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LEGAL PROBLEM QUESTIONS - 2. Picking the issues. The most important skill in answering a legal problem is to be able to ‘spot’ the relevant issue of law.

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Presentation on theme: "LEGAL PROBLEM QUESTIONS - 2. Picking the issues. The most important skill in answering a legal problem is to be able to ‘spot’ the relevant issue of law."— Presentation transcript:

1 LEGAL PROBLEM QUESTIONS - 2. Picking the issues

2 The most important skill in answering a legal problem is to be able to ‘spot’ the relevant issue of law being raised

3 Picking the issues Many exams frame “direct questions” – they identify the area and ask about it directly - e.g. Describe photosynthesis. Many exams frame “direct questions” – they identify the area and ask about it directly - e.g. Describe photosynthesis. Legal exams however are typically problem questions, where the area of law to be tested is clearly identified e.g. Advise John Legal exams however are typically problem questions, where the area of law to be tested is not clearly identified e.g. Advise John You must work out what area of law to advise John about: i.e. you must pick the issue the question is raising You must work out what area of law to advise John about: i.e. you must pick the issue the question is raising

4 First step Problem questions require an extra level of analysis – first work out what the question is about before trying to answer it. Problem questions require an extra level of analysis – first work out what the question is about before trying to answer it. If you identify the correct legal issues raised in the question you will almost certainly pass – even if your discussion of them is poor. If you identify the correct legal issues raised in the question you will almost certainly pass – even if your discussion of them is poor.

5 Wrong issues? If your answer is a brilliant, well supported, well written discussion of important legal issues – but not those raised by the question – you will fail. If your answer is a brilliant, well supported, well written discussion of important legal issues – but not those raised by the question – you will fail. Addressing the wrong issue, is demonstrating that you do not understand that area of the law well enough to understand the issues raised by the question. Addressing the wrong issue, is demonstrating that you do not understand that area of the law well enough to understand the issues raised by the question.

6 The right issue David Beckham, using a soccer ball at Wimbledon, would be out first match Roger Federer, using a tennis ball at the World Cup, would not get a game Legal problems need the right issue – not a great discussion of the wrong issue.

7 Knowledge first Direct questions – allow you to read the question and then read/research what the answer is. e.g “What is photosynthesis?” gives you a starting point for research. Direct questions – allow you to read the question and then read/research what the answer is. e.g “What is photosynthesis?” gives you a starting point for research. Indirect (problem) questions – require you to know the relevant area well first. If you do not know the law you will not be able to spot the issues which are being asked by the question. Indirect (problem) questions – require you to know the relevant area well first. If you do not know the law you will not be able to spot the issues which are being asked by the question.

8 First Read and prepare a summary of the relevant law before attempting a problem question. Read and prepare a summary of the relevant law before attempting a problem question. Do not try and work backwards – unless you understand the law you will not be able to determine the issues. Do not try and work backwards – unless you understand the law you will not be able to determine the issues.

9 Then? Read the question very slowly and very carefully Read the question very slowly and very carefully Make sure you understand each word in the question – dictionaries are an important tool Make sure you understand each word in the question – dictionaries are an important tool Underline or highlight important words. Underline or highlight important words.

10 Underlining Aim to underline at least one thing relevant to a consideration of the issues in each paragraph of the question If you can’t – reread the question as you will have missed issues

11 Ask why? Ask yourself while reading, why is this information here? What issue is this meant to make me think about? Am I given information which is quirky or out of the ordinary? What issue does this direct my attention to? Are the words used similar to those in a case or statute?

12 Examples In a Contracts exam you read: John is grumbling because he has so much John is grumbling because he has so much homework What issue does this raise? What issue does this raise? Capacity? Capacity? Does the information given in the question that John has homework raise the possibility that John is at school? Does the information given in the question that John has homework raise the possibility that John is at school? Does this mean that he will be a minor? Does this mean that he will be a minor? We don’t have complete information – but the question gives us enough to raise this as an issue. We don’t have complete information – but the question gives us enough to raise this as an issue.

13 In a Contracts question you read: While organising appointments for facials for herself and her mother, Mary chatted with the beautician about her audition for a major television part, and told her that she needed the facial to look her best for what could be her breakthrough role. Her mother was also her agent and would be negotiating any contract for her. What issue(s) does this raise? While organising appointments for facials for herself and her mother, Mary chatted with the beautician about her audition for a major television part, and told her that she needed the facial to look her best for what could be her breakthrough role. Her mother was also her agent and would be negotiating any contract for her. What issue(s) does this raise?

14 Ask why you are given the information? This is a conversation at the time of contract formation Is it irrelevant? Merely there to add ‘colour’ or interest to the question? Is it irrelevant? Merely there to add ‘colour’ or interest to the question? Does it ask you to think about damages and the 2 nd limb in Hadley v Baxendale? Does it ask you to think about damages and the 2 nd limb in Hadley v Baxendale? If damages are available – what sort? If damages are available – what sort? Does it ask you to consider to whom the promise was made? Coulls v Bagot’s ? Does it ask you to consider to whom the promise was made? Coulls v Bagot’s ?

15 Every word in a question is important – make sure you read and understand every word and consider why it has been included in the question

16 A problem question is like a set of clues – if you identify all the clues, all the clues, you will be able to spot the issue

17 Common mistakes Skimming: you may quickly pick one issue, but you will certainly miss many others raised by the question Skimming: you may quickly pick one issue, but you will certainly miss many others raised by the question Reading carefully, picking the first issue, and then skimming the rest of the question: again, you will have picked some of the issues, but not all the issues you need to discuss. Reading carefully, picking the first issue, and then skimming the rest of the question: again, you will have picked some of the issues, but not all the issues you need to discuss. Fast, but ineffective. Fast, but ineffective.

18 How many issues? Isn’t finding one issue enough? How many issues are in each question? Isn’t finding one issue enough? How many issues are in each question? The only time finding one issue is enough is when it is a one issue question The only time finding one issue is enough is when it is a one issue question Questions are often drafted with “pass” and “distinction” issues. The more carefully you read the whole question, the more likely you will spot all the issues – including the harder issues Questions are often drafted with “pass” and “distinction” issues. The more carefully you read the whole question, the more likely you will spot all the issues – including the harder issues

19 Words: legal or common usage? Look carefully at the words used in the question Look carefully at the words used in the question Many legal terms also have common meanings – and they may be different Many legal terms also have common meanings – and they may be different E.g. If the question uses “offer” or “accept” are they being used in a legal or everyday sense? E.g. If the question uses “offer” or “accept” are they being used in a legal or everyday sense? You must think of the legal meaning and see if it is satisfied You must think of the legal meaning and see if it is satisfied

20 Words The words used provide important guides to the relevant issues, for example: “offer” doesn’t necessarily mean offer in a legal sense, but will often indicate that offer/invitation to treat is an issue for discussion “offer” doesn’t necessarily mean offer in a legal sense, but will often indicate that offer/invitation to treat is an issue for discussion “promise” may have a legal meaning – consider estoppel or collateral contract “promise” may have a legal meaning – consider estoppel or collateral contract

21 Answering the question asked The last words of the problem are generally the “question words” The last words of the problem are generally the “question words” Consider these very carefully and draft your answer to address these questions, and only these questions Consider these very carefully and draft your answer to address these questions, and only these questions

22 Examples A question asks you to “advise Mary what damages (if any) she may claim in respect of the breach of contract” A question asks you to “advise Mary what damages (if any) she may claim in respect of the breach of contract” Which of the following issues does the question require you to discuss? Which of the following issues does the question require you to discuss? Existence/formation of a contract? Existence/formation of a contract? The terms of the contract? The terms of the contract? Breach of any of those terms? Breach of any of those terms? Damages in contract? Damages in contract? Damages in tort? Damages in tort? Damages in equity? Damages in equity? Statutory damages? Statutory damages?

23 Examples The only issue you would need to discuss is damages for breach of contract – much of the rest (such as the existence of the contract) could be presumed from the facts given, and is not in issue – so doesn’t have to be discussed. The only issue you would need to discuss is damages for breach of contract – much of the rest (such as the existence of the contract) could be presumed from the facts given, and is not in issue – so doesn’t have to be discussed. Of course every question is different – there are no hard and fast rules, they must all be read carefully. Of course every question is different – there are no hard and fast rules, they must all be read carefully.

24 Contentious issues What if the issue you spot in the question is contentious, and there is no settled legal answer? Does this mean you have spotted the wrong issue and should keep looking? What if the issue you spot in the question is contentious, and there is no settled legal answer? Does this mean you have spotted the wrong issue and should keep looking? Issues in exam questions are usually based on contentious areas of law. Issues in exam questions are usually based on contentious areas of law. If you have a choice between a settled area of law and a contentious one, the issue will usually be contentious If you have a choice between a settled area of law and a contentious one, the issue will usually be contentious

25 Contentious issues Remember – contentious issues are unsettled and there are two (or sometimes even more) views as to what the relevant law is in a given situation. Remember – contentious issues are unsettled and there are two (or sometimes even more) views as to what the relevant law is in a given situation. To discuss these issues properly, you need to discuss both views. To discuss these issues properly, you need to discuss both views. This is one example of ‘arguing in the alternative’ This is one example of ‘arguing in the alternative’

26 Summary 1. The first step in a problem question is to pick the issues raised – and address only these 2. Read the question slowly and carefully 3. Make sure you understand all words used 4. Underline important issues as you go through

27 Summary 5. Think carefully about the words and the information in the question – what issues is it asking you to think about Problem questions are full of clues, but you must read carefully to discover them 6. Review your highlighted question. If you have spotted all the issues, this will be your essay plan.

28 Summary 7. If you have not underlined, on average, something in every paragraph, then re- read the question, as you will have missed some issues. 8. Aim to spot all the issues, not just the first issue

29 Exercises Consider the following problem. Do not try to answer it – simply try and isolate the legal issues which the facts of the problem are raising.

30 Alice runs a small stationery business specialising in wedding invitations. Her husband John owns a large printing business, and because he buys such a large volume of paper, he is able to purchase his paper much more cheaply than Alice. On Thursday night, after cooking John’s favourite meal, Alice asked John if he would supply her business with paper at his cost price. John said, “Of course honey. Whatever would make you happy.” Alice then decides to invest in specialist inks. On Friday she rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She discusses her plans to expand her wedding invitation business into programmes and place cards, which means she will need to order additional ink colours, and ink which is suitable for printing photos and graphics. Mary tells Alice that all the ink they supply is of the highest quality. Alice orders 2 dozen black ink cartridges at the list price of $30.00 each, to be delivered next Friday. She also inquires about gold and silver inks, and is told that gold cartridges are available for $80.00 each, and silver for $ Alice is unhappy with these prices, and considers that as a long standing customer, she should receive a better price. She tells Mary that she is prepared to pay $60.00 for the gold cartridges and $50.00 for the silver. Mary is unsure whether or not these prices are acceptable.

31 Alice tells her to think about, and that if she doesn’t hear to the contrary, she will take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on Friday. On Friday morning, Alice receives a delivery from Mary – of 24 black ink cartridges but no colour cartridges. Alice rings Mary, thanks her for the delivery of the black cartridges, but notes there are no gold or silver cartridges. Mary advises that she has decided not to supply them at Alice’s price – Alice protests that they had an agreement about the coloured inks. Alice then rings John and asks him to send over some paper she needs – at cost price as agreed. John replies that he will certainly provide her with paper, but that he needs to do so at market price. She protests and reminds him of last Thursday evening. He replies “Ah yes. That was dinner, this is business.” After Alice gets off the ‘phone her assistant Peter shows her an order for wedding programmes on which he has been working, using the black ink supplied by Mary that day. The text was fine, but the photo of the bride and groom has printed blotchy and streaky. He tells Alice there is a problem with the ink – it will not print photos properly. Advise Alice.

32 Spotting issues How many issues did you spot? How many issues did you spot? Do you have a starting point for research, or do you have to understand the legal issues first? Do you have a starting point for research, or do you have to understand the legal issues first? Could you answer the question now – or do you need more? Could you answer the question now – or do you need more?

33 First step? You need to know the law which the problem is seeking to test You need to know the law which the problem is seeking to test Assume the following legal propositions: Assume the following legal propositions: A valid contract requires an intention to create legal relations. This is not always present between close family members. A valid contract requires an intention to create legal relations. This is not always present between close family members. Even if a contract is silent, legislation such as the Sale of Goods Act and the Trade Practices Act will imply terms into certain contracts to protect consumers and ensure that goods are fit for their purpose, and are of merchantable quality. Even if a contract is silent, legislation such as the Sale of Goods Act and the Trade Practices Act will imply terms into certain contracts to protect consumers and ensure that goods are fit for their purpose, and are of merchantable quality.

34 Legal Principles In order for the fitness for purpose term to become part of the contract, the purchaser must tell the seller what their purpose is. In order for the fitness for purpose term to become part of the contract, the purchaser must tell the seller what their purpose is. A valid contract requires an offer which has been accepted. If there is anything left to negotiate, a contract will not have been formed. A valid contract requires an offer which has been accepted. If there is anything left to negotiate, a contract will not have been formed. Acceptance requires something to happen. Not responding to an offer, or silence, cannot be a valid acceptance. Acceptance requires something to happen. Not responding to an offer, or silence, cannot be a valid acceptance.

35 Having considered these legal principles, read the question again. What legal issues can you spot now?

36 Underline as you read What will you underline/highlight? What clues will you find to help you spot the issues?

37 Alice runs a small stationery business specialising in wedding invitations. Her husband John owns a large printing business, and because he buys such a large volume of paper, he is able to purchase his paper much more cheaply than Alice. On Thursday night, after cooking John’s favourite meal, Alice asked John if he would supply her business with paper at his cost price. John said, “Of course honey. Whatever would make you happy.” Alice then decides to invest in specialist inks. On Friday she rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She discusses her plans to expand her wedding invitation business into programmes and place cards, which means she will need to order additional ink colours, and ink which is suitable for printing photos and graphics. Mary tells Alice that all the ink they supply is of the highest quality. Alice orders 2 dozen black ink cartridges at the list price of $30.00 each, to be delivered next Friday. She also inquires about gold and silver inks, and is told that gold cartridges are available for $80.00 each, and silver for $ Alice is unhappy with these prices, and considers that as a long standing customer, she should receive a better price. She tells Mary that she is prepared to pay $60.00 for the gold cartridges and $50.00 for the silver. Mary is unsure whether or not these prices are acceptable.

38 Alice tells her to think about, and that if she doesn’t hear to the contrary, she will take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on Friday. On Friday morning, Alice receives a delivery from Mary – of 24 black ink cartridges but no colour cartridges. Alice rings Mary, thanks her for the delivery of the black cartridges, but notes there are no gold or silver cartridges. Mary advises that she has decided not to supply them at Alice’s price – Alice protests that they had an agreement about the coloured inks. Alice then rings John and asks him to send over some paper she needs – at cost price as agreed. John replies that he will certainly provide her with paper, but that he needs to do so at market price. She protests and reminds him of last Thursday evening. He replies “Ah yes. That was dinner, this is business.” After Alice gets off the ‘phone her assistant Peter shows her an order for wedding programmes on which he has been working, using the black ink supplied by Mary that day. The text was fine, but the photo of the bride and groom has printed blotchy and streaky. He tells Alice there is a problem with the ink – it will not print photos properly. Advise Alice.

39 Why have we highlighted these words? What clues do they give us? Her husband John Her husband John Alice and John are married. Does this mean that the necessary intention to make a contract was present in their negotiations? Consider the other information highlighted about dinner, and John’s words to Alice. Alice and John are married. Does this mean that the necessary intention to make a contract was present in their negotiations? Consider the other information highlighted about dinner, and John’s words to Alice. These are clues that an important issue to discuss is intention to create legal relations. These are clues that an important issue to discuss is intention to create legal relations.

40 Note: the question does not say anywhere, ‘Advise Alice whether or not she has an enforceable contract with John’, or ‘Advise Alice whether the fact that she is married to John may create a presumption that she did not intend to form a contract with John for the supply of paper.’ Note: the question does not say anywhere, ‘Advise Alice whether or not she has an enforceable contract with John’, or ‘Advise Alice whether the fact that she is married to John may create a presumption that she did not intend to form a contract with John for the supply of paper.’ This is in fact what the question is asking – but in an indirect problem question you must work this out from the clues given. So read carefully. This is in fact what the question is asking – but in an indirect problem question you must work this out from the clues given. So read carefully.

41 More issues ink which is suitable for printing photos and graphics. ink which is suitable for printing photos and graphics. In certain circumstances, legislation will imply a term into a contract that the goods be fit for the purpose for which they have been bought. Here, Alice is telling Mary what her purpose is in buying the ink. This is a clue that ‘fitness for purpose’ is an issue to consider In certain circumstances, legislation will imply a term into a contract that the goods be fit for the purpose for which they have been bought. Here, Alice is telling Mary what her purpose is in buying the ink. This is a clue that ‘fitness for purpose’ is an issue to consider

42 More issues Alice orders 2 dozen black ink cartridges at the list price of $30.00 each, to be delivered next Friday. Alice orders 2 dozen black ink cartridges at the list price of $30.00 each, to be delivered next Friday. This is a contract for black ink between Alice and Mary – there is nothing left to be negotiated and they have both agreed. Provided the contract is not breached there will be no issues to talk about here. This is a contract for black ink between Alice and Mary – there is nothing left to be negotiated and they have both agreed. Provided the contract is not breached there will be no issues to talk about here.

43 Pay attention to ‘little’ words Also Also We have a contract for black ink. Now, Alice “also” inquires about gold and silver inks. This is a clue that there will be two issues – one about the black ink (is it fit for the purpose for which it was supplied?) and coloured ink (was a contract ever formed?) The existence of two issues could easily be missed by anyone skimming the question and the ‘also’ clue. We have a contract for black ink. Now, Alice “also” inquires about gold and silver inks. This is a clue that there will be two issues – one about the black ink (is it fit for the purpose for which it was supplied?) and coloured ink (was a contract ever formed?) The existence of two issues could easily be missed by anyone skimming the question and the ‘also’ clue.

44 Consider the words carefully Inquires Inquires It is often important to look at the word chosen. “inquires” suggests negotiation, or requesting information – a legal step which comes before an offer which may be accepted to form a contract. It is often important to look at the word chosen. “inquires” suggests negotiation, or requesting information – a legal step which comes before an offer which may be accepted to form a contract.

45 Legal issues gold cartridges are available for $80.00 each, and silver for $ gold cartridges are available for $80.00 each, and silver for $ Is this an offer? Is this an offer? She tells Mary that she is prepared to pay $60.00 for the gold cartridges and $50.00 for the silver She tells Mary that she is prepared to pay $60.00 for the gold cartridges and $50.00 for the silver Has the offer been accepted? Or has Alice made a ‘counter offer’? Has the offer been accepted? Or has Alice made a ‘counter offer’? Unsure Unsure Has Mary accepted? Has Mary accepted?

46 More issues if she doesn’t hear to the contrary, she will take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on Friday. if she doesn’t hear to the contrary, she will take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on Friday. Consider carefully what is happening here – Alice is providing a way in which her offer for the gold and silver cartridges can be accepted. What does she suggest? Consider carefully what is happening here – Alice is providing a way in which her offer for the gold and silver cartridges can be accepted. What does she suggest? Is silence a valid method of consent? Is silence a valid method of consent?

47 Linking issues “Ah yes. That was dinner, this is business.” “Ah yes. That was dinner, this is business.” Is this a new issue, or does it link in to a previous issue? Is this a new issue, or does it link in to a previous issue? It is giving us information about whether or not husband and wife, John and Alice,intended to create legal relations. It is giving us information about whether or not husband and wife, John and Alice,intended to create legal relations. Information about issues is not always grouped together. Often you have to pick up the clues throughout the question in order to determine the relevant issues. Information about issues is not always grouped together. Often you have to pick up the clues throughout the question in order to determine the relevant issues.

48 More issues but the photo of the bride and groom has printed blotchy and streaky. but the photo of the bride and groom has printed blotchy and streaky. Ask why this information has been given? Ask why this information has been given? It raises the issue of whether or not the black ink was fit for the purpose for which it was bought. It raises the issue of whether or not the black ink was fit for the purpose for which it was bought. Does it raise this issue directly? Does it raise this issue directly? Or do you have to work out the issue by a careful consideration of the facts of the problem, utilising your legal knowledge. Or do you have to work out the issue by a careful consideration of the facts of the problem, utilising your legal knowledge.

49 Advise Advise Alice. Advise Alice. This is typical of the way in which problem questions phrase the actual question. This is typical of the way in which problem questions phrase the actual question. “Advise” should be treated as a technical legal term – not in its everyday sense. “Advise” should be treated as a technical legal term – not in its everyday sense. “Advise” does not mean give practical advice to Alice, counselling, general business advice, or advice based on your personal experience. “Advise” does not mean give practical advice to Alice, counselling, general business advice, or advice based on your personal experience.

50 Advise “Advise” is not asking you to help Alice. “Advise” is not asking you to help Alice. It is not an instruction to show Alice how she can ‘win’, and to consider only arguments which will help her to win. It is not an instruction to show Alice how she can ‘win’, and to consider only arguments which will help her to win. Sometimes, in a legal problem, as in life, your client has no legal case. Sometimes the advice is that there is no cause of action, or no defence. Sometimes, in a legal problem, as in life, your client has no legal case. Sometimes the advice is that there is no cause of action, or no defence.

51 Advise Advise means: Advise means: Consider all the legal issues (not factual issues) raised by the problem question; Consider all the legal issues (not factual issues) raised by the problem question; Consider the law which will help you address those legal issues; and Consider the law which will help you address those legal issues; and Apply that law to the issues Apply that law to the issues To provide a conclusion – or advice or answer – to the legal issues raised. To provide a conclusion – or advice or answer – to the legal issues raised.


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