WRITING AN ANSWER TO A LEGAL PROBLEM

Introduction
The answering of a legal problem will be considered under two heads as follows: (a) The pre-writing stage; and,
(b) The actual writing.
The pre-writing stage encompasses the collection of data, making notes and making preliminary decisions about the information amassed and avoiding pitfalls.
Before the writing begins

Normally, you will be given a set of facts involving one or more parties. The facts give rise to a problem or to a conflict between the parties. You are usually asked to: advise a party (“your client”) as to his or her legal options in the given fact situation. Several preliminary matters must be considered before you actually put pen to paper.

Legal problems are usually carefully crafted and are highly unlikely to contain any unnecessary facts. Thus every fact furnished is likely to be important. It is therefore necessary that you do not dismiss out of hand, any detail as “superfluous”. Even if you think that a fact is surplusage, consider it carefully to determine its legal impact; chances are that it does affect a legal position. Close consideration of such a fact will usually enable you to establish its relevance to the legal issue involved.
Normally, the fact situation given is complete and you are not expected to supply any missing facts. This does not, however, mean that you cannot draw attention to facts that appear to have been omitted from the problem. One situation in which this must be done is where, in your opinion, the missing facts will drastically alter the legal position of your client. However, before you do this, you must ensure that you have scrutinized all the given facts to ensure that the fact perceived to be missing is not actually incorporated in, or negated by, a detail or two in the statement of facts.

Where you are asked to advise one of the parties (“your client”), the advice should be the same whichever of the parties you are advising. Your advice would necessarily be based on the facts as well as the legal principles and authorities that favor your client. However, such advice would not be worth very much if it ignored the facts and the law that operated against your client. The ideal advice would, even as it emphasizes the factors that favor your client, consider the facts and the law against him. Where possible, it would show how the adverse facts can be distinguished or, at the very least, how the unfavorable law and facts affect your client’s legal position.

It is possible that a particular point of law is not settled. In that event, state the differing legal options (supported by appropriate authorities) and discuss them. You should state which of the options you prefer. Show why that option is to be preferred over the others. This necessarily involves highlighting the strengths of your preferred option and conceding its weakness. Do not pretend that the uncertainty in the law does not exist as that is tantamount to an admission of ignorance of the state of the law.

Very often, it is possible to have a variety of different solutions to a legal problem rather just one correct answer. In answering a legal problem, what matters is that the applicable legal arguments are raised and marshaled to reach a conclusion. It is even possible to differ with the law as authoritatively defined by the apex court provided that answer reveals knowledge of the applicable judicial decision. (It should not be forgotten that for a case to reach the apex court, a whole host of very senior lawyers and learned judges must have held a contrary view of the law). What counts is the quality of the legal argument advanced (and the statutory or judicial authorities on which it is based). Remember, as important as what you have to say, is how you say it!

When you are asked to give advice, what you write has to be shaped by, among other things, your purpose and your client. Your purpose, evidently, is to advise your client as to his legal position or options. To realize this purpose, you will generally have to identify the applicable law and apply it to the given facts so as to lead to a conclusion about your client’s legal position or to a preferred option. Your task, as the adviser, is to furnish advice that is comprehensible to your client. Normally, your client is a lay person unacquainted with the law. Your client does not cease being a lay person simply because he throws out a few legal terms such as “consideration” or “estoppel” or “misrepresentation” in his conversation with you. Thus, unless there is compelling evidence to the contrary, you should presume that your client is a lay person. Treat your client as a reasonably intelligent, reasonably well-informed individual able to grasp any argument or concept that is explained to him. This imposes upon you the obligation to define and explain any legal concepts that you have to use in your advice. Failure to do this may be adversely construed against you. Remember, in theory at least, you are not writing for your law teacher who may be presumed to know the law.

You will compile material for your answer by reading. This is usually a bigger job than the actual writing of the advice. Check the accuracy of the legal data (including judicial or statutory authorities) you collect. Before you begin writing, decide the order in which you want to present your material. An outline would definitely be assist you to organize your material.

Writing an answer

Perhaps the best way to approach a legal problem is not to forget that a legal answer, like all writing, has to present material that is organized to make a point. Writing an answer may be said to include the following stages: (a) The Introductio...

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