6.4 Tips and warnings

This section contains tips and warnings which elaborate on some of the points made in section 6.3. They mainly concern answering legal problems in time-restricted examinations.

6.4.1 Plan your answer

It is essential that you take time to plan your answers. This is usually a key step in producing well-structured answers. It may feel counterintuitive but if you have one hour to answer a question, taking five to 10 minutes to plan your answer is time very well spent. It is usually best to first identify the main issues to be addressed and sketch a coherent overall plan based around those issues. You can then ‘sub-plan’ the sections within that bigger picture. However, you do not need to plan every step of your answer before you write. A plan is not a rough draft of your answer.

6.4.2 Answer the question

A quick way to lose marks is to fail to answer the question. There are at least three ways to fail to answer the question. The first one is to fail to write anything at all. (That will get zero marks.) The second way is to write something which does not answer the question actually asked. (Perhaps it answers a question the student wishes had been asked.) A third way is to write something that is on track to answering the question but ends before a conclusion is articulated in answer to the question. While this third way is the lesser of these three failings, it is still best to finish your answer and state your conclusion explicitly.

Do not avoid coming to a conclusion just because you are not sure that it is 100 per cent certain. If the conclusion is not certain (and there is no reason to assume that all or even most answers to legal problems must be certain), then still draw your conclusion and indicate how likely the result is that you have identified.

6.4.3 Give reasons for your claims

A good answer to a legal problem does not just present ‘the correct answer’; it shows why it is the correct or preferable answer by presenting the arguments for it. This means that you should give reasons why you think your answer is the right or best answer. Thus, though the conclusion reached is very important, just as important (and sometimes more so, in terms of your assessment as a law student) is the quality of the reasoning or argument by which you reach that conclusion. Indeed, a large portion of the marks will be allocated to the discussion of the law’s application to the facts so an answer to a legal problem should not just provide a one-line response (e.g. ‘Wei’s evidence is inadmissible’) but should also explain why that conclusion is the most reasonable one to draw. Never assume that your reader will understand the reasoning for your conclusion without you having to lay it out for them.

Significant weight is put on your reasoning because it is here that some of your most important skills as a lawyer are shown. Over the long run, it is good legal reasoning skills, not memorising selected areas of law, that will yield better answers.

Good reasoning skills are also usually linked to good communication skills. A finely modulated speaking voice or a good eye for formatting a document are not worth much if what you convey in your speech or your document is logically flawed or incoherent. Reasoning skills are essential in enabling you to convey meaningful thoughts.

(a)   Be explicit about the strength of your conclusions

Reasons for a conclusion should provide logical support for that conclusion. That support, however, need not always be a matter of guaranteed certainty; it may often be more a matter of degrees of support.

As noted above, good answers to legal problems are not always certain. The support they receive will often be only a matter of ‘more likely than not’ or ‘on the balance of probabilities’. It is important to remember that law often does not have certain answers – indeed, that’s why lawyers exist – and the best answer one can come up with might be not at all certain. A good answer to a legal problem will, therefore, demonstrate an awareness of the strength of its conclusion. If a tentative conclusion is the most reasonable one, then be tentative. But be clear that that is what you are doing.

It is particularly important in law to be aware of the relative strengths of rival positions. Be alert to alternative arguments and the degree of support they provide for rival conclusions. Sometimes there may be almost equally good reasons for both sides of the question (or all three or four sides, for that matter). On such occasions, one can be confident that the most reasonable conclusion is that there is an even balance between the different arguments. However, avoid the easy way out of shrugging one’s shoulders and saying, in effect, ‘I do not know; the decision is up to the court’. If the arguments are evenly balanced, you should say so.

It is sometimes said that there is no one right answer to a legal problem, only better arguments in support of a particular answer. A deeper point sometimes made is that there can be a ‘correct’ answer to a legal problem but that the correct answer is simply the conclusion to the best argument. According to this view, the quality of the argument is the criterion for the correctness of the answer, as there is no other mode of access to correct legal answers.

Regardless of how these theoretical questions are to be settled, it is at least clear that well-reasoned arguments for one’s conclusions are essential. You can still earn valuable marks in an exam on the quality of your reasoning, even where your final conclusion is unfinished, or where you reach a conclusion with which the examiner disagrees.

The converse is true, too: bad or weak arguments will lead to wrong or weak answers. Even if it is true that there is ultimately no one right answer, not just any answer will be a good one – there can still be plenty of bad ones. Planning your answer and following IRAC will bolster the strength of your legal reasoning.

(c)   Legal authorities

Giving reasons includes citing authorities in support of your assertions as to what the law is. This is an essential part of the problem solving process. So, avoid merely stating a legal rule. You should also cite the relevant case or statutory provision that is the source of the rule. Full citations are usually not required in time-restricted examinations; abbreviated forms of citation are normally acceptable (e.g. the case name or the statute name and section number).

Where the relevant legal rule is contentious or uncertain, it may be appropriate to critically analyse the relevant cases or statutes and argue for a particular interpretation. For example, you could argue that a recent statutory amendment changes the way in which an existing High Court case should be applied. This critical analysis sometimes involves policy issues about what the law should be, but be wary of getting too distracted by policy or interpretation issues or engaging in lengthy reviews of the law when the question does not ask for it. Your discussion should always be directed to helping you to answer the question.

Also, do not get too distracted by the facts of precedents. If you need to mention the facts of other cases, stick to the relevant ones and state how they apply, or are to be distinguished, concisely. A case brief is not required.

6.4.4 Be objective and impartial

Unless you have expressly been given the task of being an advocate on behalf of one side or the other, you should remain impartial. Legal advice is like a physician’s diagnosis: an objective assessment of the client’s position (cf. a patient’s medical condition), which may well not be what the client would prefer to hear.

(a)   Consider both sides

As part of being impartial and to ensure that your answer is comprehensive and well-founded, you should consider the arguments for and against particular positions. Not every issue can be thrashed out in detail in your written answer. Focus on the more important and more contentious issues.  You will need to judge which issues are important enough to warrant a fuller treatment.

(b)   Consider alternatives

Where the facts are uncertain or a legal decision could go either way and it is important which way the matter is resolved, you should consider the alternative answers. For example, it would be a poor answer that ran along the lines of:

The facts do not say when Dilbert became bankrupt, so it is not possible to answer this question.

A better answer would examine the main alternatives and their consequences:

If the date of Dilbert’s bankruptcy is found to be 5 May 2003, then he may apply for an early discharge, and if successful he may then apply to the bank for the loan before the vendor’s offer lapses. However, if the date of bankruptcy is found to be after that date, then he will not be able to apply for an early discharge and will therefore be unable to apply for the loan before the offer lapses.

6.4.5 Be relevant

A common weakness in student answers is failing to keep answers relevant to the issues. Read the question closely and think carefully about what issues are raised. Make sure that your answer is always in some way contributing to answering the issues raised. Students often go off on tangents by mis-identifying the relevant issue and discussing matters at cross-purposes with the problem at hand. This is why taking time to identify all of the issues at the beginning is so important – strong issue spotting makes it easier to tell what is relevant.

Relevance is sometimes a matter of degree and there can be reasonable disagreement about it. However, it is part of your legal training to develop a sense of legal relevance and, importantly, a capacity to show how something is relevant to something else.

6.4.6 Cover all the main issues

Even if what you write is relevant, it may not be all that is relevant. In other words, there is the problem of covering only some of the main issues and leaving others out. A common weakness in student answers is to grab hold of the first issue spotted and dart off to write about that one issue, without a backward glance to the other issues left by the wayside. If you do not spot all the relevant main issues, your answer will be incomplete. This is a good way to lose significant marks. It is usually worthwhile to take time to think carefully about what the issues are and to plan your answer accordingly.

Not every conceivable issue is worth pursuing, and so you will often have to make a judgment as to which issues are the ‘main’ issues and should be addressed and which are the more peripheral ones that you can afford to bypass. Being able to identify the difference is an essential legal skill.

6.4.7 Structure your answer clearly

Good structure is essential to a good answer. Many students’ answers to legal problems suffer from poor structure – they are rambling, repetitive, and do not progress clearly and logically from issue to issue. An answer that is clearly and logically structured from the first paragraph will almost always gain marks purely on that score, even if the arguments it contains are no more cogent than the arguments discerned (eventually) from a poorly structured answer. A clear but weak argument is still preferable to a jumbled and weak argument.

It is usually a good idea to identify distinct issues clearly and then go through the ‘RAC’ process (rules, application, conclusion) with each issue/sub-issue separately. Thus, in a problem where several distinct issues are raised (which is the case in most problems), the RAC process will need to be done repeatedly. This can sometimes mean that the same basic set of facts will need to be addressed a number of times, from different angles, with respect to different issues. Even if you are repetitive in your working out during the RAC stage, you will be able to tidy this up when you construct, review and revise your final answer.

While it is generally good to have some match between the structure of an answer and the various functions the answer performs, sometimes students are overly rigid in their structuring of answers to legal problems. This is especially common where IRAC is treated as a universal template for structuring answers. Remember that the IRAC process is the working out stage of your preparation. It identifies tasks to be performed or functions to be fulfilled in preparing your answer and need not correspond to structurally distinct parts of the final written answer itself. The final written version need not fixedly re-present each of the stages of your preparation.

A common rigidity in this regard is where students doggedly produce distinct sections with the headings ‘issue’, ‘rule’, ‘application’ and ‘conclusion’ under which they, respectively, state the relevant laws, apply them to the facts and then draw the relevant conclusions. While this is not an error (indeed, for beginners it can be helpful to start practising by laying out answers in this sort of way), it can be a rather plodding way to approach matters. It can sometimes be a little blinkered and repetitive, and it can take up space and time that will often be better used in doing all three tasks more or less at the same time, allowing you to move on to cover further ground. It is sometimes better to identify the relevant legal rules at the same time as you apply them to reach a conclusion. That is, you can show your understanding of the relevant rules when you apply them.

This more concise kind of treatment may be more appropriate where the issue is not the most central one or is not so controversial. It is a matter for your judgment based on what you think are the most important points to be covered from the scenario. Part of the skill you are developing is knowing when to be more concise and when to be more detailed in your arguments. The easiest way to figure this out is by looking to the uncertainty or contention raised by the facts and paying more attention to those issues. Be prepared to be flexible in your approach but your overall aim should be to leave your reader in no doubt as to your reasoning for your ultimate conclusion.

Where time is not a constraint, it can sometimes be useful to follow the more structured approach outlined above as part of an initial rough draft answer. Then, as you revise and edit your answer, you will discern which parts of the answer can be profitably edited and streamlined, and when an approach could be varied. In most exam situations this will not be feasible; you will only have time for some basic planning and then writing just one draft. But by practising answering legal problems beforehand, you will develop your capacity to judge when and how to streamline, vary, condense or expand the structure of your answers.

(b)   Headings

Good use of headings will usually help you to make the structure of your answer clearer. They will normally help you in your writing and also help the reader (i.e. the examiner) in their reading by giving them signposts. If you have a good structure, the headings should be easily inserted, as it will be clear what each paragraph or group of paragraphs is doing.

It is usually helpful to start your answer with a brief introductory paragraph. The main function of an introduction should be to identify the main issues to be covered in the answer. It can also be helpful to state the conclusion drawn at the end of your answer already in the introduction. This gives your reader a context in which to process your answer.

But be concise. You do not need to spend half a page setting the scene, or reviewing academic debates in the area, or previewing the arguments you will present in the main body. It is especially important that you do not waste time summarising the facts. Some students fall into the trap of using their introduction to outline their arguments in so much detail that they find their ‘outline’ has taken up a page or more and anticipates too much of their main presentation, while not yet being a full enough treatment to stand as the main presentation itself.

It is usually enough simply to note the main issues raised by the problem and which are to be duly addressed in the answer. For example, an entirely satisfactory introduction could run as follows:

To advise whether Dorothy’s recorded 7 am confession is admissible, the following issues need to be determined: (i) whether the confession was voluntary; (ii) whether the police complied with the statutory recording requirements under s 464H of the Crimes Act; (iii) whether it would be unfair to admit it pursuant to s 90 of the Evidence Act; and (iv) whether, under s 138 of the Evidence Act, the probative value of the confession outweighs the prejudicial effect of the manner in which it was obtained.

An example of an introduction which states the conclusion at the outset could say:

Dorothy’s recorded 7 am confession is inadmissible, despite being voluntary, because the police did not record the confession (s 464H, Crimes Act). Moreover, it would be unfair to admit the confession due to the police officers’ conduct, pursuant to s 90 of the Evidence Act. The probative value of the confession does not outweigh the prejudicial effect of its manner of collection under s 138 of the Evidence Act.

In either case, the main body of the answer could then proceed by systematically going through each issue, with each numbered point having its own heading: ie, (i) voluntary confession, (ii) recording requirements, (iii) unfairness, (iv) probative value versus prejudicial effect.

6.4.8 Do not change the facts

It is rare for every relevant fact to appear in the scenario given in a legal problem. This is not a failure on the part of the person setting the question. Gaps in the facts occur frequently in legal practice, and learning to deal with such gaps is an essential skill.

If you think the facts as given to you do not provide a sufficient basis for drawing a conclusion, say so, and indicate what facts would fill the gap and how they might do so. Do not get in touch with your inner novelist and add to the facts to fill in perceived gaps. Where different results turn on different possible but unknown facts, make that clear. There may even be inconsistencies in some factual scenarios. Again, this happens in real life, especially where there is more than one witness making a statement. Deal with such problems as they arise by noting the problem and what its effects are. None of this grappling with uncooperative facts gets in the way of answering the problem; it is part of what is assessed.

6.4.9 Be wary of questioning the question

It is true that sometimes a good answer can show that the original question makes a problematic assumption or is misconceived in some way. For example, a question may ask ‘On what date did Joanna start trading while insolvent?’ After a rigorous analysis of the facts given, you may legitimately find that at no stage did Joanna in fact trade while insolvent, because she was never in fact insolvent. If so, then note this and present your arguments for this conclusion.

However, this is a very rare situation, so be wary of taking this route or, where you do, of going too far in this direction. In answering legal problems you are not engaged in an intellectual debate with the person who gives you the facts and sets the task (whether a client, senior solicitor, instructing solicitor or your teacher). For example, let’s say the question asks you to:

Advise as to whether Wei’s hearsay evidence is admissible.

It is not a good idea to respond by arguing:

the question fails to consider the Victorian Law Reform Commission’s recent report recommending that all hearsay evidence be prima facie admissible, which I shall now discuss.

This is a direct route to irrelevance. This warning is not intended to stifle your intellectual freedom or to force you to be compliant. It is a matter of learning what the actual task in front of you is asking for.

Moreover, if you think the question is wrong, or has an error within it, go back to your notes and double-check that you have fully understood the lectures and readings before taking a contrary stance. In essence, make sure you are confident about it before you outwardly disagree with the premise of a question posed as an assessment task.

6.4.10 Do not repeat the facts or the question

This was mentioned briefly above but is so important that it is worth restating. Do not waste time repeating large parts of the facts or repeating the whole text of the question at the beginning of your answer. It will often be appropriate to refer to certain facts in the course of your answer, or to note what question it is that you are answering at a particular point, but too many students pad out their answers by needlessly repeating what is already written in the examination paper. This is a waste of time and words and contributes nothing to your answer.

6.4.11 Write clearly and concisely

Clear, precise and concise English expression is essential to getting your ideas across to the reader. Your marker can only assess what is on the page in front of them, so your document must stand on its own feet and communicate effectively. A reader cannot be persuaded by that which they do not understand.

Write clear, grammatically correct and properly punctuated sentences. Aim to be as clear and direct as possible. Try to keep your sentences grammatically simple. Long, complex and convoluted sentences rarely help to improve your writing, especially in exams. Use distinct paragraphs for distinct stages of your answer (headings will help here). As you progress from sentence to sentence, and from paragraph to paragraph, there should be a clear sense that the argument or analysis is unfolding in a logical way.

6.4.12 Use of bulleted or numbered points

When done well, it is acceptable to use bulleted or numbered points to make sentences that are grammatically correct but whose physical layout does not follow the traditional paragraph of running text. Consider this passage:

Dorothy’s confession was not voluntary, because she was subject to oppressive conduct in not having received any food in the whole 12 hours she was in police custody and in not being given an adequate bed to sleep in. Moreover, she was induced to confess by Constable Doright’s offers to let her friend Sharon go if she confessed to the crime herself and to ‘forget’ her drugs charges from 2004.

You might instead lay the text out as:

Dorothy’s confession was not voluntary, because she was:

• subject to oppressive conduct in:
• • not having received any food in the whole 12 hours she was in police custody; and
  • not being given an adequate bed to sleep in; and
• induced to confess by Constable Doright’s offers to:
  • let her friend Sharon go if she confessed to the crime herself; and
  • ‘forget’ her drugs charges from 2004.

Or you could even lay it out like this (with numbered points):

Dorothy’s confession was not voluntary, because she was:

1. subject to oppressive conduct in:
   1. not having received any food in the whole 12 hours she was in police custody; and
   2. not being given an adequate bed to sleep in; and
2. induced to confess by Constable Doright’s offers to:
   1. let her friend Sharon go if she confessed to the crime herself; and
   2. ‘forget’ her drugs charges from 2004.

This format can be a way to present your points clearly, but be wary of overdoing it. If a whole answer consists mostly of bulleted or numbered points, it can become much harder to read. Moreover, some students combine bullet points with an ungrammatical, truncated form of writing which uses less ink but creates plenty of confusion and ambiguity. It might be quicker for you to write, but it can often take longer for your reader to read than clear, concise, grammatically correct sentences. Giving your reader more work to do rarely works in your favour.

6.4.13 Practise answering problems

The best way to learn how to answer legal problems is to practise doing it. In most of your black-letter law subjects you will most likely be given problems to work on during semester. It can also be very helpful to look at past exams, where available, and practise on those. When you do, it can be a very good idea to do so under simulated exam conditions (e.g. limit your time and the materials you use.)

Studying recent past examination papers can also give you ideas about the kinds of problems and questions that may be posed in particular subjects and can be a guide to the sort of thing to expect in future exams. However, proceed very carefully here, as the content of many subjects will evolve, as will exam formats. Check with the relevant subject coordinator about what might be valuable in past exam papers.

6.4.14 Be familiar with your exam notes

Most law examinations are ‘open book’; that is, you are allowed to bring in notes and books to use in the exam. (But always check the rules for particular exams.) Take advantage of this and prepare good notes for use in exams. Do this steadily throughout the semester and not just in the last week or two before the exam. Give your notes practice runs by using them to answer legal problems from class or from past exams, and then refine them in the light of that practice.

There is no one format for such notes, but most good sets of notes will contain, among other things, summaries of the relevant rules of law, concise case notes on the important cases, and specific guides and tips on answering problems relating to particular issues (e.g. a flowchart on how to answer a problem about bail).

In producing your exam notes, do not just cut and paste your notes from class or from your reading. (Still less should you cut and paste the lecturer’s notes, brilliant as they may be.) Write a new document, drawing on multiple sources and informed by your own experience in answering problems in the relevant area. This is a great way to revise the subject materials. By writing your own notes afresh, they will become more familiar to you and so will be much easier to use in an exam than text just copied from somewhere else. Your notes should also be clearly indexed so that you can find things quickly (consider using tabs or flags). It is highly desirable to be very familiar with your exam notes, so that you may use them efficiently and effectively in the exam. It is too late to start reading the law for the first time in the exam hall.

The main feature of exam notes is that they should help you to answer legal problems well in exam conditions. This means that good exam notes are unlikely to be very long and do not need to form a comprehensive textbook on the relevant subject matter. Indeed, often short, dot-pointed and colour-coded checklists make the best exam notes. Some students seem to take comfort in producing weighty tomes into which every last bit of material covered in the subject is jammed. Most such students discover (too late) that equipping themselves with these unwieldy compilations is not very helpful, primarily because they are not written for the purpose of being used as a tool in answering legal problems under exam conditions, or they are too dense and cannot be easily navigated.

6.4.15 Learn from judgments

Note that the process of identifying issues, identifying and applying rules of law and coming to a conclusion are essentially what judges do in their written judgments, which contain the reasons for their decision. When law students apply the law to the facts in legal problem-solving, they are effectively trying to predict how an impartial judge would decide the case. That is, they are thinking like a judge. This means that you already have thousands of examples of answers to legal problems available, in the judgments of the courts. So, it is a good idea to read cases carefully, not just to get the rules of law from them, but also to see how judges go about answering legal problems.

Not every case will be a useful example and not all judgments display exemplary writing style. Some, it must be (respectfully) said, are good examples of how not to write. Some judgments are wordy, suffer from ‘legalese’ or are poorly structured. Do not emulate those sorts of judgments – but you can still learn from them. When you come across such a judgment, think how it could have been done better.

6.4.16 Answering legal problems in assignments

The above tips and warnings have mostly been about answering legal problems in time-restricted examinations. Most of them, however, are still relevant to answering legal problems in assignments, which you can do in your own time. Nonetheless, it may be helpful to make a couple of points here about legal problems in assignments in particular.

The questions posed in assignments are often likely to be a little more complex or involved than those encountered in exams, so take the time to read all the relevant material even more carefully.

One of the main things to consider is whether any legal research is required to complete the assignment. Assignments requiring legal research are sometimes set where you have not been taught the relevant law in class before receiving the assignment. Thus, the task includes teaching yourself the relevant law by starting from scratch. This can be more realistic, as real-life legal clients do not walk into your office with ‘contract termination problem’ written on their foreheads and a set of presentation slides explaining the relevant law tucked under their arm. Where an assignment does require legal research, you may be asked to give an account of your research and how you identified the relevant law.

There may be a need in assignments to spend more time analysing and interpreting the law before applying it. For example, it may be appropriate to spend more time analysing how a High Court precedent case has been restricted by its interpretation in a subsequent High Court decision or arguing how choices regarding a certain policy issue could lead to a statutory provision being applied differently.

Another fairly obvious feature of assignments is that because you have more time, a fuller and more polished answer is expected. This means you should draft your initial answer and then revise it. Editing is vitally important; you may need to do this several times to produce a properly finished work.