LAWS1113 Lecture 3

Problem Solving Lecture

What is expected from the answer?

1. Identification of Issues

  • Key legal problems

2. Knowledge and Understanding of Law (evidence of legal reading/ reference to relevant material)

  • Must know the source of each proposition you make

3. Proper Application of the Law to the Facts
4. Critical Reflection/ Quality of Argument (originality, coherence, critical facility, formulation of conclusions)
5. Structure of Answer (clarity, logic, organisation)
6. Presentation and Articulation

Most Common Sins

  • Failure to refer to primary authority (cases)
  • Insufficient reading/ basic knowledge
  • Insufficient rigour in argumentation
  • Rapier not spattergun (FOCUS ON KEY ISSUES)
  • Panther not pussycat (eviscerate the issue, examine it in detail)
  • Criticism, not recitation
  • Reference bluffer?
  • Nelsonian denial (“I don’t like the question, I’ll answer another”)
  • Rewriting the facts
  • Ignoring instructions
  • Poor structure
  • Fence-sitting (DON’T say that the court will decide!!!)
  • Language
    • Imprecision
  • Subjective beliefs

Spot the Problem

  • “There are a number of ‘trespass’ offences”
    • Offences are criminal law
    • trespass against what?
  • In her action to press charges of assault, battery should be the focus of her claim.
    • Charges are in criminal law
    • Implies that battery is a form of assault
  • “The act of jostling Joanne onto the bus does not count under Battery, even if the defendant did it deliberately. This is due to the fact that there is no way to prove he deliberately jostled her.”
    • Whether an act is deliberate is irrelevant (need to prove it is intentional)
  • “As Joanne is seeking advice on actions in tort, it would be prudent to briefly mention a case against Noris in criminal law”
  • “Overall, the claims against the defendant are highly viable and likely to be the most successful.”
    • Which one is the most successful?
    • First one says all claims are “viable”, then goes on to say that one is better
  • “Though there is evidence that suggests N may also be liable in the tort of false imprisonment, the requirement of ‘total’ deprivation of one’s liberty necessarily excludes any claim for the tort in this instance, as J is able to climb free through the bathroom window.”
    • N and J is unprofessional
    • Does the fact that someone is able to escape necessarily exclude a claim for false imprisonment?
  • “The conditions for a charge in torts of assault is ‘…any act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with his or her person’ (Balkin and Davis p.41)
  • NB: Examine every word in the problem!!!