Reference no: EM131056946

BEFORE YOU BEGIN ANSWERING THE HYPOTHETICAL

- If possible, workout who you are advising as soon as you start reading the question. This can often be achieved byreading the last couple of lines first. Knowing who you are going to advise from the beginning, can help with your understanding of the problem!

- If you are lucky, the last couple of lines may also give you the following information:

o an overview of the some issue(s);

o whether your client is the complainant (plaintiff, appellant) or the accused (defendant, respondent); and

o who some of the other parties in the hypothetical are and what role they play (for example whether they are a complainant or respondent or just an observer.

- Often it is a good idea to circle the names of the parties the first time they are mentioned in the hypothetical. This should ensure you a quick way to look back over the question after you have read it the first time and ensure that you have accounted for all the parties involved.

- If you cannot work out the relationship between the parties(for example who the complaint (plaintiff, appellant) and respondent (defendant) are, then draw yourself a simple mindmap or diagram to show their connection to each other. This is often helpful when there are several parties who may be jointly or severally liable.This approach is often helpful in answering particularly long questions.

- If you do have a long question then you may need to read it twice. Although this can be time consuming, it is often not possible to discern all the facts of a hypothetical the first time. Furthermore it is even more difficult to discern the key issues and legal principles when you have only read the hypothetical once.

- Underline the key points, such as dates, conditions or comments made by the parties. At the same time think about any time limitation problems that might occur for your client or the other party.

- Make notes in the side margin of each paragraph, and if certain facts remind you of a particular case or piece of legislation, then write it down straight away so that you do not forget to refer to the case or legislation.

- If you quote the law, whether directly from a case or a text book, place the quoted words in inverted commas to acknowledge that you are directly quoting a passage. You should then write in brackets very briefly where the quote came from (for example (Text) or (Case)). If the quoted text is from legislation you need to identify the section number if possible.

- In an exam situation you do not have to cite the full name of popular cases that have been discussed in lectures, tutes or those covered in the course text book. You can simply use their common name (for example instead of in the case of Smith v Jones [1991] 1 CLR 146 use...in the case of ‘Smith'). In completing assignment research questions it would be necessary to give the full citation the first time the case is mentioned and then only the common name of the case.

- If the legislation has a common abbreviation you can use it instead of writing the whole name of the legislation (for example the Queensland Anti-discrimination Act = QADA).

- If you use common abbreviations in your exam then make a list of them at the top of the paper so the marker knows what you are referring to, for example, K is commonly used for the word contract - therefore the first time you use the word contract you should indicate the letter (K) in brackets after its use or make a note of your abbreviations at the top of your answer page.

SETTING OUT THE ANSWER

- Leave plenty of white space in between each section of your answer. This normally makes it easier for the marker to follow and allows you to neatly go back and add in information that you had not thought of when you first completed that part of the question. Having subsequently remembered the extra information (for example a section of the law or a case that applies to this situation) it is a lot easier to add the information into the relevant section, without your answer ending up messy with lines and arrows all over the place.

- A good paper is always easier to mark than a bad one. Do not make the marker have to ‘look for the marks'. Readability and layout of your answer is very important and goes a long way to making for a happy marker.

- Underline key cases and legislation in your answer, particularly in the application part of the answer.This way they will stand out to the marker.

- Be logical in your approach. In setting out your answer you must use the ILAC approach. That is Issue, Law, Application and Conclusion.

- Ensure that you underline your headings. (i.e. Issue, Law...) so they stand out and the layout of the answer is clear.

- Highlight the relevant facts - the facts that need to be considered to determine the matter between the parties. The best place to highlight the relevant facts is in the application stage, where you have to apply the facts to the law!

- Remember most of the marks in a hypothetical are for correctly applying the law to the facts of the scenario in the application section. Therefore you should use your time accordingly!

- Use the KISS process - ‘keep it simple stupid' - in the case of addressing hypotheticals,this means remembering to always break the problem down into simple steps and ensure you address every legal element in the problem. No matter how simple the element may seem, it is better to briefly address it than not address it at all.

- Another way of considering what the key facts are is to ask yourself - "What do I have to prove to make my case, or to defend my case?"

- Try to visualise the problem and put yourself in the place of the client. Think about the problem in a real world situation, what is the most likely outcome, consider what you would do if you were in this situation.

- If necessary infer into the hypothetical and explain to the marker why you made these assumptions. Do not make unreasonable assumptions as they will get a big red cross through them. But remember this is a law subject, so you must spend most of your time and word count discussing the Law, and how it applies to the facts given.

- Always show both sides of an argument.

- Try to distinguish cases to show why they support or do not support your client'scase.

- Apply lateral thinking to the hypothetical problem given and consider as many (reasonable) alternative ways of arguing the case as possible.

- Remember sometimes hypothetical scenarios are based on real cases.

ILAC

Short Overview

ANSWERING LEGAL QUESTIONS

There are four stages to correctly answer legal problem questions.

1. Identifying the legal issues involved in the problem. Issues are the questions which need to be resolved or answered.

2. Identifying the area of law. This means referring to the relevant cases and statutes.

3. Applying these legal principles to the facts of the problem so as to answer the questions raised in the issues. This requires you to use the relevant law to argue your case and also respond to arguments that may be raised by your opponents.

4. Reaching a conclusion. This requires you to state who you think shall win the case and what remedy the complainant is likely to obtain from the courts.

This is known as the ILAC method and must be used in answering hypothetical problem question(s).It is there to help you properly structure your answer to demonstrate your knowledge.

In Depth Overview
Identification of each step in completing the ILAC method

ILAC is also known as FILAC if you include the facts in your answer. Do not spend your time re-writing all the facts as you will not get marks for doing this. However, you may choose to scribble down a few key facts at the top of the exam or the side of the exam as a reminder to yourself of the key points in the question. Alternatively use a highlighter and make margin notes to ensure you cover them in your answer.

ISSUES

- Define the issues - Ask yourself, what are the questions that need to be answered?

- Rephrase the issues as questions, starting with the major / overriding issue.

o For example: Did Mick the Chef sexually harass the waitress Elena? If so is his employer vicariously liable?

- Next break the rest of the question down into sub-issues.

- Expect to receive a hypothetical that raises more than one issue. If there is more than one issue then complete the steps above for each major issue.

- If you feel numbering the issues helps with the layout of the question, or your answering of the question then you can use this approach.

LAW (Statement of relevant legal principles)

- The elements of the area of law that must be satisfied before an action is successful.

- Cite the law briefly, with authority, in relation to each issue posed above (from the issue section).

- If you are using a very similar case then give a very brief (2 to 4 lines) overview of the facts and legal principle(s)."When you are answering a question, quote a case where the factual situation is similar to provide support to your work. The most important part of a decided case is the legal principle. Facts of a decided case are only important where they help you identify the legal principle(s) or help you relate to the problem in front of you."

- "The name of the case is important because it shows that you are on track. However, if you remember the principle but forget the name of the case, you should still write in the principle and indicate its source, e.g., in a recent New South Wales Supreme Court case."

- You may consider using the same numbering system that is used in the "Issues" part.

- If you are citing legislation try to cite the relevant section and/or subsection if relevant. For example the Competition and Consumer Act (2010) (CCA) is often cited in contract law when discussing the legal principles of misleading and deceptive conduct. If you know the legal principle is set out in the CCA, but you do not know which section, you should still cite the legislation, but remember that you will get much better marks if you quote the section number(s).

APPLICATION of the previously mentioned legal principles to the facts given in the hypothetical - (sometimes ‘application' is also known as ‘analysis' or ‘argument')

- Deal separately, as far as possible, with each issue in turn.

- Use the facts to discuss the legal principle(s) (elements).

- Discuss whether the elements apply or not.

- For example: "Having regard to the relevant facts such as the purpose of the contract, the importance that Jack attached to the question of the horse's racing abilities and the content of the final conversation between Jack and Jill, it appears likely the parties intended that the two year period was a term of the contract [etc]." This given hypothetical scenario can be distinguished from Roscorla v Thomas because the conversation about the horse's racing ability occurred before the contract was completed.

- If there is a case or piece of legislation that does not favour your client's case you still need to discuss it. Although your client may not want to hear the bad news, your client(s) needs to know the good and bad sides of the case. You can be assured if a client was being sent to jail and you did not advise them of this possibility, then they would be more upset with you (as their counsel - legal representative) thanif you had not done your job properly and forewarned them that it was a possibility (and they should ‘pack their toothbrush'!).

- Decide how you may be able to distinguish a case that has similar facts to your case. That is, show that whilst the case is similar in nature to another case that has already been decided, it is different because of a particular fact or facts of the distinguished case and your client's caseis different in some way (i.e. thehypothetical). Therefore the Commissioner, Judge or Magistrate should not consider it as a persuasive or binding precedent. This skill is very difficult for a student to master and therefore do not be too concerned if you are unable to do this at first attempt.

- In relation to case law remember the rules concerning court hierarchy. This will allow you to realise whether the judgment concerning the court hierarchy is binding or merely persuasive. You may want to include this information.

- In relation to legislation, make sure that you are using the piece of legislation relevant to the jurisdiction.

- It is always a good idea to quote short pieces of information from the facts to argue your caseand to prove an element of the hypothetical, particularly if you are able to rely on the spoken word of one of the parties in the hypothetical. For example, Mick the Chef sexually harassed the shop assistant Elena, telling her that he would like to see her dressed "...in the naughty knickers lingerie, coming out of his bedroom." If you quote from the hypothetical case, ensure that you place the quote in inverted commas.

- Similarly, if you decide to quote some of the facts of the hypothetical, such as "...Brian was made to work on the apprentice's bench because his boss had decided that was Brian's speed",ensure that the quote is in inverted commas. Any quote should not be too much longer than the example given here.

CONCLUSION (opinion)

- Note that, on the facts given to you, it might be possible to come to a different conclusion to that of other students. A CONCLUSION IS VALID AS LONG AS IT IS JUSTIFIED BY REFERENCE TO THE RELEVANT FACTS AND LAW!

- State your conclusion succinctly in relation to each of the issues.

- Make sure that your conclusion answers the legal issues (the questions involved) first and foremost.

- For example: "It is likely that on the balance of probabilities, the court would decide thatJack is entitled to ............".

- At this point you may wish to make reference to the consequences, in terms of the likelihood of taking the matter to court (which court or tribunal it is most likely to be heard in,considering the different jurisdictions), the remedies available to upon your client or likely to be imposed against your client (for example the type of damagesetc).

- Finally check and re-check your answer against what you were asked to advise on. For example: if you were asked to consider the matter using the Queensland jurisdiction, ensure that you have done this.

Make yourself a checklist, a template or a mindmap for answering different types of hypothetical questions(areas of law).