cases, it also applies outside a work context when the damage prevents one from doing basic life actions (children, retirees or the unemployed can be subject to a &quot;complete inability to work&quot;). Whether the damage that caused it was physical or mental is irrelevant. Two notes though: physical damage resulting from assault is more easily quantified by that scale than mental damage. If a mob boss breaks your bones, you spend one month in the hospital, and then you get out roughly healed; it’s easy to say that it cost you one month of your life. If the same mob boss kills your wife in a gruesome manner, you might be haunted for life, but still be able to work, feed yourself etc., past one or two days of shock. &quot;Low-level&quot;, long-lasting damage is not well-measured that way. quantifying the duration of a &quot;complete inability to work&quot; depends on the victim’s active cooperation with the prosecution (such as going to see a doctor to get a certificate). That is possible because the civil and criminal causes of actions are usually joined in a single trial, during which the victim will try to prove injury. (It is possible for the victim to open a separate civil trial, but that’s usually not a good idea. The same exact remedies are available by joining in the criminal trial; usually the prosecutor has the same goals as you in proving the facts, so why not let them do it and save some lawyer fees?) It would probably not be reasonable in a common-law system with separate trials. It also breaks down in certain cases (e.g.: in a good fraction of spousal abuse cases, the victim refuses to testify against the accused).
The difficult part is deciding when two cases are similar. Precedents from higher courts govern what the law is in a case. But, a lot of what trial court judges do is to boil down a mountain of evidence to determine authoritatively what facts actually transpired before applying the law to those facts. This involves immense amounts of discretion and judgment. Also, while in some cases the law provides very clear guidance to a judge about what to do, in other cases, the law is vague enough that two different judges can reach two different verdicts, both of which are legally correct, on the same set of facts. For example, in a divorce case (involving made up facts and law to illustrate the idea), suppose that the two main assets of the family are a house and retirement account of equal value and that the facts as applied to the relevant law say that the value of the assets must be divided equally between the husband and wife. One judge could award the house to the husband and the retirement account to the wife, while another judge could award the retirement account to the husband and the house to the wife. But both judges would have complied perfectly with the law. Similarly, in a divorce there are a variety of different custody plans for children that could all conform to the law and different judges could choose different plans and each be correct. As another example, suppose that a bulldozer destroys a house and the person whose house is destroyed sues for money damages. The judge is presented with two different appraisals from equally qualified appraisers for the value of the house, both of whom superficially at least, are using proper appraisal methods. But one appraiser says the house was worth 1,000,000 and another says that the house was worth 1,500,000. Realistically, any verdict the judge renders between 1,000,000 and 1,500,000 could be upheld as legally correct. Because the process of turning evidence into legal verdicts involves so much discretion and so many judgment calls, and because it is rare that two cases are factually identical, the goal of giving similar verdicts for similar cases, is difficult to achieve and difficult even to evaluate in real life. It is almost certain that similar cases often result in dissimilar verdicts, and not infrequently the reasons for this (like using personal ideologies as opposed to what the law demands to resolve close cases) are not good ones. But deciding how common that is, or in what kinds of cases it is most troubling that this happens, is very hard to determine.
That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure.
These decisions are inherently individual. The judge in this case explained the reasons why he thought it would be helpful to set out the full context of organized pseudo-legal commercial arguments. Meads v. Meads, 2012 ABQB 571: [2] Over a decade of reported cases have proven that the individual concepts advanced by OPCA litigants are invalid. What remains is to categorize these schemes and concepts, identify global defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies. [3] ... One of the purposes of these Reasons is, through this litigant, to uncover, expose, collate, and publish the tactics employed by the OPCA community, as a part of a process to eradicate the growing abuse that these litigants direct towards the justice and legal system we otherwise enjoy in Alberta and across Canada. I will respond on a point-by-point basis to the broad spectrum of OPCA schemes, concepts, and arguments advanced in this action by Mr. Meads. [5] The Meads case illustrates many characteristic features of OPCA materials, in court conduct, and litigation strategies. These Reasons will, therefore, explain my June 8, 2012 decision and provide analysis and reasoning that is available for reference and application to other similar proceedings. [6] Naturally, my conclusions are important for these parties. However, they also are intended to assist others, who have been taken in/duped by gurus, to realize that these practices are entirely ineffective; to empower opposing parties and their counsel to take action; and as a warning to gurus that the Court will not tolerate their misconduct. One of the roles of a judge in the common-law legal system is to guide the development of the law. By describing this collection of vexatious tactics, the judge was hoping to allow future courts to simplify court responses to these tactics in future cases. While the reasons in Meads were written prior to the Supreme Court of Canada's decision in Hryniak v. Mauldin, 2014 SCC 7, it is consistent with the Supreme Court's direction to create an environment that promotes timely access to justice. Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. By helping other judges efficiently understand and dispose of pseudo-legal commercial arguments, the reasons in Meads further the goals of access to justice. This implication was recongized in Jarvis v. Morlog, 2016 ONSC 4476: In my view, precious judicial time should be spent on resolving real matters. Simply taking judicial time to respond seriously to OPCA claims gives the claimants a measure of success in advancing their improper purposes. Associate Chief Justice Rooke spent more than enough of his very valuable time creating a textbook of abusive OPCA practices in Meads v. Meads. In my view, not another moment of judicial resources or party expense should be invested on OPCA claims. The legacy of Meads is examined by Donald J. Netolitzky, &quot;After the Hammer: Six Years of Meads v. Meads&quot; (2019). He argues that the judge was successful in this goal. He also agrees with you that this decision is &quot;exceptional&quot;: in the breadth of its investigation and its choice of audience (at times speaking &quot;directly to those who use and promote OPCA concepts&quot;). He notes that Meads has been accepted in subsequent jurisprudence as a &quot;critical resource&quot; in Canada and around the world. While one might expect that the material in Meads would have been the more appropriate role of an academic article, Netolitzky observes that &quot;[i]n Canada, legal academia has paid essentially no attention to pseudolaw, both before and after Meads.&quot; Perhaps had there been a helpful body of academic literature, Meads would have been unnecessary. Netolitzky argues that the reasons in Meads reflected &quot;trial court expertise.&quot; These matters tend not to end up in courts of appeal. He also agrees with your analogy to an academic article, calling this a &quot;review judgment&quot; (like a &quot;review article&quot;). He says that Meads &quot;atypical content&quot; was needed to &quot;fill a gap in legal literature&quot; and that it was sufficiently connected with the materials and arguments put forward in the case. &quot;Without that context, Meads is a bizarre, inexplicable actor, a caricature of vexatious litigation.&quot;
The law is known to everyone in theory. But as various people are said to have said, In theory, theory and practice are the same. In practice, they are not. Starting from zero and actually finding out what law is applicable to your circumstances is not a trivial matter. To have an answer you can rely on you need to do the following: Find out what law calls it. Sometimes this is obvious, but not always. Go and find the law in question. Over the last 10 years this has got much easier. It used to mean going to your city library and looking up the relevant law. These days we have Google (other search engines are available). Find any other laws which might have bearing on the matter. This can be a long way from obvious (see below). Find any relevant appeal court cases in which something like your circumstances have arisen, and figure out how they relate to your actual situation. You may find that some of the laws which you read in Stage 3 have been ruled unconstitutional, or that the standard of evidence required to prove or disprove something about it has been set impossibly high, or that the penalties or damages have been set absurdly high or absurdly low. If you are in the US then maybe some of those precedents were set in other circuits, in which case you need to figure out what your local circuit is likely to do about it should the occasion arise. Make a calm, dispassionate decision about what to do about your situation. Many people find this extremely difficult. The answer might be life-changing. Under these circumstances making a good decision is very hard. Just to give you an idea about (3), suppose you are planning on importing something for your business. Here is a list of areas of the law you might fall foul of, off the top of my head and I've probably missed some: Tax. Trade in endangered species. Drug prohibition. Environmental protection. Biosecurity. Health and safety. Consumer protection. And that is just the criminal laws. Theories of civil liability can get really complicated. But OK, lets suppose you figure out the law, but despite your best efforts you find yourself in court (criminal or civil). Now in addition to all the law you find yourself enmeshed in a complicated bureaucratic set of rules, depending on the type of court and where you are (e.g. US rules of civil procedure). At this point you need to learn not just the rules but how to play the game they describe. Think of it like playing chess; learning how the pieces move is only the first step on the long road to becoming a competent chess player. And the legal system is like chess in another way; there are no do-overs if you make the wrong move. (Incidentally, anyone who says "Well lets just get rid of all the complicated rules and laws" is committing the fallacy of Chesterton's Fence. Just because you can't see why the rules are there doesn't mean there isn't a good reason). Or you could just hire a lawyer.
Why do attorneys have these? Originally to use as references, although some kinds of books (e.g. case law reporters, Shepard's citations, Martindale Hubble directories, and serial analysis of case law like Am. Jur.) are rarely used that way any more. When I started practice in the mid-1990s, it cost several hundred dollars an hour to access online legal sources (that were less comprehensive and had lower quality search functions than the service that comes free with my bar membership today), so the vast majority of legal research was done with hard copy case reporters, digests and annotated statute books. A complete set of case reporters for a single state would typically run to hundreds of volumes with new ones arriving monthly. A full set of Shepard's Citations (which told you if a case have been overturned or questioned in later cases or just where it was cited with approval) took roughly a full shelf of a full sized book case when limited to a single state. Any law firm that is at least fifteen or twenty years old needed them when they bought them and lawyers hate to throw anything away. Case law research is now predominantly online. The last time I used Shepard's citations and hard copy case reporters on a regular basis was a decade ago. Law journal research is also predominantly online now. I sent most of my uglier and numerous law books (including several dozen volumes of an outdated legal encyclopedia summarizing case law) to the recycling bin about six or seven years ago. Do they actually reference them, especially when so much information is searchable and indexed online? Lawyers still routinely use statute books in states where they practice, court rules, standard jury instructions, and to a somewhat lesser extent treatises on different areas of the law (including the Restatements of Law). Now and then, lawyers will still use a hard copy of a West Digest. And, I have yet to encounter a lawyer who doesn't have at least one or two decent sized book cases full of law books. In statutes and court rules (and regulations), typesetting details that can get mangled online are important and browsing a structured text can be easier to do on paper than online. There are some regulations available only in online versions that I print for ease of use (e.g. Colorado's marijuana regulations and its Medicaid regulations). I also print for ease of use my state's title standards (for use in determining if someone has marketable title to real estate), even though they don't have the force of law. I also keep a few hard copy model statutes with the official commentary. It can also be hard on the eyes to look at a computer screen non-stop all day, so looking at something you use regularly on paper can be a relief. Are the books updated regularly? or are these the books they graduated with, and are rarely changed out? Statutes and court rules and jury instructions are typically updated annually, following each year's legislative session. Treatises are updated with "pocket parts" every year, that are added to a hardbound edition that is updated at most, every several years. A pocket part is a softbound update with the same section organization as the underlying treatise that has a flap the fits into a pocket in the back flap of a hard cover treatise. Bigger "pocket parts" are printed as thin softcover bonus volumes to the original treatises. I also keep a current softbound "Bluebook" (the reference regarding how legal materials should be cited to in legal documents and legal scholarship) and several high end dictionaries including Black's Law Dictionary, the OED and a few others in hard copy (because browsing is easier when you don't know exactly how a word is spelled). I keep many of my law school textbooks, which some people do, and other people don't, and I buy new treatises especially when I move into a new area of law practice where background guidance is useful. Do the books exist purely for psychological impressions, or is there a utilitarian purpose? Both. Sometimes old books that don't have much ongoing practical use are kept on the shelves because they are pretty. For example, I don't really need a hard copy of my outdated New York State Statutes, but they look good (even though I practice mostly in Colorado and look up New York State statutes online when I need to actually use them). But, I use hard copy statutes and court rule books for the state where I practice on pretty much a daily basis and use hard copy treatises at least several times a week in my law practice. In that respect, I am not atypical, although I probably use hard copy books more than younger lawyers do. Of course, even among these books, some volumes are used much more often than others. I look at a volume of insurance industry regulation statutes at most, once a year, while I read the volume related to divorce and probate at least once or twice a week, for example. Hard copy books are also useful for pinning down the corners of blueprints and surveys when you are in litigation where those kinds of oversized paper documents are at issue. ;)