LLAW6259 Chap.9 Identifying the Issues in a Problem Question
Identifying the Issues in a Problem Question
Three stages, and the reduction is the point
The published criteria ask you to identify all the issues, analyse all the issues and conclude on all the issues, and this chapter is about the first of those. The course teaches it as a three-stage process. Preparation: write out, in advance, every matter an area of law contains, in two stages, a general list and a more detailed specific one.
Mental process: read the facts against the general list to find which areas might apply, which reduces what you have to concentrate on, then read them against the specific list to find the rules that may be relevant. Actual process: write the numbered list of issues your answer will address.
Preparation happens before you ever see the facts, which is what makes the other two stages fast and why issue spotting cannot be improvised under time pressure.
What the checklists look like
The general list for contract is grouped rather than alphabetical, and the grouping does the work: formation, covering offer, acceptance, consideration and promissory estoppel, intention to create legal relations and certainty; terms, covering representations and terms, types of terms, express terms, implied terms and exclusion and limitation clauses; termination, covering performance, agreement, breach and frustration; remedies, covering damages, liquidated damages and penalty clauses, injunctions, specific performance and other equitable remedies; vitiating factors, covering mistake, misrepresentation, duress, undue influence, incapacity and illegality; and privity.
Negligence has a much shorter list: duty of care, breach, causation, loss, foreseeability and remoteness, and contributory negligence.
The specific list sits underneath the general one: under acceptance, for instance, sit the mirror image rule, notification and its exceptions, acceptance before revocation, acceptance where the offeree is unaware of the offer, prescribed modes, and timing under the postal rule and where communication is instantaneous.
The numbered list is the document your answer is built from
Once the relevant issues are identified, those are the things you concentrate on and those are what you create your list from.
In practice the list is numbered with branches numbered under their parent, because that structure becomes the headings of your advice. Branches take the form of a condition: if the mode was prescribed, these questions follow; if it was not, these other questions follow. That is not indecision.
The published style guidance says that where the position could be one of two possibilities you explain it on the basis of the first assumption, then the second, and then express a view on which is more likely, and a branched list is how you make room for that in advance rather than discovering it at word nine hundred.
Saying what you excluded is part of identifying all the issues
A reader cannot tell the difference between an area you considered and rejected and one you never thought of.
One sentence early in the advice naming the areas that are not in play converts silence into a judgement and protects you if a marker thought an area was arguable. Keep it to a sentence, since the answer is word-limited.
Then look at the total: if you have eleven issues and 1,250 words, some must be disposed of in a sentence, and deciding which before you start is the published guidance on due weight and significance in operation.
What this chapter covers
- 01
Why preparation happens before you see the facts
- 02
The general checklist for contract, in six groups
- 03
The shorter checklist for negligence, and why it is shorter
- 04
Building a specific checklist under one matter
- 05
The mental process in two passes
- 06
Producing the numbered list, with sub-issues under their parent
- 07
Branching an issue on a condition, before drafting
- 08
Naming the areas you have excluded, and allocating words
Produce a numbered issue list and nothing else
- 2Name the area and the matters in play, and the ones you are setting aside.
- 3List the specific issues under acceptance.
- 2Branch the prescribed-mode issue and number the sub-issues under their parent.
Key terms
- General Checklist
- A written inventory of every matter an area of law contains, built in advance and used to decide which areas a set of facts engages.
- Specific Checklist
- A list of the rules within one matter on the general checklist, used to identify which rules a set of facts engages.
- Mental Process
- The stage of reading the facts against first the general and then the specific checklist, which reduces a whole subject to a handful of candidate rules.
- Actual Process
- The stage of writing the numbered list of issues the answer will address, drawn from the rules the mental process identified.
- Branched Issue
- An issue written as a condition, with one set of sub-issues if the answer is yes and another if it is no, so that both readings of the facts are provided for.
- Due Weight
- The principle that issues receive space in proportion to their significance, which in a word-limited answer means deciding the allocation before drafting.
Identifying the Issues in a Problem Question FAQ
How do I make sure I have found every issue?
By working from a list rather than from the facts. The general checklist tells you which areas of the subject the facts might engage, and the specific checklist under each of those tells you which rules within the area might be relevant.
Reading a problem without a checklist means finding the issues you happen to remember, which is why two students given the same facts can produce answers of very different completeness while both feeling confident.
Should I mention areas that turn out not to be relevant?
Briefly, yes. A reader cannot tell the difference between an area you considered and rejected and one you never thought of, so one sentence naming the areas that are not in play converts silence into a judgement. Keep it to a sentence. The answer is capped at 1,250 words and the discussion belongs to the issues that are live, but that sentence is cheap insurance against a marker who thought an area was arguable.
What does it mean to branch an issue?
To write it as a condition with two sets of consequences: if the answer to the preliminary question is yes, these sub-issues follow; if it is no, these other ones do. It matters because the published style guidance asks you, where the position could be one of two possibilities, to explain it on each assumption in turn and then express a view on which is more likely.
A branch written into the list costs fewer words than one discovered halfway through drafting.
Assessment move
Build your specific lists yourself, one matter at a time, from your Contract and Tort materials, rather than copying someone else's. The act of deciding which rules belong under acceptance is what makes them retrievable under time pressure; a borrowed list works as a prompt and not as a memory.
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