Issue Spotting Skills

This article was reprinted with permission of Study Partner™

Law School Issue Spotting

Effective Issue Spotting for Law School Exam Writing Requires Memorization of Majority and Minority law.

Issue spotting is the most important aspect of the skill of law school exam writing and in taking law school exams because if you do not spot the issues there is no chance at all for you to score points on an exam. Issue spotting is a topic that is frequently overlooked by most law students, leading to poor exam results. Even in traditional IRAC law school exam writing it is the first and most important element.

There are two reasons why law students fail law school exam writing; the first is that the law students do not know the law because they have not taken the time to memorize and dissertate on the law. The second is more hideous; in the frenzy of the law school exam writing process, the law student completely misses an issue. This is due to the fact that those law students who miss issues violate the first rule of law school exams: Issue Spotting

All issues are derived from the facts and the facts are written in words and every word on an exam is a potential issue!

R&R™ Issue Spotting for Law School Exam Writing is the First and most Important Element of Traditional IRAC exam writing.

This leads us to the first practical exercise in issue spotting. It is called Rewrite and Recognize™, or R&R™ for short. A quick demonstration will immediately show any law student how this Issue Spotting drill works in the scheme of basic IRAC. The following paragraph was taken from a bar exam given by the state of California, and will be analyzed for potential criminal liability and issue spotting.

One evening Albert was told that his estranged wife Zola was having overnight male guests in their residence. He immediately stormed out of the Sleezy Saloon, where he had been all evening, and drove his car wildly to the residence.

Before a law student begins, it must be pointed out that the purpose of this exercise is to create a sensitivity in the law student’s mind to the words that convey fact patterns, and to discipline the law student to read the facts of the question and to completely understand how they relate to the law. The law student will not be answering interrogatories, so this exercise in issue spotting will ignore the rule that to answer an exam question a law student should read the interrogatory first, and then specifically focus on the facts in order to answer the interrogatory and nothing else. When a law student practices issue spotting the law student should just concern herself with all of the possible interpretations of the facts, and not with those brought forth with the call of the interrogatory.

First Rewrite the facts so that you can practice issue spotting. This is a very simple exercise, and results in a list of key words.

Evening
Albert
told
estranged wife
Zola having overnight male guests
their residence
he immediately
stormed out
Sleezy Saloon
been all evening
drove car wildly
to residence

If you as a law student were to take this rewritten fact pattern, close the book, and never refer to the written exam paragraph again, the law student should be able to recall in detail all the events of the fact pattern without any difficulty just by looking at the law student’s list.

We are now able to begin the issue spotting process of Recognizing the issues presented by the fact pattern. This drill is quite simple if the law student has taken the time to memorize the law and to dissertate on it as presented in the Rom Law ™ in the Law Outlines on Disk ™ . The trick to remember is that each line of your facts listed should present a possible issue to the law student for issue spotting. If it does not, you as a law student do not know the law.

“Evening” represents the common law crime of burglary. The associated facts to burglary are “their residence” and “been there all evening,” which suggest that it may still evening or it may be sunrise and also the issue of burglarizing one’s own residence.

“Sleezy Saloon” suggests intoxication, a defense, and is supported by the fact that he had “been there all evening” and “drove his car wildly”. The latter indicates a charge of drunk driving and a possible mitigation to the provocation (infra) suggested by the fact that his “estranged wife” had “overnight guests”. The fact that it took time to drive to the residence and that he might have had a chance to cool off or maybe a reasonable person would have done so would also mitigate the provocation.

“Estranged wife” suggests the issue of provocation and is supported by the facts that he “immediately stormed out” and that she has “overnight guests”, which on further analysis could also suggest a possible charge of adultery.

All of the individual facts relate to one another in combinations. If you as a law student are not using all of the facts presented, you are not spotting the issues and you will not be able to effectively frame a cogent answer to the specific interrogatories presented for excellence at law school exam writing. We picked a criminal law example because too many law students have been watching too much TV and already know that law for the most part. Also it is amazing how many law students fail to issue spot the issue related to the possibility of drunk driving in this fact pattern. We have also shown this fact pattern to uneducated lay people who know nothing about the technical aspects of the law and they quickly and easily spotted the fact that he may be drunk and he was speeding. Law students simply just don’t really read and listen and they look for all the big things or over analyze or think there is some magic formula to learn how to really read the facts. That is why law students fail at issue spotting over and over again.

Key Words

Some basic words recur and beg the issue, such as ‘evening’ for burglary and the use of ‘the Saloon’ for intoxication. Others that are used are more subtle; these separate those law students think they know the law from those who really do. In the given example they are used to reinforce the fact that it may still be night, and the storming out of the Saloon, the wild driving, and the estranged wife are used to support the issues of burglary, provocation, drunk driving, intoxication, and adultery.

Of course, do not forget those insignificant crimes such as drunk driving, speeding, and adultery. Although they pale in comparison to burglary and murder, they will show that you as a law student have an in-depth understanding of the law and possess superior skills in analyzing fact patterns and that you have mastered issue spotting.

Issue Spotting is a Skill that Requires Practice Practice Practice

The key to issue spotting is to Practice Practice Practice. If you do you will see fact patterns repeat themselves over and over and over again. Thus, issue spotting becomes easier and easier. This will tip you off that if you cannot relate an issue to that particular fact pattern then you must go find out if there is any law that you in fact just do not know.

In other words if you as a law student see a fact pattern over and over again that says there is a Blue Cow standing in the middle of the field; and you don’t know any Blue Cow law you better go look it up to see if such law exists. We assure you on law school exams you will need to analyze every word to produce superior issue spotting.

After you have practiced issue spotting for approximately 100 paragraphs for each topic for which you desire to be proficient, it will begin to appear quite simple and you will begin to read the facts, spot the issues, and use the facts to support the issues presented without difficulty. More importantly, you will begin to write better answers on your exams as you automatically begin to use the facts to support the issues.

If you come across a situation in which you cannot spot an issue or use the facts presented to support other issues presented, it is highly probable that you are missing something important. In this case, it is recommended that you refer to your Hornbook or Rom Law ™ on the subject and check to see whether or not the facts suggest any possible issues. Remember: the only rule that you will have to follow in issue spotting is that all issues are derived from the facts and the facts are written in words and every word on an exam is a potential issue!

The more a law student does issue spotting the more issues she will spot and the more law she will learn. The more a law student does issue spotting the faster she will be able to analyze fact patterns. For the average law student, if they practice issue spotting as we have described it is not uncommon for the average law student to spot more issues on a law school exam than the professor thought were there. You can get the Law School Manifesto as well as a digital copy of the Foldeez law outline for Contracts law. Just click here.

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