How to Write a Legal Problem Essay
Law problem question essays give you an imaginary scenario. They then ask you to comment on the legal issues that arise and advise the parties. This guide will explain how to answer a problem essay with eight handy tips.
1. Read the Facts
The first step to answering any law problem question is to read the entirety of the facts you are given. Do not just jump into answering the question. Take your time and ensure that you fully understand all the issue involved in the case. It may help to highlight parts of the fact-pattern that you think are important.
2. Structuring Your Analysis
This is a mistake many law undergraduates and GDL students make when writing a scenario law essay. They look at the facts and recognise that they are similar to a case they’ve read. They will then immediately assume ‘this is like Joe Bloggs vs John Smith’, and answer the question accordingly. For this reason, examiners often complain that law essays lack coherent structure or proper analysis.
To avoid this pitfall, when answering legal problem questions you must adopt a structure.
Say you have an problem on whether or not the defendant is liable in the tort of negligence. The facts look similar to a particular case you’ve read on contributory negligence. Your first instinct is to start talking about defences. Stop. Ignore the similarity completely for now, and think. Before you can even discuss defences, you must talk about whether the defendant is liable in the first place. What does the law actually require you to establish to prove liability? Is the defendant liable? If so, what defences might he rely on, and how are those established?
Develop steps that you can put every scenario relating to that area of the law through in order. For example:
- Has there been an offer?
- Was the offer accepted?
- Are the terms of the agreement certain?
- Do the parties intend to be legally bound?
- Is there consideration?
- What are the terms of the contract?
- Is there a breach?
- What kind of breach has occurred?
- Is there a defence to the breach?
- What are the innocent party’s remedies and options?
- Is the actus reus of the offence established?
- Is the mens rea of the offence established?
- Is there a relevant defence?
- Does the defendant owe the claimant a duty of care?
- Has the duty been breached?
- Is the breach a factual cause of the loss?
- Is the breach a legal cause of the loss?
- Is the loss sufficiently non-remote?
- Is there a relevant defence?
- What are the innocent party’s remedies and options?
This doesn’t mean you have devote a whole paragraph to every step. If its obvious that the defendant owed a legal duty, a single sentence pointing this out will suffice. If the question tells you there is a contract, simply note you will assume the contract was validly-formed. The most controversial and difficult points should be given the majority of your essay’s attention.
Nevertheless, you get credit for completing each necessary step in the order in which they arose. This is how a court of law would most naturally consider them. This method of structuring essays also stops you missing interesting elements of problem questions. You might miss these points by skipping straight to what you think is the most obvious issue.
3. Structuring the Overall Essay
The problem question may present you with multiple areas of law. For example, a defendant may have committed different kinds of crime, or liability might arise in both negligence and nuisance. Alternatively, the question may ask you to discuss the liability of several different people.
If you have to advise different parties, discuss the liability of each party in turn. Otherwise, a good rule is to deal with each area of the law in turn. Give each area of law its own separate section. This will lead to a clearer essay structure than trying to deal with each event chronologically.
4. Structuring Individual Paragraphs
You can structure your discussion of individual issues any way which makes sense and follows a logical structure. One of the most popular ways for structuring discussions is the IRAC method. This stands for:
State the issue you are about to discuss
State the applicable legal rules (with authority or statutory references)
Discuss how these legal rules apply to the facts in front of you
State what the conclusion to the issue is based on your analysis
For example, lets say you are writing a problem question in tort law. You have a defendant who has run over a pedestrian with his car. You think he may be liable in negligence, so you start by considering whether he owes a duty of care. You would structure your analysis of this issue as follows:
The first issue is whether the defendant owes the claimant a duty of care.
If the case’s facts are non-novel, whether a duty is owed depends on the applicable precedent (Robinson v CC of West Yorkshire Police). It is established that road-users owe others a duty of care (Nettleship v Weston).
In this case, the defendant is a road-user because he was driving a car on the road. The claimant was also a road-user because they were a nearby pedestrian.
Therefore, the defendant owes the claimant a duty of care.
5. Not Enough Information Given?
What if the problem question does not seem to give you enough information to advise on the parties’ legal position? It is completely fine to write ‘the problem question does not give us enough information to determine X’.
For example, lets say you think that whether the defendant was in breach depends on how fast he was driving. The facts do not tell you how fast he was driving. Do not be afraid to say so!
However, saying that there isn’t enough information is NOT enough. You must then go on to say what information you would need to advise the party. Once you have set this out, explain how the law would apply to the facts if you had this information.
For example, you might say ‘if the defendant was speeding, he is likely in breach of his duty.’ Explain why. Then, say that ‘if he was not speeding, he is likely not in breach.’ Finish by explaining why this is the case.
This shows you are thinking like a lawyer. If a client walks in and gives half the facts, you need to be able to ask the right questions. You then need to be able to evaluate the facts, whatever they turn out to be.
6. Red Herrings
Sometimes, the fact-pattern will include information which seems salient, but actually is not. This is known as a red herring. These red herrings are designed to test your ability to pick apart relevant information from irrelevant information.
Many students assume that all of the information in the problem question must be relevant and addressed. When presented with a red herring, these students will panic and start guessing at how the information affects the outcome. Instead, the examiners expect you to point out that the information is not relevant. You can get bonus points by explaining why the law doesn’t consider this kind of information relevant.
For example, say you have a commercial law question where the owner of a painting stores it with a local art dealer. The owner then sees that the art dealer has put the painting up for sale without authority. The owner decides he will call the dealer later in the day to clear up the problem. However, he negligently forgets. The painting is later sold to a third-party.
The red herring here is the owner’s negligence. This seems like it should be relevant to whether the owner has lost property in the painting. In reality it is not: you cannot lose ownership of property because you were negligent. Because the information seems relevant, it is tempting to discuss it at length, for example by talking about estoppel by negligence. This wastes time and will not get you any marks. Rather, you should say ‘the owner’s negligence is not relevant to whether he retains ownership of the painting’. Then, move on.
7. Don’t Hedge Your Bets (and other Stylistic Tips)
If there’s one thing most law professors hate, its a phrase like ‘it seems from the evidence that there might be a possibility of supporting the argument that…’.
Confidence in essay-writing is not something that is stressed enough at school or university. When you aren’t sure, it is tempting to hedge your bets with language like ‘probably’ and ‘it might be the case’. Resist that urge. If your analysis is correct but don’t sound confident, the examiner may doubt that you firmly grasp the material. If it is not correct, saying ‘probably’ in front of the error won’t help in any case.
Other stylistic tips for writing a professional sounding essay include:
- Avoid contractions (‘don’t’, ‘can’t’), slang phrases and other informal language;
- Avoid the phrase ‘it is submitted that’. This kind of wording is for moots and legal debating, not academic legal essays;
- Try to deal with only one issue per paragraph. This makes the essay less visually intimidating;
- If simple language and short sentences get your point across, use simple language and short sentences. There is a temptation to sound ‘professional’ by using multi-clauses sentences and complex vocabulary. This just makes the essay harder to read.
8. Cite, Cite and Cite Again
If you ever make any kind of positive claim about the law, back it up with a citation. What proves your claim? A case? A statutory provision? Cite it. You need to assure the marker that you aren’t just making lucky guesses. Also, many institutions’ grading criteria specify that you can’t get more than a 2:2 if there is insufficient citation.
Generally there is no need to give the year, report and page number of case-law in exams. However, you should check your university’s best practice guidelines to know for sure.