LEGAL PROBLEM
QUESTIONS 2. Picking the issues
The most important
skill in answering a
legal problem is to be
able to ‘spot’ the
relevant issue of law
being raised
Picking the issues
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Many exams frame “direct questions” –
they identify the area and ask about it
directly - e.g. Describe photosynthesis.
Legal exams however are typically
problem questions, where the area of law
to be tested is not clearly identified e.g.
Advise John
You must work out what area of law to
advise John about: i.e. you must pick the
issue the question is raising
First step
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Problem questions require an extra level
of analysis – first work out what the
question is about before trying to answer
it.
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If you identify the correct legal issues
raised in the question you will almost
certainly pass – even if your discussion of
them is poor.
Wrong issues?
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If your answer is a brilliant, well
supported, well written discussion of
important legal issues – but not those
raised by the question – you will fail.
Addressing the wrong issue, is
demonstrating that you do not understand
that area of the law well enough to
understand the issues raised by the
question.
The right issue
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David Beckham, using
a soccer ball at
Wimbledon, would be
out first match
Roger Federer, using
a tennis ball at the
World Cup, would not
get a game
Legal problems need
the right issue – not a
great discussion of
the wrong issue.
Knowledge first
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Direct questions – allow you to read the
question and then read/research what the
answer is. e.g “What is photosynthesis?”
gives you a starting point for research.
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Indirect (problem) questions – require
you to know the relevant area well first. If
you do not know the law you will not be
able to spot the issues which are being
asked by the question.
First
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Read and prepare a
summary of the relevant
law before attempting a
problem question.
Do not try and work
backwards – unless
you understand the law
you will not be able to
determine the issues.
Then?
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Read the question
very slowly and very
carefully
Make sure you
understand each
word in the question
– dictionaries are an
important tool
Underline or
highlight important
words.
Underlining
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Aim to underline at
least one thing
relevant to a
consideration of the
issues in each
paragraph of the
question
If you can’t – reread
the question as you
will have missed
issues
Ask why?
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Ask yourself while reading,
why is this information here?
What issue is this meant to
make me think about?
Am I given information which is
quirky or out of the ordinary?
What issue does this direct my
attention to?
Are the words used similar to
those in a case or statute?
Examples
In a Contracts exam you read:
 John is grumbling because he has so much
homework
 What issue does this raise?

Capacity?
 Does the information given in the question
that John has homework raise the possibility
that John is at school?
 Does this mean that he will be a minor?
 We don’t have complete information – but the
question gives us enough to raise this as an
issue.
In a Contracts question you read:

While organising appointments for facials
for herself and her mother, Mary chatted
with the beautician about her audition for
a major television part, and told her that
she needed the facial to look her best for
what could be her breakthrough role. Her
mother was also her agent and would be
negotiating any contract for her. What
issue(s) does this raise?
Ask why you are given the information?
This is a conversation at the time of contract
formation
 Is it irrelevant? Merely there to add
‘colour’ or interest to the question?
 Does it ask you to think about damages
and the 2nd limb in Hadley v Baxendale?
 If damages are available – what sort?
 Does it ask you to consider to whom the
promise was made? Coulls v Bagot’s ?
Every word in a question
is important – make sure
you read and
understand every word
and consider why it has
been included in the
question
A problem question is
like a set of clues – if
you identify
all the clues,
you will be able
to spot the issue
Common mistakes
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Skimming: you may quickly pick one
issue, but you will certainly miss many
others raised by the question
Reading carefully, picking the first
issue, and then skimming the rest of the
question: again, you will have picked
some of the issues, but not all the issues
you need to discuss.
Fast, but ineffective.
How many issues?
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Isn’t finding one issue enough? How many
issues are in each question?
The only time finding one issue is enough
is when it is a one issue question
Questions are often drafted with “pass”
and “distinction” issues. The more
carefully you read the whole question,
the more likely you will spot all the
issues – including the harder issues
Words: legal or common usage?
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Look carefully at the words used in the
question
Many legal terms also have common
meanings – and they may be different
E.g. If the question uses “offer” or
“accept” are they being used in a legal or
everyday sense?
You must think of the legal meaning
and see if it is satisfied
Words
The words used provide important guides to
the relevant issues, for example:
 “offer” doesn’t necessarily mean offer in a
legal sense, but will often indicate that
offer/invitation to treat is an issue for
discussion
 “promise” may have a legal meaning –
consider estoppel or collateral contract
Answering the question
asked
 The
last words of the problem are
generally the “question words”
 Consider these very carefully and
draft your answer to address
these questions, and only these
questions
Examples
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A question asks you to “advise Mary what
damages (if any) she may claim in respect
of the breach of contract”
Which of the following issues does the
question require you to discuss?
Existence/formation of a contract?
The terms of the contract?
Breach of any of those terms?
Damages in contract?
Damages in tort?
Damages in equity?
Statutory damages?
Examples
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The only issue you would need to discuss
is damages for breach of contract – much
of the rest (such as the existence of the
contract) could be presumed from the
facts given, and is not in issue – so
doesn’t have to be discussed.
Of course every question is different –
there are no hard and fast rules, they
must all be read carefully.
Contentious issues
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What if the issue you spot in the question is
contentious, and there is no settled legal
answer? Does this mean you have spotted the
wrong issue and should keep looking?
Issues in exam questions are usually based on
contentious areas of law.
If you have a choice between a settled area of
law and a contentious one, the issue will usually
be contentious
Contentious issues
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Remember – contentious issues are
unsettled and there are two (or sometimes
even more) views as to what the relevant
law is in a given situation.
To discuss these issues properly, you need
to discuss both views.
This is one example of ‘arguing in the
alternative’
Summary
1.
2.
3.
4.
The first step in a problem question is to
pick the issues raised – and address only
these
Read the question slowly and carefully
Make sure you understand all words
used
Underline important issues as you go
through
Summary
5. Think carefully about the words and the
information in the question – what issues
is it asking you to think about
Problem questions are full of clues, but
you must read carefully to discover them
6. Review your highlighted question. If you
have spotted all the issues, this will be
your essay plan.
Summary
7. If you have not underlined, on average,
something in every paragraph, then reread the question, as you will have
missed some issues.
8. Aim to spot all the issues, not just
the first issue
Exercises
Consider the following problem. Do not try
to answer it – simply try and isolate the
legal issues which the facts of the problem
are raising.
Alice runs a small stationery business specialising in wedding
invitations. Her husband John owns a large printing business,
and because he buys such a large volume of paper, he is able
to purchase his paper much more cheaply than Alice. On
Thursday night, after cooking John’s favourite meal, Alice asked
John if he would supply her business with paper at his cost
price. John said, “Of course honey. Whatever would make you
happy.”
Alice then decides to invest in specialist inks. On Friday she
rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She
discusses her plans to expand her wedding invitation business
into programmes and place cards, which means she will need
to order additional ink colours, and ink which is suitable for
printing photos and graphics. Mary tells Alice that all the ink
they supply is of the highest quality. Alice orders 2 dozen black
ink cartridges at the list price of $30.00 each, to be delivered
next Friday. She also inquires about gold and silver inks, and is
told that gold cartridges are available for $80.00 each, and
silver for $75.00. Alice is unhappy with these prices, and
considers that as a long standing customer, she should receive
a better price. She tells Mary that she is prepared to pay
$60.00 for the gold cartridges and $50.00 for the silver. Mary is
unsure whether or not these prices are acceptable.
Alice tells her to think about, and that if she doesn’t hear to the
contrary, she will take 5 gold and 5 silver cartridges, to be
delivered with the black ink cartridges on Friday.
On Friday morning, Alice receives a delivery from Mary – of 24
black ink cartridges but no colour cartridges. Alice rings Mary,
thanks her for the delivery of the black cartridges, but notes
there are no gold or silver cartridges. Mary advises that she
has decided not to supply them at Alice’s price – Alice protests
that they had an agreement about the coloured inks. Alice then
rings John and asks him to send over some paper she needs –
at cost price as agreed. John replies that he will certainly
provide her with paper, but that he needs to do so at market
price. She protests and reminds him of last Thursday evening.
He replies “Ah yes. That was dinner, this is business.”
After Alice gets off the ‘phone her assistant Peter shows her an
order for wedding programmes on which he has been working,
using the black ink supplied by Mary that day. The text was
fine, but the photo of the bride and groom has printed blotchy
and streaky. He tells Alice there is a problem with the ink – it
will not print photos properly. Advise Alice.
Spotting issues
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How many issues did you spot?
Do you have a starting point for research,
or do you have to understand the legal
issues first?
Could you answer the question now – or
do you need more?
First step?
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You need to know the law which the problem is
seeking to test
Assume the following legal propositions:
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A valid contract requires an intention to create legal
relations. This is not always present between close
family members.
Even if a contract is silent, legislation such as the Sale
of Goods Act and the Trade Practices Act will imply
terms into certain contracts to protect consumers and
ensure that goods are fit for their purpose, and are of
merchantable quality.
Legal Principles
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In order for the fitness for purpose term to
become part of the contract, the purchaser must
tell the seller what their purpose is.
A valid contract requires an offer which has been
accepted. If there is anything left to negotiate,
a contract will not have been formed.
Acceptance requires something to happen. Not
responding to an offer, or silence, cannot be a
valid acceptance.
Having considered
these legal principles,
read the question
again. What legal
issues can you spot
now?
Underline as you read
What will you
underline/highlight?
What clues will you
find to help you
spot the issues?
Alice runs a small stationery business specialising in wedding
invitations. Her husband John owns a large printing business,
and because he buys such a large volume of paper, he is able
to purchase his paper much more cheaply than Alice. On
Thursday night, after cooking John’s favourite meal, Alice asked
John if he would supply her business with paper at his cost
price. John said, “Of course honey. Whatever would make you
happy.”
Alice then decides to invest in specialist inks. On Friday she
rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She
discusses her plans to expand her wedding invitation business
into programmes and place cards, which means she will need
to order additional ink colours, and ink which is suitable for
printing photos and graphics. Mary tells Alice that all the ink
they supply is of the highest quality. Alice orders 2 dozen black
ink cartridges at the list price of $30.00 each, to be delivered
next Friday. She also inquires about gold and silver inks, and is
told that gold cartridges are available for $80.00 each, and
silver for $75.00. Alice is unhappy with these prices, and
considers that as a long standing customer, she should receive
a better price. She tells Mary that she is prepared to pay
$60.00 for the gold cartridges and $50.00 for the silver. Mary is
unsure whether or not these prices are acceptable.
Alice tells her to think about, and that if she doesn’t hear to the
contrary, she will take 5 gold and 5 silver cartridges, to be
delivered with the black ink cartridges on Friday.
On Friday morning, Alice receives a delivery from Mary – of 24
black ink cartridges but no colour cartridges. Alice rings Mary,
thanks her for the delivery of the black cartridges, but notes
there are no gold or silver cartridges. Mary advises that she
has decided not to supply them at Alice’s price – Alice protests
that they had an agreement about the coloured inks. Alice then
rings John and asks him to send over some paper she needs –
at cost price as agreed. John replies that he will certainly
provide her with paper, but that he needs to do so at market
price. She protests and reminds him of last Thursday evening.
He replies “Ah yes. That was dinner, this is business.”
After Alice gets off the ‘phone her assistant Peter shows her an
order for wedding programmes on which he has been working,
using the black ink supplied by Mary that day. The text was
fine, but the photo of the bride and groom has printed blotchy
and streaky. He tells Alice there is a problem with the ink – it
will not print photos properly. Advise Alice.
Why have we highlighted these
words? What clues do they give us?
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Her husband John
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Alice and John are married. Does this
mean that the necessary intention to make
a contract was present in their
negotiations? Consider the other
information highlighted about dinner, and
John’s words to Alice.
These are clues that an important issue to
discuss is intention to create legal
relations.
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Note: the question does not say
anywhere, ‘Advise Alice whether or not
she has an enforceable contract with
John’, or ‘Advise Alice whether the fact
that she is married to John may create a
presumption that she did not intend to
form a contract with John for the supply of
paper.’
This is in fact what the question is asking
– but in an indirect problem question
you must work this out from the clues
given. So read carefully.
More issues
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ink which is suitable for printing photos
and graphics.
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In certain circumstances, legislation will imply
a term into a contract that the goods be fit for
the purpose for which they have been bought.
Here, Alice is telling Mary what her purpose is
in buying the ink. This is a clue that ‘fitness
for purpose’ is an issue to consider
More issues
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Alice orders 2 dozen black ink
cartridges at the list price of $30.00
each, to be delivered next Friday.
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This is a contract for black ink between
Alice and Mary – there is nothing left to
be negotiated and they have both
agreed. Provided the contract is not
breached there will be no issues to talk
about here.
Pay attention to ‘little’ words
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Also
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We have a contract for black ink. Now,
Alice “also” inquires about gold and
silver inks. This is a clue that there will
be two issues – one about the black ink
(is it fit for the purpose for which it was
supplied?) and coloured ink (was a
contract ever formed?) The existence of
two issues could easily be missed by
anyone skimming the question and the
‘also’ clue.
Consider the words carefully
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Inquires
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It is often important to look at the word
chosen. “inquires” suggests
negotiation, or requesting information –
a legal step which comes before an offer
which may be accepted to form a
contract.
Legal issues
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gold cartridges are available for $80.00 each,
and silver for $75.00.
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She tells Mary that she is prepared to pay
$60.00 for the gold cartridges and $50.00 for
the silver
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Is this an offer?
Has the offer been accepted? Or has Alice made a
‘counter offer’?
Unsure
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Has Mary accepted?
More issues
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if she doesn’t hear to the contrary, she will
take 5 gold and 5 silver cartridges, to be
delivered with the black ink cartridges on
Friday.
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Consider carefully what is happening here –
Alice is providing a way in which her offer for
the gold and silver cartridges can be
accepted. What does she suggest?
Is silence a valid method of consent?
Linking issues
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“Ah yes. That was dinner, this is business.”
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Is this a new issue, or does it link in to a
previous issue?
It is giving us information about whether or
not husband and wife, John and
Alice,intended to create legal relations.
Information about issues is not always
grouped together. Often you have to pick up
the clues throughout the question in order to
determine the relevant issues.
More issues
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but the photo of the bride and groom has
printed blotchy and streaky.
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Ask why this information has been given?
It raises the issue of whether or not the black
ink was fit for the purpose for which it was
bought.
Does it raise this issue directly?
Or do you have to work out the issue by a
careful consideration of the facts of the
problem, utilising your legal knowledge.
Advise
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Advise Alice.
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This is typical of the way in which problem
questions phrase the actual question.
“Advise” should be treated as a technical
legal term – not in its everyday sense.
“Advise” does not mean give practical
advice to Alice, counselling, general
business advice, or advice based on your
personal experience.
Advise
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“Advise” is not asking you to help Alice.
It is not an instruction to show Alice how
she can ‘win’, and to consider only
arguments which will help her to win.
Sometimes, in a legal problem, as in life,
your client has no legal case. Sometimes
the advice is that there is no cause of
action, or no defence.
Advise
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Advise means:
 Consider all the legal issues (not
factual issues) raised by the problem
question;
 Consider the law which will help you
address those legal issues; and
 Apply that law to the issues
 To provide a conclusion – or advice or
answer – to the legal issues raised.