Modal and conditional language is important in legal argument as it allows 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
could
ability or possibility
Also Groovy Clothing Store could have hired extra staff to control the customer flow on the stairs.
may/might
expresses weak possibility
Bert may have a cause for action in negligence against Groovy Clothing Store.
should/ought
good advice idea
In addition, Groovy Clothing Store should have foreseen (as it had intended to do so) that an opening sale would attract a huge crowd to the store.
must
expresses certainty or necessity (no choice)
To prove that Groovy Clothing Store was negligent, Bert must establish...
would
Conditional certainty or possibility
It appears that Bert would be successful if he sued Groovy Clothing Store for negligence.
can
ability or possibility
Not used in this case study, but used to express great certainty.
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/might happen.
A common conditional term is 'if'. If clauses mean 'on the condition that'. It is a two part sentence and if is usually followed by a 'then'.
If the damage was reasonably foreseeable by the defendant, then liability will flow.
If this is the case, then not all the losses and damages Bert suffered would be recoverable.
Example
Conditional language is often used in conjunction with modals, e.g. would, could, may etc. Look at how the modal and conditional work together in the following examples taken from the negligence case study.
Conditional construction
Example
could probably (claim)
...in defence of its breaching duty of care, Groovy Clothing Store could probably claim that Bert was partly liable for his injury...
likelihood
Given the likelihood of serious harm to the stair users, it would have been reasonable for ordinary and prudent store owners to perform the above precautions.
would have been
Given the likelihood of serious harm to the stair users, it would have been reasonable for ordinary and prudent store owners to perform the above precautions.
might be able (to)
However, if Bert was held partly liable for his injury due to contributory negligence, he might be able to recover only part of these damages.
whether
In this case, no information was given as to the standards usually required of store owners or whether Groovy Clothing Store had complied with the retail industry's general standards of practice.
likely
However it is reasonably foreseeable that harm could occur: allowing too many people to climb the stairs at the same time could very likely cause serious injuries, especially when people started pushing against each other.
It could be argued
Not used in this case study, but often used in legal argument.
