Nicola Jackson on Legal Problem Solving: How to Think and Reason Like

a Lawyer
2 comments (http://uklawstudent.thomsonreuters.com/2012/10/how-to-think-and-reason-like-a-lawyer/#comments), posted on October 31, 2012

Nicola Jackson, Senior Lecturer in Law at Leicester De Montfort Law School, offers advice on how
to improve your marks for problem solving.

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REUTERS/Felix Ordonez

Writing convincing answers to legal problem questions requires more than a knowledge of the rules of
law and the names and facts of cases. It requires a deep understanding of the process by which a judge
reasons from case facts to the ultimate conclusion in the action. Yet this is a part of legal education that is
often neglected in the core legal subjects. There is simply too much ground to cover already. Have you
ever asked your teacher any of the following questions and got any of the following responses?

STUDENT: How do I write a 2(i) answer?

LECTURER: Make sure you go about a problem answer systematically: State the issue, state the
law, apply the law, and conclude.

STUDENT: How many cases should I include for a good problem answer?

LECTURER: Make sure you include all the relevant/important leading cases.

STUDENT: How many of the case facts shall I include?

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 LECTURER: You dont need to give a recitation of case facts its the principle that is important.

STUDENT: How do I improve my 2(i) to first?

LECTURER: Make sure that you are critical about the law and give your own opinion. Read articles
and criticise these.

In fact, the responses are usually very detailed and well-illustrated. There is nothing wrong with them,
and as a law lecturer Ive said similar things myself. But I have wondered why for many students, they
did not seem to help. Is it really the case that Lecturers are from Mars and Students from Venus? Or do
these barriers need to come down?

Approach your studies in a different way

The first thing I noticed was that in many ways the core legal curriculum actively encourages you to treat
your law degree as little more than an exercise in rule-memorisation. This means that when we tell you
to identify the legal issue or apply the law to the facts of the problem the words themselves are like
boxes with no content: How do we know what apply the law means? How do we formulate a legal
issue or identify a principle in distinction from a fact? The knowledge you need for problem solving is
not knowledge of the rules (although this is of course important in another way). It is knowledge of the
structure of a legal argument. Rules of law are taught in the main core law curriculum; argument and
reasoning are generally not. Reasoning skills must be integrated into the teaching of the rules themselves.

The difference is more obvious in music. I am an amateur violinist and am currently learning to play the
Sibelius Violin Concerto. It would be useless for me to attend a lecture and see all the notes of the solo
violin part displayed on state-of-the-art PowerPoint slides. I need to listen to recordings and practice
each day how to communicate the internal rhythm and harmonies of the work. This is an intuitive
process of understanding the essence of the work. The Sibelius is infinitely and beautifully more than a
mere linear presentation of its musical vocabulary. So it is in law. It is only by reading the cases, or
extracts from them, and by studying the process by which the judge comes to his or her conclusion that
you will truly know how to use a rule of law to predict convincingly the outcome of a factual scenario,
that is, apply the law. You need to form an idea of how a judge creates and works with a rule of law
and how they come to a conclusion on the basis of a rule, or disapply it in favour of another rule. This is
the internal structure of law.

Legal problem solving

The first stage of legal problem solving is to identify the issue. This requires you to identify the rule or
group of rules that is nearest to the facts of the problem. Then phrase it as a question. Avoid simply
repeating the facts of the scenario.

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 Example problem: Mario flew an aeroplane over Janes land in order to take photographs.

The nearest analogy for you to work with is the rule in Bernstein v Skyviews & General Ltd [1978] Q.B.
479. A typical lecture slide or passage in a textbook about this case may read something like this:

In Bernstein v Skyviews, the defendant company flew an aircraft over the claimants land and took
a picture of his house. He alleged trespass on the basis that he who owns the land owns everything
from the depths of the earth to the highest heavens. It was held that this maxim did not apply and
that the claimant should only be able to sue for trespass into his airspace to the extent to which it
was necessary for the reasonable enjoyment of his land. This was not the case here.

So we may identify the legal issue in the following way:

Identification of problem: The question here is whether, in accordance with the rule in Bernstein
v Skyviews & General Ltd [1978] Q.B. 479, Mario is liable for trespass into the airspace above
Janes land. When you have worked with extracts from judgments you will see that this is how a
judge would formulate the legal problem with which they have to deal.

So far so good. However, we now have to apply this case in order to predict an outcome to the Jane v
Mario scenario. This is the legal reasoning process for which the above short description of the outcome
of Bernstein will not have prepared you. In Bernstein the judge took the legal principle, the relevant rule
of law, and related it to the facts of the case in order to come up with the conclusion. The building blocks
of legal problem solving are

(1) the rule that is applied by the judge;

(2) the facts of the case that the judge regarded as being material to the conclusion.

Once you have read an extract from the judgment, you may come up with the following:

(1) Rule of law that the judge applied:

You can only exclude someone from the airspace above your land if use of that airspace is
necessary for the reasonable enjoyment of your land.

(2) The material facts of the case that led the judge to his conclusion:

Skyview had not unreasonably interfered with Bernsteins use of land.

It was not necessary for Bernsteins reasonable enjoyment of his land to exclude aircraft
which are thhat high up in the sky.

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Therefore, Bernstein had no right of action. So we see the case not as a rule to be memorised and then set
down in an exam, but a process, through reasoning, of arriving at a legal consequence on a set of novel
facts. We might set the process of legal reasoning down in more traditional logical format. (All premises
must be true and correct and the conclusion must necessarily follow if they are):

PREMISE 1: There is no absolute right to exclude persons from airspace above your land;

PREMISE 2: You can exclude people from the airspace where that airspace is necessary for the use
and enjoyment of your land (rule of law)

PREMISE 3: Bernstein did not need the higher airspace for the reasonable enjoyment of his land
(what we call a material fact of the case);

CONCLUSION: Bernstein had no right of action

Now back to our Jane v Mario problem. A judge in a case decided after Bernstein would take the same
rule and is constrained to come to the same result as Bernstein (no action for trespass) but only if the
facts of the new case are materially similar. So if the facts of the new case are materially different then
the judge must come to a different conclusion and there is the possibility of an action in trespass. This is
called distinguishing Bernstein.

We are not given much information in our Jane v Mario problem, but we might show our appreciation of
distinguishing in the following way. (Note that our argument centres round PREMISE 3 in the overall
structure of the judges argument):

Applying the law: In the problem we have been given there is insufficient information to be able
to form a definite conclusion as to whether a court would hold Mario liable in trespass to land
following Bernstein. However, if Mario had been taking lots of photographs and being doing so
persistently, it might be that he could be held as interfering with Janes reasonable use of her land.
Also, if Jane was running a park which involved putting things in the air, or which needed extra
quiet, such as a nature reserve, and Mario were flying his aircraft at a low height, then Jane will be
able to argue convincingly that she needs to exclude people from that airspace for the reasonable
enjoyment of her land.

In this situation we have used our intuitive or imaginative appreciation of the structure of legal argument
to argue that our facts might be materially different from Bernstein. If our conjectures are true, the judge
in our case is constrained to come to a different conclusion.

Conclusion

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It is clear that when, in response to your question how do I improve my mark to a 2(i), your teacher
tells you to identify the issue and apply the relevant law, these ideas of identification and application
reflect a knowledge of the structure of legal argument: an imaginative understanding of the process upon
which the development of law has been based for centuries. It is not an exercise in learning rules.

Nicola Jackson is the author of Gateway to Land Law How to Think and Reason Like a Land
Lawyer (Sweet & Maxwell 2012), which covers the content for the standard land law course,
includes extracts from judgments, and illustrates the process of problem solving and argument
construction using Land Law rules. Available from bookstores and Amazon.co.uk.

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Shaun Rogers (http://www.facebook.com/ShaunChampionRogers) says:

1. December 31, 2012 at 1:17 pm (http://uklawstudent.thomsonreuters.com/2012/10/how-to-think-
and-reason-like-a-lawyer/#comment-55)

A very good read, thank you.

Reply (http://uklawstudent.thomsonreuters.com/2012/10/how-to-think-and-reason-like-a-lawyer/?
replytocom=55#respond)

Laura P says:
2. March 21, 2013 at 3:51 pm (http://uklawstudent.thomsonreuters.com/2012/10/how-to-think-and-
reason-like-a-lawyer/#comment-116)

Thank you so much for this! It helps a lot and makes sense
out of those two pieces of advice that are so hard to grasp.

Reply (http://uklawstudent.thomsonreuters.com/2012/10/how-to-think-and-reason-like-a-lawyer/?
replytocom=116#respond)

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