There are many ways in which a legal problem can be solved. A basic problem-solving technique involves several steps. The step is to read the problem you have been presented with to get a sense of the subject you are dealing with. The second step is to assign the subject a specific area of law enabling you to focus your research. Once an area of law has been assigned to your problem, it is vital to find the specific rules of the applicable area(s) of law. This can be quite time consuming however, without collecting the relevant rules and understanding them you will not be able to answer the problem you have been given. From here the material facts can be applied to the decisional issue.
Some will be clearly material or immaterial, others may be a bit more difficult to identify. Once the material facts have been established a list of specific questions can be constructed. The first question you might ask is, Does B have any contractual rights? Following that question, you could ask, Can B sue for damages? And lastly, how will those damages be calculated? The final step to the process is to conclude the findings in written form. The questions you posed, and their answers should be in written form as well as the information gathered. The rules, the material facts and the identified facts need to be presented side by side. This enables the formation of an answer to the law allowing for the facts to be drawn on. On completion of these problem-solving steps you will be able to write the answer to your legal problem.
When I first commenced law studies, I found IRAC quite tricky to understand and wrap my head around, I found using other strategies as well as IRAC enabled me to identify, in a structured and logical way in a step-by-step process. I found it quite difficult to stick to one strategy as I felt I had an undeveloped view of the problem. I often use a combination of two, sometimes three, strategies which enables me to have a more in depth understanding of the problem I am dealing with thus enabling me to create a more in depth, informative response to the issue at hand. So far through my studies, I have found three techniques that have been extremely helpful, IRAC, SCARP and FAILSAFE. Below I have listed the three techniques and how they assist with my legal problem solving.
- Issue – identifying the issues and/or sub-issues.
- Rules – researching and stating the legal rules that are relevant to each of the issues
- Application – Applying the relevant rules to the relevant facts for each of the issues
- Conclusion – Reaching and justification on the likely ruling on the application of the law to the relevant facts.
IRAC is structured in a way that allows for simple and clear approach. The downside is, you really need background knowledge about the relevant facts and laws to be able to identify the specific issues. When using IRAC the legal problem is answered however a client focused response needs improvement. With IRAC being so sharp and to the point I found it quite difficult sometimes to comprehend and identify some of the information that I needed to assist me with the problem-solving process.
Along with the use of IRAC, I also found SCARP and FAILSAFE to be quite helpful. With the use of all three of these techniques it has enabled me to be more thorough when looking at a legal problem and being able to identify potential issues or rules I may have missed otherwise.
- Subject – Identification of the relevant subject and area(s) of the law.
- Cause & Action – identify the relevant causes of action, the appropriate defences and the associated issues and sub-issues.
- Rules – Identify the range of possible outcomes.
- Parties – identify the parties involved and who might sue, be sued or who might otherwise be affected.
A disadvantage is that SCARP does not include researching or stating the law. It is directed more at the analysis of the problem and communicating the answer to the client. It is more of a client-based problem-solving method.
FAILSAFE is structured in a way which allows all steps to be focused on research, problem solving, gathering and analysing the facts, in turn enabling for critical self-evaluation of the answer you have concluded with.
- Fact gathering – the gathering and analysing of the relevant facts, also noting any gaps in the information.
- Action analysis – analysis of the various causes of action that are arising between the parties involved in the dispute.
- Issue Identification – Identifying the relevant legal and the practical issues and sub-issues
- Legal Research – undertaking legal research on the relevant laws and policies
- Statement of law & policy – Stating the results of the research including and of the uncertainties.
- Application – apply the summarised statements of the legal position and the relevant facts.
- Findings – come to a conclusion on the application.
- Evaluation – Critically evaluate both courses of action that are available to the particular parties in light of the analysis.
All three strategies are examples for “micro” problem solving. This enables lawyers to analyse the facts, research the relevant law, apply those findings, reach a conclusion and answer that is client focused.
Professor John Wade has identified a different aide for the “next level” of legal problem-solving. Professor Wade calls the “macro” level of law, policy, and social issues. These can include
- The ways in which doctrines manifest in criminal and contract law;
- The essentials of policy analysis in legislative, executive, and judicial decision-making;
- The groups of individual rights and parliamentary features which legislation must respect with important legislative principles in line with parliamentary fairness based on the rule of law under legislation;
Professor Wade established a problem solving guide known as CAGONARM for this “macro” level of legal problem-solving.
- Current situation – What is the current situation?
- Alleged problems – Identifyalleged problems and deficiencies with the current situation
- Goals – What are the desirable features?
- Options – Identify the options that you can change
- Necessary action – Identify the necessary action to achieve each possible option
- Advantages/disadvantages – Assess the advantages and disadvantages of each option
- Recommendation – Recommend the least detrimental option
- Monitoring – Monitor and measure the effects of the reform once it is implemented
When assigning the legal problem to an area of law, establishing if it is criminal law? Family law? Constitutional law? Etc is the very first step. When narrowing down the area of law, textbooks enable you to narrow it down to the jurisdiction. A quick glance at the problem should indicate, even within legal problem-solving skills, that analysis is not always rule based or entirely logical. Understanding this means that the analysis of the law cannot and should not be confined to just reading the text of judgements and legislation In the courts, judges sometimes refer to policy considerations in what can be seen as an acceptable way, enabling the development and improvement of the law. However, for lawyer’s “policy” is usually encountered in the terms of government policy of the considerations which judges are permitted to consider.
Using family law as an example, the first thing to do is distinguish what the features of the conflict are. From there, identifying the legal classifications, the points of conflict and the legal relationships and connections of the parties that are involved. From here, the details and views can be opened up. Sifting through the facts and asking more questions will lead to creative thinking which in turn leads to alternative points of view and thinking. For me, reading the problem a couple of times helps to establish an understanding for the area of law in which the problem belongs.
Once this is completed, finding and understanding the legislation and the rules next. My ‘toolkit’ consists of authoritative materials. With legal research, I tend to use Austlii, BarNet Jade, Queensland Government Legislation, Federal Register of Legislation and the Australian Court websites. These sources are the primary sources for law and legislation within Australia and provide lawyers with the guides to the rules and laws, it enables the development of alternative view points of the law, policies, values and their impact.
As a new legal student, I have found the first semester hectic to say the least. I am finally starting to wrap my head around the legal research process and figuring ways in which I can enhance my effectiveness and accuracy. I find that I am still fine tuning my time management, I often don’t allow adequate time if something unexpected happens, for instance, a sick child. I have found being organised has helped a little, I was able to delegate tasks and prioritise those of most importance. When it comes to legal problem solving, there is no doubt I need improvement, I feel it is a skill that is always developing.
I struggle the most with sorting the information into the appropriate sections, I hope with time this will improve as I develop a deeper understanding. I aim to improve this throughout my studies by engaging with my peers to gain different perspective, I also think, with the researching of law, previous cases will assist with this understanding as they provide situations and solutions, I may not have thought of to similar problems.