1 Isaac Isaacs 2016 PDF

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Summary

Description of how to use the ISAAC's question answering method...

Description

Legal Problem Solving When a client presents a problem to a lawyer, and the lawyer perhaps takes it to court, there are, in general, two steps to success. First, the client will have to give evidence and persuade the ‘trier of fact’ (a jury in serious criminal matters, but a judge or magistrate alone in nearly all other matters these days) to find in his/her favour as to any disputed facts. (In a criminal defence this means raising a ‘reasonable’ doubt; for the prosecution it means proving beyond reasonable doubt; in a civil trial it means persuading the ‘trier’ that your version is more likely than the alternative.) Then, as a second step, the judge must apply the law to the facts as ‘proved’. This is why the ratios of cases are important - if there is a clear rule that is clearly applicable to the facts (either a rule found in an Act of parliament, or the ratio of a case that is binding on the present court), it must be applied. Of course this does not always happen. Sometimes both parties agree on the facts and the only dispute is as to whether they properly give rise to a legal liability – as in the famous Donoghue v Stevenson [1932] AC 562 where the existence of the snail in the bottle was never ‘proved’ at trial. In a Law School problem we short-circuit the proof of facts part by giving you some facts and expecting you to accept them – by assuming that the parties will agree on them or that they will be proved at trial. What you have to do then is identify the relevant parties, causes of action and any other preliminary matters (such as onus of proof, and the time limitation period within which the plaintiff must bring their action (limitation of actions), if relevant). You must then anticipate how a court would resolve the second question – given that these facts are true, and assuming that the parties took the matter to court – do the facts give rise to a cause of action? In order to determine this, you need to work through each of the elements of the action, and the issues raised by the facts of the set question in relation to each element. (If the action or the issues raised by it are simply resolved, it is unlikely that real people would argue such an issue in court, but in principle the question is still the same – how would a court decide this matter, if asked?) You are expected here to ‘apply the law to the facts’. This is a simple exercise in deductive logic. So for each action, you have to first consider the relevant element of the action, and work out what the legal issue raised in relation to it is, and state it. You must then also state the law to the extent relevant to that element or issue raised. Every time you state a rule or principle of law you are expected to cite a primary legal authority for it – a section of an Act, and/or a case precedent (the emphasis in this unit is on prescribed legislation and cases). Then you are expected to explain how the law would apply to the facts of the problem – whether the facts fit the criteria that some legal rule specifies. If there are several issues, or necessary elements of an action, you are expected to provide a court’s likely answer to each of them in this way. You must consider each element in turn and sort out the logical interaction between them. You are not expected to give a lecture on all of the law remotely connected to the issues, or elements, of an action. You should only state as much law as is relevant and then apply it to the problem. A useful mnemonic (memory-aid) was ‘invented’ by John Pyke (Lecturer, QUT, Law School) to help you observe the above advice is based on the name of Sir ISAAC ISAACS (who was, during his career, the Attorney-General of both Victoria and the Commonwealth,

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a High Court Justice for many years, then the Chief Justice and then the GovernorGeneral). Identify a legal Issue arising from the facts State the relevant law (just as much as is relevant and no more!1) and the Authority for it Apply the law to the facts Come to a Conclusion on that Issue This approach then provides you with a basic way to structure each part of your answer to a problem solving question in law. However remember, that whilst it provides you with a thought process, or series of steps to mentally consider when writing or structuring your answer or sentences, you are not required to expressly state each step of this ISAAC ISAACS methodology (for example, as a separate heading) in your writing. So next, taking one issue at a time, repeat ISAAC for each issue. At the end, or even in between issues, Synthesise the partial conclusions into an overall conclusion. Actually the synthesis is often best done as a link between the discussion of the issues, so the pattern becomes I S A A C

I S A A C

I S A A C

I S A A C

S S S S (This last S if the final Synthesis, summing up, and overall conclusion.)

I S A A C S

Even at this stage you should note that, even where the law is clear, the application of law to facts is sometimes easy and sometimes hard. Where there is an easy deductive conclusion as to how the law applies to the facts, the Application and Conclusion pretty much roll into one (here A could stand for the Answer). However, where the law, or its application to some particular facts, is disputable, then you can see A as standing for Arguments, and the Conclusion really is a separate step - and the ‘ Conclusion’ may have to be something like ‘this probably was a contractual offer, but it may not have been’. (That is, there is not always a simple Answer.) In such cases, the Synthesis will have to include consideration of the further consequences of both of the possible Conclusions.

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Remember that when you are given a problem to solve, we do not want to read a general recitation of all of the relevant law, and all of the related irrelevant law. We are not interested in how much you can remember; we are interested in how well you can select the relevant legal rules or principles from your memory, and apply them to the facts. As it says above, for each issue state just as much law as is relevant and no more!

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