6.2 What are legal problems?

Studying in law school is meant, among other things, to help prepare you for legal practice. This means that it is important to see how some of the tasks you perform in law school relate to what lawyers do in real-life legal practice. In this section, we will briefly consider legal problems in legal practice before looking at legal problems in law school.

6.2.1 Legal problems in legal practice

(a)   Clients and their legal positions

A legal problem usually involves a question about a person’s legal position. Accordingly, answering or solving a legal problem usually involves identifying and making clear what that person’s legal position is. ‘Legal position’ refers to how a person in a particular factual situation ‘stands in the eyes of the law’ and thus which legal rights, liabilities, obligations and so on apply to them.

Note that this is a technical conception of what a legal problem is. Some people might think they have a legal problem when their problem has something to do with the law, such as having a tax bill for which they had not budgeted. To a lawyer there may not be much of a legal problem here if the law is clear that the person is obliged to pay the tax. This lay person’s sense of ‘legal problem’ is perfectly legitimate, but it is important to note that lawyers usually mean something more specific by this term.

In legal practice, legal problems are usually provided by lawyers’ clients. Clients commonly see a lawyer when they find themselves in situations in which their legal rights, liabilities or obligations are unclear or somehow problematic. One of the lawyer’s tasks is to work out the client’s legal position, given the facts of the client’s situation.

(b)   Facts

It is not always simple or easy to determine just what a client’s factual situation is. Initially, the lawyer will need to rely on what the client tells them about their situation, usually prompted by questions from the lawyer. Sometimes what a client says about their factual situation may not be enough or is inaccurate and further information and investigation is needed on the part of the lawyer, such as examining relevant documents or speaking to other people with relevant knowledge.

Different people will often perceive situations and events differently. This means that ‘the facts’ concerning the client are rarely a complete and uncontested narrative that falls ready-made out of the sky but will often need to be constructed from a number of sources. This is one reason why lawyers usually make clear that their advice to clients is based on the information they have been given or had confirmed by the client.

(c)   Applying the law

Having ascertained the relevant facts, the lawyer then needs to apply the law to the client’s situation and work out what legal rights, liabilities, obligations and so on the client has. This process is meant to be objective; the lawyer is here trying to work out what the law would most likely say about the client. It is something like predicting how a fair and reasonable judge would apply the law to the client. What the lawyer is doing is more or less putting themselves in the shoes of a judge faced with deciding the case. Thus, at this stage, the task is not one of advocating for a favourable outcome for one’s client, but is, rather, an impartial way of seeing how the law is likely to apply to those relevant facts in the first instance. It will not be until later that an advocate may try to persuade a court that the correct application of the law to the client is one that is favourable to the client. Such advocacy does, however, build on the prior, predictive task of objectively applying the law.

(d)   Advice

Sometimes a lawyer will ask another lawyer to work out the client’s legal position. Thus, solicitors sometimes ask (‘brief’) barristers to prepare a document (‘an advice’ or ‘an opinion’) which will explain the client’s legal position. Barristers are often briefed to prepare an advice where the problem is complex, or requires more specialist knowledge, or involves litigation. On other occasions, a senior solicitor may ask a more junior solicitor within their firm to prepare an advice, for example, when the senior solicitor needs to spend time on some other matter or the matter is not too complex or specialised. Advice from lawyer to lawyer usually looks very different to advice from lawyer to client, but the basic principles will be the same.

Of course, advising on legal problems is not the only thing that lawyers can do for clients. But it is one of the most important ones, and it often provides the basis for many other services that lawyers perform for clients.

6.2.2 Legal problems in law school

Given the importance of giving advice on legal problems in legal practice, learning how to do it is a core skill to be learned in law school. This is why so much of your ‘black-letter law’ subjects have problem-based assessment – to get you to think like a lawyer.

In legal practice, real clients’ factual situations provide the legal problems, but in law school the factual situations are usually fictional. That is, we pretend that some factual situation has arisen and that a make-believe client needs legal advice. Sometimes law school problems are based on real situations (or variations of them), but the point is that students are not normally asked to give real legal advice (indeed they are not allowed to do so). In any case, whether the facts are real or hypothetical, given by a client or by a law teacher, the basic task is essentially much the same: to apply the law to the given factual situation to determine a person’s legal position.

(a)   In what contexts do law students answer legal problems?

There are three main contexts in which students are asked to answer legal problems as part of their assessment:

• legal problems in exams
• legal problems in assignments
• legal problems in moots.

Legal problems in written examinations

This is perhaps the most commonly encountered context for answering legal problems in law school – the traditional written examination where students are given a limited time to answer legal problems they have not seen beforehand. Such examinations are usually open book (i.e. you may consult notes and textbooks) and do not involve conducting legal research (in the library or via the internet), as the relevant law should normally have already been covered in the subject materials. Much of the advice in this chapter will have this traditional style of time-restricted examination in view.

It is sometimes suggested that examinations are artificial environments that are not good simulations of real-life legal practice. There are, for example, the stresses of working under strict time limits and coping with material not seen before, the inability to speak to the client to get further information and perhaps the need for further legal research to fully answer the question. However, many lawyers will tell you that this just as accurately describes much of their experience of legal practice. The academic context differs from legal practice in many ways, but learning to handle exams is a genuine skill that will stand you in good stead in legal practice and, indeed, elsewhere.

Legal problems in assignments

Here students are given one or more legal problems to take away and answer in their own time. This gives you more time to plan, draft and polish your answer. This sort of assessment may sometimes also involve conducting legal research to find the relevant law before you apply it.

In some subjects in law school, assessment can be by moot. This involves an oral presentation of argument as an advocate on behalf of a pretend client before an imaginary court. As mentioned above, advocacy is a special type of response to a legal problem, where one tries to persuade the court that the correct application of the law is one that is favourable to one’s client. In requiring advocacy, mooting is different to the more usual type of legal problem, which calls for a more impartial application of the law. To perform advocacy well you need to have first gone through the more impartial task of predicting how the law will probably apply to the case. Only then can you develop good arguments for one side or the other.

(b)   What particular questions are posed by legal problems?

So far it may sound as if legal problems (whether in law school or in legal practice) all have the same form. While it is true that most legal problems are variations on the generic question of ‘how does the law apply to these facts?’, there are, in reality, many variations on this general theme. This means that the specific questions posed by particular legal problems can be very different in form and content. It is essential to be alert to the differences, since answering any question well requires knowing just what the question is. For example:

Would it be appropriate for the police to charge Deshi with murder?

Is Wei’s hearsay evidence admissible on behalf of the prosecution case against Deshi?

Could Deshi successfully raise the defence of self-defence?

All these questions concern the ‘legal position’ of Deshi, understood widely. But it is essential to appreciate that they are asking very different, specific questions.

Some law school legal problems give you guidance as to the particular issues in question, as in the Deshi questions above. At other times the problem may simply give you a factual scenario about some person, for example, Dinusha, and then tell you to ‘advise Dinusha’, with no hint as to the issues other than what is in the facts. Here you need to work out the particular issues yourself. This takes a bit longer and you need to make sure you have identified each relevant issue before starting to solve any legal problems.

Other problems might tell you, for example, to ‘discuss Vin’s rights against the police’. Here the ‘discussion’ is not usually meant to be a general discussion about Vin’s rights from, say, a political science or philosophical perspective; the focus should still be on applying the law to Vin’s situation to elucidate Vin’s legal position.

(c)   Communicative context

Learning a new kind of writing can be harder when you are unsure of what style or tone to adopt. You can ‘find the right voice’ in writing answers to legal problems if you can get clear on the ‘communicative context’ that is often assumed in legal problems in law school.

As noted in Chapter 1, there are at least four basic aspects to the context for any communication:

• the identity or role of the speaker or writer
• the identity or role of the audience or reader
• the subject matter of the communication
• the purpose of the speaker or writer.

Successful communication requires the speaker or writer to have a good understanding of each of these four aspects of the communicative context.

At one level the communicative context in law school is quite clear: you are a student, writing for a marker, about the law, with the (probable) purpose of getting the best mark possible. At another level, in setting and answering legal problems in law school, we usually also adopt a fictional communicative context. In this context, the student writes as a lawyer, for another lawyer, about a person’s situation, with the purpose of giving a reasoned and objective account of the person’s legal position.

In terms of a legal practice analogy, it may be helpful to imagine that the facts have been given to you as a barrister in a ‘brief to advise’ from a solicitor or as a junior solicitor in a memorandum from a senior solicitor within your firm. At this stage, you have not spoken to the client and are not in a position to ask the client or the solicitor for further information before submitting your advice. But you can note in your advice where you think further information is needed, why, and what the possibilities may be, depending on what those further facts are.

You should regard the reader of your advice as a generic lawyer. Lawyers’ professional writing for other lawyers should generally be the same no matter who the lawyer is. Further, because you are writing to another lawyer, you should use correct legal terminology and a relatively formal or professional style. That does not mean that you should write in a verbose, convoluted, ‘legalese’ style. Clarity and concision remain essential features of good legal writing. But it does mean that you should avoid the informality and simplification that may sometimes be appropriate when directly speaking to a client with a limited understanding of legal matters.

Finally, a couple of points should be made on the communicative style usually required by the ‘advise David’ kind of question. First, as noted earlier, here you are really being asked to inform the audience of David’s legal position, not primarily to make practical recommendations regarding possible courses of action. Sometimes it can be appropriate to conclude an answer with a short, conditional sort of recommendation (e.g. ‘therefore David is highly likely to be found liable in negligence. If he wishes to minimise his financial losses, he should consider settling at the earliest opportunity’). A conditional form of recommendation is usually best, as we cannot always say what a client’s real preferences would be (e.g. David may care more about what he sees as a matter of principle than about his money). Moreover, unless the task asks you to present options, any recommendations should be delivered as briefly as possible so that you can use most of your discussion for the substantive analysis.

Second, despite the apparent grammar of the phrase ‘advise David’, you are not normally being asked to speak directly to the client, David, which could well require a quite different communicative style in real life. Instead, you are usually being asked to inform an imaginary legal audience about David’s legal position. So, you should use the third person (‘He is likely to be found liable to pay damages’) rather than the second person (‘You are likely to be found liable to pay damages’).

(d)   ‘Answering’ or ‘solving’ legal problems?

Is an answer to a legal problem a ‘solution’ to the problem? It is very common to speak of ‘solving’ legal problems rather than ‘answering’ them. However, it does run a couple of risks. First, talk of ‘solving’ legal problems can encourage the limiting idea that there must always be one correct solution to a legal problem. Second, what for the lawyer is a ‘solution’ to a problem may be a disaster for the client. For example, your advice about a client may be that they are likely to be found guilty of blackmail and face the prospect of up to 15 years in jail. That may be the best answer to the question posed by the client, but the client is not likely to see it as a ‘solution’ to their problem. Nonetheless, the terms ‘solving’ and ‘solution’ are very commonly used in this context and so we will use them, as well as using ‘answering’ and ‘answer’.