Category: Arbitration




By William E. A. Axon, f.r.s.l.


IN all ages men have attributed a special sanctity to certain localities, usually those devoted to the purposes of worship, and this sentiment has in many lands been utilised in the interests of mercy by exempting those within the precincts from arrest for some, or even all, crimes and offences. In the earlier stages of development, the punishment of crime was not regarded as a duty of the community, but as an obligation, or privilege of the injured or of those nearest to him in blood or social relationship. Thus the son of a murdered man had the right to murder the murderer. The general principle of the earlier forms of justice is the lex talionis, but the infliction of the penalty was mostly in the discretion of the avenger. He might be afraid to attempt to slay a strong or powerful homicide, and be willing to pardon the offence for a money consideration. A criminal who took refuge in a sacred place secured at least a breathing time in which his friends might effect a compromise with his adversary. Greece had its famous asyla, but the custom of our own country was probably influenced from Hebrew rather than classical sources. In the narrative of the death of Joab, the hesitation of Benaiah shows that it was unusual to slay one who had taken hold of the horns of the altar. The six Cities of Refuge were appointed as places of safety for involuntary homicides, where they were protected from the avenger of blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating influence. Every consecrated church had the right to shelter the fugitive from justice for seven days, and when the building was needed, he might be placed in a house provided for that purpose by the church, which was not to have more doors than the church itself. If the criminal was dragged forth from his refuge, the violators of the sanctuary were fined in varying degrees according to the rank of the ecclesiastical edifice. In addition to the inherent right of each church, special privileges were conferred on certain places by the exercise of the royal prerogative. In 1378, it was decided that the property of fraudulent debtors who had taken sanctuary should be liable for the satisfaction of the claims of their creditors. In 1486, Pope Innocent VIII. issued a bull relating to English sanctuaries, by which it was provided that when the refugee left his asylum, he lost his right of protection, even though he subsequently returned to the sanctuary. At the same time, the king was empowered to appoint keepers to look after those who having been accused of treason, had taken sanctuary.

Great changes were made in the law during the reign of Henry VIII. Traitors were wholly exempted from the privilege; those abjuring the realm were not actually banished, but were to remain throughout life in the sanctuary, and if they left it and committed any offence, they might then be brought to trial. All inmates were to wear a badge twenty inches in length and breadth, were forbidden the use of weapons, and were not to leave their lodgings between sunrise and sunset. In 1538, the right of sanctuary was further restricted, and Wells, Manchester, Northampton, York, Derby, and Launceston were declared sanctuaries. Manchester found this privilege to be of such doubtful value that two years later it was transferred to Chester, and afterwards to Stafford. In the reign of James I., the right of sanctuary was abolished almost everywhere. The Palatine Counties had their special sanctuaries. In Cheshire, Hoole Heath, Overmarsh, and Rudheath were such places of refuge. The abbey of Vale Royal had also a grant. But generally the County Palatine of Chester was a place of resort for those who had come into conflict with the law in other parts of the kingdom, and it was not until the reign of Charles II. that the king’s writ ran in the palatinates and other privileged places. Many privileged places in London, Westminster, and Southwark were brought within the regular jurisdiction in the reign of William III. and George II.

We have an instructive picture of the working of the sanctuary system in the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the right of refuge in all places except, and the exception is a considerable one—churches, hospitals, and churchyards. Perhaps a more important exception was that sanctuary was to be denied to those guilty of murder, rape, highway robbery, burglary, house-burning, or sacrilege. Whilst abolishing many sanctuaries, certain additional places were named as cities of refuge for minor offenders. One of these was Manchester. A year later the town petitioned to be relieved from this distinction. The inhabitants set forth that Manchester had a great trade in the bleaching of linen yarn, and in the making of linen and woollen cloths and dressing of cotton, and that the influx of dissolute persons to the sanctuary had caused serious damage to the prospects of the town, which, having no mayor, sheriff, or bailiff, and no jail, was badly circumstanced for dealing with these lawless invaders. The request was granted, and the sanctuary removed from Manchester to Chester. But the city of the Deva found it desirable to obtain relief, and a further removal was made to Stafford.

The fridstool at Hexham still remains, although nearly everything else of the Saxon foundation has perished. This “chair of peace” was the central point of the sanctuary, which extended a mile around. A Durham example of the working of the law may be cited.

“Memorandum: That on the 13th day of the month of May, a.d. 1464, one Colson, of Wolsyngham, Durham, who had been detected in a theft, and therefore put and detained in gaol, at length contrived to escape, and fled to the Cathedral Church of Durham, in order to avail himself of its immunities, and whilst he was there standing near the bier of St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon John Raket, Coroner of the Ward of Chester in Strata (sic) coming to him, the same Colson confessed the felony, making upon the spot the corporeal oath that he abjured the realm of England, and would withdraw from it as soon as he could conveniently, and would never return thither, and which oath he took at the bier of St. Cuthbert in the presence of Master George Cornworth, Sacristan of the Cathedral Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket (the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and Nicholas Dixson, and of many others; by reason of which renunciation and oath all the dress of the said Colson belonged to the said Sacristan and his office; wherefore the said Colston was enjoined to take off to his shirt all his garments, and deliver them to the aforesaid Sacristan, and he did so, placing them all into his possession, the Sacristan gave up and delivered to him again, gratuitously, all his dress that he had up to this occasion been clothed in; and after that Colstone withdrew from the Church, and was handed over to the nearest constable by the aforesaid sheriff, and so on from constables to constables, holding a white cross made of wood as a fugitive, and so he was to be conducted to the nearest seaport to take vessel as one never to return. This was done on the day, month, and year aforesaid.”

The system was one that led to gross abuse. It was held that the right did not extend to others than those whose offences entailed forfeiture of life and limb, but in practice knavish debtors, fraudulent executors, etc., availed themselves of the protection. There was plenty of scope for dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to give proof of his right to shelter William Wawe, who is described as a heretic, traitor, common highwayman and public robber. “Wille Wawe was hanged,” is the sum of the matter as recorded by Stowe. Between 1478 and 1539, at Durham, 283 persons took refuge who were, as principals or accessories, accused of homicide. There were sixteen debtors, four horse-stealers, nine cattle-stealers, and four house-breakers. One had been charged with rape, and seven with theft. One had been backward in his accounts, one had harboured a thief, and one had failed to prosecute. Sir John Holland, in revenge for the death of his esquire, killed the son and heir of Hugh, second Earl of Stafford, and then took sanctuary at Beverley. The murderer, in this case, was the half-brother of Richard II., but it was with great difficulty that the king was induced to grant a pardon.

The church of St. John of Beverley had a charter from Athelstan, and near the altar was the Fridstool, or chair of peace, “to which what criminal soever flies hath full protection.” The privilege extended for a radius of about a mile round the minster, and the limits were marked by stone crosses. Infraction of the right of sanctuary was punishable by severe penalties, and to take a refugee from the Fridstool was to incur both secular and ecclesiastical penalties, the latter extending to excommunication.

The widow of Edward IV. fled with her younger children for safety to the sanctuary of Westminster after her eldest son had fallen into the keeping of the Duke of Gloucester. Sir Thomas More reports the discussion in the Council of the Protector, and the arguments used by Cardinal Bourchier, which induced the queen to give up the Duke of York. The boy king, who was never crowned, and his brother were murdered in the Tower. It is noteworthy that this unfortunate monarch was born in the sanctuary of Westminster when his father was in exile. Skelton, the poet, died in this same sanctuary.

The privileges of the sanctuary were not always respected. When Geoffrey, Archbishop of York, took refuge in St. Martin’s Priory, Dover, he was dragged from the altar in his pontifical robes by order of the bishop of Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding was not the least of the causes of the downfall of William of Longchamp. When William Longbeard, who had been condemned to death, took sanctuary at St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on fire to compel him to come forth. Longbeard abandoned his place of refuge, and was dragged to Tyburn, and there hanged. But although de Burgh was Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was his own peculiar, his violation of sanctuary led to the loss of his great secular dignity. Later, when he had himself to seek refuge, a great debate arose as to his having been forcibly taken from a sanctuary, and he was restored to its protection, and escaped to Wales.

Whilst the same rights of sanctuary existed in Ireland and in Wales, they were apparently not made use of to any great extent. In Scotland, the churches of Wedale, near Galashiels, and of Lesmahagow, near Lanark, were the most famous of the religious sanctuaries. The latter had also a royal charter from David I. These sanctuaries ended with the Reformation. The abbey of Holyrood and its precincts, which include Arthur’s Seat and the Queen’s Park, gave protection to debtors until, by the abolition of imprisonment for debt, its privileges ceased to have any meaning. One of those who thus sought refuge at Holyrood during a part of his career was Thomas de Quincey.

Sanctuaries probably served a useful purpose in ages when the law was harsh and indiscriminate in its punishment of offenders. The limited protection afforded by the Church sanctuaries at least gave an opportunity for the first heat of revengeful feeling to subside, and the greater sanctuaries protected not merely vulgar offenders, but those whom the stormy tide of politics had placed at the mercy of their enemies. As the law became stronger, and the course of justice more certain, the need for these refuges ended, and those that continued were public nuisances, and mere centres of crime and anarchy, such as Scott has described for us in his picture of Alsatia. We may be thankful that sanctuaries are now merely objects of antiquarian interest and speculation.




The Bible Law.

By S. BURGESS, m.a.


AT the very outset of any treatment of so delicate a subject as that indicated by the title of this chapter, we are met by no small difficulty. This consists in the danger of committing unintentional errors of irreverence, and thus offending the prejudices of those who are more or less pledged to their belief in the verbal inspiration of every Bible chapter and verse. With this risk before us, we can only trust to our own sense of a rational view of a subject so full of capabilities of misconstruction. Those of us who can remember the outburst of righteous indignation at the publication of the “Essays and Reviews” and of “Ecce Homo,” feel surprise at the quiet indifference with which views expressed in them are now received. This does not at all, or necessarily, mean that men’s faith is colder, or that the spirit of reverent religious feelings has died away. The advance of accurate scientific investigation may have upset the faith of some, and given a subject for outbursts of intolerant pulpit denunciations, but we must think that there are signs plainly discernible of a quiet acceptation of modern discovery by the majority of thoughtful and devout believers in the inspiration of Holy Scripture. These remarks will be found not unneedful as we pursue the examination of this particular branch of Biblical study, namely, the Law as it is found in the Bible, and this will be seen at once when it is laid down as an absolutely necessary condition of our investigation that this same Law can plainly be divided into two distinct portions—that which is of Divine, and that which is of human origin. The bare statement of this fact will offend certain prejudices. The Divine “Fiat” stamps with as marvellous and undoubted clearness, certain portions, as other parts are marked by the progress of human intelligence, the needs of human society, and the force of the human will.

The very fact of the existence of Law entails the necessity of Penalty, and this may be spiritual or corporal. The former depends on the acknowledgment of the rule over us of a Superior Being. The latter is a necessary accompaniment of all and every human life, believing or unbelieving. So in the Bible Law we can easily distinguish between the penalty affixed to the breaking of the first of the Ten Commandments, and that which followed on the breaking of the sixth. On the authority of Hebrew scholars, we are told that the use of the Hebrew Article shows that The Law refers to the expressed will of God. If this rule be invariable, it would be of great value, and especially so in the use of the Greek Article.

The writers of the Psalms gave forth an intense reflection of the old Law; always presuming, as they of course did, that it emanated from the Deity.

Now let us be allowed to start with the assumption that the Mosaic is the earliest form of tabulated Law. A most excellent book has just been published, “The History of Babylonia,” by the Society for Promoting Christian Knowledge. It is a cheap little book, but full of information upon which one feels able to rely. We find there that the Moral Law of Babylonia represents the spirit of Bible Law so accurately that it would be absurd to set up any theory of an independent basis.

We must make a date somewhere, and therefore we cannot do better than choose a date that can be fairly tested, and safely on this side of mythical eras,—and that is about 1500 b.c. This must appear a very safe and modest date to fall back upon. The Babylonians want us to go back 432,000 years, but to accept this assertion requires more faith than most of us possess.

For our present purpose there is nothing gained by comparing the Mosaic Law with that discovered with such infinite care and learning in the Babylonian records. The utmost that can be said is that we have startling coincidences, and an intensely interesting subject opened out. But there is no single grain of information, and that is what we are just now in search of. We feel quite distrustful of documents, especially stone ones, which give the lifetime of Alorus as extending to 36,000 years. That was before the Deluge. The Wandering Jew sinks into insignificance, and is a mere puling infant by the side of such figures as these, because the son of Alorus reigned for 46,800 years. However short the “year” was, the period of life was quite lengthy. If a year was our week, the last named patriarch was about 1,000 years old.

This is a departure somewhat from the Law as it is in our Bibles. But it will be an interesting study for some kind student to compare that Law with the echoes thereof found in Asiatic literature, even far away on the eastern shores of China. The mystery still unsolved is, “How did it get there?

With the greatest diffidence we make the statement that the first notion of Law was in connection with sacrifice. The time may come when this can be refuted. But at present, leaving out of the question natural and unwritten Law, we find no bond but this. Sacrifice comes to us as a Law from a Superior Being. Heathen nations have recognized the efficacy of sacrifice and offerings.

Man without Law was an impossibility. No living thing can exist without some Law. Thus we look back to the first records of created living things for some Law. Science sheds a great, broad, and even scaring, light on the Law prevailing over inanimate nature. The seas and the fields obey it. But for us to make a record of Law as it made its beginning, is a task too great, and it is indeed then we feel that “fools may rush in” where better souls have had to languish in doubt.

Let us take the Law in the Bible as we can read it, and how few care to read it! There was a man once who had read the whole of the first five books through twice. Thinking there might be something to gain from such abnormal study, we propounded a few questions on this very subject. The result was a senseless repetition of verses from Leviticus. And yet, to tell the honest truth, there is very little left us to do but to quote. There is a little assistance we can give, and most thankful we are to have it in our power to do so. Let us all the time remember that the Bible Law is the sole foundation of every Law, Human and Divine, as far as we can discover. If it can be proved that the Babylonian record with its 40,000 year old kings is to be relied on, then by all means let us accept it.

We start with the sacrifice as the “companion” of the Law. No one can feel hurt by this. It is no good to any of us to ask whether Abel’s sacrifice was according to revealed Law or anterior to it. It is plain that sacrifice came to be the great medium of the Law between man and the great prevailing Law. With this allowed, all the rest is easier to grasp. The early Law among the first people seemed to have no force but in its connection with some higher Power. This Power has been now deputed to earthly sources.

The writers of the Psalms represent to us a perfect intercourse with the Deity. The question then arises, “On what grounds was this intercourse conducted?” The answer seems clearly to be on the conditions of the Laws of sacrifice. Now, by comparing the elaborate list of these contained in Smith’s “Dictionary of the Bible” with a very careful one in “Notes on the Hebrew Psalms,” by W. R. Burgess (1879), we can make out a clear and very useful resumé. Leaving out the great sin offerings for the whole people and for the priests, we have the following sin offerings:—

  1. For any sin of ignorance. Lev. iv. A most elaborate ceremonial of sacrifice and blood sprinkling. We should like to know when the “plea of ignorance” was done away with altogether, as we believe it has no force at all in modern Law.
  2. For refusal to bear witness on oath. Lev. v. This is of very great interest in the light of recent legislation as to affirmation. We have come across many people, it is needless to add grossly ignorant, who have entirely lost sight of the obvious emphasis on the word “False” in the 9th Commandment, placing the whole force on the fact of “Witness.”
  3. The Laws as to defilement. These, we presume, have left no trace on modern Law.
  4. The breach of a rash oath, the keeping of which would involve sin. Lev. v., 4. This opens a most interesting subject, but we have not space to enter upon it. From the days of Jephthah and his oath with regard to his daughter until this day, the question has been full of difficulties, and is divided amongst, perhaps, equal advocates for the two opposed views of it.
  5. Sacrilege in ignorance, fraud, suppressio veri, and perjury, were punished by enforced compensation, and the addition of a fifth part of the value concerned in the matter to the priest, or to the person wronged.
  6. Illtreatment of betrothed slaves. Lev. xix., 20. This is only curious, but at the same time

has a connection with late enactments in criminal Law.

  1. The Law as to the powers of a father is extraordinary. When one considers the relation now existing and defined by our Law, the revolution is beyond all measure out of reasonable proportion. For a curse, a blow, or even wilful disobedience, the penalty was death!
  2. The Law of usury is difficult, but the chief points are well known. The main principle of the Law prevails to this day. Let us only notice the striking fact that usury could not be exacted upon the Jews themselves. Does this not offer a fine comment on the grievous usury so cruelly enforced in after years by these people upon the Gentile races?
  3. Debt. All debts were released at the seventh year. So there was a year of limitation.
  4. Tithe. This Law has been so frequently and ably set forth, that it is entirely one’s own fault if it needs any comment.
  5. Poor Laws. These are conspicuous by their absence. There was a legal right of gleanings, a second tithe to be given in charity, and wages were to be paid day by day. (Deut. xxiv.)

A few rather important forms of legislation must be placed here as addenda. We notice the entirely despotic power of the husband over the wife, and all belonging to her. Compare our useful but very late enactment as to married women’s property, apart from her almost complete irresponsibility.

The slander against a wife’s virginity is punished by a fine only, but the fact of its truth, and therefore no longer a slander, is punished by the death of the woman. This is a most striking proof of the lower room in social judgment awarded to the female Israelite. We notice also that the power of the master over his servant was absolute, but that the master suffered a penalty if his servant or slave died under castigation! Ex. xxi. If he was maimed, he was by this fact allowed his freedom. The rule as to Hebrew slaves is very interesting. It is too long to be quoted here, but it can be easily mastered by a reference to Ex. xxi., Deut. xv., Lev. xxv.

We notice that there is no protection legally allowed to strangers, and so we find kindness and protection enjoined as a sacred duty.

We believe that the old list of “Prohibited Degrees,” which we saw placed in churches in our infancy, and is still to be seen, is in all respects enforced by our present Law. But we are not quite sure of this. We can only remember the vague sense of mystery underlying the clause, which was always put in the largest type:—


Another most interesting Law must be carefully noticed, and if possible, more deeply studied. In cases of accidental homicide, there was mostly an “avenger of blood” to be looked for. To escape this untoward follower, cities of refuge or sanctuaries were named, and in these the poor wretch was safe until the death of the high priest.

As to the legal penalty of adultery, are we quite sure that, according to results, we have greatly improved upon the old Bible Law? Under this the punishment was death of both offenders. Was it the fear lest the population of the world should be so very seriously lessened that gradually brought this Law to less than a penal one, so that at this day a Royal “Commission” is placed on the offence in the shape of the absolute freedom of the offenders to seek for another opportunity?

Just a few words more as to those who interpreted the Law. These were the Priests and the Levites. The “Judges,” as we read of them in the book of that name, had, with the exception of Samuel, mostly to do with the settlement of political disputes, and the leading out of the people to victory or defeat, as the case might be. But in later times the power of the Sanhedrim was undoubtedly great.

The king’s power was legally limited. But so it is, and has been, in all ages and in all dominions in theory! Yet we find Rehoboam expelled by Jereboam, and the latter as despotic as the former, just as we find a firm will in Cromwell after the despotism of Charles, in what had been then for centuries the most “Constitutionally” governed country in the world!



Legal Rules v. Non-legal Rules

Rules are principles that guide our behaviour. They can derive their authority from the law (made by parliament or the courts), or by an organisation or cultural expectation. Legal rules apply to everybody and the State provides a mechanism to enforce them.

Non-legal rules, when made by an organisation, only apply to people within that organisation.  A society may enforce cultural norms through its media and individual people’s behaviour.

For example, a golf club may require its members to wear a certain colour of pants, and prevent its members from entering the club if they are not wearing the right coloured pants. The popular, fashion-forward girls in an American high school may laugh and turn their back on a girl wearing white pants after Labor Day, discouraging her from wearing them in future (deterrence). However, there is no legal rule about the colour of your pants, so nobody can sue you or report you to the police for that.

Whilst not strictly relevant right now, it is useful to keep in mind that there are different types of legal rules. Legal rules can be characterised in the following ways:

  • their jurisdiction (state, federal or international application)
  • the area of law (very broadly speaking, civil law or criminal law)
  • their level of detail (laws or regulations)
  • who they were made by (parliament/legislation, court/common law/case law/judge made law, subordinate/delegated authorities, constitutional powers).

The image above illustrates the similarities and differences between legal and non-legal rules.


Self-Represented Litigant is a choice

Self-Represented Litigant: A person (party) who advocates on his or her own behalf before a court, rather than being represented by an attorney. These litigants are also known as pro se or pro per litigants.

Cases with Self-Represented Litigants: Legal cases in which one or more parties is self-represented.

People may be self-represented for many reasons, and for the most part do not choose to be self- represented. SRLs are often particularly vulnerable in terms of a relative lack of education, income and assets. They may be grouped into seven overlapping categories:

  • People with a lack of social resources (low income, low education, low literacy, etc.).
  • Low income SRLs with some social resources (people who cannot afford a lawyer but who have sufficient social resources and education to seek available services).
  • SRLs living with social barriers that interfere with accessing justice (i.e. people living with challenges resulting from physical or mental differences, language and cultural barriers, people living in remote locations, etc.).
  • SRLs who are unable to find a lawyer (usually people who live in small towns or remote areas).
  • SRLs who were previously represented but who are no longer represented (usually in lengthy cases with no permanent resolution).
  • SRLs in cases where representation is said not to be necessary (i.e. small claims, traffic court, etc.).
  • SRLs who could access representation but prefer to self-represent (usually well-educated people who distrust the legal profession). SRLs in this category have been found to be a significant minority of the overall SRL population.

SRL is a choice that we all can make and we can Win!!!


Seven Step Strategy for conducting preliminary searches of U.S. patents and published applications

This is a suggested Seven Step Strategy for conducting preliminary searches of U.S. patents and published applications using free online resources of the USPTO and its bi-lateral partner EPO (European Patent Office).  Patent and Trademark Resource Centers (PTRCs) ( are available nationwide to provide training on this Seven Step Strategy.

PTRCs provide online access to the PatFT (Patents Full-Text and Image) and AppFT (Applications Full-Text and Image) databases on the USPTO website and the Espacenet Worldwide Database on the EPO website. In addition, most PTRCs provide access to additional USPTO patent databases available through PubWEST (Public version of the Web-based Examiners Search Tool) and PubEAST (Public version of the Examiners Assisted Search Tool). Always call your nearest PTRC to make an appointment before visiting to make the best use of your time.

The use of patent classification in searching U.S. patents and published applications usually results in a more comprehensive search than one done by word and phrases (keyword searching). Because keyword searching must anticipate the often technical language of patents, it serves best as a supplement to a classification search. Accordingly, patent classification searching is the focus of the Seven Step Strategy.

The USPTO has transitioned from using the over 100 year old U.S. Patent Classification (USPC) system to Cooperative Patent Classification (CPC), a new classification system jointly developed with the European Patent Office (EPO). The USPTO currently only uses CPC for classifying new utility patent documents; however, it will continue to use U.S. Patent Classification for classifying design and plant patents. This version of the Seven Step Strategy reflects this transition to the primary use of Cooperative Patent Classification in utility patent publication searching.

The Seven Steps in a Preliminary Search of U.S. Patents and Published Patent Applications

  1. Brainstorm terms to describe your invention based on its purpose, composition and use.
  2. Use these terms to find initial relevant Cooperative Patent Classification using the USPTO website’s Site Search box( In the Site search box found in the top right hand corner of the home page enter “CPC Scheme [plus keywords(s) describing invention]”; for example, if you were trying to find CPC Classifications for patents related to umbrellas, you would enter “CPC Scheme umbrella”. Scan the resulting classification’s Class Scheme (class schedules) to determine the most relevant classification to your invention. If you get zero results in your Site Search, consider substituting the word(s) you are using to describe your invention with synonyms, such as the alternative terms you came up with in Step 1. For example, if you find searching for “CPC Scheme car mirror” is getting unsatisfactory results, try searching instead with “CPC Scheme vehicle mirror.” (If you continue to be disappointed with the CPC Classification search results, look for your search word in the International Patent Classification Catchword Index¬ion=cw; CPC is based on International Patent Classification).
  1. Verify the relevancy of CPC classification you found by reviewing the CPC Classification Definitionlinked to it (if there is one).
  2. Retrieve U.S. patent documents with the CPC classification you selected in the PatFT (Patents Full-Text and Image) database ( Review and narrow down the most relevant patent publications by initially focusing on the front page information of abstract and representative drawings.
  3. Using this selected set of most relevant patent publications, review each one in-depth for similarity to your own invention, paying close attention to the additional drawings pages, the specification and especially the claims. References cited by the applicant and/or patent examiner may lead you to additional relevant patents.
  4. Retrieve U.S. published patent applications with the CPC classification you selected in Step 3 in the AppFT (Applications Full-Text and Image) database ( Use the same search approach used in Step 4 of first narrowing down your results to the most relevant patent applications by studying the abstract and representative drawings of each on its front page. Then examine the selected published patent applications closely, paying close attention to the additional drawings pages, the specifications and especially the claims.
  5.  Broaden your search to find additional U.S. patent publications using keyword searching in PatFT or AppFT databases, classification searching of non-U.S. patents on the European Patent Office’s Worldwide Espacenet patent database ( and searching non-patent literature disclosures of inventions using the free electronic and print resources of your nearest Patent and Trademark Resource Center (


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The Supreme Court of Canada

Like most western democracies, Canada has an all-powerful supreme court sitting at the top of its judicial hierarchy with the power to overrule all lower-ranking courts, and even Parliament itself. Consisting of nine elderly and experienced judges, the Supreme Court only hears appeal cases which it deems to present an important constitutional question that deserves clarification. Most commonly, these are cases in which an accused Canadian believes an existing law, of which he has been found guilty, should not be a law at all, because it contradicts some fundamental human right protected by the Charter of Rights and Freedoms.

The ability to overturn laws of Parliament is a very dramatic power, and the Supreme Court is one of the most powerful political institutions in Canada for this reason. Rulings of the Supreme Court are closely watched and covered by the Canadian media and can often generate enormous controversy. For example:

  • In the case of The Queen v. Morgentaler (1988), the Court ruled the government cannot prevent Canadian women from having access to an abortion.
  • In the case of The Queen v. Keegstra (1990), the Court ruled that Canadians can be legally punished for making “hate speech.”
  • In the case of Rodriguez v. British Columbia (1993), the Court ruled it’s illegal to help a sick person commit suicide.

In recent years, it has also become commonplace for the federal government to ask the Supreme Court of Canada to occasionally rule on things without the pretext of a trial. Such requests are known as Supreme Court “references.” They’re non-binding, but still help clarify the law. For instance:

  • In Reference re: secession of Quebec (1998), the Court ruled that the province of Quebec could not legally separate from Canada without the approval of the Canadian government.
  • In Reference re: same-sex marriage (2004), the Court ruled that marriage between two men or two women was constitutional.
  • In Reference re: Senate reform (2014), the Court set out the constitutional rules for reforming the Senate of Canada.

The nine judges of the Supreme Court are appointed by the prime minister, and serve until age 75, so at any given time the Supreme Court is a medley of many different appointments of many different administrations. Traditionally, prime ministers put a great deal of effort into ensuring the court always maintains a fair geographic balance, with at least one justice for each major region of Canada.



The Canadian Charter Era

From around 1931 (when Canada became independent from British law) to 1982, Canadian law operated according to a principle known as parliamentary supremacy. According to this theory, with Britain out of the way, there was basically no authority higher than the Canadian Parliament when it came to deciding what was legal and what was not. Any decree passed by Parliament was the law, end of story. If you didn’t like it, too bad.

Parliamentary supremacy ended in 1982, when the Canadian Constitution was reformed and a new thing called the Charter of Rights and Freedoms was added. The Charter declared that some human rights were so important that no law could be passed that violated them. So if, say, the Canadian government passed a law that said all Japanese people had to be rounded up and sent to camps because we were at war with Japan, that law would be unconstitutional, because the Charter forbids parliament from passing a law that discriminates against race or nationality.

1982 thus heralded in a bold new age of Canadian law, sometimes called the “Charter Era.” It’s a new era in which the rights of all Canadians are much more clear and easily protected than in previous decades, but also one in which judges and lawyers have gained a great deal of power, as we shall see.

Canadian Legal System

The Canadian Common Law

Though Canada is now fully independent from Britain, British Common Law still applies, as it does in the United States and other former British colonies. Common Law is basically the idea that precedent matters, and that decisions and definitions set down by courts in earlier times still apply to everyone today.

Though Canadian judges now have more than enough independent Canadian legal precedent to help them make decisions, it’s not entirely uncommon for judges, when faced with a particularly thorny legal question, to refer back to the judgments of British judges in the colonial period, or even earlier, in order to provide historical context for the purpose of laws or understanding, say, what “libel” is supposed to mean. The famed Magna Carta of 1215, for instance, which first outlined basic principles of English justice, is still considered one of the foundational documents of Canadian Common Law.



How to Brief a Case Using the “IRAC” Method


When briefing a case, your goal is to reduce the information from the case into a format that will provide you with a helpful reference  for review. Most importantly, by “briefing” a case, you will grasp the problem the court faced (the issue); the relevant law the court used to solve it (the rule); how the court applied the rule to the facts (the application or “analysis”); and the outcome (the conclusion). You will then be ready to not only discuss the case, but to compare and contrast it to other cases involving a similar issue.

Before attempting to “brief” a case, read the case at least once. Follow the “IRAC” method in briefing cases:


Write a brief summary of the facts as the court found them to be. Eliminate facts that are not relevant to the court’s analysis. For example, a business’s street address is probably not relevant to the court’s decision of the issue of whether the business that sold a defective product is liable for the resulting injuries to the plaintiff. However, suppose a customer who was assaulted as she left its store is suing the business. The customer claims that her injuries were the reasonably foreseeable result of the business’s failure to provide security patrols. If the business is located in an upscale neighborhood, then perhaps it could argue that its failure to provide security patrols is reasonable. If the business is located in a crime-ridden area, then perhaps the customer is right. Instead of including the street address in the case brief, you may want to simply describe the type of neighborhood in which it is located. (Note: the time of day would be another relevant factor in this case, among others).

Procedural History*

What court authored the opinion: The United States Supreme Court? The California Court of Appeal? The Ninth Circuit Court of Appeals? (Hint: Check under the title of the case: The Court and year of the decision will be given). If a trial court issued the decision, is it based on a trial, or motion for summary judgment, etc.? If an appellate court issued the decision, how did the lower courts decide the case?


What is the question presented to the court? Usually, only one issue will be discussed, but sometimes there will be more. What are the parties fighting about, and what are they asking the court to decide? For example, in the case of the assaulted customer, the issue for a trial court to decide might be whether the business had a duty to the customer to provide security patrols. The answer to the question will help to ultimately determine

* This applies to case briefs only, and not exams. Use the IRAC method in answering exams: Issue/Rule/Analysis/Conclusion.

whether the business is liable for negligently failing to provide security patrols: whether the defendant owed plaintiff a duty of care, and what that duty of care is, are key issues in negligence claims.


Determine what the relevant rules of law are that the court uses to make its decision. These rules will be identified and discussed by the court. For example, in the case of the assaulted customer, the relevant rule of law is that a property owner’s duty to prevent harm to invitees is determined by balancing the foreseeability of the harm against the burden of preventive measures. There may be more than one relevant rule of law to a case: for example, in a negligence case in which the defendant argues that the plaintiff assumed the risk of harm, the relevant rules of law could be the elements of negligence, and the definition of “assumption of risk” as a defense. Don’t just simply list the cause of action, such as “negligence” as a rule of law: What rule must the court apply to the facts to determine the outcome?


This may be the most important portion of the brief. The court will have examined the facts in light of the rule, and probably considered all “sides” and arguments presented to it. How courts apply the rule to the facts and analyze the case must be understood in order to properly predict outcomes in future cases involving the same issue. What does the court consider to be a relevant fact given the rule of law? How does the court interpret the rule: for example, does the court consider monetary costs of providing security patrols in weighing the burden of preventive measures? Does the court imply that if a business is in a dangerous area, then it should be willing to bear a higher cost for security? Resist the temptation to merely repeat what the court said in analyzing the facts: what does it mean to you? Summarize the court’s rationale in your own words. If you encounter a word that you do not know, use a dictionary to find its meaning.


What was the final outcome of the case? In one or two sentences, state the court’s ultimate finding. For example, the business did not owe the assaulted customer a duty to provide security patrols.



Estimating the Cost of Civil Litigation !!

THE National Center for State Courts (NCSC) developed a model of cost estimation that is based on the time of expended by attorneys in various litigation tasks in a variety of civil cases filed in state courts. The litigation cycles are presented in another blog.

The NCSC published an estimation of numbers of hour in to be used in different cases. The model has three types of cases from complexity level and it assumes there are a senior attorney, junior attorney and a paralegal involved in each case. The model has six types of litigations and the time expended by attorneys is to resolve a “typical” automobile tort, premises liability, professional malpractice, breach of contract, employment dispute, and real property dispute.

The model uses three levels of complexity of case. The projected effort for each level is estimated based on a survey of different attorney officer. The medians of the percentage of efforts are shown in Figure 1, where each case type is split into six different litigation stages. The litigation stages will vary from a case to another based on the type of the case.

The model also deals with the witness as a separate parameter. The Model did not consider the cost of production of material, cost of communication, copying or duplication, binging, transcript productions, cost of undertaking, cost of service and Court fees. The typical number of discovery does not include cost of cross-examination. In my evaluation the cost will increase by about 150% on the average if we add cross-examination, and the other costs. The Court fees are very minimal compare other cost.

To understand the cross-examination cost. For each hour of cross-examination, two hours of preparation is required on the average and about $350 to produce the transcript. A typical 2 days of cross examination which will cost about 6 days of legal fee in addition to about $5600 to produce the transcript and the other cost involved with the reporters. The cost of undertaking, examining the undertaking and exchange letters to the other party. The Cost of printing or duplication will be about $1 per page and the cost of binding is premium. The Cost of sending or receiving faxes is about $2 per page. The cost of reading emails or phone is in 6 minutes increments. Note that the cost of sending 10 emails 1 line each to a lawyer will cost 1 hr to read and 1 hr to reply as lawyers will charge 6 minutes per email read and reply.

Figure 2Figure 13 show the different project cost of different cases and the cost can reach hundreds of thousands of dollars only in legal cost.


image004Figure 1 The median of effort in six litigation automobile tort, premises liability, professional malpractice, breach of contract, employment dispute, and real property dispute.

image002Figure 2 The projected Cost of cases of automobile tort without an expert witness. The cases are modeled as three different levels of complexity.

image007Figure 3 The projected Cost of cases of automobile tort with an expert witness. The cases are modeled as three different levels of complexity.



Figure 4 The projected Cost of cases of Malpractice without an expert witness. The cases are modeled as three different levels of complexity.


Figure 5 The projected Cost of cases of Malpractice with an expert witness. The cases are modeled as three different levels of complexity.


Figure 6 The projected Cost of cases of Employment dispute without an expert witness. The cases are modeled as three different levels of complexity.


Figure 7 The projected Cost of cases of Employment dispute with an expert witness. The cases are modeled as three different levels of complexity.


Figure 8 The projected Cost of cases of premises liability without an expert witness. The cases are modeled as three different levels of complexity.


Figure 9 The projected Cost of cases of premises liability with an expert witness. The cases are modeled as three different levels of complexity.


Figure 10 The projected Cost of cases of Real Property without an expert witness. The cases are modeled as three different levels of complexity.


Figure 11 The projected Cost of cases of Real Property with an expert witness. The cases are modeled as three different levels of complexity.


Figure 12 The projected Cost of cases of Contract Dispute without an expert witness. The cases are modeled as three different levels of complexity.


image028Figure 13 The projected Cost of cases of Contract Dispute with an expert witness. The cases are modeled as three different levels of complexity.


Disclaimer :

This post is for informational purposes only and does not provide legal advice. Materials on this website are published by Wael Badawy and to provide visitors with free information regarding the laws and policies described. However, this website is not designed for the purpose of providing legal advice to individuals. Visitors should not rely upon information on this website as a substitute for personal legal advice. While we make every effort to provide accurate website information, laws can change and inaccuracies happen despite our best efforts. If you have an individual legal problem, you should seek legal advice from an attorney in your own province/state.