Motion and Trial Practice: Start with Basic Concepts and Definitions


The advent of the internet and online research tools has led many lawyers to look at the ‘big picture’ first when analyzing a legal issue for motion or trial practice. Although I might try an immediate Google or Lexis search depending on what I’m looking for, I more often take the advice of the judge I once worked for and reach for one of the most refined sources I know, namely, jury instructions. Jury instructions provide straightforward definitions for the legal concepts/actions you may have the burden of proving and which are likely at the core of your case.

For simple example, Washington Pattern Instruction (WPI) 301.01 provides that: “A contract is a legally enforceable promise or set of promises.” WPI 301.02 defining “promise” provides that: “A promise is an expression that justifies the person to whom it is made in reasonably believing that a commitment has been made that something specific will happen or not happen in the future. A promise may be expressed orally, in writing, or by conduct.” A link to these instructions along with all pattern instructions used in Washington Courts can be found under the heading “Washington Law Resources” on the side-bar of this blog. By starting with basic definitions a stronger foundation for any further or more far-reaching research is created.

Aside from the more traditional sources of online legal research such as Lexis and Westlaw, there are many other sources which provide sound definitional foundations for legal concepts that can help build clarity. One such source is the Stanford Encyclopedia of Philosophy. There you can find legal concepts broken down in straightforward definitional terms which, similar to jury instructions, try to explain concepts so that a lay person or jury member can understand them. For example, here is part of SEP’s description of the connection between “tort law” and “insurance”:

“Tort law establishes conditions under which victims can shift at least some of the costs they incur to others. All individuals realize that they may be subject to a judgment against them in tort and so many buy third party insurance to protect them from bearing the full costs of those judgments. In some jurisdictions purchasing third party insurance is mandatory. All individuals are likewise aware that they may be victims of another’s actions and may not be able to secure a favorable judgment against their injurers — or they may not deem it worth the effort to pursue redress through the courts. So many of them buy first party insurance to guard against some of the costs they would otherwise have to shoulder completely.”

I think that research or the development of argument is usually aided by starting with basic definitions, simplifying and breaking down concepts for juries (or anyone else who is listening). If jury instructions are used, an added benefit may occur when the definitions you have internalized and expressed are repeated by the trial judge. By first defining core legal terms and concepts, ‘bigger picture’ items (including how the facts of your case fit) become well-grounded along with the arguments you will have to frame and make.

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