LEGAL PROBLEM-SOLVING QUESTIONS

Transcription

1 LEGAL PROBLEM-SOLVING QUESTIONS A prblem questin invlves a set f hypthetical facts which raises at least ne issue that needs t be answered by reference t the law. In ther wrds, it is a shrt stry abut events that give rise t ptential legal respnsibility abut which yu are expected t ffer advice t ne r mre f the parties, r t cmment n the legal psitin that arises frm the facts. Prblem questins ften end with a questin r instructin such as: - Des Jhn have a claim in negligence? - Advise Mary as t the extent f her liability in the cntract. The facts f the prblem will be cnstructed in such a way that the answer t the questin is nt bvius and straightfrward. Each fact f a situatin (scenari) will indicate an issue f ptential legal respnsibility which needs t be discussed with reference t the law. In answering the questin yu need t cnsider all the different pssibilities and utcmes with reasns, and yu need t speculate abut the utcmes befre yu give yur wn pinin as t the mst likely cnclusin. At the same time, in yur answer yu will shw yur ability t apply the law. Prblem-slving v Essay questins Prblem-based questins are different frm essay questins in several ways. Prblem-slving questins Essays Length under 2000 wrds ver 2000 wrds Intrductin identify the main issues in the prblem/situatin n details, n law can be nly a few sentences backgrund descriptin / summary definitins psitin statement can be mre than ne paragraph Main bdy fllw IRAC framewrk fr each issue explratin and analysis f a tpic Cnclusin verall cnclusin t the prblem questin which utlines the liability f the parties fr each issue recap f main pints evaluatin f ideas recmmendatins inf@prfreadlaw.c.uk writing legal prblem-slving essays

2 SKILLS fr prblem-slving A range f skills is required in prviding an effective answer t a prblem questin: - the ability t identify relevant facts in the situatin - knwledge f the area f law t identify the basis fr legal actin - research skills t lcate statutry prvisins and cases - writing skills t structure a clear and lgical answer - the ability t apply the law t the facts f the questin in rder t determine the extent f the parties legal liability. TECHNIQUE fr prblem-slving The key t success in writing legal prblem-slving essays is t use an effective technique in dealing with each issue When there are several issues in a questin, yu shuld deal with each issue in chrnlgical rder as it appears in the questin. The table belw prvides a summary f this apprach. It can be remembered using the mnemnic IRAC. Issues Identify each issue. Rules Apply Cnclude State the rules f law and the different surces f law relating t the facts. Give clear, cncise, accurate explanatins f the law.. Apply the law t the issues and explain why. Well-argued cnclusin lking at a range f pssible utcmes. inf@prfreadlaw.c.uk writing legal prblem-slving essays

3 HOW TO ANSWER a prblem-slving questin STEP 1 Skim read the prblem situatin t get a general impressin f the situatin. Identify the tw parts in the prblem questin. 1 the prblem situatin. 2 the fcus questin at the end f the prblem questin i.e. what yu are asked t d in rder t slve the legal prblem. STEP 2 Read the prblem situatin again this time mre clsely and with the fcus questin in mind. Identify the material facts (the facts r events which specifically create a legal issue). Then, identify the main issues (prblems) and sub-issues which are created by the situatin. Use the IRAC technique t rganise yur answer. Make ntes n each issue using the fur-stage prcedure utlined in the table belw: IRAC Issue Identify the issue Rules State the rules f law and the different surces f law relating t the facts. Give clear, cncise, accurate explanatins f the law. Apply Apply the law t the issues and explain why. Cnclude Well-argued cnclusin lking at a range f pssible utcmes. inf@prfreadlaw.c.uk writing legal prblem-slving essays

4 the INTRODUCTION The intrductin t yur prblem essay shuld state the charges/actins frm which legal issues will be identified and discussed in the essay. When writing an intrductin it is imprtant that yu d NOT: X restate the facts f the prblem questin X start writing a legal analysis f the situatin. In the intrductin yu need t indicate thse charges/actins arising in the prblem questin which will require analysis. Legal analysis belngs in the bdy f yur essay the CONCLUSION The cnclusin is a very imprtant part f yur prblem essay. As yu use IRAC t discuss each legal issue identified in the prblem questin, yu will cme t many tentative cnclusins. By the end f yur essay, yu will need t draw all the cnclusins yu have made fr each legal issue int ne general 'end f essay' cnclusin. Because there is n single crrect answer t yur prblem questin, yur cnclusin shuld nt be t abslute. After giving yur pinin as t the strnger argument, yu shuld briefly utline the result if the curt accepted the ther view. In writing yur cnclusin, remember t use tentative language. Different lecturers may have different expectatins f the degree f certainty required frm yur answer, s make sure that yu understand the lecturer's preferences fr this. When writing a cnclusin it is imprtant that yu d NOT: X repeat at length what yu have already said. In the cnclusin, yu need t sum up cncisely n the main issues X bring in a new argument which has nt been discussed befre inf@prfreadlaw.c.uk writing legal prblem-slving essays

5 Organising yur answer with IRAC ISSUES When yu analyse the questin, it is imprtant t be methdical and thrugh. Start at the beginning and wrk thrugh each sentence in turn, making nte f ptentially relevant infrmatin. The actins f the parties have been carefully thught ut t give yu hints n the issues and t make sure yu deal with the areas f law t be assessed. a) Nte the instructins which may ask yu t advise ne f the parties, indicate the area f law and/r the viewpint yu have t cnsider. b) Identify the parties c) Identify the material facts d) Identify the main legal issues and sub-issues arising frm thse facts e) Lk fr similarities t existing cases Tip: rganise the parties and issues in a table CLAIMANT EVENT DEFENDANT RULES In rder t identify and state the law as part f yur answer t the issues and sub-issues in the prblem questin, yu need t research the relevant law. - Use a text bk fr yur initial research and nte-taking. - Make sure that there is sme supprting authrity, statute r case law, fr each statement f law made. - distinguish between: binding authrity i.e. statutry law and case law; persuasive authrity i.e. legal cmmentary frm articles, legal dcuments, law frm ther jurisdictins. - Lk at bth sides f an argument. It may be necessary t search fr alternative utcmes. - Keep nte f all references. - Whenever yu make a statement abut the law, yu must give the relevant legal authrity. inf@prfreadlaw.c.uk writing legal prblem-slving essays

6 APPLY This is where yu have t lk at the facts and apply the law t them - Supprt yur answer by stating the principle f case law. - Present a balanced and bjective answer by lking at bth sides f the argument. - Imprve the quality f yur answer by speculating and creating hypthetical situatins t which the law culd apply. Tip: Use the law nly as it relates t the questin avid detailed descriptin f the law. Ensure that every paragraph includes a mentin f the name f ne f the parties and at least sme mentin f specific facts frm the prblem. In this way, yu will avid irrelevant detail. CONCLUDE There are three different levels f cnclusin: a) a cnclusin fr each sub-issue; b) a cnclusin fr each issue based n the cnclusin fr each sub-issue c) an verall cnclusin t the prblem questin which utlines the liability f the parties fr each issue that was raised by the questin. Similarly, if the questin requires yu t discuss the legal issues arising frm the facts, yu shuld cnclude with a shrt summary f the issues yu have been discussing. Checklist fr answering prblem-slving questins Read the facts f the prblem very carefully Identify the relevant area f law and the specific legal and factual prblems. Make a plan and rder the issues that yu are ging t address Order each issue accrding t IRAC Keep descriptins f the law and cases as cncise as pssible Always relate the law t the facts Cnsider all pssible interpretatins f the facts and the law Cnclude by giving a brief verall summary f findings alng with relevant reasning. inf@prfreadlaw.c.uk writing legal prblem-slving essays

7 Plan fr writing an answer t a prblem-slving questin brief intrductin 2-3 sentences t utline the cntext f the situatin Identify the first issue Give the rules Apply the principle f law t the facts Cnclude Identify the secnd issue Give the rules Apply the principle f law t the facts Cnclude Identify the third issue Give the rules Apply the principle f law t the facts Cnclude Cntinue with this pattern fr all the issues brief cnclusin - summing up n the utcme f the case Remember that there will be main issues and sub-issues. inf@prfreadlaw.c.uk writing legal prblem-slving essays

8 Speculating n a prblem situatin A nn-legal example The deadline fr the summer jb applicatin was 3.00pm. Je submitted his applicatin at 4.00pm. The prblem is that he submitted his applicatin ne hur after the deadline. In discussing and writing abut the legal issues in prblem situatins, yu need t supprt yur ideas: by evaluating what happened? and speculating n what if? This is a way f presenting yur wn ideas and interpretatin f the facts. There are different ways and techniques yu can use t d this: mdals e.g. might, may, culd He might have frgtten. He culd have been waiting fr a last reference. cnditinal sentences e.g. if / unless + cnditinal structures If he had been really interested in the jb, he wuld nt have missed the deadline. If he sends an t explain why his applicatin is late, he might be cnsidered fr the jb. certain verbs: e.g. seem, appear, believe, assume, suggest, tend, think, indicate It wuld appear that he was nt serius abut the jb applicatin. The fact that he was late in submitting the applicatin wuld seem t indicate that he was nt serius abut applying fr the jb. certain expressins: e.g. it is likely; it is pssible; there is n evidence t suggest It is likely that his applicatin will nt be accepted. There is a strng likelihd that he will nt get the jb. It is pssible that his applicatin will be cnsidered. There is n evidence t suggest that he was nt aware f the deadline. inf@prfreadlaw.c.uk writing legal prblem-slving essays