Action
1) Before Writing RE-READ QUESTION
MANY TIMES:
Make sure you will be answering the question as asked. Look for more claims +
contentious sub-issues. Think again about whether you can supplement your legal
authority. Only when you are sure you have considered everything and have
prioritised your points should you start writing.
Slow down and consider all the potential issues before starting to write your
essay. A confused reader cannot give you first-class marks. BE CRYSTAL
CLEAR about the claims you will be addressing.
Timing:
Work out ahead of time how many minutes you have to spend on each question.
In Exam: write down your 'changeover' time + stick to them.
whether it is too tangential. Write down possible cases might use on scrap just so
dont forget.
Grouping:
Combining all possible claims under 2-3 points under a single heading, you are
not eliminating any potential areas of discussion. Include several sub-issues.
Need to indicate why you are including the reference. It's also true that some cases
are important for their outcome whereas others are important for their analysis (ie
why they come out the way they do). NO CASE FACTS.
State why the case is important to your discussion.
First-class essays show the following:
detailed knowledge
Reference specific sections of statutory law as well as highly relevant cases
(not just the big leading cases)
Precise use of terms
Use specific language from cases and statutes where necessary;
Creative and sophisticated analysis
CRAFT ARGUMENTS FOR AND AGAINST YOUR FINAL
POSITION, using your knowledge of binding legal authority and, if
possible and appropriate, persuasive legal authority;
Know arguments and bits of law to retain and which to discard.
Summary
1. Identify Claim+ Sub-Issues
2. Identify a list of legal authority (legal rationale), starting with statutes.
3. Discarding Irrelevant legal authority:
Law Draft:
The question at issue is whether Jack is liable to the claimant for the
tort of negligence. To establish a claim in negligence, the claimant
must prove the existence of a duty, breach of that duty, causation
(including both legal foreseeability and 'but for' causation) and
damages (Clerk & Lindsell on Torts, s 7-04). Of those four
elements, the claimant in our question will have the most trouble
establishing that there was an existing breach and a breach of that
duty, with the particular emphasis on what the appropriate standard
of care is.
Summary
1. Begin with the general rule associated with the claim
2. Then general rule associated with the sub-issues. (become more specific)
3. Next, set up your specific exceptions to the rule and
a. Any cases you need to distinguish. You can categorise your case law
by facts or by areas of law, as we have here.
b. Possible defences usually come at the end of your discussion.
c. If discussing a line of cases, relate more specific cases to more general
standard making discussion look more cohesive and less like a list of
cases and holdings.
1) Compiling Relevant Authority
1. Law supporting the various elements of the claim.
2. Law relating to the various sub-issues that you have identified in the 'C'
section of your analysis.
Discussing law relating to your claim set out each of the elements that must be
proven as part of a Cs prima facie case.
existence of the Defamation Act 1952 and the Defamation Act 1996.
o Write a brief one-sentence formula explaining the elements, with
appropriate support. E.G: `To prove defamation, C must establish that
the statement was defamatory (that "the words tend to lower the
plaintiff in the estimation of right-thinking members of society
generally" (Sim' Stretch, per Lord Atkin)), that the statement refers to
him or her (Knupffer ' London Express Newspaper l.td) and that the
statement was published (Pullman t' Walter Hill).' Set forth elements
again. 1 sentence.
c. Because you know you have a lot to write about, you will prioritise your arguments
and which aspects of the law you will discuss. Need to show examiner how
discerning your judgment is.
i. To increase your understanding of how to use legal authority,
read a complex case (with counsel's arguments) for style rather
than substance. Once a month.
To write a first-class law essay I must understand:
(1) The purpose of supporting authority ('law') in legal writing; and
(2) What constitutes supporting authority in legal writing.
Once you have grasped those points, you must learn how to:
(3) Compile the relevant supporting authority; and
(4) Communicate the relevant supporting authority in your essay
Distinguishing Cases
2 cases both seem to apply to a question but require different outcomes, they must
be `distinguished' from one another, meaning that you must find a way to describe
how the cases are dissimilar from your scenario and each other on either the facts or
the law (the `ratio').
Showing how a line of cases works together is harmonising those cases.
Distinguishing + harmonising different cases separates 1st marks from 2 nd.
General principles of law that exist in similar cases can be extended to cover your
point. You should also look at the exceptions that have been made to the general
rule and try to understand why those exceptions were made. Your facts may be
different, but you may be able to argue that the reasoning behind the exception
should apply in your case as well.
(1) What the legal principle is;
(2) Why it should apply in the current case; and
(3) What the source of the legal principle is.
Although the 'L' step of your CLEO essay is objective in tone and content, you still
need to
(1) Weigh up any conflicting precedents as you go and
(2) Anticipate what you will say in the 'E' step of the essay.
2) Persuasive authorities
Principles, which may guide, but do not control, courts and lawmakers.
Persuasive authority cant used to negate relevant binding authority, but it can he
used to justify a particular course of action when there is no clear-cut answer
contained in the case or statutory law. 4 types.
(I) Public policy arguments;
Public policy argument that demands one outcome can be countered with a
similarly persuasive public policy argument that demands a different outcome.
You must be able to argue both sides of a problem. Presenting one perspective
alone does not make your discussion stronger and more cohesive; it is simply
incomplete. The art of legal argument lies in recognising opposing strands of
thought and stating why one position is more convincing than the other.
This method of analysis holds true for both binding law (when you are noting
which strand of cases and/or statutes is the most applicable to your fact
situation)
o And for persuasive law (when you are noting which public policy
rationale is the most convincing).
When presenting a public policy argument, remember: public policy is
persuasive, not binding, legal authority; there are two sides to every public
policy argument; and you must define what you mean by 'public policy'.
(2) Legal commentary;
Referencing legal commentary will round out your essays and will, like arguments
based on public policy, give highly persuasive reasons why the question you are
answering should he decided in a particular way. Indeed, some commentators are
so highly esteemed that courts grant great deference to their opinions.
Nevertheless, commentary does not constitute binding law, just as public policy
does not.
(3) Legislative documents,
a. Green or White Papers or committee reports; Not binding, but they are
persuasive in that they suggest where the law might he heading.
(4) Case/statutory law from other jurisdictions: Not binding.
Step 3 in the CLEO: the evaluation
Bring specific facts of your question into your essay. Evaluate the facts in light of
the relevant law
Different Claims/Defendants:
Separate out the law for each pairing or claim and follow it with its own
evaluation. Incorporate previous discussions by reference.
(4) Various stylistic + practical issues concerning evaluation of facts in light of
the law
focusing on the legal analysis. Not on the evaluation of the law in light of the
facts. Of course, you would not make the mistake of thinking that
However, the basic rule is that you should discuss the facts in the 'E:' section of
your essay. When it comes time to begin writing that section, don't start with a
general recitation of the facts. Instead, just
Summary
1. Discuss the issues that are primarily in dispute
a. Apply facts primarily in dispute to general legal standard.
2. Then focus on explaining how the facts apply to the more specific cases
that flesh out the bare bones of the general precepts of law.
a. Because L' explained these cases are merely more specific
manifestations of the general standard, often can get by without
evaluating the facts with reference to the general cases.
3. Or show how PQ facts fall under the general rule, but not the more nuanced
cases.
a. This means C fails to meet the required standard for the prima facie
case.
b. Use your judgment as you balance what needs to be said versus what
can be implied
How PQ would be decided by a court. Tie up loose ends and come to a final
determination about which part of the preceding argument controls the disposition
of the case, to the extent not already done so.
Concluding essay with a SINGLE SENTENCE stating resolution of dispute
because
1. Examiners want to see a clear conclusion at the end of an essay. 'On these
facts, the claimant will prevail and will receive damages in X amount'
2. E + L might not make outcome as clear as need be
Exception to the rule of brevity
If your 'L' and 'E' steps contain a lot of sophisticated and complex arguments that
make it difficult (as a matter of substance/style) for you to weigh up the opposing
strands in that portion of the essay. Might be better discussing or recapping the
weight of the various points in the final paragraph.
o E.G: 6 legal points needed to be proven, but only 2 elements proven. Could
make bit longer
Difficult To Conclude: EXTREMELY RARE SHOULD CONCLUDE
Not enough factual information to come to a reasoned conclusion or when your
'L' step suggests that the state of the law is either too close to call or not
determinative of the particular question. RARE. PREFER TO COME TO A
CONCLUSION
(2) The need for an outcome in legal writing.
GIVE ONLY honest opinion about the dispute rather than trying to force the
decision one way or another, to read better.
Just because the question directs you to advise one party doesnt mean that you
should try to persuade the reader that that party should/will prevail
If C likely to lose, say so. May be able to identify and exploit certain
weaknesses in the other side's case
o But don't overestimate your client's chances of success. BUT MUST
COME TO A CONCLUSION.
CLEO: 2 stages:
1. Planning stage: Work your way through the potential claims, legal
authorities and factual analyses; come to a preliminary decision about who
will win the case.
2. Writing stage: Present best arguments after discarding more
tangential/minor points.
3. Then shape your legal and factual discussions with this outcome in mind so
that you can have as brief a concluding paragraph as possible (optimally one
line long).
May need to discuss the relationship between ideas from different parts of the
syllabus,
Major purpose of a 'discuss' question is to give you an opportunity to discuss
legal theory, legal reform and legal history
Use cases + materials to support theoretical, rather than practical, arguments.
o Conclusion - OUTCOME
Could be 6-7 if necessary.
Idea is to group your thoughts into 3 major points, preferably of equal weight.
Usually you lead with your strongest argument +
Progress to your weakest argument, but there may be times when you alter that
strategy:
o E.G: if one element needs to be established as a threshold matter
before you can proceed to the later elements. Each of 3 points must
be supported by case law, statutory law, scholarly commentary.
Could try to organise your points into groups of 3 within each major heading, but
don't push the structure for merely mechanical reasons.
(1) Introduction Paragraph:
State what you intend to argue about the claim + how essay is organised.
Dont spend a lot of time setting the stage for your argument/giving
background information;
o All of that should be in your substantive paragraphs.
o If the info isnt critical to your argument + doesn't fall into 1 of
substantive paragraphs, then omit it as irrelevant to this particular
essay.
o Remember, what you leave out is as important as what you put in.
Journalists use the 'inverted triangle' approach to writing. They lead
with their broadest, most important point and progress downwards to
their least important point. Do same with essays.
Stages
1. Identify claim; use precise words of the question.
a. Define terms use terms of question.
b. Figure out what cases, statutes and articles relate to those terms and
issues; only use those, which are pertinent.
(B) Law in discuss questions
Cases, statutes scholarly monographs, articles, legislative reports papers. Case +
textbooks if necessary.
Compare + contrast: harmonise + distinguish 2 competing strands of legal
thought.
Use cases + statutes to illustrate hypothesis
Use commentators, with cases. Weigh up arguments of both.
Use critical thinking skills to decide what cases + articles are best suited for
terminology of question.
o Examiners want to see what type of analogies you can draw to
different areas of law, what materials you present to support your
thinking and how you evaluate those materials.
(C) Evaluation in Discuss questions
Use the precise words of the question as you evaluate the legal authority I have
presented. Tie evaluation close as possible to question.
May want to combine CLEO 2 step method if preparation stage was properly
done, so can avoid repetition.
(D) Outcome in discuss questions
Tying together various strands of argument to give a final answer to the question.