This post has been contributed by Professor Alastair Hudson, Property law Module Convenor.
As we are coming up to the resit exam period here are some timely reminders from Professor Hudson about answering exam questions. Written shortly after the most recent exams these tips are right to the point. He draws on Property law examples but many of the comments will be applicable to all modules. The post is in two parts with the first focusing on answering problem questions.
1. Write simply. Write simply when answering a problem question. Do not waffle. Do not simply take it as an opportunity to write down all the law you know because: (a) you will lose credit if you discuss irrelevancies; and (b) a problem answer requires you to show you can demonstrate some key skills. Do not attempt to write like Shakespeare.
2. There are key skills in addressing a problem question. In summary, these are as follows.
• Show that you can identify the issues in the problem (not just that it relates e.g. to leases but be more precise it relates explicitly to whether there is for example a lease or a licence and that within the facts of the problem there are particular issues
• Lay out the relevant law in analysing those issues.
• Apply that law to the facts of the problem by discussing the salient facts of the problem, necessary to analysing those facts and the salient facts of any decided cases.
• Come to a conclusion as a result of your analysis.
3. A suggested method for addressing a problem question. When answering a problem question, there are four suggested steps towards a good answer. The key is to maintain a tight, lawyerly structure.
First, you must identify the issue that you are considering (most problems will have four or more principal issues in them and so you must repeat this exercise for each one of those issues).
Secondly, you must set out the law that is applicable to answering problems raising that issue. Importantly, this does not mean that you should write out a short textbook that merely describes the law in this field: that sort of approach can only earn you a bare pass mark. Some candidates in previous examinations have simply written a three- to five-page summary of this entire section of the module guide, without identifying which parts of that law are relevant to the analysis of the issues in the problem. This poor technique means that they have only been awarded poor marks. What you should do is to set out the legal principle(s) applicable to the decision of the specific issue which you have identified at each point.
Thirdly, you must apply that law to the facts of the problem. This is the part which attracts the most marks. You need to identify the salient factors in the decided cases or the salient aspects in any statute or regulation, which will help you to decide the parties’ respective rights and liabilities in relation to the salient facts of the problem in relation to that particular issue. Just repeating all of the facts of the problem is not enough: rather, you need to discriminate between those facts that are relevant and irrelevant, and to explain how each party would use those facts in support of their arguments. In the past, there have been several students who have simply written out a two- or three-page summary of the facts of the problem, hardly mentioning any law at all! Necessarily, this can only gain those students very poor marks. The skill that is being tested is how well you can take your knowledge of the law and use it to identify the likely outcome of the case set out in the problem question if it went to court.
It is not enough simply to write out all the law you know: rather, you must apply the approach of the judges in the decided cases to the problem question (or the approach that is required by a statute to the facts set out in the problem question, as appropriate). If it helps, you should think of yourself as telling the examiner how you think that a judge would decide this problem question in the future given the way in which the courts have approached the cases that have already been decided; or you could think of yourself as legal counsel advising the parties as to the likely outcome if these matters went to court.
Fourthly, you must come to a conclusion as to your analysis of the problem. There is no ‘right’ or ‘wrong’ answer but it is very important nevertheless that you argue your way towards what you consider the answer to be. If you think you need more facts to be sure of what the answer should be then you must explain what further facts you need to know and how they would affect your interpretation of the law that you have set out. It is not enough to say: I do not have enough facts. Instead, you must explain what more you would need to know and how it would affect your answer. However, there is usually enough in the problem question to allow you to come to a conclusion based on your knowledge of the law and the things that you are told that the parties have said and done. Most legal analysis is simply a combination of knowledge of the legal rules plus common sense. You may prefer to explain how you think each of the parties would set out their arguments, but it is still good technique to conclude by explaining which of those arguments you consider to be stronger in the circumstances. You are marked on the strength of your argument, not (as was mentioned before) on whether or not the examiner happens to agree with your conclusion.
As a further element, you should introduce any academic or other commentary that was relevant to the law raised in your problem answer. This can be reference to ideas in the assigned reading (which perhaps criticise the law), or dissenting opinions of judges in decided cases (which is always fertile ground for finding ideas). However, you want to make your commentary refer back to your discussion of the problem. Some students just state ‘Prof X argues that this is a bad rule’ and say nothing further. Commentary is much more effective if you can: (a) explain (in the little time available to you when answering a problem question) more precisely what the commentator’s arguments actually were; and (b) explain how this insight could affect your analysis of the problem in a way that is helpful for the parties. If you use commentary in this way then this will increase your mark, provided that you have performed the four previous steps effectively.
The four-step structure above is used in relation to each individual issue that arises under each specific topic.
Remember the four-step approach to answering problems:
issue | law | facts | conclusion
4. Advise the person you are told to advise. When answering a problem question, bear in mind the specific position of the person whom you are asked to advise. Will the law support or harm them? What advice would you give them if you were their legal counsel, over-and-above answering the problem question as set out above?
For more exam tips focusing on answering essay questions by Professor Hudson, check out Exam Tips – Part 2 next week.