Expert opinion style in written examinations and term papers

Introduction to the subsumption technique.Case from criminal law as an example for application of the expert opinion style.

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Expert opinion style is a very important part of law school. For both term papers and exams must be written in this style. Especially in the beginner term papers and exams, the correctors look very much at whether the expert opinion style is mastered. However, it often causes difficulties at the beginning of law school, because the system must first be internalized and understood. In the end, however, the expert opinion style offers a good scheme to examine facts correctly. In this way it facilitates the juridical-scientific work.

Structure in expert opinion style

The expert opinion style is structured according to a four-part system. Always start with the head sentence. After this the facts are defined in the next step. Then follows the subsumption. Finally, the conclusion establishes whether the facts of the case have been met or not.

  • Upper sentence
  • Definition
  • Subsumption
  • Conclusion

The next factual characteristic follows according to the same system.

Upper sentence

For each of the subordinate clauses, the upper clause first raises the question of whether the subordinate clause is fulfilled. So the first thing you have to do for each bullet point is write an introductory sentence. Only after that you come to the respective element of the offense, where the four-part system is then applied. After the examination, the upper clause must be concluded by the conclusion.

The examination of the individual facts is to be introduced again in each case with an upper sentence. The subjunctive mood should be used here. Furthermore, it is formulated with verbs like "could" or "would have to".

Example 1:

A intentionally drops the vase of B to harm him. The vase breaks thereby into 1000 individual parts.

Expert opinion:

A could have committed criminal damage to property according to § 303 I StGB.

Then he would have to have fulfilled the facts of the damage to property in accordance with § 303 I StGB.

I) Objective facts

In order to do this, A would first have to have committed the objective fact of damage to property, namely to have damaged or destroyed another person’s property.

1. Factual characteristic: "thing

  • Then it would have to concern with the vase a thing. (upper clause)
  • Definition
  • Subsumption
  • Conclusion

2. Factual characteristic: " foreign"

  • Furthermore, the vase would have to be foreign to A. (Upper clause)
  • (..)

3. Factual characteristic: "destroyed or damaged"

  • A would also have to have destroyed or damaged the vase. (Top sentence)
  • (..)

Definitions and theory disputes

After the formation of the head sentences, one must first define the individual constituent elements of the crime.

Law Individual Tip: Before the exam or while writing the term paper, learn definitions or. from a commentary etc. write out!

If one does not have the definition ready in an examination, one must try to find a definition oneself. The grammatical (interpretation of the word), the systematic (position in the law), the historical and the teleological (interpretation according to the meaning and purpose of the norm) interpretation are available.

Example 1:

First as above

1. Characteristic of the offence: "thing

  • Upper sentence
  • A thing is every physical object in the sense of § 90 BGB. (definition)
  • Subsumption
  • Conclusion

2. Characteristic of the crime: " foreign"

  • (…)
  • A thing is foreign, if it stands in the property or co-ownership of another one. (definition)
  • (..)

3. Characteristic of the offence: "destroyed or damaged"

  • (…)
  • Destruction is the destruction of existence or the complete cessation of the intended usefulness. Damage is understood to be an injury to substance or a more than insignificant reduction in the intended usability of the goods. (definition)
  • (..)

Theory dispute

However, it may also be that the definition of a constituent element is disputed. Then the dispute must be presented in detail. Finally it requires a dispute decision.

Example 2:

A kills the neighbor B at night in order to take advantage of the defencelessness of his sleep.

Here a definition problem arises with the murder characteristic "insidiousness. Because the conditions for the existence of the insidiousness are disputed.

  • The murder criterion of insidiousness could be fulfilled. (supersentence)
  • Problematic is however that the conditions of the Heimtucke are disputed. According to one opinion, an insidious act is committed by a person who kills the victim with a hostile will, deliberately taking advantage of the victim’s objective helplessness and defenselessness. Guileless is the one who is not aware of any attack on the part of the perpetrator. Defenseless is someone who is at least significantly limited in his ability to defend himself. Another view demands additionally that between perpetrator and victim a relationship of trust must be given. In the end, the better arguments speak for the first view, because according to the wording of the legal text a breach of trust is difficult to justify. (definition and presentation of the theory dispute)

If one has already defined a factual characteristic and if it occurs again in the course of the expert opinion, then one can refer to above.

Subsumption

After the definition follows the subsumption. Thus, it must be checked whether, according to the facts of the case, the conditions specified in the definition are met. It is important to go into each individual characteristic of the definition. It is not sufficient to write that the characteristics are given.

Example 1:

First as above

1. Characteristic of the crime: "thing

  • Top sentence
  • Definition
  • The vase is a physical object according to general opinion. (Subsumption)
  • Conclusion

2. Characteristic of the offence: " stranger"

  • (…)
  • The object is the property of B. (Subsumption)
  • (…)

3. Characteristic of the offence: "destroyed or damaged"

  • (…)
  • In the present case, the vase shatters into 1000 individual parts. The vase is completely destroyed. At the same time, it can no longer be used as a decorative piece or water vessel. The intended usefulness is thus eliminated. Furthermore, the material substance is completely damaged by the shattering. (subsumption)
  • (…)

Conclusion

All raised upper clauses in the subjunctive must be answered at the end. To each upper sentence a result must be formulated therefore. Conclusion sentences should begin with the words "Thus", "Consequently" or "Finally".

If the upper sentence says "A should have fulfilled the facts", the conclusion must say: "Therefore A has fulfilled the facts".

Example 1:

First as above.

1. Factual characteristic: "thing

  • Top sentence
  • Definition
  • Subsumption
  • Thus the vase is a thing. (Conclusion)

2. Characteristic of the offense: " foreign"

  • (…)
  • Thus, the vase is a foreign object for A. (Conclusion)

3. Characteristic of the offense: "destroyed or damaged"

  • (…)
  • Consequently, the vase was destroyed and damaged. (Conclusion)
  • Causality and objective imputation (+)

Thus the elements of the crime are fulfilled.

  • Illegality and guilt (+)

Consequently, A has committed criminal damage to property pursuant to § 303 StGB (German Criminal Code).

Distinction between expert opinion style and verdict style

The judgment style is the counterpart to the expert opinion style. In this case, the above-mentioned scheme (upper sentence, definition, subsumption, conclusion) is not followed. What is characteristic here is that the solution is placed right at the beginning of the examination and then the reasoning follows. The style of judgment is to be used if the facts are obvious and no problems arise.

Example:

A kills his uncle B without fulfilling a murder criterion.

With the examination of the manslaughter according to. § 212 I StGB does not have to be proceeded any more in detail according to the expert opinion style with the crime characteristic of the "killing of a human being". Rather, it is sufficient to write:

According to the facts, A has killed a human being. Consequently, the element of the crime "killing of a human being" is given.

It is to be noted, however, that in beginner’s examinations as well as homework the judgment style is not gladly seen. Because there one wants to check whether the expert opinion style was understood.

Case

A hits B in the face with his fist. Thereby a bruise develops at the eye of the B. A wants to inflict pain on B by the blow and injure him, since B wanted to rape his daughter.

Solution according to the expert opinion style:

A could have made itself punishable of the bodily injury in accordance with § 223 I StGB.

I) Facts

For this, the facts of § 223 I StGB would have to be given.

1) Objective facts

Then the objective elements of the crime of § 223 I StGB would have to be fulfilled.

a) Physical abuse or damage to health

  • For this, a physical abuse or an injury to health would have to have taken place. (Common supersentence)
  • Physical abuse is any nasty, inappropriate treatment that more than insignificantly affects physical well-being. A health damage is the cause, increase or maintenance of a pathological condition. (Definition)
  • By hitting B in the face with his fist, A has caused him considerable pain. The blow is also an inappropriate treatment, which impairs the physical well-being by the caused pain more than only insignificantly. The bruise caused by A’s blow further represents a pathological condition. (Subsumption)
  • Thus, both a physical abuse and an injury to health are given. (Conclusion)

b) Causality

Furthermore, the action of A would have to have been causal for the success.

According to the conditio-sine-qua-non formula, every act is causal, which cannot be ignored, without the factual result in its concrete form ceasing to exist.

If A had not hit B in the face with his fist, B would not have suffered any pain and also no bruise.

Thus the action of A is also causal for the success.

c) objective attribution

Furthermore, the factual success would also have to be attributable to the A.

The success is objectively attributable if the perpetrator has created a legally relevant danger which is realized in the factual success.

By the blow A has just created the danger that B suffers pain and his physical integrity is injured. The danger has been realized in the factual success.

Thus, the success is objectively attributable to A.

The objective elements of the crime of § 223 I StGB is therefore given.

2) Subjective elements of the crime

Furthermore A would have to have fulfilled the subjective facts.

Then A would have to have had intent with regard to the physical abuse or the damage to health.

Intent is knowledge and intention of the realization of the crime.

Forms of intent

Three forms of intent are to be distinguished.

  1. The dolus directus 1. Degree is the purposeful will (intention). It is important for the perpetrator to bring about the success.
  2. The somewhat weaker intent form of dolus directus 2.Degree is the certain knowledge that the success occurs.
  3. Finally, the dolus eventualis (contingent intent) is given if the offender considers the occurrence of success to be possible and at least accepts it.

In the present case, A could have acted with intent (Def. s.o.).

According to the facts of the case, A wants to inflict pain on B in order to take revenge for the attempted rape of his daughter. Furthermore, he wants to injure B in his physical integrity.

Thus, A has intent with regard to both the physical abuse and the damage to health.

The subjective element of the crime is thus given.

Consequently, the elements of the crime of bodily harm according to § 223 I StGB is fulfilled.

II) Unlawfulness

Furthermore, A would have to have acted unlawfully.

Unlawfully acts, who does not rely on a justification (z.B. (e.g. self-defense, justifying necessity).

Justification of emergency assistance

In the present case, A could rely on emergency assistance according to § 32 II 2. Var. StGB can invoke.

Then first of all an emergency situation would have to have existed.

This presupposes a present, unlawful attack on a legally protected good or interest.

An attack is any human behavior that threatens or injures a legally protected individual interest.

According to the facts of the case, B tried to rape A’s daughter, thus threatening her physical integrity.

With it an attack was present.

The attack must have been present.

This is the case if it is imminent, is currently taking place or is still continuing.

In the present case, the attempted rape of A’s daughter took place in the past.

Thus the attack is no longer present.

Consequently, there was no emergency situation.

A can therefore not rely on emergency assistance according to § 32 II 2. Var. StGB invoke.

Absence of further reasons for justification

According to the facts of the case, there are no further indications that could give rise to a justification.

Thus A acted unlawfully.

III) Guilt

Furthermore, A would have to have acted culpably.

A person acts culpably who cannot invoke a ground for exclusion of guilt (excusable necessity).

According to the facts of the case, there are no indications that could give rise to a ground for exclusion of guilt.

Thus A acted also culpably.

A has therefore made himself punishable for bodily harm according to § 223 I StGB (German penal code).

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