LEGAL PROBLEM SOLVING HOW TO THINK AND REASON LIKE A LAWYER BY

NICOLA JACKSON OF LEICESTER DE MONFORT LAW SCHOOL

LEGAL PROBLEM SOLVING: HOW TO THINK AND REASON LIKE A LAWYER BY

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

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?

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

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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.

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

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 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:

o 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:

o Skyview had not unreasonably interfered with Bernsteins use of land.

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

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.

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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

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.

[End of Nicola Johnson note.]