Resources - Tackling Questions

Questions on a law course will demand a response either in essay form or in a problem-solving style. An outline is given below of the techniques that should be used in answering both types of question. The key is structure: it not only makes the job of the person marking your paper easier, but will also allow you to focus on specific issues raised in the question. A well prepared, structured answer will have the appearance of a ‘flow’, with your academic arguments leading to a logical conclusion. This will greatly assist the overworked assessor, rapidly reading through possibly hundreds of scripts, who will be able to recognise easily your well organised and relevant points of significance.

Before going into detail about essay structure, a little about legal reasoning.

Legal reasoning

A problem for the constitutional law student lies in the fact that it can be contested whether we have a constitution at all. If we do have a constitution, then its sources are both legal and non-legal. Legal sources consist of case law and legislation, in both its primary and secondary forms. To many, these legal sources represent the most important elements of our constitutional law because they are capable of enforcement in a court. However, you should not underestimate the significance of our non-legal sources: constitutional conventions, customs and treaties.

You should always acknowledge and appreciate the ‘open texture’ of law, which allows for the development of alternative arguments in answer to a question. The ability to construct and critically evaluate alternative arguments forms the essence of the lawyer’s job. The quality of your legal reasoning will have a major bearing on the mark awarded for your essay.

With essays, legal reasoning is largely confined to the main body of the answer (see below), but for problem questions there is no need for an introduction and a conclusion. Legal reasoning is the central part of the answer. There will be a particular emphasis on using the facts of the given problem scenario to argue, for example, whether the grounds for a judicial review application have been established or whether the various elements of the offence definitions have been fulfilled. We have already noted that the factual information provided may be insufficient or ambiguous. Very often, the constitutional limits of a police officer’s power are not clearly identifiable and any discussion of the case law should indicate such uncertainties.

Some basic guidelines

Don’t re-write the question posed, either verbatim or as you (in your own words) understand the question to be. This will gain you no further marks and may in fact act to your detriment in that it wastes valuable time and space, which is particularly important in the exam situation and assignments with a word limit.

Don’t regurgitate factual and legal material which is ultimately irrelevant to answering the question.

Never assume that one true, definitive answer exists. Limiting yourself to only one argument in your essay can be dangerous. You can safely assume that a question would not have been posed if there was an easy answer to it. There is often some ambiguity contained within the question, which provides an opportunity for you to be imaginative, creative and critical in your response: your task is to demonstrate that the law is capable of differing interpretations. These alternatives should be made clear and then evaluated. Good lawyers are supposed not to see black and white but merely shades of grey!

You’ve heard it a million times, but it’s still true even when you arrive at university: presenting your work well is important. Use spell-check facilities on computers, and take extra care over the spelling of legal terms and phrases: all you need to do is check in the dictionary. Write legibly. If you use a computer for essays and coursework, do make sure that you still know how to write before you enter an exam hall! And it goes without saying that examiners or whoever marks your essay will hate illegible handwriting.

Avoid a subjective style of writing. Rather than saying ‘I think’, try to phrase your answer objectively: for example, ‘it would appear from the arguments presented ...’. Also, avoid slang expressions and clichés. No matter how bright their case seems to be, never advise Mr and Mrs X that they are ‘on to a winner’ in making their application for a judicial review.

Don’t steal other people’s work: plagiarism (ie passing off the words or ideas of another as your own) is a dangerous game. If you use the words or ideas of another, acknowledge the source.

Essay questions

Read the question! Seems obvious, but read on. You must find out exactly what you’re required to do. Essay questions usually require you to ‘target’ the answer precisely. How many times have we heard that exam candidates are often criticised for failing to address the question asked … Think in terms of the difference between the ‘shotgun’ and the ‘marksman’ approach. Sometimes, a word or phrase in the question, such as ‘House of Lords’, might trigger a response of regurgitating everything you know about the House of Lords, in the hope that part of the information fired at the question will strike home. The ‘marksman’ type of approach calls for a precise targeting of the answer, focusing all the information on hitting the target. But in the stress of the exam or deadline for a weekly essay, being the marksman can be easier said than done! So it’s important to be disciplined: simply read the question for what it is, not what you hope or think it might be. Dissect the question, identify the issues and then answer that question.

The introduction:

Essay structure has no doubt been rammed down your throat for years, so we’ll pass quite swiftly over this point. Just remember that the introduction should whet the reader’s appetite for what is to follow. Often, this requires you to put the question in perspective – possibly a historical one. Also, take the opportunity in the introduction to define any terms in the question that need clarification. Marks awarded for the introduction may be limited, but be aware that a poor introduction can reflect badly on the rest of the essay. Don’t attempt to answer the question in the first paragraph: you might change your mind about the answer halfway through the essay. There really is something to be said for the classic essay structure of introduction – setting out arguments for and against – conclusion, based upon the weight of the evidence presented.

The answer:

It’s often useful to underline all the relevant words in the question and then identify the main elements of the question that need to be addressed. This part, the main part of your essay, should contain the bulk of your factual information and your legal reasoning. Often, the assessor will not necessarily be concerned with your answer but rather with how you have arrived at it. It can be difficult to let go of essay approaches learned for AS and A Level, where emphasis was often on demonstrating facts. As an undergraduate, you are required to use this factual information to answer the question through criticism, comparison and evaluation.

Conclusion:

The rounding off stage: present your findings and give a view as to likely future developments in the area covered by the question. A good approach is this: open the conclusion by answering the question targeted, and then move on to the future of the area. This will enhance the structured flow of the essay: you have moved from a historical perspective at the beginning, through current considerations in the main body of the essay, to a view about the future.

Problem questions

As with essay questions, there is an inherent danger that you may fail to address the issues raised in the question. The following is an outline of the procedure which you can adopt when answering a problem question in constitutional law. Such questions are generally limited to issues involving judicial review and civil liberties.

Read the question! Again, the first step entails a careful reading of the rubric to define precisely what the assessor wants. This is usually to be found at the end of the problem scenario and consists of ‘Advise Mr and Mrs X’ or the curt ‘Discuss’, a command that can be interpreted to mean ‘advise all the parties referred to’. Occasionally, you may be asked to concentrate, or even avoid, just one aspect of the law, for example, ‘address/avoid the issues of natural justice which arise in this problem’.

Always be wary of ‘a sting in the tail’ of the question which might add a new element to the facts of the problem, for example, ‘would your answer be different if the decision-making body was not a public body?’.

It may seem a simplistic point to make, but if you are asked to advise Mr and Mrs X then you need only consider the position of Mr and Mrs X and should not waste time by referring to the position of other parties mentioned in the problem scenario.

Read the scenario. It is important to read through the whole scenario in order to gain an overview of the issues raised. Once you have a general feel for the problem, you can turn to the specific sentences to see what issues of law arise. If you are asked in the rubric to advise more than one party, then read through the problem scenario again looking for the specific issues which relate to the particular party in question. It is worth remembering that problem scenarios involving judicial review traditionally require the formulation of grounds for making the application for judicial review, from the facts given in the problem scenario, whilst problem scenarios involving civil liberties traditionally require reference to statutory powers and procedures.

If the information you have received from the assessor is incomplete or ambiguous, then it is your responsibility to identify it as such and utilise that fact in your legal reasoning.

Identify the relevant legal issues. In formulating your advice for a judicial review problem question, you might work from the following checklist to identify all the relevant issues:

Identify the ‘decision or action’ which is to be challenged.

Consider whether the body making that decision is a public body and/or whether it is the type of decision against which a challenge can be made.

Moving on to the grounds of the application, has the decision-making body acted beyond its powers, in that it had no jurisdiction to make the decision or otherwise acted with illegality?

Has that decision-making body abused its powers, in the sense that it has acted with procedural impropriety or irrationality?

What will be the appropriate procedure to use when making the application — noting the inherent issues of locus standi, leave and delay contained within the Order 53 procedure?

What remedy is it that the party you are asked to advise should seek, namely a public law remedy and/or a private law remedy of declaration, injunction or damages? Your answer to this is likely to be of primary importance to the party you are advising.

Define the issues:

If you have been asked to advise more than one person, you might find it useful to use subheadings to distinguish between the respective parties. Problem scenarios involving civil liberties traditionally relate to citizens within the State breaching the criminal law when seeking to exercise a civil liberty, or police officers acting in an unconstitutional manner by exceeding their powers. In the first instance, you will need to list the offences (and perhaps defences) that the respective parties may have committed and discuss each one in turn. This discussion should begin with an accurate statement of the statutory or common law definition of the offence (or defence) in question. It is important that definitions are as precise as the law permits. In the case of a police officer apparently abusing his power, you will need to define the statutory and/or common law limits of that power and, where appropriate, the application of PACE codes, notes for guidance and circulars. This discussion will inevitably involve a consideration of legal penalties that may be incurred for police impropriety, such as exclusion of evidence, damages and the possible instigation of a formal complaint.