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Language focus
Modals and conditional language
This language section outlines the use of modal and conditional language. Both are important in legal argument as they allow arguments to be constructed in terms of possibility, probability and conditions. It is the difference between saying 'it is because' versus 'it could be because'.
Modal verbs
The conditional nature of statements in legal case studies means that you may need to use words that express degrees of probability, possibility and certainty. The following chart on modal verbs may be useful when writing case studies.
| Modal | Function | Example |
| can | ability or possibility | Can offer latest rice cookers at $100 each (This is possible not an actual offer) |
| could | ability or possibility | It could be argued that the signs put up by the council created a reasonable risk of injury to a passerby |
| may/might | expresses weak possibility | If the possibility of injury is small, then the defendant may be entitled to disregard it |
| should/ought | good advice idea | Jane should succeed in her claim against the company for negligence |
| must/have to | expresses certainty or necessity (no choice) | The test of reasonable foreseeability must be applied |
| would | conditional certainty or possibility | The question to be asked is whether a reasonable person would foresee that damage might result from the defendant's action |
Conditional language
Often the advice in legal answers outlines a possible outcome in a future court case. Conditional language is very useful in case studies, especially when giving advice on possible or probable solutions to legal problems. A conditional is a two part sentence, e.g. if this happens, then that may happen.
Common conditional terms
- Unless and except
- If clauses mean on the condition that. It is a two part sentence; an if usually followed by a then.
- e.g. 'If the damage was reasonably foreseeable by the defendant, then liability will flow. If proper warning signs had been erected by the council... [then]...Brooke's injury would not have occurred.'
- providing
- provided that (on the understanding that)
- whether (if)
- e.g. 'The question to be asked is whether a reasonable person would foresee that damage might result from the defendants action.'
- It could be argued... (a possible argument is...)
- It seems likely that... Introduces sentence/s expressing probability.
Activity
Select the conditional words or phrases to complete the text.
In the tort of negligence, the plaintiff must prove that the defendant owed them a duty of care, breached that duty and that damages were suffered as a result of a breach of that duty.
For Brooke to make a successful claim against the Yarra Valley City Council she establish that a duty of care existed. Here the test of reasonable foreseeability applied. The question to be asked is a reasonable person foresee that damage result from the defendant’s action It argued in Brooke’s case that the signs put up by the Council created a reasonably foreseeable risk of injury of some kind to someone such as herself. (See Chapman v Hearse 1961)
Modals and conditional language
This language section outlines the use of modal and conditional language. Both are important in legal argument as they allow arguments to be constructed in terms of possibility, probability and conditions. It is the difference between saying 'it is because' versus 'it could be because'.
Modal verbs
The conditional nature of statements in legal case studies means that you may need to use words that express degrees of probability, possibility and certainty. The following chart on modal verbs may be useful when writing case studies.
| Modal | Function | Example |
| can | ability or possibility | Can offer latest rice cookers at $100 each (This is possible not an actual offer) |
| could | ability or possibility | It could be argued that the signs put up by the council created a reasonable risk of injury to a passerby |
| may/might | expresses weak possibility | If the possibility of injury is small, then the defendant may be entitled to disregard it |
| should/ought | good advice idea | Jane should succeed in her claim against the company for negligence |
| must/have to | expresses certainty or necessity (no choice) | The test of reasonable foreseeability must be applied |
| would | conditional certainty or possibility | The question to be asked is whether a reasonable person would foresee that damage might result from the defendant's action |
Conditional language
Often the advice in legal answers outlines a possible outcome in a future court case. Conditional language is very useful in case studies, especially when giving advice on possible or probable solutions to legal problems. A conditional is a two part sentence, e.g. if this happens, then that may happen.
Common conditional terms
- Unless and except
- If clauses mean on the condition that. It is a two part sentence; an if usually followed by a then.
- e.g. 'If the damage was reasonably foreseeable by the defendant, then liability will flow. If proper warning signs had been erected by the council... [then]...Brooke's injury would not have occurred.'
- providing
- provided that (on the understanding that)
- whether (if)
- e.g. 'The question to be asked is whether a reasonable person would foresee that damage might result from the defendants action.'
- It could be argued... (a possible argument is...)
- It seems likely that... Introduces sentence/s expressing probability.
Activity
Instructions
Read the following paragraph and select the correct linking word found within [ ]. The complete paragraph will be given at the end.
In the tort of negligence, the plaintiff must prove that the defendant owed them a duty of care, breached that duty and that damages were suffered as a result of a breach of that duty. For Brooke to make a successful claim against the Yarra Valley City Council she [must be, must, whether] establish that a duty of care existed. Here the test of reasonable foreseeability [must be, might, would] applied. The question to be asked is [might, whether, would] a reasonable person [would, must be, whether] foresee that damage [must, whether, might] result from the defendant’s action. It [whether, could be, might] argued in Brooke’s case that the signs put up by the Council created a reasonably foreseeable risk of injury of some kind to someone such as herself. (See Chapman v Hearse 1961)
Answer:
In the tort of negligence, the plaintiff must prove that the defendant owed them a duty of care, breached that duty and that damages were suffered as a result of a breach of that duty. For Brooke to make a successful claim against the Yarra Valley City Council she [must] establish that a duty of care existed. Here the test of reasonable foreseeability [must be] applied. The question to be asked is [whether] a reasonable person [would] foresee that damage [might] result from the defendant’s action It [could be] argued in Brooke’s case that the signs put up by the Council created a reasonably foreseeable risk of injury of some kind to someone such as herself. (See Chapman v Hearse 1961)