Legal problem solving is a skill that does not always come naturally. As a marker, I’ve noticed that students of all year levels tend to make the same types of mistakes when it comes to answering hypothetical questions. Avoid frustrating your marker by following these tips…
1. Don’t get side-tracked by describing the facts
Many students feel the need to outline, in detail, the background to the dispute between the parties at the start of their Issues section. This is unnecessary as it does not further your analysis and tends to indicate a student that is confused about the key issue(s) between the parties.
Instead of describing the facts, start your paper by identifying the main issue(s). Fore example, “The key issue between the parties is….” If you cannot reduce the issue to one sentence, you should consider conducting more research to improve your knowledge of the content.
2. Provide a detailed statement of the 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 detail that it is obvious which legal rules you will be drawing upon. For example, in the contracts scenario:
“The key issue between Party A and Party B is whether there has been a mutual mistake regarding the identity of the contract subject matter that means that the intention to contract is absent.”
3. Avoid general, irrelevant legal principles
It is a waste of words to summarise all the principles that relate to your subject in your Rule/Law section. Only outline the rules that are directly relevant to the dispute between the parties.
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.
4. Discuss cases rather than listing them
Make sure you use full sentences to explain legal rules. Dot pointing a case is lazy and may mean that you miss out on vital marks, as discussion of the key precedents often features in marking criteria.
5. Attempt a detailed Application
Your Application section is where you should be drawing upon each element of a test and closely referring to the facts. 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 section – this analysis is what sets HD students apart from the rest of the cohort.
6. Stay within 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. In 99% of cases, including content from weeks that have not been covered in class yet is done badly. Even if it is done well, you are wasting words on developing an argument that falls outside of the marking criteria.
7. Cite the textbook as a secondary source only
Most hypotheticals do not have a research component. This means that your textbook will be the primary source of your information, but 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. Do not forget that the textbook is a secondary source that should only be cited for its commentary.
8. Never put argument in footnotes
Never ever do this, even if it would mean that your over-the-word-limit assignment is suddenly good to go. Edit your assignment again and cut out the least relevant information.
9. Consult the AGLC
Remember, academics follow the Australian Guide to Legal Citation in their own writing and know the conventions inside out. Footnoting errors are glaringly obvious to a marker and create a bad impression, even if there is no separate marking criteria for referencing.
10. Use 1.5 or double line spacing
Formatting is usually not in the marking criteria, but think about your marker. They have probably just finished marking 20 papers, and their eyes are tired, their back is sore, 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, so make your paper easy to mark – use 1.5 or double line spacing.
Marie Hadley is a lawyer, PhD candidate at UNSW, and tutor who loves teaching legal writing and problem solving skills.
FROM THE ARCHIVES: This story was first published on Survive Law on 14 August 2013.