Frequently Asked Questions

General Study Skills

If a case has more than one opinion, do I need to read all of them?

As suggested in the book, the only way to develop critical legal skills is to practice reading cases in their entirety. There's a lot that you can learn about how to craft a legal argument by reading the opinions of different judges. Although a dissent may not be binding law, it can give you great insight into how different judges weigh up the facts and law. Remember, there is often no one objective 'right answer' in the law – it's all in the way you argue a point. Try looking at the case breakdown elsewhere on this website to see how much you can learn from just a single opinion.

Having said that, you will need to learn to read judiciously. If the case is relatively old – say, older than 20 years – and is the leading case for a particular proposition, then you may only need to read the leading opinion, since the various points of law are now well-settled and the particulars of the dispute are not as important as what the case is now deemed to say. However, once you move into the practise of law, you will need to review all relevant cases, no matter how old. For example, the case breakdown elsewhere on this website includes a discussion of a 100+ year-old case.

 

How do you know which is the leading opinion in a case with multiple opinions?

This is a very tricky question! The easy answer is that the opinion that everyone later decides is the leading opinion is the leading opinion, which doesn't help a student reader very much. Your textbook or your lecturer may point you to the leading opinion by frequently quoting from that particular judge. However, if you're looking at a case on your own, you need to decide whose argument is most persuasive. To do that, you'll need to read the case through in its entirety. Look at the head notes to see if some of the opinions are in dissent – there's nothing worse than reading through 30 pages of text, only to find that you've just agreed completely with the sole dissent! If your version of the case doesn't have head notes, look at the last line of each opinion to see which way that judge went. Also, some cases that appear to have multiple opinions actually only have one substantive opinion – the other judges simply say 'I agree with Lord Justice So-and-So'. Finally, you can consider whether any of the opinions are written by people that you are know are generally well esteemed. For example, Lord Goff of Chieveley and Lord Browne-Wilkinson both tend to write persuasive opinions that become the leading opinion in a case.

 

Do I have to read all the facts in a case?

This is one of the areas where, as a student, you can speed-read. The facts are not as important to you as they are to a practitioner, who has the time, the skill and the need to distinguish cases based on nuances of both law and fact. You are more interested in the holding of the case. Therefore, you could skim the head note to get a general understanding of the facts and then focus on the legal analysis in the case itself. Of course, if the case turns on a particular fact, you may need to go back and read it again, but some opinions spend an excessive amount of time discussing facts that don't really matter to you. You may also discover two cases that come to opposite legal conclusions, which would require you to look at whether the judges were influenced by important factual differences. Nevertheless, in all instances, you should have at least a basic understanding of the facts of any case you read.

 

The head note editors are a lot more experienced than I am in reading a case. Why can't I just read the head note?

See the answer to the first question above! Reading cases in the original is about more than just learning the outcome of any particular dispute. You are trying to learn how to manipulate the facts and the law so that you can craft a persuasive legal argument. Of course you need to know the outcome of any particular decision, and the head notes will give you that information, but to do well on a law essay or exam, you need to be able to use the information you have gleaned from the various cases and statutes. Reading the cases will take longer than reading the head notes, but will serve you better in the end, since you will learn to read for what's important. Disregard detailed explanations of the facts, by all means, and skip over legal discussions that have nothing to do with the issue you are researching, but don't give up on reading cases altogether. You'll just have to learn the skills later in your career, when time is at even more of a premium and when the stakes are that much higher.

 

How do I know what's important in a case or in a statute?

Again, this is something that you learn through trial and error, but your success rate will increase if you think both logically and creatively. Logic tells you that if you're interested in finding out what the measure of damages is for wrongful death, you don't need to read the part of the case that discusses whether a duty of care existed toward this particular claimant. You may find that discussion helpful later, when you're thinking about duty of care issues, but at this point you just don't care. Being too structured can be a problem, however. If you're interested in the measure of damages for wrongful death, you should also be interested in cases that discuss the measure of damages for loss of amenities, loss of wages, loss of consortium, etc., even if death did not occur in those other cases. Why? Because the analysis will be similar. If you focus too rigidly on wrongful death cases, you'll miss helpful points made in related disputes. Be flexible, particularly early on in your research. You can always discard tangential cases later if you find enough good material directly on point.

Statutes also require a combination of logic and creativity. That's why the book suggests that you at least skim the headings of any statute that is drawn to your attention in class or in your textbooks. It may be that the paragraph cited to you is not the only section that discusses your legal issue. Similarly, it may be that one statute works together with another statute. For example, the Occupiers' Liability Act 1984 must be read in connection with the Occupiers' Liability Act 1957. Try to remain flexible in your thinking while at the same time retaining your focus. It's hard, but over time the technique will bear fruit in the form of first-class marks.

 

Why do I need to know about laws that have been superseded?

Sometimes your texts or your lecturers will discuss legal principles that are no longer in vogue. For example, comparative negligence has replaced contributory negligence in the law of tort, but every student still must know the principles of contributory negligence. Why? Because it helps demonstrate how the law has developed. If it grates on your nerves to be taught ancient principles, just take a deep breath and try to look behind the actual change in the law to the reasons why the law changed. The common law is never static; everything is in the process of change. If you can identify the rationales that inspire sudden and dramatic shifts in the law, you will be better prepared to write about them knowledgeably in your essays and exams and to anticipate them going forward. Also, you never know when you might be asked a pure essay question that focuses on legal history. For those questions, you must discuss the evolution of a particular legal principle.

 

I have a string of cases that my tutor says are related, but I don't see a connection. What do I do?

You are not alone. Many, many students struggle to understand the connection between seemingly disparate opinions. Nothing is harder for newcomers to the law to grasp than the harmonisation of apparently unrelated cases. Try making a list of all the ways the cases are the same: same kinds of claimants, same kinds of defendants, same kinds of legal issues, same time periods, same types of legal claims. Then make a list of all the ways the cases are different. Then compare the lists. Hopefully the ways that the cases are different are less numerous or less important (i.e., regarding matters of fact, rather than of law) than the ways they are different. Remember, two cases can be very different on their facts or on some of their legal issues but still be very similar on one point of law. It may be that your tutor is focusing on that one similarity rather than the multiple ways the cases differ.

When trying to identify or harmonise a line of cases, it also helps to see whether the later cases cite any earlier opinions as particularly persuasive. Alternatively, a later judgment may say that it finds an earlier case no longer persuasive. Look to see which parts of the earlier decision the later opinion picks out as important. That may be the element on which you should focus your inquiry, too.

 

What do I do about cases that have the opposite outcome?

Rejoice! If you find cases that support opposite propositions of law, you can bet that you'll be asked to write about them. The easy answer is that the later case (or the decision from the higher court) should control, but you don't want to stick with what's easy – you want to make lots of unique, sophisticated points that will win you a first class mark. Therefore, you should focus on identifying the ways in which the cases are similar and the ways in which they are dissimilar. Also consider what public policies are at work in each of the cases. Once you have created a list of points to consider, you can apply the cases to a problem question with a great deal of detail and intelligence. You can also discuss the cases in a pure essay problem with a deep understanding of why the cases were decided as they were. Remember, essay questions want you to dig beneath the surface – don't just limit yourself to differences in fact patterns.

 

IRAC in your university setting

My lecturer or tutor doesn't teach or refer to IRAC. Can I still use the IRAC method in my essays and exams?

Yes! IRAC was developed to help students convey their understanding of the law in an orderly and logical manner. The IRAC method is not tied to any particular university or examination system. Therefore, you should be able to use it wherever you are.

Be aware, though, that your instructors may not be familiar with the IRAC system and that you should therefore be careful to explain what you are doing as you do it without referring to IRAC, per se. In other words, don't say, 'The issue in this case, under the IRAC method, is X.' Instead, say, 'The issue in this case is X.' If you need to go on and describe what you mean by the term 'issue' or 'rule' or ‘application’, go ahead and do so, though those words have a common meaning among lawyers and should be easily understood. You could also give a road map at the beginning of your essay, stating something along the following lines:

First I will identify the issues at stake, then I will set forth the rule that controls these issues. Next I will describe how the law should be applied in light of the facts.  Finally, I will give the conclusion of the dispute.

However, that is not absolutely necessary if you are proceeding through each step in a clear and concise manner. If your first few essays come back with marks from your tutor that suggest he or she does not understand your structure, consider making your structure explicit in your first paragraph. Tutors often worry less about how you do something as long as you include all the important elements. You could also work on making your analysis clearer. Remember, you may need to practice the IRAC method for a while before it comes to you naturally. Rest assured, though, that the IRAC system should work for everyone, whether or not your lecturer refers to it by name. Practising lawyers commonly use the IRAC method of analysis, so it makes sense for students to use it as well. The case breakdown that is included elsewhere on this website shows how judges also follow IRAC, even if they were never formally taught it. Therefore, your instructors should not be surprised to find you following this tried and true model.

 

The IRAC method

I've read the book and I still don't understand the difference between an issue and a sub-issue.

An issue is the legal cause of action and includes everything that a claimant needs to prove to win his or her case. You can also think of it as the way an educated lay person would describe what's in dispute – a breach of contract, an assault, a kidnapping. Lay people, no matter how educated, don't walk around saying, 'I'm suing my neighbour over a duty of care.' No! They say, 'My neighbour caused a crack in the wall of my house when he dug his swimming pool too close to the property line and I'm now suing him for negligence'. A lawyer will know that the real dispute is whether the neighbour had a duty of care to the claimant to keep structures on the claimant's property whole and undamaged, but duty of care is the sub-issue – the thing that's most in dispute. If there is a duty of care, breach is easy to prove, since the house has a crack in it. Damages and causation are also going to be easy to prove. Instead, the real fight is going to be about whether the neighbour could dig where he did and the way he did.

The sub-issue is the thing that the lawyers are most likely to argue about for the longest amount of time. In your legal studies, it will always be a question of law, not a question of fact. You're not going to get into whether the pool was supposed to be eight feet deep or ten feet deep and whether that would change the conclusion of the case. You're also not going to argue about whether there was 'but for', or factual, causation, at least in most cases. You're going to stick to legal arguments, since that's what your instructors want to see – they want to see you grapple with conflicting authorities and novel lines of legal analysis.

 

Why do I have to list all the elements of a cause of action? My lecturer says I shouldn't waste time on anything that isn't at the heart of the dispute.

Your lecturer is absolutely right, you shouldn't waste time on tangential matters. What your lecturer also wants – but doesn't say – is to see you focus on the correct issues. Students typically operate at one of two extremes: either they spend too much time describing law that isn't really in contention (and thus not really at issue, because the two parties aren't going to argue about those points) or they miss really meaty areas of law because they don't see all the different elements that are in dispute. IRAC forces you to describe all the elements of a cause of action so that you take the middle ground. By listing everything that the claimant must prove, you have to stop and think about each element of that cause of action. When you list each of these elements, you have to slow down enough to consider whether either side is really going to dispute that point. If not, it's not at issue and you won't talk about it at length.

If something is not really in dispute, the most you will do is describe, in a conclusory manner, how that element has been met. For example, if the claimant in a contract action has to prove that he or she performed his or her duties in full, but no one really disputes that (because the legal issue focuses on something else, such as whether the contract was valid), then you could simply say, 'The defendant's duty to pay was triggered when the claimant completed her promise under the contract to walk across London Bridge', or whatever full performance happened to be. You won't need to get into what constitutes full performance, as a matter of law – no one's going to dispute that promising to walk across the bridge constitutes full performance of a promise to walk across that same bridge.

 

How will I spot the difference between an important issue (or sub-issue) and an unimportant issue (or sub-issue)?

An important issue or sub-issue has lots of relevant (and contentious) legal principles, whereas an unimportant issue or sub-issue does not. The book suggests that before you start writing your essay, you make a list of all the relevant cases and statutes supporting each issue or sub-issue. At first, do this in writing so that you get used to doing the analysis. Later, you will be able to discard unimportant issues or sub-issues immediately, since you see that there's really not much in dispute. Sure, you could try to make out an argument for trespass to land in an essay that involves the accidental escape of something from one person's land to another's, but you're going to be so busy with the nuisance and Rylands v. Fletcher claims that you won't have time to add more than a sentence on trespass, since it's really quite dubious that the defendant acted with the requisite intent. Of course, if the facts suggest that the defendant plotted and planned and did have the intent to let whatever it was escape onto neighbouring land, then you should discuss trespass, but you see the difference – the examiner has built one of the key elements of trespass into the second, but not the first, example.

Always look for the concepts in dispute, i.e., the points that both parties think they can win. Don't simply look for subjects that you can discuss authoritatively. You may know everything there is to know about consideration, for example, but you can't slip that into every contract essay you write. Before talking about consideration, there has to be some question, based on the facts, whether consideration exists. Don't adjust the question to suit your knowledge – adjust your knowledge to suit the question.

Always begin your analysis with an open-minded, creative approach to the question. Consider every issue and every sub-issue as if it will become the most important element of your essay. Even if a particular point does not end up being important to your final argument, it may lead to something critical. Once you've considered every possible issue and sub-issue, then you can strike out those that really aren't that useful. Does this process take time? Sure. That's why you need to practice it early on, so that you can see how different arguments interrelate (for example, if you have a possible battery, always consider assault as well) and move through the analysis more quickly. You shouldn't try this type of creative thinking for the first time in a timed examination. However, it does get easier with practice and is at the crux of good legal analysis. In fact, creating an argument is what's fun about the law – don't short-change yourself by sticking to what's safe!

 

It feels like my 'A' step duplicates my 'R' step. How do I keep from repeating myself?

Making the distinction between setting out the legal standard and applying the law to the facts can be difficult. Some people differentiate between the two steps naturally, but most people need a bit of practice. Use the 'R' section to identify all the relevant authorities on the subject, but don't say anything about the facts yet. If you can resolve any disputes between authorities as a matter of law, do so.

Once you've completed that step, you're ready to move on to the 'A' section. Here, you describe the conclusions that you've reached above and demonstrate how your facts do or do not fit into the tests you've identified in the 'R' section. For example, if your legal test requires you to demonstrate that the defendant knowingly took the property of another, with 'knowingly' defined as knowing not just that he or she was taking property, but taking property of another, then you argue in the 'A' section that the defendant met that test when she picked up the box marked "Property of Joe Smith" in large red letters, scribbled out "Joe Smith" and replaced it with "Sarah Pritchett" and put it in her car. You don't have to revisit the cases that said 'knowing' means merely intending to take property – you have resolved the definition of 'knowing', as a matter of law, in the 'R' section and now can just work from your legal conclusion. Here, too, you see that this is an important point because you have cases that can be argued both ways.

The 'A' step does require some repetition of the relevant law, but it does so in the context of relating that law to the facts. Instead of merely repeating the legal standards set forth in the cases and statutes, the 'A' step manipulates that information to form an argument that will lead to your conclusion in the 'C' step. You want to remind your reader of the source of your conclusions, but you're not getting into great detail about what the cases or statutes say – you've done all that already. Now you're focused on being persuasive and putting all your various pieces together into one coherent argument. In many ways, the 'A' part is the most fun, though once you get used to IRAC, you realize that the 'R' section anticipates everything you do in the 'A' section and is therefore just as interesting to write.

 

What do I do with all the law I know but don't use in an essay?

Unfortunately, you never have exactly the right amount of knowledge to cover the questions asked with nothing left over. Invariably you end up with either not enough information (scary but true) or too much information. It's like when you're eating cake and ice cream – you never run out of both at precisely the same time. The clever and well-prepared student makes sure that he or she never runs out of knowledge on an essay or an exam, which means there will always be some information left over. Rather than throw in that extra law and dilute the power of the essay, just hold onto it. As stated several times in the book, what you keep out of an essay is just as important as what you put in. Better to know, deep in your heart, that you very well could have given your examiner a stupendous essay on res ipsa loquitur than to try to give your examiner an essay on res ipsa when he or she was really looking for an essay on something else. Sometimes, less really is more.