Given the fact that you are here, seeking to improve your problem question marks, I will assume that you are a diligent and ambitious student. And for this reason, there is no need to cover the basics of answering problem questions in great detail. You have probably heard it over and over from your lecturers.
The image below summarises the key notes for each section of IRAC.
This guide extends beyond the generic advice; it is for those struggling to reach the higher end of the Distinction (D) and High Distinction (HD) levels. You complete all your readings (and perhaps supplementary readings too!) and write comprehensive notes and outlines, yet still underperform in assignments and exams. Your lecturers don’t teach you how to write HD answers; this is something law school is infamous for - no guidance, no exemplar responses, minimal feedback - we really are left in the dark!
Fear no more, this is a curation of all my knowledge on writing HD problem questions.
Here it is…
1. Integration of law and fact
IRAC is an entry level acronym to help structure your responses. But lecturers don’t do a good job of prefacing that strict adherence to IRAC may be a reason why you can’t get HDs. Specifically, maintaining a strict adherence to the Rule and Application sections is losing you marks.
There are two main reasons why this is undesirable:
Unnecessary word count without adding further value
Comes off as untailored to the problem question, and copied word for word from the textbook
It is particularly the Rule section which is the issue.
Compare these two examples:
Example 1: The law states that in order for an accused to have caused the act ‘factual causation’ (the ‘but for’ test) must be satisfied (White). Applying the ‘but for’ test to these facts, we can see that John’s mother would have died regardless of his intervention and so his actions do not constitute a factually relevant cause.
Example 2: John’s mother would have died regardless of his intervention and hence his actions do not satisfy the ‘but for’ test (White).
Source: Ben Golder Answering Problem Questions
In example 1, when the Rule section is separate from the Application section, it is not tailored at all; it is simply a recitation of the readings which does not get you the marks.
A good mental framework I employ is to imagine yourself as a famous barrister in a meeting room with your client, and you have to explain to them the factual situation and advise them on the implications. They wouldn't give a f*** about the law (rightfully so) if you ‘frontloaded’ it, meaning recite it without an integration to the facts (ie how it is relevant to them). They’re paying you to relate it to their situation. However, you become more persuasive when you ‘frontload’ the facts and back it up with legal authority.
2. Extremely nuanced factual analysis
It was a pitfall for my past self to only pick the facts that were favourable to my argument and ignore the others. It meant, strangely enough, that for every problem question I did, the claimant always succeeded, even contrary to a common sense argument.
The strategy to avoid this is to read through the problem question multiple times and carefully examine every single fact from a common sense perspective.
It is a skill to be able to classify whether they are relevant to legal issues or red herrings (ie just background information). If they are relevant, consider:
Which element(s) are they relevant to?
Do they suggest the element is made out, or not made out?
Would it favour the plaintiff or defendants argument?
Considered in combination with other factors, should equal weighting be given to them or unequal? Why?
Whether the facts are analogous or distinguishable from a case?
This will allow you to come up with counter arguments. See the following example:
Example: The prosecution would argue that the defendant had assumed an obligation to the old man who had come to stay in his house and that once he became ill he had to take positive steps to fetch medical help (Instan; Stone and Dobinson). However, the defendant would argue that the general trend of English law is not to penalize people for omissions and that if duties are to be found then they should be limited. They would argue that no specific responsibility was assumed here and the relationship was not a family relationship as in the two cases relied upon by the prosecution. On balance, the defendant’s arguments are more cogent (for x, y, z reasons).
Source: Ben Golder Answering Problem Questions
3. Exercising your Judgment on what the Contentious Issues are
There’s contradictory advice from lecturers that you should “show all your working”. That is, even if an element is trivially satisfied, it is still necessary to write this down.
However, you should still exercise your judgment in determining whether an element is so uncontentious that it is not worth you even raising it and allocating words to it. For example, Person A has a legal capacity to consent as they are a functioning adult. This sentence does not add any value to your argument and your marks as it is simply not a key issue.
Allocate your word count to issues which your client is interested in that is at the heart of the problem question, rather than going through each element of the legal test and having a superficial one-liner:
Element 1 is made out as…
Element 2 is made out as…
Element 3 is made out as…
when, for example, element 4 is the most contentious.
However, this preference differs between lecturers so I would highly suggest you ask your lecturer at the start of term to see their preference as they will be marking your exams.
Exemplar Response
To conclude, I will preface that this guide is also not intended to be rigidly adhered to. There may well be circumstances where you have to provide an in-depth discussion of the law before applying to the facts due to its complexity (eg. two stage tests; subjective/objective parts; differing lines of case authority etc).
See for example my HD response in a 2 hour invigilated exam:
コメント