Transcript Answering Legal Problem Questions

Answering Legal Problem
Questions
Dan Carr
Introduction
• No magic formula
• Examiners are looking to see how your
judgment and knowledge are manifested
in your answer
• We don’t expect a standard format for
answers
• Guidance possible—what are we testing
and looking for?
Plan for today
① Tales from feedback
① Tips and advice
① Discussion of examination questions
Tales from feedback...
• The following comments are based on a true
story...
• Today you should be thinking about:-
 how do they relate to exam practice?
 do they make sense to you?
 do they accord with your experience of exams?
 what do you think they are asking you to do?
(Very) basic examination
requirements
“Many students did not indicate on the front cover
of their script which questions they had answered.
Please remember to do so in future.”
“Please cross out your revision.”
“A number of students did not follow instructions
and failed to write their answers in the order they
were asked to do so in the exam books... and
some even put incorrect numbers in the script
book for questions they were answering.”
(Very) basic examination
requirements
“A number of students did not
complete the correct number of
questions. I counted 15 scripts which
fell into this category. Please answer
the correct number of questions; if
you do not, you are already moving
towards a failure.”
Timing is (almost) everything
“Of the scripts which did not pass,
some had not actually completed every
question. Timing is always tricky in
problem-type exams, but it is terribly
important to ensure that something
is written for each question and
each part of each question.”
What is the question?
“The one obvious major problem shared by
many papers was failure to answer the
question asked. This could be either
because the candidate had not read the
question carefully, or because the
candidate had a prepared answer on what
he/she perceived to be the “topic”, which
was then trotted out with little or any attempt
to make it fit the question.”
Addressing the question
“It is important to read the question and answer it
and not see it as consisting of a few key words on
which you then write everything you know. Precise
knowledge carefully used is important.”
“Stick to the issues in the question. Many
students went off on tangents (most of which were
legally sound) that were irrelevant to the issues
raised in the question, and, consequently, did not
receive marks.”
Addressing the question
“We are rarely going to ask you to tell all you know on a subject.
Remember also that we will often ask you about something
uncertain; we want to see how well you deal with the material.”
“Some students do not apply the law to the facts in some cases.
They simply state the law or state the facts. The failure to apply the law
demonstrates a lack of understanding of the law in the area... One
particular problem with technique is writing conclusions without
justification. Another is simply repeating huge chunks of the
question with no law in the middle of the repetition. Please don't do
this. I wrote the question and you can assume have some familiarity
with its content.”
Answering the question
“There were a lot of issues to address. Students pick up more marks,
overall, by addressing each one, rather than spending too much
time on some issues and leaving others out completely.”
“The exam is not a memory testing exercise, though you need to
have knowledge; but it is intended to focus on how you apply that
knowledge to answer questions asked.”
“There is no need to rehearse the facts of the question at the start
of the answer. This wastes time and gains no credit.”
Answering the question
“Some answers did not make the grade because there were simply not
specific enough. It is important to identify the precise basis on
which liability is established. You will not get marks for the vague
assertion that “... liability” arises, or that X is “liable to pay damages”
unless you indicate exactly why.”
“In the problem questions those students who followed the order of the
legal questions raised in the text did better than those who answered
out of sequence. The danger of starting an answer out of sequence is
that parts of the question may be ignored or forgotten and this
happened in a number of cases. It is better when answering problem
questions to work systematically through them from start to
finish.”
Using authority
“Always cite statutory references or case law as authority
for propositions. If you can’t remember the name of a
case, a one-sentence description will suffice. Don’t
waste valuable time and effort writing an entire paragraph
on the facts of a case.”
“Credit was given where students identified the legal
principles from the case law, analysed those principles and
then applied those principles to the facts in the question. It
is also essential to identify and apply the relevant
sections of the relevant legislation.”
Style and structure
“Finally, try to avoid formulations such as “I believe” or “I feel”. For
present purposes the examiners would like you to tell them what the
law is, not what you “feel” it should be.”
“[S]ome students attempted to cite legal authority in footnotes that were
hard to read. In answering exam questions there should be no need to
use footnotes, the authority should be cited in the main text.”
“Some students resorted to note form in their answers, simply putting
down odd words and numbers on the page without any explanation as
to what they represented. This is unacceptable because students need
to make clear what they are saying, demonstrating the logic behind it,
and not leave it to the examiner to divine the meaning of the
symbols that they have written on the page.
Tips and advice: preparation
• Ensure that your notes are orderly and complete
• Read your statutes before the exam
• Know where the examination is and be there in good
time
• Know the format of the examination
• Talk to friends
• Regular routine
Tips and advice: in the exam
hall
• Marking statutes: NO
• Write legibly
• Pens, calculators, dictionaries etc
• Ignore other candidates
• Questions attempted
• Answer all the questions
Tips and advice: identifying
the question
• READ EVERY WORD OF THE QUESTION
• Identify the key facts
• Few, if any, facts will have no significance in an exam (cf life in
practice)
• GIVEN FACTS ARE CONCLUSIVE
• Look for the steer
• Once identified the facts, think about using FLAC
Tips and advice: substance
• RELEVANCE, RELEVANCE, RELEVANCE
• FLAC:
• FACT
• LAW
• APPLY
• CONCLUDE
Tips and advice: style and
structure
• Structure and style:
• FLAC
• Okay to say ‘need more information’
• If unclear, give all possibilities according to
the strength of legal argument
• DO NOT MAKE IT UP
• ‘Advise X’
• Divided/composite questions
• Beware levity
Tips and advice: authority
• MUST use authority
• Don’t copy out swathes of the statute book
• Remember cases augment statutes
• Outline facts briefly
• No ‘empty cases’
• Please don’t make up cases—you look like an idiot
• Remember the hierarchy of authorities
• “Dr Carr said in the lecture that X was the law”—
don’t do this
EXTRACTS OF SAMPLE
PROBLEM QUESTIONS
• Advise Scotship on whether there is a
contract with Panton.
• Advise Baxendales on their prospects in an action of
damages for breach of contract against Czarnikow.
(Ignore possible Sale of Goods Act aspects to this
problem and focus only on the general law of
contract.)
• Discuss the issues of delictual liability that may arise
from the publication of the above article.
EXTRACTS OF SAMPLE
PROBLEM QUESTIONS
Carl approaches you as his solicitor asking:
(a) whether Carl has a valid contract with Petronella
(giving full reasons explaining your view on this point and
applying the law to the facts);
(b) whether Carl could raise an action of specific
implement against Petronella; and
(c) if it transpires that Carl has no contract with
Petronella, does he have any action against Archie?
Advise Carl. Please express your view on all parts (a), (b)
and (c) regardless of your answer for (a). The judge may
not agree with your answer for (a) and you must prepare
Carl for all eventualities.
EXTRACTS OF SAMPLE
PROBLEM QUESTIONS
Claire owns a fish farm. After a storm, the farm floods.
Claire’s fish escape into a stream. They swim
downstream. Two of them are caught by Bruce who
owns a house downstream and enjoys angling from his
back garden. Bruce does not know that the fish were
reared in the fish farm. He places one in his freezer. He
sells the other to Jennifer. She hears about the flood
on the fish farm on the local radio. Worried in case the
fish originated from the farm, she rushes and sells it to
Lorraine, who is in good faith.
Who owns the two fish?
[10 marks]