6.3 How do I answer a legal problem?
This section gives a brief overview of the different basic tasks that are most commonly required when preparing an answer to a legal problem in law school. These tasks or functions are described only very generically here. Various aspects of these tasks will be elaborated on in section 6.4.
It cannot be over-emphasised that there is no fixed formula for answering legal problems. For one thing, problems differ, so even if there were a formula for one kind of problem, that may well not apply to other kinds of problems. In any case, even if there were just one kind of problem, there is no fixed rule book applying to that one kind. So do not take the following as providing a fixed set of steps that must be rigidly followed in all cases.
Moreover, as you consider each of these tasks in relation to particular problems, you should bear in mind all the other steps as you go. That is to say, working out the answer to a legal problem is not a linear process whereby one step can be completed in isolation from the other steps. Instead, each stage is influenced by the other stages. You need to be aware of the whole as you attend to particular steps, while also being aware that the whole is ultimately made up of particular steps.
This also means that, though your preparations might follow the same structure, the way you actually go about writing your answer may not follow the same structure. In any event, the steps below will assist significantly in your preparations, even if they do not exactly match the structure of your final written answer.
Below we explore the process of answering a legal problem following a basic six-step structure (more or less extracted from the IRAC method, which is summarised at the end):
- Step 1: Read the facts
- Step 2: Read the task you have been set
- Step 3: Identify the legal issues
- Step 4: Identify the relevant legal rules
- Step 5: Apply the rules to the facts
- Step 6: Reach a conclusion
Step 1: Read the facts
First you need to know the facts of the situation, as given to you. Read them carefully and thoroughly, a couple of times if necessary. Identify the main people or entities in the scenario and their relationships to each other. (It can sometimes help to do a rough sketch map of these.) Think about what these people and entities are likely to want (e.g. compensation, the return of their property, an acquittal). Note any gaps and areas where more information is needed to give a fuller answer.
As you read the facts, also consider whether they remind you of any of the factual scenarios in the relevant cases (precedents) you have studied. As you study the precedents in various areas (e.g. medical negligence, confessions), you will often see similar types of factual scenarios. When some new set of facts sufficiently resembles the fact patterns of precedents, the relevant rules found in those precedents will normally apply to the new facts.
Whether some new set of facts really does fit the pattern or whether the new facts are ‘distinguishable’ (i.e. the new facts do not fit the pattern) is often one of the key threshold issues to be worked out. Grappling with whether the facts of an apparent precedent case are properly analogous to those of a current case or whether the precedent can in fact be distinguished from the new case is a key part of the case-law reasoning that is central to the common law.
TIP: DO THE NEW FACTS SOUND FAMILIAR?
With this sort of thing in mind, lecturers will often draw from established cases that you have been studying to create new factual scenarios. They will change key facts that create a novel twist, which will then usually raise the question of whether the new facts fit any patterns found in the precedents and so bring the case under the scope of those precedents.
In short, do not just read the facts as if you were reading a short story. Read them with a lawyer’s eyes to see what resemblances and what differences can be discerned in relation to existing precedents. This also means that the more familiar you are with existing precedents, the better will be your legal reading of the new facts.
Step 2: Read the task you have been set
What is your specific task? Regardless of what you think the question might be about or should be about, what are you actually being asked to do? The question may not always be asking how a client can get what they ultimately want. Read the question very carefully. For example, have you been asked simply to ‘advise Dorothy’ or have you been asked to ‘advise on the admissibility of Dorothy’s recorded confession to the police at 7 am on 3 April 2021’?
As already stressed, while the generic task is often similar across legal problems, the particular question asked is vitally important. It does not matter how amazing your legal analysis is if it does not answer the specific question posed.
Step 3: Identify the legal issues raised
What legal issues are raised by the facts as given? What questions or potentially disputed legal points could be raised? For example, in relation to the admissibility of Dorothy’s confession, is the issue whether Dorothy’s confession to the police was voluntary, or whether the police have satisfied the statutory recording requirements, or indeed are both (and even other) issues raised?
(a) Sub-issues
Within each main issue, what sub-issues, if any, are raised? To put it another way, what smaller questions do you need to answer to be able to answer the bigger, overarching question raised by the scenario. The sub-issues raised will often correspond to the elements of a particular cause of action or criminal offence. For example, if the question asks whether Vivian has a claim in the tort of negligence, then you will often have a clear set of sub-issues to be addressed, matching the elements of negligence: was there a duty of care, was the duty breached and was material damage caused by the breach?
In other problems there may be alternative ways in which a main issue could be settled. For example, if the main issue regarding Dorothy’s confession is whether it was voluntary, is the sub-issue whether Dorothy was subject to oppressive conduct or whether she was induced by a person in authority? Do not assume that a particular issue is raised in a problem simply because your notes include that issue under the relevant general heading. Look at the facts to see whether they do in fact raise that issue.
(b) Spotting the issue
‘Spotting the issue’ is a key skill, but there is no simple, generic formula for how to do this. Often you will be better able to identify the relevant issues if you are familiar with the relevant precedents and the relevant rules of law (statutory or case law). Through recognising resemblances and having a sense of how the reasoning of precedents would be extended to the new case, you will find spotting the issues in the new case easier. In this way, it can be really helpful to draw up checklists, tables or flowcharts from the facts and materials you have been given to aid issue spotting.
Also, where you are asked a specific question about the facts (as in law school problems, but not always in legal practice), that question may provide a guide to what the relevant issues are.
In identifying issues, bear in mind all the other aspects of answering legal problems: the facts, the question posed, the relevant rules of law and how those rules might apply to the facts. This reinforces the point made earlier: the process of preparing answers to legal problems is non-linear, as each part of the process influences the other.
How is it best to phrase issues? It will often depend on the context, but usually it will help to pose issues by putting ‘whether’ in front of the relevant proposition (e.g. ‘whether Dorothy’s confession was voluntary’ or ‘whether the police satisfied the recording requirements’) or by phrasing the issue in terms of a question (e.g. ‘Was Dorothy’s confession voluntary?’ or ‘Did the police satisfy the recording requirements?’). You can also use these questions, or a phrase indicating the issue, as headings to make the document even clearer.
TIP: LEAVE EMOTION AT THE DOOR
You should avoid emotive language when identifying the issues. There will often be important value questions raised by the facts, and it can be tempting to bring out those aspects. But you need to focus on the legal issues and identify them as legal issues, clearly, precisely and neutrally.
Step 4: Identify the relevant legal rules
What are the relevant rules of law that apply to the identified issues? What, for example, are the legal requirements for recording a confession, and what exceptions, if any, are there to these requirements? What cases (with what ratio decidendi) are the applicable precedents? What statutory laws are applicable? Note that you will draw on your knowledge of the law in identifying the issues in the first place.
Identifying the relevant rule is not always a simple or straightforward task. It can sometimes involve a significant degree of interpretation and argument. Thus, sometimes one of the issues to be decided in your answer is the very question of just what the law is that is applicable to the facts. For example, the current authority in Victoria of a 40-year-old English case on police searches may be in doubt, or the correct verbal formulation of a legal rule may be unsettled.
TIP: USE THE LAW TO IDENTIFY ISSUES
Sometimes the issues will not be clear from a hypothetical scenario alone and you will need to refer to the relevant law to identify all of the issues raised.
For example, if you are dealing with a provision from legislation, you can often tease out the words of the provision and create a checklist of elements that need to be established/satisfied. The same can be said for the ratio decidendi (reasons for decision) from precedents. Sometimes your lecture notes or readings will give you an idea of the elements you need to look for.
Wherever possible, use the existing law to help identify the issues or, at least, where to look for the issues.
Step 5: Apply the rules to the facts
How exactly should the relevant legal rules be applied to the facts of the case? Which bits of which rules apply to which bits of which facts? For example, do the facts given satisfy each of the requirements for an admissible recorded confession? If not, are the exceptions satisfied by the facts?
This is usually the hardest and trickiest part in answering legal problems, for, among other difficulties, it may not be clear-cut how a general and perhaps vaguely formulated rule applies to the particular facts in front of you. Rules that sound clear and sensible in the abstract can often become frustratingly vague and uncooperative when brought face to face with the nitty-gritty of factual situations.
TIP: DO NOT SIMPLY RE-STATE THE FACTS
It is important that you do not simply restate or summarise facts in your analysis. The reader will have had access to the problem question and will largely be familiar with the facts. Restating them will waste your limited word count and you need that for your analysis. To the extent that you need to refer to the facts, make sure they are vital to your analysis (directly applicable to the issues and rules you have identified) and communicated succinctly.
Not every factual situation given in a legal problem (either in law school or in legal practice) will fit neatly into the existing categories of the law. Do not expect the facts always to be readily captured by the existing rules. Indeed, as noted above, the facts in law school problems are very often constructed precisely to pose a problem in this regard. Dealing with such mismatches is a key part of common law reasoning, as the development of the common law has for centuries thrived on mismatches between new facts and existing rules. It is one of the main ways in which new precedents are developed.
Despite the difficulties you may encounter in connecting rules and facts, bringing the law to bear on the facts is crucial in answering legal problems. Do not just state the relevant law and then shy away from applying it to the facts in the hope that the rules will apply themselves or the reader will finish the task for you. That task is yours, and if you do not apply the law to the facts, you will probably fail the question.
TIP: APPLY THE LAW, DON’T JUST ANALYSE IT
Students sometimes stumble when answering problem questions by providing only an analysis of the facts, or only an analysis of the law, when what they need to do is go on to apply the law to the facts. This leads to an incomplete response that does not adequately answer the issues identified.
Step 6: Reach a conclusion
What is the result of applying the rules to the facts? How are the issues you have identified actually answered? What is the relevant resulting legal position of the person (or people) whose factual situation you have been considering? Will the law provide the remedy that the person seeks?
As always, the conclusion should answer the question asked. For example, if the original question was ‘advise on the admissibility of Dorothy’s recorded confession to the police at 7 am on 3 April 2021’, your conclusion may be that Dorothy’s confession is unlikely to be found to be involuntary and so will be admissible on that point but is likely to be found to be inadmissible due to the breach of the statutory recording requirements by police.
If a conclusion can only be tentative (e.g. because the evidence is not certain, or the law is undeveloped or unclear), give an appropriately qualified conclusion. Conclusions must be clear, but they need not always be certain. Sometimes the best answer is one that is appropriately tentative or qualified.
TIP: FINISH THE JOB
Never leave it to your reader to work out your conclusion, no matter how obvious you think you have made it. Always state explicitly the conclusion that you want your reader to take away from your analysis. This is useful from a persuasion point of view but also prevents misinterpretation or misunderstanding of your conclusion.
Summary: IRAC
To summarise the above processes, it can be useful to remember the acronym ‘IRAC’ for ‘issues, rules, application and conclusion’. There are various acronyms in the literature on legal problems. They all point in more or less the same direction.
This acronym does not provide a formula or fixed structure for answering legal problems. It is more a heuristic device; that is, a tool to help you work through a problem but which will need to be adapted and developed as you use it in particular cases. IRAC should at least help to remind you of the main basic tasks that most legal problems require you to perform in some way in properly answering them. A good answer demonstrates that each of these tasks has been performed.
TIP: CONSIDER STARTING WITH THE END
Think of IRAC as your ‘working out’. Before you start to construct your full sentences and multi-paragraph answers, IRAC can help you identify the relevant answers to make the whole process significantly easier.
Sometimes it can be useful to adopt a ‘CIRAC’ approach in which you state your conclusion at the start and at the end of your answer so that your reader knows the context in which your answer sits from the beginning.
For example, instead of starting with:
The issue is whether Dorothy’s recorded confession to the police at 7 am on 3 April 2021 is admissible
you could start with
Dorothy’s recorded confession to the police at 7 am on 3 April 2021 is likely inadmissible. This is because [identify the sub-issues here that will lead your reader to your conclusion].
Note that you should add this part in after you are satisfied with your analysis. Do not construct an analysis to suit the conclusion you want before you have established that the law and the facts work together to support that conclusion.
