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Language focus
Modal and conditional language is important in legal argument as it allows arguments to be contructed in terms of possiblity, probability and conditions. It is the difference between saying 'it is because' versus 'it could be because'.
Click the activity tab; test your knowledge. To complete, click the arrow in the top right hand corner of the box and select select the missing word.
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 Stores. |
| should/ought | good advice idea | In addition, Groovy Clothing Store should have foreseen (as it had intended to do so) that an opening salewould attact 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. |
| Other modals | ||
| can | ability or possibility | Not used in this case study, but used to express great certainty. |
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.
Common conditional terms
- If — if clauses mean on the condition that. It is a two part sentence and if 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 has 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. |
Activity
Groovy Clothing Store failed to prove that it was partly Bert’s negligence that caused himself such injuries, it then be completely liable to Bert for any foreseeable loss or damage (Wagon Mound Cases) which he suffered as a result of the breach. But for the breach, Bert suffered extensive injuries and be hospitalised for six months. (Cork v Kirby McLean; Chapel v Hart). Hence, the medical expenses for Bert’s hospitalisation and any foreseeable and reasonable physical or other economic damages (e.g. loss of earning capacity) though not mentioned in the case, recoverable by Groovy Clothing Store. It appears that Bert be successful he sued Groovy Clothing Store for negligence. However, Bert was held partly liable for his injury due to contributory negligence, he to recover only part of these damages.