Legal case processing

In Germany, legal case processing is a method for the legal assessment of an event or situation that is used by lawyers . The legal case processing takes place with the aim of clarifying certain legal questions or the legal assessment of the overall situation.

Methods

Methods of legal case processing are in particular:

Assessment of a matter based on relevant legal texts , case law and legal opinions.
Determination of the eligible claimants , opponents , goals and bases
Completeness check of the claim bases and possible objections that are considered according to their content or the aim of the claim , in civil law expediently in the following order:
- Claims from contract
- Claims from quasi-contractual relationships (in particular Section 311 (2) BGB, so-called culpa in contrahendo)
- Claims from contractual obligations (in particular management without an order)
- claims in rem
- tortious claims
- Claims under the law of enrichment

Investigation of Claims

The procedure begins with the search for standards to find the relevant basis for claims. From these, those are to be selected which, according to their content of claims (namely: primary performance; physical surrender; contractual surrender; surrogates; claims for damages; injunctive relief) can provide an answer to the case question asked. The case worker then examines the possible claims to determine to what extent they arose, have lapsed or are unenforceable. This investigation follows a methodical structure of the claim structure and is the actual subject of the scientific nature of jurisprudence. It is about solving legal cases evenly in a regular, practical procedure and making the solution rationally verifiable.

This method cannot be learned from reading the dogmatically structured textbooks. These present the material sorted according to legal institutions, but not according to the claims method. Rather, a "writing workshop" was developed for solving cases, which makes the scientific method, i.e. the legal working technique, practicable for learners.

Appraisal style and judgment style

In terms of language, lawyers usually present their examination in university training, but also in legal opinions , in the expert opinion style, while courts use the judgment style . In the expert opinion, the question to be examined precedes the presentations, in the judgment, however, the examination result. In both cases, an examination-related major clause is formed, which, for example, when assessing the creation of a claim, names the abstract creation requirements to be examined (constituent elements). Then, if necessary, the terms of the constituent elements that need to be filled in are defined. In the third step, the facts are subsumed under the terms that may be explained in more detail ; the result is whether the concrete facts fill out the abstract criteria of a claim. In accordance with the result of his examination, he answered the expert opinion question in summary and gave reasons for his previously communicated result in a judgment. This type of case processing immersed in legal practice regularly as an intrinsic part of a relationship or a judgment and forms the background of a skillfully crafted brief .

The expert opinion and judgment style are not themselves a method, but linguistic forms of expression of the presentation, but above all a different way of thinking (for legal thinking cf.). The task of the legal opinion is to seek a solution to a case, i.e. to advance an investigation. The - indirectly - questioning approach is best suited to this: someone could have a claim; for this, conditions x and y must be fulfilled; that would be the case if their exact definition had been met in the facts; through this and that happening that is the case / not the case.

On the other hand, a judgment should convince and thereby create legal peace. The judgment style accordingly puts a result (found by the judge in an expert examination) in front of it and then justifies this: someone has the claim because the facts of the case meet the requirements x and y; X and y are given because their definition is met.

literature

Larenz, Karl: Methodology of Law / Karl Larenz. - Shortened study edition d. 5th edition - Berlin; Heidelberg; New York; Tokyo: Springer 1983, ISBN 3-540-12539-6
Mayer, Volker / Oesterwinter, Petra: The BGB exam, a writing workshop. 2nd edition, Baden-Baden, Nomos 2018, ISBN 978-3-8487-4333-9

Individual evidence

↑ Volker Mayer, Petra Oesterwinter: The BGB-Klausur, a writing workshop . 2nd Edition. Nomos, Baden-Baden 2018, ISBN 978-3-8487-4333-9 , pp. 21st ff .
↑ Volker Mayer, Petra Oesterwinter: The BGB-Klausur, a writing workshop . 2nd Edition. Nomos, Baden-Baden 2018, ISBN 978-3-8487-4333-9 , pp. 43 ff .
↑ Volker Mayer, Petra Oesterwinter: The BGB-Klausur, a writing workshop . 2nd Edition. Nomos, Baden-Baden 2018, ISBN 978-3-8487-4333-9 , pp. 193 ff .

[1] Volker Mayer, Petra Oesterwinter: The BGB-Klausur, a writing workshop . 2nd Edition. Nomos, Baden-Baden 2018, ISBN 978-3-8487-4333-9 , pp. 21st ff .

[2] Volker Mayer, Petra Oesterwinter: The BGB-Klausur, a writing workshop . 2nd Edition. Nomos, Baden-Baden 2018, ISBN 978-3-8487-4333-9 , pp. 43 ff .

[3] Volker Mayer, Petra Oesterwinter: The BGB-Klausur, a writing workshop . 2nd Edition. Nomos, Baden-Baden 2018, ISBN 978-3-8487-4333-9 , pp. 193 ff .