How Judges Make Decisions?

Law students enrolled in various law schools learn little about the fundamentals of legal jurisprudence as being an elective course. Not only that, professors spend less time on this subject matter and more on the exigencies of law. Among these students become Judges and must decide on cases that range from a simple case to a highly complex legal matter. The fundamentals of jurisprudence being taught is different in various parts of the world. For instance, the teachings of law within the American legal education is different from the common law principles taught in European and Asian countries.

Following predefined learning processes, Attorneys adhere to the notion that traditional law books and materials seldom suffice in determining the outcome of the case. While books and materials provide solid understanding of legal principles, reasoning, and logic, there is a dire need of having greater understanding of how the court interprets and gives its verdict. In most cases, students are taught that the outcome of a case can either be rules in favor of the plaintiff or the defendant. As a result, comparing precedents and various historical cases and patters, students fall victim to various forms of biases.

The Legal Realism entails that typical style of judicial decisions are not quite accurate depiction of the actual process of adjudication by basing itself on the major premise of law itself, followed by facts as its minor premise, and its conclusion follows the logical certainty. This is also known as mechanical jurisprudence.

No matter how the case is decided in the court of law, legal reasons, as implicitly taught within the American legal education, solely by themselves cannot form the basis of why a Judge decided a case as he or she did! On the contrary, the rest of the world, for the most part, follows the norm of:

  • How often an existing law runs out
  • How to fulfill existing gaps within legal reasoning and logic

Some Judges deciding on matters of fact follow a certain pattern such as enforcement of norms of prevalent culture and reaching the best possible decision under the prevalent socioeconomic condition. The main role of Judges should to act as a delegated decision maker and to dig deeper into various Cases, Statutes, Principles, and Jurisprudence.

Unlike classic legal thought, the legal education, largely shaped by the legal Realists in understanding the nature of adjudicating matters, has a distinct way of looking at the law. Judges take on these approaches while deciding cases, and reach to conclusions that may turn out to be good for some people, but bad for others.

Watch a free lesson from my E-Discovery course here:

Syed Raza:

With over 20 years of combined experience in the fields Law, Management, and IT, Syed has impeccable reviewing and strong editing skills with a long track record of writing technical, legal, and management articles that make readers stop and think. Being an entrepreneur, professor, and attorney, he providesconsultancy, management consulting, and project management in e-Discovery issues in complex civil litigation. He is the CEO of ClayDesk, an e-Discovery and cloud computing consultancy firm, and can be reached at ceo@claydesk.com

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Implementation Of Law: A Word Of Wisdom





We have laws for just about everything from personal laws to commercial, contractual, e-discovery, and list goes on and on…

What’s important is to understand the ‘implementation’ of such laws! In my experience, as an attorney, I have come across hundreds of laws from all the way from legislation to the point when they are repealed! Laws have been around for a long time, yet we regularly find instances/cases where person suffered illegal detention, false imprisonment, and so forth.

The litigation hold in the process of e-discovery can be summed up in the following definition:

A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (ESI) to preserve potentially relevant evidence in anticipation of future litigation

Well, easier said than done! In the NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077, 2015 WL 4479147 (S.D. Cal. July 22, 2015) case, simply implementing a legal hold was not enough to satisfy a party’s duty to preserve. Instead, the party must take affirmative steps to implement the hold, follow up with custodians to ensure data preservation, and also ensure that the hold covers all forms of data, including text messages and other emerging data formats.

Well, that seems like and, in fact, is a daunting task. In today’s computing scenario, where majority of the time the workforce is mobile, and not to mention the influx of mobile devices each of us have an use – then we try to remember “Where in the world did I save/store that document” – you get the point.

Within the realm of e-discovery, litigation can be reduced by providing an indispensable, seamless, and a fully collaborative platform/solution so that documents, text messages, and voice can be saved in repositories. Proactive approach towards data compliance will reduce costs in the long run for corporations!

The Information Governance Model (IGRM) Reference Guide at E.D.R.M does a fairly decent job at presenting a model.

While the future of e-discovery may rest on the foundation of information governance, a wise and proactive approach with special emphasis on building efficient processes, and more importantly automating those processes within the organization must be adopted to reduce legal complexities.

Here’s a sample tutorial of what SharePoint/Office 365 Compliance Center can help you achieve!

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What if a Naval Officer commits a ‘Civil’ offence?

This is a common question being asked by personnel most of the time. First, a Civil offense in the eys of Naval law is basically a criminal offense. Keeping that in mind, if a serving officer commits a civil offense outside the jurisdiction of Naval unit, he is basically held responsible for his actions like any other citizen would. Navy, however, has the say in determination of jurisdiction for the trial. In other words, Navy could call the entire matter and investigate the matter itself before reaching any conclusions. The magistrate in civil courts is bound to provide all documentary evidence as well as allow the individual to be taken into Naval custody. Subsequently, Navy can then conduct appropriate trial based on evidence and investigation. The JAG attorneys are responsible for handling the case from start till the culmination of the said matter.

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