Wednesday, 30 October 2013

Essay Writing Tips: How to Write a First Class Law Essay

Distinction and first class quality law essay writing is an art whose objective is to draw an intellectually stimulating and comprehensive picture of the subject matter for the reader. In order to achieve high marks on a piece of legal literature, it is important that you are aware of how to write a top quality law essay that inevitably holds analytical depth. You should always endeavour to critique the law, and this is done by providing solid justifications for your criticisms backed by appropriate authorities which may or may not include judicial approaches in cases and academic views in journal articles etc.

Many students, when writing law essays, will be criticised for being too descriptive. A descriptive essay is one that simply states what the law is, with little or no analysis of the law. Essays require critical evaluation of the law. Accordingly, an essay that is largely descriptive will not answer the question being set, and so will struggle to attract even a lower second-class mark.

This might sound obvious advice, but many law students are keen to show off everything they have learned, irrespective of whether it is actually relevant to the question. Answer the question that is being asked - do not fall into the trap of answering the question that you hoped would be asked. If the question clearly requires discussion of contentious issues within a specific area of law, do so. Any irrelevant material you include wastes time and space that could be spent discussing relevant material, and shows the examiner that you have not fully understood the question. The best answers are always focused, detailed and analyse the topic with precision.

Below are a number of pointers that form the fundamental formulae to writing a high quality academic essay in the field of law. However, with minor changes, these pointers can be used as a guide to writing an essay in any subject discipline. This guide can be applied both as an aid during the process of writing coursework essays and a reminder during exam practice.

1. Read the question

This is the most basic pointer and one which is told to every student across the land regardless of their level of study. However, the consequences of not reading and understanding a question properly, often something that happens as a relief or through a rush of adrenaline, can mean only half the question is answered at best or, at worst, the answer you provide does not address the question at all.

2. Read around the subject area

Academic writing is significantly more than a summary of the law or subject area. Often, depending on the question, there will be a wealth of journal articles and books written which go further than a “student textbook” in that they do not stop at describing the law but instead provide a critique – it is this critique that your examiner will be looking for! Reading and researching around the law is a vital skill and one which develops through the application of skill and practice.
Finding sources of information and reading the law quickly: begin by reading your textbook, this will often have footnotes containing articles which are of interest. Note down these articles and read them. When reading an article, start with the abstract, then look at the introduction and conclusion, these parts will give you an idea as to whether the article is relevant to your research and whether it is worth reading. When reading an article, conduct the same exercise you did with the textbook: look for citations to journals and books and consider reading them. In this way, with little effort, you will have significantly broadened both the quality and the quantity of your research. What’s more, broadening your research in this way will help make your essay unique and ensure the examiner is engaged and interested throughout.

3. Make a plan

It is always tempting to begin writing now that you have read numerous articles and books and have appreciated the significance of the contentious legal issues in this area. However, this can be dangerous. With a simple but comprehensive plan which outlines your thoughts and the structure you wish to present your arguments, you may find that your essay lacks the impressive structure that is required of a high quality piece of work. Also, without planning there is a danger of contradicting yourself. For example, it is to introduce your argument as leaning towards a particular direction, however, without a plan you may find that the resources and evidence you use in the body of the essay is contradictory to your initial argument but you make no mention of this as you had not planned to do so. A coherent argument must begin with a plan!

4. Begin Drafting

You should only begin drafting once the main part of your research and your plan has been completed. It is worth drafting the body of the essay before you begin to draft your introduction or conclusion. The reason for this is that this allows you to ensure that your introduction is a true and accurate description of the arguments you have presented to the reader. If you happen to alter slightly then this can change the course of one of your arguments but if you have not made the same change in your introduction you will once again be in a position where you may contradict yourself.

Once the main body has been drafted, you should review and amend this and leave writing the introduction and dissertation until the end. Your main body should be separated into paragraphs with a different argument being given its own paragraph. Some commentators argue that it is best to ensure that you select your two strongest arguments and place one at the beginning of the main body and one at the end, doing this means the examiner will begin reading with a good impression of the writer and end with a good impression too. Weaker or less significant arguments should be placed in the middle of the main body.

When drafting your introduction and conclusion, ensure that you are topical. If you are going to discuss something which is very recent and has received a lot of media attention you should mention the attention (this shows you can link law within the wider context). An example would be mentioning the impact of the economic recession when writing an essay on corporate governance or insolvency. Be interesting as this helps your work stand out and puts the reader in a good frame of mind from an early point. Also, the important of the problem or issue you are going to discuss should be emphasised.

5. Review your work

It is important to allow yourself sufficient time to review your work. On a practical level this will allow you time to rectify any spelling or grammatical errors. From an academic perspective, reviewing your work gives you the opportunity to reflect on what you have written and ensure your arguments are as strong as possible.

Ask a critical friend: reading your own work is important but you can overlook errors as your mind is pre-empting your eyes. Asking a friend to review your work and highlight any errors and provide advice on ways in which the work can be improved will give you a strong idea of how the examiner will react to your work. Law Essay Help provides a proofreading service which ensures your work is read by a tutor with a sound understanding of the area of law on which you are writing.

Friday, 18 October 2013

Constructive Dismissal - A Path to Protection Littered with Obstacles?

There are a lot of names for it: dismissal; sacking; letting go; termination; etc.; but the truth is that when a contract for employment is terminated between an employer and employee a number of social and economic factors come into play. Theoretically, dismissal gives employers the opportunity to ensure they have an optimal task force and “sub-optimal workers” (for want of a better phrase) do not become a financial strain. On the other hand, dismissal usually has a devastating impact on employees who lose not only their incomes but also their reputations and credibility. It is for this latter reason that employment law governs unfair dismissal with sanctions for the employer (usually compensatory in nature) which are designed to discourage dismissal where doing so would be for unfair reasons. But, what happens where the employer attempts to avoid being penalised for “unfair dismissal” by instead treating the employee in such a way as to force them to resign? Employment law caters for this too in the guise of “constructive dismissal”. However, up until the recent case of Wright v North Ayrshire Council [2013] EAT (“Wright”), constructive dismissal proved of limited use to aggrieved employees.

Whilst Section 94 of the Employment Rights Act 1996 (ERA 1996) sets out the general right that employees have not to be dismissed, the definitions of what constitutes dismissal are found in Section 95. Section 95(1)(c) states:

the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

Constructive dismissal is therefore the process whereby an employee resigns by virtue of the actions of his employer. There are several problems in relation to constructive dismissal. However, the extract from the ERA 1996 set out above does not provide any clarification of the type of conduct of the employer or the threshold that will trigger a constructive dismissal claim. Case law, however, has been of assistance. In the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 Lord Denning noted:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

Proving one has been constructively dismissed is not enough to grant an employee compensation for the acts of his employer; the employee is then tasked with demonstrating that the reason was unfair, an allegation an employer can easily rebut by arguing the dismissal, or the actions of the employer that led to the resignation, fell within the wide examples of fair factors that are outlined under Section 98 of the said Act.

Furthermore, there are a number of other factors that have traditionally made constructive dismissal difficult to demonstrate. For example, when an employer has acted in a way that would cause an employee to resign and claim constructive dismissal, a delay between the actions of the employer and resignation such actions trigger may be construed by the tribunals as an acceptance of the employer’s conduct by the employee, thus barring a claim for constructive dismissal (Walton & Morse v Dorrington [1997] IRLR 488). This is difficult for an employee; resignation without a new job to walk into is risky and employees may therefore delay a resignation in light of such dangers. Case law has in a sense helped somewhat by holding that if an employee continues to work but does so in protest the delay will not be fatal to a claim for constructive dismissal. Furthermore, the a more liberal and employee-friendly approach started emerge with the likes of cases such as ElHoshi v Pizza Express Ltd. [2004] All ER (D) 295 whereby the appeal tribunal noted that calling in sick following adverse conduct by the employer, whilst arguably conduct that would form part of the employment relationship, was not to be seen as an implied acceptance of the employer’s conduct in the same way that delay without protest and continuation of work may be.

In Wright, the Employment Appeal Tribunal (EAT) has somewhat further increased the accessibility of constructive dismissal claims by holding that a claim will be successful even if the employer’s conduct was not the sole reason for resignation, so long as it was a contributing factor it need not be the principal. Wright had resigned for a combination of personal circumstances and the conduct of the employer, the latter had been such that it could be held that the its breach was so fundamental as to demonstrate that the employer no longer wished to be bound by the contract of employment. The Employment Tribunal, the court of first instance, held that the combination of factors meant a claim for constructive dismissal against Wright’s employers could not be successful; this was overturned by the EAT. The EAT has pointed out that the correct approach that have be taken by the tribunal of first instance is to reduce to level of unfair dismissal compensation that can be awarded where there were a combination of factors to which the employer’s conduct was just one element. This means, however, that where Wright would have resigned regardless of the employer’s actions due to her personal circumstances she may be entitled to no compensation as it may be regarded that the actions of the employer have not caused her a loss.

Jay Gajjar

This blog is intended for reference only. The author and London Law Tutor Ltd. cannot guarantee its accuracy and accept no liability for the consequences following from its use. 

Monday, 7 October 2013

Clash to the Titans: Insurance Law v The Financial Ombudsman Service

It is increasingly common for industries to establish ombudsmen services which, following the exhaustion of internal complaints procedures, are the next step in dealing with a dispute. Such services are beneficial in that they often circumvent the need for parties to participate in court proceedings; this effectively means reduced costs, faster decisions and a less restrictive and fairer approach. For the insurance industry this service is catered for the by Financial Ombudsman Service (FOS). The service provided by FOS caters for claims up to a certain value and boasts that its decisions are taken in the realms of fairness as opposed to a strict application of the law.

However, as I have explained in my upcoming publication (Jay Gajjar, ‘The Doctrine of Insurable Interest in Life Insurance: A Fling of the Past or Till Death Do Us Part?’ (2013) 127 British Insurance Law Association Journal 1) there has been an unhealthy divorce between the FOS and insurance law. To this end, especially with regard to insurable interest, which effectively holds that a party cannot claim on an insurance policy unless they have an “interest” in the subject matter of the policy, the FOS has openly taken a much more liberal view and found that cohabitees, for example, do have an insurable interest in the lives of each other whilst the law has traditionally precluded this. This is not necessarily a criticism of the FOS, and instead indicates that the FOS wishes to move forward with the times when the law has traditionally, and up until the point of the recently proposed reforms by the Law Commissions, remained stuck with antiquated  case law decided centuries ago in the context of wholly different social settings.

Nonetheless, the collective criticism is that the difference between the approach of the FOS and the law surrounding insurance, as applied in the courts, has led to legal uncertainty.

This uncertainty has once again come to the fore in an outlandish announcement by the FOS that when it is to deal with complaints made by consumers regarding the validity of insurance policies, it will not follow the direction of the High Court in the case of Bunney v Burns Anderson Plc & Anor [2007] 4 All ER 246, [2008] Bus LR 22, [2007] EWHC 1240 (Ch) which held that there is a maximum £150,000.00 award limit. The FOS has taken the view that it holds the jurisdiction to require an insurer to reinstate a policy and make good a claim regardless of £150,000.00 threshold.

Regardless of the monetary issue, which will remain a point of contention for both the insurers and the insureds, the problem that transpires is that the law is not being followed by the Ombudsman. The uncertainty this causes in unhelpful from a commercial and actuarial perspective and it is notable that, due to the public body status attached to the FOS, this practice has the potential to be subjected to judicial review by the High Court.

From the viewpoint of the “wider picture”, this disparity between the approach of the courts and the approach of the Ombudsman is far from comforting and presents material commercial dangers. 

Jay Gajjar