Answering problem questions

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Legal problem solving involves a number of distinct steps: first, the identification of both the legal and factual issues in a given situation; secondly, the selection of the law relevant to the scenario from a wide range of cases and statutes; thirdly, the application of this law to the specific facts of the problem; and fourthly, a conclusion in which you either advise the parties of the probable outcome of the case, or summarise your discussion of the issue raised by the problem, depending on the instructions you have been given. As well as being an essential skill for students, problem solving is a skill used by professional lawyers on a daily basis.

In planning and writing your answer you will need to:

• Identify the issues
• Select the relevant law
• Apply the law
• Conclude with advice

Identify the issues

The first step in producing a good answer to a problem question is to identify the issues. This is a matter of identifying what the question is about from a legal point of view. At the planning stage, you will need to be reading through the question with a view to spotting and noting the issues. Identifying the issues is essentially a process of analysis, which in this context means separating the question into its distinct parts recognising each fact and issue, and then ranking those facts and issues in terms of relevance and importance. At the writing stage you will write a short opening paragraph, setting out the issues you have identified and which you will then address in your answer.

The testing of skills begins with the reading of the problem question. First you need to break down the problem and identify the material facts. If, in the facts of the problem, you are told a child is seven years old ask: ‘Why have I been told this? What is the legal significance of this fact in the context of the question?’ The only true exception to the proposition that all the facts are included for a reason (namely to be commented upon in answering the question) is that some facts are included simply to make the story more readable. There is, however, also a quasi-exception, where facts are introduced by way of red herrings. Red herrings will only distract those who do not really understand the relevant law, and therefore their introduction is a perfectly legitimate way of testing the true extent of the students’ understanding. In other words, and being perfectly consistent with the general principle that all facts are mentioned for a reason, red herrings are introduced so that you may comment on them, even though your only comment will be to identify their irrelevance.

Secondly, you need to identify the legal issues raised by the facts. It may be that you consider the facts to be too far-fetched to be taken seriously. Two points arise. First, the facts of some of the most important legal cases are themselves quite improbable. Secondly, and perhaps more importantly, you must understand that the questions are constructed in order to bring out certain points, which the examiner expects you to be able to identify and discuss. This may well result in an intrinsically improbable story line; but the problem questions never pretend to be essays in social realism anyway.

Finally, you need to identify any legal claims and defences that the parties may have. A party who has no recognisable legal claim, or a party who does have such a claim but who will be met with a cast-iron legal defence, will have no legal redress. Evaluating possible claims and defences at the planning stage will not only help you to identify the contentious legal issues raised by the problem, but will also enable you to dispose of any straightforward and uncontentious issues in a sentence or two.

For more advice, see critical and analytical thinking skills, problem-solving skills and the free audio download on critical analysis.

Select the relevant law

At the planning stage, step two requires you to select the law, which is relevant to the issues identified at stage one. At the writing stage, this is made explicit when you state the law you have selected to support the legal claims and defences you have identified. Selecting the relevant law is a filtering process where you sift out any irrelevant law and retain only the law, which is pertinent to your answer.

The principal authorities in English law (and other common law jurisdictions) are statutes, delegated legislation, and case law, although in many subjects it will also be necessary to ask whether there are any relevant provisions of European Community law or of the European Convention on Human Rights as made relevant to the English legal system by the Human Rights Act 1998. It is important to bear in mind the weight of various authorities (in terms of court level) when selecting the law to support your arguments. Remember that no court can quash primary legislation and persuasive authorities (for example, cases decided by the Privy Council or the High Court of Australia) might influence a court to follow a particular line of reasoning, but do not bind it to do so.

Apply the law

The third step in the problem-solving process requires you to apply the relevant law to the material facts. It is your ability to do this convincingly that demonstrates the true extent of your understanding. One type of classically bad answer simply reproduces, more or less accurately depending on the extent of your knowledge and understanding, all the law on the topic, with no attempt at selection or application. In terms of professional practice, the equivalent would be simply to read aloud to the client the whole of the relevant chapter from a textbook, and then claim that this amounts to giving the client legal advice.

Applying the law at the planning stage means considering how the law you have selected fits the material facts. Later, at the writing stage, you will apply the law to support your discussion, and thus demonstrate that you can construct a logical argument.

Conclude with advice

In most problem questions you will be asked either to advise one or more of the parties, or to discuss the legal issues, which arise from the facts. If you are required to give advice, you may feel that once you have identified the issues, selected and applied the relevant law and produced a logical answer following the steps outlined above, it will be obvious to the examiner what your advice will be. Nevertheless, you should conclude your answer with a short paragraph containing your advice. Similarly, if the question requires you to discuss the legal issues arising from the facts, you should conclude with a short summary of the issues you have been discussing.

This content has been taken from Studying Law, by Simon Askey and Ian McLeod.