Answering problem questions guide-1 PDF

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Answering problem questions guide-1 FOR LAW...

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Answering problem questions

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IN T RO D UC T IO N This chapter builds on the earlier sections in the book that outlined how to locate and understand the law by explaining how to use your legal knowledge. Chapter 12 provided guidance on how to use this knowledge to construct a focused and analytical essay and chapter 13 considered dissertations. This chapter will concentrate on the very different set of skills that are needed to use the law to answer a problem question. It will guide you through the process of analyzing a scenario in order to identify the relevant issues to ensure that your answer is comprehensive and does not miss any important points. It will outline strategies to use to ensure that the law is applied effectively and that good use is made of supporting authorities. This chapter should be read in conjunction with chapter 10 which covers writing skills, and chapter 11 on referencing as this will ensure that your problem answer is well-written, presented in an appropriate manner, and is thoroughly referenced. The ability to use the law to determine the outcome of a dispute is one of the most important skills that a lawyer must develop. An abstract understanding of the law based upon how it has been used in decided cases is not enough; you must be able to apply the principles of the law to new and unusual factual situations. Remember, a client who comes to you for advice does not want an explanation of how the law has been used in other cases; he wants to know how it applies to his situation. It is also an important skill because problem questions are a popular means of assessing knowledge and skills in both coursework and examinations but, unfortunately, many students limit their success because they have not developed an effective problem-solving technique. This step-by-step guide to problem solving aims to help with this by explaining how to tackle problem questions and by demonstrating the steps with examples to ensure that you have a clear picture of what is required.

L E ARN IN G O UT C O ME S

After studying this chapter, you should be able to: ●

Differentiate between the skills needed to answer a problem question and those required for the construction of an effective essay

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Analyze a problem question in order to identify the legal issues that need to be resolved

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Prepare to answer the question by engaging in effective research and planning

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Structure the answer in a logical and organized manner

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Provide concise and well-supported statements of law that are applied to the facts of the question in an effective manner Evaluate the answer that you have written to ensure that it demonstrates the relevant skills and knowledge and that it adheres to the necessary style and referencing requirements

14.1 All about problem questions Before launching into an explanation of how to deal with problem questions, it seems sensible to take a little time to describe what problem questions are and what they seek to achieve. If you appreciate what it is that they aim to assess, this will help you to understand how to set about dealing with them in a way that is likely to meet with the approval of your lecturers.

14.1.1 What is a problem question? A problem question involves a set of hypothetical facts that raises at least one question, usually more, that needs to be answered by reference to the law. In other words, it is a short story about events that give rise to potential legal responsibility about which you are expected to offer advice to one or more of the parties or otherwise to comment on the legal position that arises from the facts. This is sometimes called a fact pattern or scenario question. Problem questions tend to end with a question or instruction so that you are clear about the task: ●

Does Chris have a claim in negligence?

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Can the contract be enforced?

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Advise Dawn as to the extent of her liability for property offences.

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Do Ashley’s actions amount to a breach of Article 11 of the European Convention on Human Rights?

The facts of the problem will be constructed with care so that the answer to the question is not clear but needs to be puzzled out. You are unlikely to encounter a problem question that reads: ‘Mark hates Alastair so he shoots him in the head at point-blank range shouting “I want you to die” ’.

This is because there is no complexity to the issue: both elements of the offence of murder are so readily established that the question could be answered in a few lines. This demonstrates a major characteristic of problem questions: they are designed to raise issues that do not have an obvious and straightforward answer so that you have to explore the intricacies of the law and speculate a little in order to reach a conclusion. You will find an example of a problem question in section 14.3. This will be used in this chapter to demonstrate the process of building an answer that demonstrates both a good grasp of the relevant law and of the legal skills that are being assessed.

PR OBL E M -S OL V I NG T E CH NI QUE

14.1.2 It is not an essay! It is essential that you appreciate that the distinction between an essay and a problem question is not solely one of presentation; they require something qualitatively different from the student in terms of the skills used and the nature of the answer produced. In general terms, an essay involves an exploration and analysis of a particular topic whilst a problem question requires the student to apply the law to a set of facts and reach a conclusion about the legal responsibility of the parties involved. If you take the same approach to answering a problem question that you do to writing an essay, your problem answers will be weak and will not achieve high marks.

14.1.3 What skills are required? There are a range of skills involved in dissecting and answering a problem question. As you will see, although legal knowledge is important, you will need to be able to do more than merely outline the relevant law; you must also be able to use it to reach a conclusion about the legal liability of the parties. This involves: ●

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The ability to sift through the mass of facts to identify those that are relevant, those that set the scene, and to oust any potential red herrings Sufficient knowledge of the area of law to be able to identify a potential basis for legal action, to establish a starting point for research, and to be able to understand the law that is uncovered during the research process Research skills that enable you to investigate the area of law and to locate statutory provisions and cases that are relevant to the facts of the problem Writing skills that enable you to structure an answer, to organize its content in a clear and logical manner, and to incorporate authority into your answer The ability to apply the law to the facts of the question in order to determine the extent of the parties’ legal liability

Although all of these skills are important and play a role in constructing an effective answer to a problem question, it is the last of these—application of the law to the facts—that is crucial to the success of your answer. In chapter 12, you will find a section which examines Bloom’s taxonomy of skills and discusses these in the context of legal writing (see section 12.4.1). The higher-order skills of application and analysis are particularly important to problem solving.

14.2 Problem-solving technique The key to success in problem solving is to develop an effective technique. This is something that will be invaluable in both coursework and examinations and which is transferable between the different topics that you study; in other words, a good problem-solving technique is equally applicable to criminal law, equity, and trusts, employment law or any of the other subjects on the law curriculum that use problem solving as a means of assessment. Your own institution may provide guidelines on problem solving. If this is the case, you should study these carefully and take note of the information provided. Alternatively, there

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are well-publicized techniques that you may find useful; these have different names but share a common basis in their approach to breaking down the tasks involved in problem solving (Figure 14.1). Despite the difference of terminology, each of the four stages used in each method is the same: 1. Identify the question that needs to be answered. 2. State the law that enables the question to be answered. 3. Work out how the law would operate in relation to the question identified. 4. Reach a conclusion that answers the question.

IRAC

IPAC

CLEO

PLAN

ISSUE

ISSUE

CLAIM

PROBLEM

RULE

PRINCIPLE

LAW

LEGAL RULE

APPLICATION

APPLICATION

EVALUATION

APPLICATION

CONCLUSION

CONCLUSION

OUTCOME

NOTE OUTCOME

Figure 14.1 Some mnemonics for problem solvin g

You might find it easier to understand this process in relation to a non-law example. Imagine that your university has a policy regarding the late submission of coursework that states that the penalty for submission up to one da y after the deadline without good cause or prior permission attracts a deduction of 10 marks. Furthermore, work that is submitted more than one day lat e but within a week of the deadline attracts a deduction of 25 marks and work that is submitted more than one week late receives a mark of zero. The essa ys are stam ped with the time and date of submission upon receipt in the general offi ce. The submission deadlinefor your essay is 4 p.m. on Friday. Your essay is submitted at 4.02 p.m.

This is a very simple example but it demonstrates the process that is involved in problem solving. It is ironic that the method involved in problem solving causes so many headaches for students but, in reality and stripped of its legal content, the process of identifying a question to be answered, the applicable rule, and combining the two to reach a conclusion is one that we all do, all of the time, as part of everyday life: eligibility for a discount, complying with a shop’s refund policy, nightclub opening hours, and even reading a train timetable all involve a similar process of the identification and application of a general rule to a particular factual situation. Of course, your concern is to take this technique and apply it to legal problems. There are also other factors to take into account such as the level of detail needed, the correct approach to incorporating case law, and the difficulties of a factual situation that does not have a determinative answer, and all of these points will be addressed in the course of this chapter. However, quite apart from these complexities that are particular to law, it is reassuring to know that the technique that is the cornerstone of effective problem solving is one that is familiar.

PR OBL E M -S OL V I NG T E CH NI QUE

With this in mind, why not try the technique outlined above in relation to the following non-law examples:

Issue, claim, problem

Rule, principle, law, legal rule

Application, evaluation

Conclusion, outcome

Will the essay receive a penalty?

The rules state that work received after the deadline receives a 10-mark deduction.

The deadline was 4pm. Your essay was submitted at 4.02pm making it two minutes late.

It is likely that you will receive a 10 mark deduction for lateness.

Figure 14.2 The problem-solving process

Practical exerc e is e These examples are designed to help you develop a methoodical approach to problem solving. As such, they are very simple so you could reach a conclusi on wi thoout goi ng through the steps outlined above but that would defeat the purpose of the exercise. Try to followwthe four-stage procedure with these simple facts to build up your confidence and expertise ready for soolvin g more complex problems as the chapter progresses. 1. The Post Office has introduced a system of calculating tthe cost of postage based upon weig ht and size. A letter i s one which wei ghs less than 100g andis nno thi cker than 5mm. This costs 41p postage. A large letter can weigh up to 750g and be up to 25mm in thickness and costs 66p postage if it weighs 100g or less, 96p between 101g and 250g, £1.32 betweeen 251g and 500g or £1.87 between 501g and 750g . You wish to post a package that weighs 40g and is 10mm thick. How much will this cost? 2. Your grandmother offersyou a cash incentive to encoura ge y ou to study fory our exams. She agrees to pay you £10 for every exam that you pass and £50 exxtra if you pass all five exams. You only pass four exams. How much money can y ou expect to receivve? 3. You notice an advertisement for an essay-writing competition on the law school noticeboard. The first prize is £500 so y ou would like to enter. The compeetition rules state that the essay must be written by an under graduate student under the age of 221 at the closing date (31 March thisy ear) who has not yet studied European law. Do you qualifytto enter the competition (based on your own circumstances)? You will find sugg ested answers to these questions on theOnline Resource C entre where there is also explanation of how the answers were reached.

You probably found it easy to work through these exercises and you should take heart from this because it means that you have already grasped the essential skills that you need to succeed

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in answering problem questions in law. These skills will need to be honed and developed and you will find help and guidance on this in the remainder of this chapter. The following sections explore each aspect of problem solving in greater depth in order to help you develop your understanding of what is required.

14.2.1 Warning It is of fundamental importance that you separate the question into a series of issues and deal with each of these separately. The IRAC, IPAC, CLEO, and PLAN techniques will not work if you try and apply them to the question as a whole. It is a common mistake for students who fi rst encounter this technique to use it as a means of dividing their answer into four sections and dividing the content as follows: 1. Issues: all the issues from the question as a whole are identified and listed. 2. Rules: an abstract discussion of all the law that is raised by the issues, all amalgamated together. 3. Application: a short section that is usually extremely weak because it is detached from the law and it does not break the question down into sufficiently small issues. 4. Conclusion: a short factual paragraph that summarizes the findings. If you make the mistake of dividing the whole answer into sections as explained above, rather than slicing it up into a series of issues and subissues as explained in the following section, it is extremely likely that your answer will fail as you will not have demonstrated an effective problem-solving technique to the marker. You will find an example of an answer to a problem question that demonstrates this fundamental failing on the Online Resource Centre as well as an example of how the technique should be used to produce an effective answer to the same question.

14.3 Issues, claims, and problems The first stage in the problem-solving process is to identify the question that needs to be answered. In the example given above on page 346, this was quite simple: will the essay receive a penalty? However, it is not always a straightforward matter to identify the issue within a problem question; indeed, it is likely that there will be multiple issues within a single question that need to be extrapolated from the mass of detail. This is an important stage in the process as if you do not isolate the correct question to ask, you cannot hope to reach the right conclusion. This is an example of a typical problem question that you might encounter. As you see, it involves a series of events that involve several different parties. This tort problem about injuries sustained by visitors to a farmyard activity centre will be used throughout this chapter to demonstrate the process of building up an answer to a problem question. Brian runs a small farmyard activity centre in West Yorkshire. Gladys and her granddaughter, Camilla (7) visit the centre. They go into the stable yar d w here t here are large signs that read ‘horses may bite, so mind your fingers’ and ‘please do not feed the horses—they may think you’re offering them an a pple and gnawyour hand instead’. Gladys sees the signs but has left her glasses in the car so cannot read what they say. She feeds slices of apple that she has brought with her to

I S S UE S , CL A I M S , A ND PR OBL E M S

several horses and receives a nasty bite f rom ‘HH’, the centre’s temperamental stallion. There used t o be a sign on his door that warned that stallions can behave unp redictably but it had fallen off t he previous day and not yet been replaced. Upset by her experience, Gladys goes into the cafeteria. She tells Camilla not to wander offbut Camilla ignores Gladys and goes into Brian’s exhibition of farm equi pment. Two of the rarest machines are roped off to protect them from the public (and t he public from them). Camilla climbs over the ropes and starts to climb on one of the machines but receives a deep laceration f rom one of the exposed cutting blades. In the caf eteria, employee Bett y is making a pot of tea for Glad ys. The cafeteria is newly refurbished. The work was done by local handyman, Andy, who is an excellent carpenter but who lacks expertise in electrical fitting. As a result, some of the wiring is incorrect and this causes a massive power surge during which the t ea urn exp lodes, showering Betty with boiling water and causing her to suffer serious burns. Advise Brian as to the extent of his liability, considering occupiers’ liability only and not considering any potential claims in negligence.

14.3.1 Analyzing the question The most effective means of identifying the issues in a problem question is to analyze the facts that you have been given and take a note of relevant facts relating to the two key variables: parties and events. This will help you to address the key question: who has done what to whom?

14.3.1.1 Parties There will be at least one party in the problem, probably more in many subject areas. You may encounter a single party in problem questions on public law topics, such as constitutional and administrative law and criminal law, as these areas of law involve the liability of an individual in relation to the State. Of course, it is possible for public law topics nonetheless to involve other parties; there may be multiple applicants in a judicial review problem, for example, or several defendants or a range of victims in a criminal law problem. Problem questions in areas of private law, such as contract and tort, will involve at least one party making a claim against another, so it is important that you identify both the claimant(s) and the defendant(s). Table 14.1 Parties in the problem question

Claimant

Defendant

Other parties

Gladys

Brian

Camilla

Brian

Gladys (child’s grandmother)

Betty

Brian

Andy (the handyman)

Make a list of the people in the ...