Chapter 8 Guidance to answering the practical exercises

I asked this question because students can often overlook the key case on the basis that the facts are different to the question in hand. While it can be helpful, of course, to find a case which resembles the facts of your question very closely, often simply no similar case exists in terms of facts. And, in fact, sometimes similar facts can lead you astray in the case when a key fact is different. For example, consider medical law cases about whether doctors need consent before tube-feeding a dying patient. At the time of writing, the courts had decided differently depending on whether the tube feeding was required to treat a mental condition or a physical one. If you were fixated on the fact that the case involved a tube, you might overlook this distinction and apply the wrong precedent to your question. So, rather than focus on facts alone, you must consider whether the principles are the same. It can help to draw a mind map of all the aspects of your question (see Figure 9.2). If you find a case which is similar to a couple of these aspects, and, following a good research strategy you can't find anything closer to the facts, then this is a good indication you have found the most relevant, key case. 8.1.6 provides a practical example using Donoghue v Stephenson.

This is a contemporary issue requiring regular review. Most students find it much easier to use electronic research databases, and can resent having to be familiar with the more cumbersome process of using paper resources such as the cumulative supplement and noter-up of Halsbury's Laws.

The most common argument against removing the need for law students to remain familiar with paper resources used to be that electronic resources are only useful while your internet connection is viable, and if you lose this then you should be able to use paper resources as an alternative rather than be at the mercy of the internet service provider. However, this argument is less persuasive than it was. Cost, however, remains an issue, as many of the more advanced databases that have emerged are increasingly expensive.

Using paper resources is also a reassuring way to 'cross check' your work. In other words, if you have found an answer using your preferred electronic database, then it is helpful to know that, starting from scratch, you find exactly the same answer using paper resources.

Finally, I have observed that students can be less inclined to 'flip the pages' of an electronic resource, and may miss a key issue which is in the next paragraph, when they probably would have found this in a paper copy due to being more inclined to look back and forth. There appears to be something about a screenshot which inhibits students from doing this in the same way.

To reflect the current position outlined above, guidance about how to research using paper resources has been moved online.

Primary sources (see 8.1.6)
Legislation (statutes and statutory instruments) and case law.
For example:
• Unfair Contract Terms Act 1977 (statute)
• The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (statutory instrument)
• Donoghue v Stevenson [1932] AC 562 (case)

Secondary sources (see 8.1.5)
Provide commentary or opinion on the primary sources of law. Useful to identify the primary source and enhance your understanding of how it applies (and any differing views about this). For example:
• Textbook
• Journal article
• Encyclopedia
• Practitioner text
• Website (use with caution)
Halsbury's Laws is an excellent starting point. The research strategy at Figure 8.1 encourages a funnelling approach, to read a secondary source before a primary source. Conversely, when writing up practical research, you would focus on the primary source first (in the body of the report) and leave secondary sources to your research trail (see Figure 8.2)

It can feel very odd to put a conclusion at the beginning. However, bearing in mind the advice not to draft your report until your research is complete, it is entirely possible to structure your report in this way.

Why would you?

Well, if you consider the needs of your reader, this is likely to be your supervising solicitor, who will be busy and supervising matters other than your own. Guiding someone who is time poor straight to 'the answer' is a helpful thing to do.

Also, it tends to be much easier for a reader to follow and make sense of your research trail from the beginning when they already know where the end is. When the conclusion comes at the end, sometimes the reader then needs to go back and re-read in light of that conclusion. Putting the conclusion at the beginning avoids the need for this.

So, in several ways, putting the conclusion first can help to distinguish your report in a way your reader will appreciate.

There is also the additional benefit that, if you struggle to begin your report in this way, it will be absolutely clear to you that you are trying to draft it prematurely. 8.4.2 and the Legal Research Report Template at Figure 8.2 explore this issue further.