Chapter 9 Guidance to answering the practical exercises

Problem-solving and case/matter analysis

Q1. Has your understanding of a lawyer’s role in problem-solving changed as a result of reading this chapter, and if so, how?

This question is seeking to address what can be a common misapprehension among undergraduate students that a lawyer’s job is to ‘know the law’ and bestow it, lecture style, onto clients. In fact, knowing the law is a key element of being a lawyer, of course, but it is just one element. Unless you can also understand and can apply the law to the facts of a problem to provide a workable solution, then explain that clearly to a non-lawyer, knowing the law will not get you where you need to be. I have put this in the wider context in my article for the Solicitors Journal here:

Chapter 9 makes clear that, typically, while you might identify the legal remedy or solution for your client (for example, they have a right to sue someone, or they must disclose something), that legal solution may not meet the client’s objective (for example, because of the expense in bringing a claim, or because that person has transferred her assets to her husband, or they don’t want to disclose).

A lawyer’s job often involves discussing with the client the alternative options which may provide a more accessible solution (such as using the threat to sue to negotiate part payment in settlement of the claim, or finding a way to disclose which does not make the client uncomfortable, or finding a way not to disclose which is lawful). Table 9.1 shows in detail the level of analysis a lawyer must undertake, then discuss with their client regarding the advantages and disadvantages of each solution.

Q2. How will you improve your commercial awareness, and your practice so that you can provide a client with all the options, not just those which follow the letter of the law?

Part 3 of this book can help set you apart from the crowd in understanding the wider context of any legal problem. As Chapter 15 explains, while at university you need to set your goal wider than ‘learning the law’, and engage in activities that will develop your knowledge of the wider world.

Reading newspapers, watching the news, following experts on LinkedIn or twitter, reading blogs, work placements and showing an interest in the wide range of people who visit your university will all help and will not feel too much like ‘work’. Engaging with the Further Reading in the Chapters will help.

However, you would be surprised at the number of law students who do not realise the need to do this, or that the opportunities presented to them at university are relatively rare to secure afterwards, and who rue this decision to focus exclusively on ‘learning the law’.

Q3. Do you think a lawyer’s fees should relate to the value of the solution provided?

This is a topical question which raises both commercial and ethical issues (for more on which, see Chapter 6).

The point is that for a long time the profession has been in the habit of charging by the hour, but clients have become increasingly vocal about their dislike for this - consider how you would feel about the unpredictability for your budget if a dentist, for example, decided to charge on this basis.

The deregulation of the sector and entry into the market by non-lawyers owning legal services firms has also introduced new, innovative charging structures.

This raises the question, if lawyers don’t charge on a time basis, how should they calculate their fee? The value to the client of the solution they provide is one alternative method of charging. How might this quantified? Would this be attractive to a client do you think? Would this affect different firms differently; consider, for example, a corporate firm whose bread and butter work is high value one-off transactions for large clients compared with a smaller high street firm whose daily work is low value process-driven work.

What about the lawyer who spends eight hours drafting a document to record the solution for Client A, and charges this client on a value basis. She then takes half an hour to amend this document to deliver the same value solution to Client B. Can she charge the same fee to both Client A and Client B? Should she?

There are other ethical issues to consider when discussing fee scales. Consider, for example, a Manchester-based lawyer who travels to London by train to meet Client A. While on the train, she does some work for Client B. Can she charge Client A for time spent on the train, and also charge Client B for the same time? Would it be easier to justify charging Client A for time spent on the train if she had read a newspaper or watched a film instead?

It is worthwhile considering charging and ethical issues because both are topical interview questions for professionals. Chapter 20 can help you better understand how law firms charge their clients for work done.

Q4. What do you think can be done to widen access to legal advice for those with legal problems?

This question was prompted by the reference to access to justice in (the ‘do nothing’ option. You may not have considered it before, but legal costs can access as a barrier. This in turn may prompt you to think about Q1 and your own identity as a lawyer in a new way…which clients will be able to afford do you feel about this…and was this something you thought about before? The good news is that lawyers can operate socially responsible practices. They engage in pro bono, and technology is also opening up their work to new audiences. You may be able to help right now, through your university law clinic and other pro bono initiatives. Mediation can also help, and that is why I thought it was really important to begin the process of raising awareness and training students in the basics in this area. (There are still no signs of it appearing generally on the formal curriculum any time soon). I imagine you might enjoy reading it. In the meantime, feel free to read my three articles for Justice Week (this article links to the one before it and the one after it) here.

Q.5 How does Figure 9.1 enhance your understanding of IRAC. Consider how you can commit Figure 9.1 to memory, with understanding.

Teaching across undergraduate and professional programmes, and having been a student on both, and a practising lawyer, afforded me a wealth of experience to draw on to write Part 2, and informed the content.

It seemed to me that there was more that could be done to transfer how students learned from one stage to the next.

I noticed that IRAC tended not to be used too much in postgraduate and professional training, but when I started to mention it in the context of problem solving, students liked it because it was a familiar springboard from which they could launch into the next stage of their learning.

I also found undergraduates like IRAC but can struggle to move beyond the mnemonic and so it was not as useful as it had potential to be.

As a transactional lawyer in practice, when I began to talk to contentious lawyers about ‘case analysis’, I recognised the common links to IRAC, and to the matter analysis I would undertake in my non-contentious work.

Figure 9.1 brings these together in one place and I hope you find it useful and transferable across your subjects and various stages of learning.

I am encouraging you to commit it to memory, but not just by rote learning. Here are a few ideas you can feel free to try, or create your own:

  • The more you use it, the more familiar with it you will become. Print it out and take it to any class in which you might be asked to solve a legal problem. Annotate it and make it your own.
  • Use learning techniques like mnemonics to commit column 2 to memory. How can you make the case/matter anlaysis of the I in IRAC (issue) - Parties, Task, Facts, Objectives, and Legal Issues - mean something to you? For me, the ruder the sentence, the more easily I remember it...but how about Pat Tried Frying Omlettes LIghtly? No doubt you will find your own relatively easily…
  • If this doesn’t work for you, maybe converting Figure 9,1 into a Mind Map format (like Figure 9.3) might be helpful? Change the layout to one that works, or keep it as it is if that works for you. Take a picture of it in your mind…blow it up so you can see every word, and play with the submodalities – maybe put some colour into each row, put some words into capital letters, even give each row a helpful sound.
  • Or perhaps you need to draw Figure 9.1 in your own hand rather than look at my drawing in the book. You may need to repeat this process until you can draw it without looking at mine, or even draw it just in your mind’s eye. You might need to animate your picture.
  • Or maybe you need to talk about it, with your friends who are familiar with it, with your family who are not.

Keep going until you find a technique that works for you…once you have found your own personal ‘hack’…enjoy using it to commit to memory absolutely anything you like.

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