Yet the lawyer's advice to a client, whilst it has this similarity to the task of
answering problem questions, differs from that task in two other ways. First,
the lawyer
has to consider questions of facts. This does not arise in problem
questions because the student generally treats the facts as true and proved. By
contrast the lawyer
does not know in advance what findings of facts a court
might make. It is not sufficient that facts given by the client are true in the
objective sense. What is vital in law is proof of those facts. Hence a lawyer in
giving advice has to consider how easy or hard it is to prove the client's story.
For several reasons such advice can frequently be no better than an informed
guess -
the client may
be an unconvincing witness, her
witnesses may not
support her testimony, cross examination may shake the testimony of the client
or of her
witnesses, or the other side may contradict the evidence by putting
forward another account of the facts.
Faced with this the lawyer
may advise
on what version of
the facts a court is most likely to reach, but the
lawyer
would indicate the uncertainty to the client by advising that other versions of
the facts are possible, and the legal consequences of those other versions.
Second, the lawyer
will have to consider not only the legal question of the
availability of a remedy or defence, but give the client advice on such matters
as the cost, loss of time, delay, inconvenience and stress to which the client
will be put by the litigation.
From this it can be seen that the task of problem solving is not an exact model
of litigation because it does not cover several tasks that a lawyer performs
when advising on litigation. But, as indicated, it is concerned with four major
legal skills that
are used in legal practice in advising a client and litigating on
their behalf – organising law, applying law to facts, interpreting law and writing
law.
Method
Current Methods
Various writers have proposed models for answering problem questions.
737
However, there is a broad similarity to these that can be illustrated and
represented by the commonly proposed IRAC model. This acronym stands
for Issue (or Identifying the Issue), Rule, Application and Conclusion:
737
See, for example, S Askey; I McLeod Studying Law (Palgrave: Houndsmills,
2005), M Brogan; D Spencer Surviving Law School 2nd ed Oxford University Press:
Melbourne, 2008, JF Corkery Starting Law
2nd ed Scribblers Publishing:
Mudgeeraba, 1999, S Foster How to Write Better Law Essays Pearson: Harlow, 2006,
P Keyzer Legal Problem Solving: A Guide for Law Students LexisNexis: Sydney, 2002,
Rick Krever Mastering Law Studies and Exam Techniques
5th ed Butterworths:
Sydney 2001.
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