The Law of Contention: An Overview
Contention, in the context of legal practice, refers to a dispute, controversy, or argument between two or more parties, often involving points of law or interpretations of legal principles. This term is frequently used in legal writing to introduce the issues to be discussed in an essay, brief, or memorandum. It sets the stage for what is to follow, usually by outlining the facts and the questions of law that the discussion will address. Understanding the contention at hand is essential to comprehending the arguments that follow, as it frames the context in which the discussion occurs.
Understanding the contention in a legal text or essay is crucial, as it frames the context for the reader, guiding them through the analysis. This can help the audience appreciate the writer’s points and understand the legal arguments being presented by the rest of the text. Therefore, the audience will understand the context of the discussion and the importance of the issues being addressed.
Contention is important in the field of law , as it helps establish the framework within which a particular legal issue will be discussed. This framework sets the stage for analysing the relevant laws and applying them to the specific circumstances at hand. Identifying the problem and/or issues to be discussed makes it easier to navigate the complexities of legal analysis and reasoning.
Moreover, understanding the contention in a legal text or essay helps to highlight the significance of the issues being addressed. This not only aids in comprehension of the text itself, but also contributes to a broader understanding of the law. This allows readers to see how the issues being discussed impact the entire legal system.
This knowledge can be invaluable in better appreciating the problems facing a particular case or issue. This can be critical in trying to develop arguments that would support a particular position in law, allowing one to correctly point out errors in the legal positions taken by the opposing side.
The Historical Development of the Law of Contention
Contention law has evolved through a series of groundbreaking cases and legal precedents, gradually solidifying its fundamental principles in legal doctrine. This topic provides an illuminating look at the statutory, administrative, and judicial development of contention law. Importantly, it covers the application of contention law to situations where one or more parties support a contention by affirmative evidence, in cases concerning characterizations of the applicability of the law and the facts, the evidentiary burdens borne by parties, and payment of interest under certain conditions.
Key cases that have shaped contention law include Gould, 20 B.C.A. 160, 77 Pa. D. & C. 146 (1976) and Savarese v. Norwin, 20 B.C.A. 417, 113 Pa.D.&C. 105 (1980). In these cases, courts defined contention law and the various contentions put forth by parties in litigation. Initially, the principle was that when a party supports a contention by proof of evidence, that party bears the burden of establishing and carrying that contention, even if that party is reacting to the opposition’s positions. See Fazekas v. Hagan, 5 D & C 4th 453, 1988 WL 155557.
In a later case, the Eastern District court in Sera v. Franklin Fire Ins. Co., 142 F. Supp. 2d 620 (E.D. Pa. 2001), extended the application of contention law beyond the Pennsylvania Workers’ Compensation Act to the Pennsylvania Bad Faith Statute. In this decision, the court noted that under contention law a party supports a contention when it presents evidence in favor of its position regardless of whether it attempts to rebut an opposing contention. See also Jaeger v. Liberty Mutual Ins. Co., No. 02-1011, 2006 WL 1875356 at *12 (M.D.Pa. June 30, 2006) (holding contention law applies to motions for summary judgment).
The history of contention law begins in 1907, when the Pennsylvania Supreme Court established the basic premise that the party asserting a contention bore the evidentiary burden of establishing that contention through proof of evidence. See O’Brien v. N.W. Elec. Power Co., 202 Pa. 394, 51 A. 989 (1902). In the eight decades following O’Brian, Pennsylvania courts addressed the concept of burden of proof on many occasions. See, e.g. Fidelity Glass & Paint Co. v. American Automob. Ins. Co., 371 Pa. 325, 89 A.2d 602 (1952); Hino v. Pa. Power & Light Co., 47 D. & C. 2d 512 (1970); DeMarco v. Philadelphia Nat’l Bank, 10 D. & C. 3d 579 (1983); Moninger v. AEA Investors, Inc., 7 D. & C. 3d 524 (1985); Fasula v. Markowitz, 18 D. & C. 3d 263 (1987).
Most devaluation of contention law occurred in the mid 1970s. See, e.g., Gould; Breyer v. Commonwealth Dep’t of Transp., 26 D. & C. 3d 468 (1976); Savarese. The court in these cases elaborately described the contention law theory, explaining the intertwined and interrelated concepts of contentions and assumptions, which are often confused. An assumption is an "erroneous mental grasp of a fact" when a party relies upon an alleged fact and proceeds on a theory without evidence in the record to support the theory. An assumption may not be presented in the form of evidence, nor may it be presented as an inference drawn from evidence. See Breyer, 26 D. & C. 3d at 475. The application of assumption law to evidence during trial continues to be one of the most frequent causes of confusion for attorneys.
Following the period of high scrutiny, contention law was not discussed until the 1990s, when the principle of negative contention law was summarized by our appellate courts. See Peters v. Bolton, Civ. No. 2:90-cv-03293 (E.D.Pa. 1990), Mariani v. Bethlehem Area Sch. Dist., 557 Pa. 37, 731 A.2d 1251 (1999) (negative contention law requiring party to establish clear evidence that a negative contention is true).
Most recently the doctrine of contention law was discussed and explained in the context of children’s medical assistance benefits and the application of contention law in general by the Commonwealth Court in Washington v. Pennsylvania Dep’t of Pub. Welfare, 782 A.2d 552 (Pa. Commw. Ct. 2001). This author attempted to confine the definition to only those issues pertaining to worker’s compensation disputes; however, the court recognized the general applicability of the doctrine.
The historical evolution of contention law has shaped the doctrine in its application today. From the early 1900s through our most recent articulation, the principle of contention law provides a useful method of arguing a legal position when a party seeks to derive some form of benefit from the superiority of a contention to an assumption. Furthermore, though the history is known, its application is not limited to trial practice.
Core Principles of the Law of Contention
Contention law itself is a relatively obscure body of law that is referred to and relied upon in administrative decisions and orders, but is not often directly cited by the Land Court or Supreme Court decisions.
Contention law is based on the legal doctrines of "contention" and "statutory interpretation," and specifically, statutory interpretation in light of other statutes and doctrines that are relevant to land use and zoning:
Contention—A contention is a matter in dispute, a claim, an assertion, an allegation. The word contention is used simply here to indicate the legal merits of property in dispute, a claim or contention that the land is without a recognized owner, an assertion by the claimant, and a dispute concerning the claim itself that takes us to the heart of the matter.
Statutory interpretation—It is the duty of the court that is tasked with interpreting a statute to ascertain the true intent and meaning of the statute, or statutes, relied upon in making the decision.
Statutory construction and the doctrines of inconsistency, repeal by implication, and constitutional construction—All statutes must be construed together as the law of the land, as opposed to a singular statute in a vacuum. Statutes should be interpreted so that they are all given effect and applied harmoniously, and no one statute should be read as repealing another, unless there are irreconcilable inconsistencies in the statutes. And every statute must be construed and interpreted to avoid a conflict with the Constitution.
Contension law focuses on the issue of whether a statute is "jurisdictional," and in particular, whether a statute is jurisdictional in relation to the duties of the Land Court and the Supreme Court in relation to land title disputes. As suggested above, the duty of the Land Court and the Supreme Court is to give effect to every statute that applies in a matter.
Agins v. State, 24 Haw. 343, 354 (1918). The principle of construction—"the presumption is that all statutes relating to the same subject matter or operating within the same field are to be construed as one law and to carry out the purpose of the legislative enactments."[…] Although it is "presumptively favorable to the view which renders a statute constitutional, […] if in the maintenance of the right contended for, the statute would bring about the illicit or the unconstitutional we will not uphold its application."
Bennett v. Jim, 46 Haw. 306, 308 (1963). A statute is generally deemed to be jurisdictional only when a court holds that the absence of jurisdiction renders the proceedings invalid and void. Id. at 310. A jurisdiction is independent of the source of the power and is simply a reasoned choice to pursue a purpose and to obtain an object." Id.
The party claiming the benefit of the statute bears the burden of proving its effect, or its repeal of prior statutes, and the court should be persuaded and convinced that the legislation is not displaced by the new act. Calabro v. Choon, 73 Haw. 803, 815 (1992) (holding that Hawaii’s "doctrine of legislative construction, which is that a subsequent statute may not be so construed as to repeal a former act by implication unless such repeals is necessitated by irresistible inference from the language employed and policy expressed in the later statute"). "The failure of the legislature to embody in the later statute a specific repeal of prior legislation does not alone preclude a finding of implied repeal." Id.
Doctrines of repeal by implication and constitutional construction are typically addressed as a matter of first impression by the Legislature, in the form of an express repeal of prior statutes and the affected provisions of the Hawaii State Constitution (Haw. Const. Art. I, Sec. 5), respectively. Id. at 820. Here, the doctrine of repeal by implication is applied to find a sub-division, or part, of a statute inapplicable to property and land titling law. Id. See also, Kahalekai v. City and County of Honolulu, 67 Haw. 17 (1984).
Common Legal Issues Related to the Law of Contention
Contention law is most commonly applied to disputes between litigants in different states about the right to introduce evidence from a witness in a case. The Federal Rules of Evidence have largely supplanted contention law as a tool for resolving such disputes, but it is relevant to consider how courts have historically applied the doctrine in litigation.
Because contention law is a very specific, technical concept, courts apply the doctrine in only the narrowest of circumstances. As a result, the body of case law is limited. For example, in Fernitz v. Koller, 2013 WL 486377 (E.D. Wis. Feb. 7, 2013), the U.S. District Court for the Eastern District of Wisconsin refused to apply contention law to the fact pattern before the court. In an employment discrimination case, the parties were engaged in discovery and sought to compel the depositions of the plaintiffs’ former co-workers who currently resided in the state of Ohio. The defendants had noticed depositions of the co-workers, but they contested the right of the district court to compel their presence in Wisconsin, contending that the depositions should proceed "at a neutral location outside Wisconsin."
In addition to claiming that the co-workers should not be compelled to travel to Wisconsin, the defendants also requested that the plaintiffs waive the right to use at trial evidence obtained in the depositions. The plaintiffs maintained that such a waiver was overly broad and that the defendants were "merely seeking to take discovery from the co-workers." The court agreed that the requested waiver was overly broad, but it ultimately agreed that the depositions should proceed in Ohio, if the defendants so chose.
In another case, State Farm Mut. Auto. Ins. Co. v. Cully, No. C13-0481JLR, 2013 WL 4441621 (W.D. Wash. Aug. 16, 2013), the Western District of Washington dealt with the only case directly addressing the right of a party to depose an out-of-state witness in the context of contention law. The State Farm court rejected the plaintiffs’ contention that Washington law applied, instead applying the contention rules in a Multistate Single Tort Suit under the Federal Rules of Civil Procedure and Washington’s choice-of-law rules. The plaintiffs in State Farm sought to compel the defendants to produce their insurance claim file for in camera review by the court. The defendants argued that the plaintiffs’ request implicated attorney-client privilege and that Oregon law applied, not Washington law. Looking to its own circuit, the court adopted the contention doctrine articulated by the Ninth Circuit Court of Appeals in Shoe Co. v. Danelian, 272 F.2d 178 (9th Cir. 1959). Citing Danelian, the State Farm court ultimately agreed that Oregon law governed the case.
Resolving Contention Law Cases
When contestation arises in a system, experienced legal professionals use a range of strategies to effectively resolve disputes. Consider the approaches commonly employed:
Arbitration is a method of dispute resolution that involves a binding process overseen by a third-party arbitrator. In arbitration, parties present evidence and arguments to an arbitrator whose decision is legally binding. This method is often used in commercial disputes where an expedited resolution is desired or cost may be a factor; however, stakeholders must understand that arbitration lacks the legal discovery mechanism available in traditional litigation.
Administrative hearings provide a resolution process for administrative actions taken against an individual or company by a government agency. This is a common method for rehabilitation professional relations matters. A primary benefit of this process is that it is generally less formal than litigation; the party appealing an agency’s action has the burden of proof and presents evidence that there was no action deserving of penalties.
Administrative hearings are less expensive than the litigation process, and industry specific knowledge is required by the decision maker . For example, in a CARES case, as a matter of practice, a lot of the witnesses are licensed professionals. In such cases, the technical nature of the testimony makes rehabilitation professional relations challenging.
Mediation or settlement negotiation is one of the most common methods of dispute resolution and is the general term for the use of a neutral third-party (the mediator) to help two or more parties arrive at an agreed resolution. Like arbitration, mediation can stipulate clear timelines but, unlike arbitration, there is no settlement imposed by the mediator. Instead, parties at mediation have the opportunity to craft their own outcome.
"Clients can benefit tremendously by recognizing the areas that can be controlled in a case," says David. "For example, we work with taxpayers by developing a plan that can identify a few strategies for resolution from the outset of a case. That allows a client to assess the overall risk and develop a road map that accommodates his or her goals. They can then shave time and costs from a legal matter."
Of course, the first step is to recognize that your case scenario is moving from contention to resolution so you can select the right strategy for your unique situation.
The Role of Attorneys in Contention Law
Attorneys must first and foremost understand Contention Law principles and concepts if they are to effectively guide clients through the IUB process. Many aspects of IUB processing follow strict timelines and may depend upon technical information (such as the availability of slots or CDBS issues) and/or the preferences of various Bureau staff. Additionally, attorneys should be familiar with other proceedings pending before the IUB. For broadcasters, this includes: 1) rulemaking proceedings that may affect the Radio and Television Tables of Allotments, or FM and Television Band Plans; 2) proceedings to assign or transfer control of broadcast licenses; and 3) rulemakings proposing amendments to the public interest rules, such as the rules governing EAS and PSL applications. In some circumstances, the attorney may be able to seek Informal Objections for clients with regard to pending rulemakings, while at other times, it may be more effective to file Comments in various rulemaking proceedings. There are many aspects of IUB practice where the assistance of an attorney can be crucial. Media attorneys are experienced in working with the IUB to determine whether or not a sufficient showing has been made by the applicant, checking the IUB Public Notice Files, and performing the special studies usually required (e.g., Electromagnetic Radiation measurement studies, OET-69 or Broadcast Frequency Separation studies, etc.) Attorneys are also very experienced with the nearly procedurally complex proceedings such as waiver requests, special temporary authority requests, Fairness/Diversity and Public Interest showings as well as EEO showings in the regulatory context.
Emerging Trends in the Law of Contention
The future of contention law seems promising in several aspects. First, the continual development of technology and resurgence of software in the legal realm such as artificial intelligence, predictive algorithms, machine learning and new platforms for providing legal services will continue to reshape its application. Furthermore, emerging disputes in the context of digital financial technologies will demand new applications and interpretations of existing law. New class actions in respect of such claims are highly likely. We are already seeing the first Canadian class actions in the context of private lender payments and their practices, which could be considered a new iteration of traditional charges.
Similarities between traditional charges and retail banking practices will continue to drive application of existing legal principles, although newer applications of existing law is also highly likely to expand the scope of damage claims. More than any other, the Canadian Retail Banking space has witnessed significant technological advances which will continue to reshape the industry. The long-drawn out evolution of credit cards, chips, tap payments and now soon-to-come biometric fingerprint technologies such as palm recognition may well be the catalyst which gives rise to future contention law and an entirely new area of law altogether .
Questions of unavailability, ability to execute, or finally, the validity of the underlying transaction itself could well become the focal points of digital disputes. Despite the highly regulated nature of the industry, banks may find themselves in the position of having to not only pay statutory damages related to a breach, but also pay a variety of damages which relate to a normal practice within the industry.
Finally, global issues may become the cornerstone of future contention law. Most especially, those having to do with the cross-border transfer of personal data and the issues related to same. These have been the subject of significant attention in Canada (PIPEDA) and other jurisdictions for some time now, but it is only now that we are seeing more global actors not only becoming aware of, but complying with privacy law principles under PIPEDA.
Importantly, there is still much quarrel as to the extent to which Canadian privacy law can extend to foreign actors, especially when they have little to no presence in Canada and are unable to enforce their rights in a Canadian Court. Nevertheless, this will likely until diplomacy has a chance to align for something akin to a mutual recognition of privacy law principles between Canada and the EU, much like we have seen in connection with the rights to access health records and their transfer. Thought the future will involve rapid advancements in technology, the case law will test the limits of such advancements as they relate to existing law.