Legal Practical Practice Case Study Assessment

Exercise 1: [W5] Correspondence (10 marks)

Dr F I X Broken-Bones is a very eminent and busy consultant orthopedic surgeon. The good doctor is also extremely meticulous. He wants to know all relevant details of arrangements, if giving evidence in court. But, he does not communicate direct with solicitors. He has an very protective receptionist whose name is Ms B I G Dragon. She jealously shields the doctor from legal firms that call. She insists that all arrangements for her doctor to give evidence must be in writing to her.

Dr Broken-Bones successfully operated on your client motor cyclist, Mr A N Angry Bikey. This followed his very serious motor cycle accident. But, despite some surgical success, there are some significant ongoing permanent disabilities.

The defendant has notified your firm that it requires Dr Broken-Bones for cross examination. This will be at the hearing of your clients personal injuries claim. The only day and time that the doctor is available to give evidence is on the second day of the hearing, between 2.00 and 4.00 pm.

On the Friday before the hearing is to commence, your supervising partner, Ms H A P Hazard hurriedly calls you into her office. You have only started at the firm that week. Ms Hazard tells you that she is about to go to a partners lunch in the NSW southern highlands, for which she is already late. She is then going on to a SPA retreat for the weekend. So, she will be uncontactable until Monday.

Ms Hazard tells you that she has subpoenaed Dr Broken-Bones to give evidence at the hearing. He must also produce his notes. The return date for the subpoena is the first day of the hearing. But, Ms Hazard does not want to get Dr Brocken-Bones off-side. So, she wants to keep his inconvenience to an absolute minimum. She wants you to arrange to get Dr Broken-Bones to and from court smoothly and without any fuss. She tells you that the firm has a practice in regard to transporting expert witnesses.

Senior counsel for your client is confident she can get the defendant to agree to interpose Dr Broken-Bones between 2.00 and 4.00 pm on the second hearing day. Ms Hazard tells you that your firm uses Five Star Limousine Service (T) 9299 4567 (M) 0409 945 567. The limousine can pick up the doctor from his rooms and take him to court. The driver can then wait for Dr Brocken-Bones and then return him to his rooms or as directed. Although some doctors resist, logistically, it is important that the limousine driver has the doctors mobile phone number. This is to assist with liaising for the pick-up at court. Lest there be a misunderstanding, you need to inform Ms Dragon that your firm will arrange for the car on the firms account. The limousine driver will ring Ms Dragon when outside the good doctors rooms at 1.45 pm.

Ms Hazard also tells you that parking outside the court is difficult. The limousine driver may have to park some distance from the court. Dr Broken-Bones can ring the driver after finishing his evidence to arrange the pick-up. You need to remind Ms Dragon in your memo to get the drivers mobile phone number and give it to her doctor. Make sure that you remind Ms Dragon to get Five Stars and the limousine drivers contact numbers to the doctor Ms Hazard says on the way to the lift, trolley bag in hand.

Ms Hazard asks you to urgently draft and send an e-mail that afternoon to Ms Dragon clearly outlining all the above proposed arrangements for her doctor. Remember, the good doctor is very meticulous she shouts as the lift doors close. Draft an appropriate one (1) page (no more than 500 words) e-mail in plain language from your firm to Ms B I G Dragon.

Students may create a fictional firm letterhead to add authenticity. This is not part of the word count.

[500 words maximum, excluding Introductory Commentary]

Exercise 2: [W6] Writing a Memorandum of Advice (10 marks)

Mr B E Whippy is the commercial partner in your firm. He has been wooing a young billionaire miner, Mr U P Start as a client. Despite his wealth, Mr Start has limited education. He only reads the Daily Telegraph and watches Foxtel. He has recently heard about using Alternative Dispute Resolution (ADR) to resolve industrial disputes. He is not quite sure what ADR entails.

At a Monday luncheon at the Sydney Opera House Bennelong restaurant, Mr Start is wondering out loud whether he could use ADR for industrial disputes in his mines. Mr Whippy tells Mr Start that you are a new UNE law graduate in the firms ADR department. Unlike law graduates from some other universities, you are specially trained in planning and drafting legal advices in plain language.

The wily Mr Start tells Mr Whippy he is thinking of bringing his legal work to Mr Whippys firm. But, before doing so, Mr Start would like to see an example of Mr Whippys firms work. Mr Start suggests Mr Whippy provide Mr Start with a short advice in respect of:

1. What is ADR?
2. What are the advantages and disadvantages of using ADR in industrial disputes?

Mr Whippy asks you to prepare an advice in plain language. He wants to show the advice to Mr Start by Friday midday that same week.

Draft a memorandum of advice for Mr Whippy to show to Mr Start. Students must:

Research ADR after compiling a short research plan in line with Module I. Include this plan in the Introductory Commentary

Apply the relevant principles outlined in the workshops as regards preparing a memorandum of advice

Choose one of the memoranda of advice models dealt with in the workshops or the literature. Outline the reason(s) for the choice in the Introductory Commentary

Draft the advice in short sentences (20 words or less) in the active voice

Take care with layout. Where possible use tables or any other appropriate aids. Use appropriate headings and, if appropriate, sub-headings

Aim to make the advice easy for a lay person to understand

[750 words maximum, excluding Introductory Commentary]

Exercise 3: [W8] Drafting a Contract (10 marks)

Gulf Sorghum Limited cultivates some 10,000 hectares of sorghum crop in the region of the Gulf of Carpentaria in Queensland. It has entered into a long-term supply contract with Australian Biofuels Limited, which produces ethanol and bio-diesel. The lawyers for both companies are presently drafting a new long-term supply contract. They have approached you as an ADR practitioner to draft dispute resolution clauses for the contract. Specifically, they have asked you to draft three (3) clauses on a cascade basis addressing the following dispute resolution processes:

1. Expert Appraisal/Case Appraisal
2. Mediation. And
3. Arbitration

Using plain language, draft the appropriate three (3) clauses on a cascade basis. Sentences must be short (20 words or less) and in the active voice. In their Introductory Commentary, students must indicate what approach they have adopted:

Began with a precedent, then refined the precedent through their own drafting; or Began and completed a draft; then used an appropriate precedent or precedents as a checklist.

In either case, students are to annex the original precedent(s) to their assignment for comparison purposes.

[750 words maximum, excluding Introductory Commentary]

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