Thinking like a lawyer:

Writing Legal Problem Question

Answers

Jerome Tessuto

English Language Chair

Department of Law
University of Naples Federico II
 Nature of Legal Problem Question (LPQ)

• Common exercise for training and assessing law students

• Presents student with a set of facts

then asks student to apply the law to those facts to
work out the legal consequences of those facts and to
advise the parties of their legal position

• Involves remedial law under which one party can institute a

cause of action against another party
task for student is to advise parties whether a cause
of action is available to them or against them.

Thinking and writing like a lawyer in the real world

 Nature of Legal Problem Question (LPQ)

• LPQ imitate, although not totally, two tasks in litigation

a judge delivering a judgment
and
a lawyer advising a client on their prospects of success

However, the lawyer’s advice is really a prediction of what

the judgment will say
so the lawyer and the judge really perform two aspects
of the same function
 Use of Legal Problem Questions
• Standard exercise for undergraduate law students in many
common law jurisdictions (e.g. UK, US, Australia)

English or American student is taught to write a legal problem

question answer by relying on his or her specific (‘common
law’) jurisdiction

However, legal education for graduated lawyers is growing

and occurs in a number of areas

e.g. bar examinations, practical legal training, postgraduate

study, continuing legal education and study to become
accredited specialists in native and non-native contexts
 Use of Legal Problem Questions

Answering a problem question is a technique that is

increasingly needed by graduate as well as undergraduate
lawyers in native and non-native English-speaking contexts
European Lawyer Directive (Directive 98/5/EC) on lawyers’
freedom of establishment
spells out that a lawyer practising under his/her home-
country professional title may carry on the same professional
activities as the host-country lawyers, and may equally give
advice on the law of home and host Member State +
Community and international law

Token example

A fully qualified Italian lawyer may advise on the law of the

host member states (e.g. United Kingdom) as well as on
Community law and international law + preparing deeds and
representing or defending a client in legal proceedings in the
host member states
Directive:

a good opportunity for use of legal problem question in non-

native academic writing contexts

advantages in English language skills for studying and

practicing the ‘basics’ of law and by acting both as advisors
and advocates
Rounding up advantages of Legal Problem Questions

Learning to write answers to hypothetical legal problem

questions in the medium of English provides advantages for the
later practice of law in English or non-English jurisdictions

Imitating a major task in legal practice when a lawyer

a solicitor (UK) or avvocato (IT)
advises a client
Typically the road to litigation starts when a person
• comes to a lawyer
• tells the lawyer the facts of some dispute, and
• asks for advice

When the lawyer gives advice it may take a number of forms or

have a number of components

1stly, personal advice on its own or in conjunction with legal

advice

2dly, advice directed to a settlement of the problem without

recourse to legal remedies
3dly, advice about the availability of a legal remedy

lawyer performs a similar task to the task that a student performs

when answering a problem question, and in so doing they exercise
the same skills

lawyer has to:

organise the relevant legal rule by dividing it into elements and

legal consequences

apply this rule to the facts

 Answering Legal Problem Questions: METHOD

An effective method for answering legal-problem questions is

I-R-A-C
Issue – Rule – Application - Conclusion
Overall rhetorical structure
• Step (1) Issue: involves identifying the legal issues that are raised
by the facts of the question
• Step (2) Rule: student identifies the legal rule or rules that
potentially apply to the facts
• Step (3) Application: student applies these rules to the facts of
the case to see if they fit and in the process resolve the issues
• Step (4) Conclusion: student indicates the outcome for the
parties involved

If, for example, the facts fit the legal rule, the relevant party has a
cause of action
 Answering Legal Problem Questions: METHOD

• Explains the process from start to finish in a logical progression

• Each step taken properly and in its proper sequence should lead
to a good and well-written answer

hints and checklist (SLIDE)

- help you understand how to write an answer to a legal

problem question around the IRAC method - explaining the
Steps for answering LPQ
- assists you by identifying some common errors so that you
may better avoid them
 IRAC > hints and checklist

• Identifying the legal ▪ In this case, the issue is

whether John is liable to
issue(s) the Legal Susan …
Problem Question is
asking you to answer ▪ In this case, the issue is
whether John owes Susan a
duty of care …
Issue the rights and liabilities ▪ The question we must
of the parties answer is whether or not …

►The issues are raised DO NOT begin by

by the facts of the summarising the facts of the
Question (fact scenario) problem: they are already
known in the Question
 IRAC > hints and checklist

• Setting out the ▪ In Adam v Smith it was

argued that …
principles of law that held that …
are relevant to the ruled that …
issues identified, established that ...
including the proved that …
legislation or case law
▪ Section of Employment Act
Rule from which they are 2012 provides, so far as
drawn (‘direct’ or relevant, that …: “direct quote”
indirect quote)
▪ Authority for this issue is found
in the case Lynon v Heasman,
where it was held that …

▪ Adam may raise a defence of

duress if …
 IRAC > hints and checklist
Applying, by analysis,
the law to the material ▪ Applying the law to the facts in
issue … / Applying the current
facts of the Question case to …

You should apply the

Application

law, element by ▪ On these facts, / In this case,

element, to each set of we understand that … / the
question arises: on what …?
facts and assess whether
each element is satisfied
(yes, no, or maybe) in ▪ The fact that a person must /
the facts scenario may / can / should raise a
defence depends on whether …
► Cite the legislation or
case law in support of ▪ It is plain from the observation
your application to the made that …
law
 IRAC > hints and checklist

Indicating the outcome for the

parties involved

- if, for example, the facts fit the law

Conclusion

and the relevant legal remedy will be

available if the claimant’s claim can
fit a particular cause of action such
as a negligence (tort law),
defamation (tort law), or breach of
contract (contract law)
 IRAC > hints and checklist
You should conclude ▪ Therefore, it is clear that Adam
your analysis by stating is liable for damages … / can sue
John in negligence action … /
whether, on the facts in cannot escape liability for damage
issue, you think one caused to …
party has a strong,
Conclusion

medium or weak cause ▪ Clearly, the present case attracts

of action against Adam’ liability to John …
another party ▪ It is possible that … / It is
possible to conclude that Adam
DO NOT make a definite will be found liable … / is guilty to
conclusion …

▪ I do not think that Adam has any

good prospects of establishing
liability in this case, but there is
enough evidence to justify a claim
for damage to the other side …
More about IRAC
quicktips
 Legal content:
reading thoroughly by weighting and emphasing

• Read the Question carefully in order to understand what it

asks you to Answer
Who has a claim against whom
Claimant (C) v Defendant (D)?

In advising one party, you may also ascertain the possible

permutations of the parties
e.g. John v Susan, John v Tom
by establishing who has a cause of action against whom
 Legal content:
reading thoroughly by weighting and emphasing

• Weighting and Emphasis

once you have broken the problem down into issues, try to
work out, on the facts, which of the issues are relevant (or
contentious) and which are less relevant (or irrelevant)
 Structure /organisation

• Headings and sub-headings: organisation is important

• Use I-R-A-C headings without repeating the facts scenario

• Raise all the legal issues presented in the Question and cite
cases and legislation for propositions of law when they are
crucial to resolving the issues
Analogies > uses cases as analogies where relevant (‘live’)

• Use headings and sub-headings for different parties, causes of

action and issues. This will save a lot of words of explanation
and assist the reader to follow your arguments
 Legal content + structure /organisation
Organise your framework for legal analysis by considering
issues of fact and law in the problem scenario (Question)
Issues of fact and law
Claim for personal injury Claim for damages (breach of
(negligence) contract)
▪ Did D owe a duty of care ▪ Was there a contract?
under ...?
▪ Was D in breach of that duty? ▪ What were the terms of the
contract?
▪ What are C’s injuries and ▪ Did D act in breach of the
losses? contract?
▪ What are the defences ▪ What damage did C suffer?
available?
▪ What is the quantum of ▪ How much is damage in
damage? financial terms?
 Legal content + structure /organisation

• Consideration of these issues

e.g. duty of care – breach of duty – defences - damage

helps you identify the possible causes of action and adopt a

logical approach by considering first the elements that create
liability >>> those which show a required fact that must be
satisfied for the rule to apply
and then
the consequences >> those that apply to the parties involved
when each element is satisfied by the fact in the case – yes,
no, maybe
 Legal content + structure/organisation
Negligence Smith v Heasman Defamation Karja v Lewisham
Elements Elements
(a) Adam owes Smith a duty of (a) Roy communicates something
care. to a third party.

(b) Adam breaches this duty of (b) Content communicated is

care. derogatory to Karja’s reputation.

(c) The breach of the duty of (c) There is not a defence

care causes damage to Smith. available to Roy.

(d) There is not a defence Consequences

available to Adam.
Consequences a) Damages
(a) Damages (b) Injunction
 Conventions: use of English language
In using IRAC, your aim should be to write clearly, directly and
succinctly (Plain English). In particular, you should:

Avoid redundant words and expressions

Even assuming that the fog caused injury to Susan, John had no
duty to prevent that injury because it was idiosyncratic and John
could not have been expected to foresee such injury.
BAD

By omitting unnecessary words, the sentence becomes easier to read

and the meaning clearer
Even assuming causation, John should not be found negligent for
the injury to Susan from the fog, as this injury was unforeseeable.
GOOD
 Conventions: use of English language

• Use ordinary English words and expressions and use technical

legal terms when required by the topic of your writing

duress
nervous shock
negligent
criminal damage
nudum pactum (naked agreement)
consideration
vicariously liable
intestacy
 Conventions: use of English language

• Use verbs in preference to nouns (nominalisation)

to make an application for defence of intoxication

BAD

to apply for defence of intoxication

GOOD
 Conventions: use of English language

• Use active verbs instead of passive, where appropriate

Why?

active voice is more direct, and you may need fewer words to
convey the same meaning

active voice may provide more information, as it identifies the

subject

whereas the passive voice can be obscure or confusing

 Conventions: use of English language
Consider the different ideas of modal auxiliary verbs when framing
legal arguments:

Permission can, may, could

Possibility can, could, may, might
Probability / obligation  deduction should, ought to
Prediction will
Intention will, would
Necessity / obligation have to, must, need
Suggestions / advice must, should, ought to
Ability can, could
Certainty cannot, must, will
 Conventions: use of English language
• Avoid writing long complex sentences
use simple (not elaborate arguments) as well as hypothetical
arguments where appropriate

• Avoid sweeping statements

courts always favour defendants in cases involving Adam or Smith

• Avoid wasting and words by quoting (or even paraphrasing)

large chunks of doctrine, or writing out large sections for a
statutory provision 1 or 2 lines are sufficient

• Try to get to the heart of what the legal principle happens to be

 Conventions: use of English language
• The voice often used is the 'third person‘

John will have an action for trespass ...

John will have an action in breach of contract if…

Why?

Using the third person allows you to address the issues and
problem in a dispassionate manner

avoids the temptation to become an advocate for one party as

opposed to another, with a vested interest in one party's legal
position
 Writing an Answer to a Legal Problem Question:
Clinical Negligence
What is clinical negligence?
Clinical negligence refers to a medical accident in which a
patient has been harmed because a healthcare professional
has not given the proper standard of care, such as:

failing to provide the patient with the treatment needed

failing to warn the patient about the risks involved in a
particular treatment
failing to make the right diagnosis
making a mistake during surgery, etc

As a result, the patient can claim compensation

 Writing an Answer to a Legal Problem Question:
Clinical Negligence
Question: hypothetical fact patterns

Chris had a fight after the football match, which resulted in

Chris having a broken arm. He was taken to hospital for
treatment. Eventually his arm had to be amputated because
the hospital team, when setting the limb, had failed to notice
a blocked artery.

Chris is now considering suing the hospital for damages in the

tort of negligence.
 Writing an Answer to a Legal Problem Question:
Clinical Negligence

Your task
You should decide whether the hospital owed a duty of care
to Chris in this circumstance
You should explain it according to the English or your (Italian)
system of law
Assuming that the hospital owed Chris a duty of care, you
should discuss whether or not the hospital had broken that
duty

Your client wants to know whether he can institute a cause of

action by claiming damages and, even if liability for damage is
denied by the hospital, whether your client has good chances
to succeed at trial
 Writing an Answer to a Legal Problem Question:
Clinical Negligence

Answer tips

In answering each point of the Clinical Negligence Question

using IRAC, you should:

 list the major principles and rules of law by citation to case

law or legislation; and

 write the Answer by applying these principles and rules to

the facts raised by the Question
 Suggested structure and content
• The event occurred when ... . In essence, Chris sustained
amputation ...
this is not necessary because the facts are already set out in the Question
Issue
<write 1-3 line answer>
This question raises the issue of whether the claimant can seek
damages against the defendant, in respect of personal injuries
unfortunately suffered by him during hospital treatment. OR >
This question raises the issue of the quantum of damages that
Claimant can expect to be awarded by the court as a result of
personal injuries unfortunately suffered by him during hospital
treatment. OR > This problem concerns the potential liability of
each party. I will consider whether there is a prima facie case in
the law of negligence by establishing a duty of care, breach of
duty, actual injuries and likely award of damages.
 Suggested structure and content
Rule + Application
Consider whether:
• there is a prima facie case in negligence by stating the rule for
negligence, and
• evaluate each of the elements in turn:

Did D owe a duty of care under the reasonable person standard?

[identify the specific facts that gave rise to a duty - apply the
appropriate law] <write 1-5 line answer>

Was D in breach of that duty?

[identify the acts and omissions by applying law to facts
scenario] <write 1-5 line answer>]
 Suggested structure and content

Rule + Application

What are C’s injuries and losses?

[identify causation as well as loss and damage that are likely to
be recoverable] <write 1-5 line answer>

What are the defences available?

[if any] <write 1-3 line answer>

What is the quantum of damage?

[quantify and give reasons for each head of damage]
<write 1-5 line answer>
 Suggested structure and content

Conclusion

It is clear ... / It seems clear that the present case ...

X is liable / cannot escape liability …
I do think / I do not think that X has any good prospects ...
<write 1-4 line answer>
Solving a legal problem question – for an assessment, in exam,
for a client – is not about fitting the issues into a legal box

Drafting solutions to legal problems is NOT ONLY determined

by your individual knowledge of law (English or Italian) BUT
ALSO your writing style and approach to ENGLISH LANGUAGE