De Mystifying Legal Problem Solving
Legal problem solving is an art, and definitely a skill that develops throughout your law studies. However, no matter how good the problem solving guides in your course materials are, students generally make the same types of mistakes when it comes to answering hypotheticals. As a marker myself, I am often frustrated by students who do the following:
Many students feel the need to outline, in detail, the background to the dispute between the parties at the start of their Issues section. Not only is this unnecessary (your marker has read the exam question!) and not part of the marking criteria, but it tends to indicate a student that is confused, rather than confident, about the key issue/s between the parties. You are better off taking a stab at the issue even if you are unsure and leading with this in your opening sentence. The words you free up by deleting your facts summary also gives you more space in your Application section to argue for the relevance of the issue you have identified.
2. Failing to identify the specific issue
Simply stating that the issue between the parties is, for example, the existence of a contract tells the marker NOTHING. When you outline the issue, you need to do so with enough specificity that it is obvious which legal rules you will be drawing upon. To continue with the contracts example, if you apply the law of revocation in your Application section, then your issue must correspond and look something like this: “The key issue in this scenario is whether Party X sufficiently communicated revocation of their offer to Party Y.” Correctly identifying the specific issue between the parties is a key marking criteria, and writing with this level of detail allows you to improve the specificity and relevance of the law in your Law section.
3. Outlining general principles in the Law section
Your marker does not need a summary of all the principles that relate to your subject in your Law section. Only the cases that are relevant to the narrow issue you have defined in your Issues section are relevant. Think about it this way: if this was a real case, the lawyers for each party would not spend time in court arguing about principles that are not in dispute. Similarly, only outline the rules that are directly relevant to the dispute between the parties.
4. Listing cases as dot points in your Law section
This might sound obvious, but make sure you use full sentences to explain legal rules. Dot pointing a case does not show your knowledge and comes across as lazy. Further, it may mean that you miss out on vital marks because discussion of the key precedents often features in marking criteria.
5. Having a one line conclusion for your Application
Your Application section is not a one line conclusion that a particular test applies. It is where you should be drawing upon each element of a test, applying it to the facts, and discussing the potential ways in which the facts may be interpreted. What would you argue for the Plaintiff? If you were the Defendant’s lawyer, how would you counter this argument? Which facts from the scenario support these interpretations? Make sure you give yourself the strongest chance to get into the highest mark range by developing a sophisticated Application that closely draws upon the facts. A strong Application section is what sets HD students apart from the rest of the cohort.
6. Going outside the brief
If the assignment states that it will be on the first four weeks of the course, only look at the Topics from the first four weeks. You do not get extra points by flipping through your textbook and finding alternative interpretations of the issues between the parties. In 99% of cases, including content from weeks that have not been covered in class yet is done badly. And – even if it is done well, you are wasting words on developing an argument outside of the marking criteria. Follow the guidelines set in the question.
7. Citing the textbook for legal authorities
Most hypotheticals do not have a research component. This means that your textbook will be the primary source of your information. However, this does not mean that your textbook should be the primary source cited in your footnotes! When you state a legal rule, make sure you cite the primary authority for that rule; the statute or the case. You should only be citing the textbook for its commentary, for example, its discussion of the interpretation of a certain rule or discussion of a conflict between authorities. Do not cite the textbook as if it is a legal authority.
8. Putting argument in footnotes
NEVER EVER do this, even if it means that your over-the-limit word count assignment is suddenly within the word limit. Edit your assignment again and cut out the least relevant information. Putting argument in footnotes is cheating.
9. Not consulting the AGLC
It doesn’t matter how often a lecturer or tutor will tell their class that they must consult the Australian Guide to Legal Citation when doing their footnotes, some students will always decide to just wing it. Footnoting errors are glaringly obvious to a marker (remember: academics also follow the AGLC in their own writing – they know the conventions inside out and back to front) and create a bad impression (even if there is no separate marking criteria for referencing). If your paper is sitting on the borderline between grades, for example, you are on the cusp of a Distinction, you do not want to be marked down to a Credit because you were too lazy to go online and consult the guide. The AGLC (3rd edn) may be found at <http://www.law.unimelb.edu.au/files/dmfile/FinalOnlinePDF-2012Reprint.pdf>
10. Single spacing papers
While formatting is usually not in the marking criteria, like poor referencing, single spacing your paper risks alienating your marker. Think about it this way – your marker has just finished marking 20 papers: their eyes are sore, their back is tired, and they need to finish their work quickly so they can enjoy their weekend. You want this maker to be happy before they start reading! Make your paper easy to mark – use 1.5 or double spacing.
If you avoid these pit-falls, you may still not attain that elusive High Distinction, but you will at least not lose marks for silly reasons. And that’s what studying smarter is all about – maximising your chances of success.
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