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
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.
