education for graduated lawyers is growing and occurs in a number of areas –
bar examinations, practical legal training, post graduate study, continuing legal
education and study to be an accredited specialist. For this reason answering a
problem question is a technique that is increasingly needed by graduate as well
as undergraduate lawyers.
Advantages
Problem questions provide practice at four skills - organising law, applying law
to facts, interpreting law and writing law. Because of this, both the overall
exercise of doing a problem and the practice of these skills provides
advantages for studying law and for practising law.
Studying Law
Problem questions help students to study law in several ways. (i) Students
revise the relevant legal rules. (ii) Students go beyond a mere passive study of
law into the active task of applying law to a set of facts. They then see how
law operates which helps them better to understand and remember law. (iii)
Problem questions are very good practice for examinations and assignments
because many assignments and examinations involve problem questions.
Practising Law
Problem questions provide advantages for the later practice of law. In
answering a problem question a law student imitates a major task in legal
practice when a lawyer –
an attorney, solicitor or barrister -
advises a client.
Moreover, this advice from a lawyer on the outcome of a case attempts to
imitate and predict the judgment that a court would give were the matter to
come before it.
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. First,
it may be personal advice, on its own or in
conjunction with legal advice.
Second, it may be advice directed to a settlement of the problem without
recourse to legal remedies.
Third, it may be advice about the availability of a legal remedy. To give advice
of this sort a 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. The lawyer has to organise the relevant legal rule by dividing it into
elements and consequences. They must apply this rule to the facts. If issues
about the interpretation of law arise the lawyer has to resolve these. If the
lawyer gives their advice in writing then they engage in the skill of writing law;
but even if the advice is given orally, the lawyer still has to organise it in much
the same way that they would if they were to write the advice.
 |
 |
 |