LEGAL%20PROBLEM%20QUESTIONS%20-

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LEGAL PROBLEM QUESTIONS -

• 2. Picking the issues

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

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Picking the issues

• 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
  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

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First step

• 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.

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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.
• 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.

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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.

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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.
• 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.

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First

• 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.

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Then?

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

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Underlining

• Aim to underline at least one thing relevant to a
  consideration of the issues in each paragraph of
  the question
• If you cant reread the question as you will
  have missed issues

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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?

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Examples

• In a Contracts exam you read
• John is grumbling because he has so much homework
• What issue does this raise?
• Capacity?
• 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?
• We dont have complete information but the
  question gives us enough to raise this as an
  issue.

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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?

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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?
• Does it ask you to think about damages and the
  2nd limb in Hadley v Baxendale?
• If damages are available what sort?
• Does it ask you to consider to whom the promise
  was made? Coulls v Bagots ?

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

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Common mistakes

• 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.
• Fast, but ineffective.

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How many issues?

• Isnt 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
• 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

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Words legal or common usage?

• Look carefully at the words used in the question
• 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?
• You must think of the legal meaning and see if it
  is satisfied

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Words

• The words used provide important guides to the
  relevant issues, for example
• offer doesnt 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

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Answering the question asked

• 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

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Examples

• 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?
• Existence/formation of a contract?
• The terms of the contract?
• Breach of any of those terms?
• Damages in contract?
• Damages in tort?
• Damages in equity?
• Statutory damages?

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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 doesnt have to be discussed.
• Of course every question is different there are
  no hard and fast rules, they must all be read
  carefully.

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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?
• 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

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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.
• To discuss these issues properly, you need to
  discuss both views.
• This is one example of arguing in the
  alternative

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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

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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.

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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

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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.

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• 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 Johns
  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 Marys
  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 75.00.
  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.

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• Alice tells her to think about, and that if she
  doesnt 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 Alices 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.

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Spotting issues

• How many issues did you spot?
• 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?

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First step?

• You need to know the law which the problem is
  seeking to test
• Assume the following legal propositions
• 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.

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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.
• 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.

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

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Underline as you read

• What will you underline/highlight? What clues
  will you find to help you spot the issues?

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• 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 Johns
  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 Marys
  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 75.00.
  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.

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• Alice tells her to think about, and that if she
  doesnt 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 Alices 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.

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Why have we highlighted these words? What clues
do they give us?

• 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 Johns
  words to Alice.
• These are clues that an important issue to
  discuss is intention to create legal relations.

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• 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.

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More issues

• 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

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More issues

• 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.

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Pay attention to little words

• 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.

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Consider the words carefully

• 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.

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Legal issues

• gold cartridges are available for 80.00 each,
  and silver for 75.00.
• 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
• Has the offer been accepted? Or has Alice made a
  counter offer?
• Unsure
• Has Mary accepted?

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More issues

• if she doesnt 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?
• Is silence a valid method of consent?

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Linking issues

• Ah yes. That was dinner, this is business.
• 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.
• 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.

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More issues

• but the photo of the bride and groom has printed
  blotchy and streaky.
• 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.
• 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.

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Advise

• Advise Alice.
• 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 does not mean give practical advice to
  Alice, counselling, general business advice, or
  advice based on your personal experience.

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Advise

• 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.
• 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.

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Advise

• Advise means
• 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
• Apply that law to the issues
• To provide a conclusion or advice or answer
  to the legal issues raised.