A GUIDE TO

PROBLEM SOLVING

The ability to tackle problems is one of the most important skills of the law student (who must face exams)
and the practitioner (who must deal with clients). In practice, the student or the practitioner who must "advise
Jones" will usually take a number of steps in the process of formulating his/her advice.
For the practitioner this may not even be a conscious process: indeed, the more practice you have, the more
the process becomes second nature to you. Nor are the steps necessarily taken in sequence; frequently they
overlap. Nevertheless, the same basic steps are, in general, taken even by the most experienced
practitioners, whether the answer to the particular problem is clear-cut, or, as is more frequently the case,
requires a degree of informed, reasoned prediction.
The purpose of these notes is to identify the key steps which would be taken by a student answering a
tutorial or examination problem. A problem from the law of Torts is used to illustrate how the steps might be
taken.
These notes are not, of course, a rigid formula – they are intended only as a guide, to help you to develop
your own problem-solving techniques. Of themselves they obviously cannot impart any skills to you. The only
way to develop your skills is by the experience of doing.

SAMPLE PROBLEM
On arriving at his downtown butcher's shop one morning, B detects the smell of gas outside the front of the
shop. At 9:00 a.m. he telephones the Gas Company, and is told that "someone will come out as soon as
possible". At 12:30 p.m. a signwriter working outside the supermarket next door drops a lighted cigarette
onto the pavement. There is an explosion which seriously damages B's shop. Advise B.

Step One
READ THE QUESTION (CAREFULLY)
This may seem obvious, but it is surprising how many students do not do it, particularly in the pressure of an
examination. The student may only ''skim-read" the question, missing a crucial fact (thereby distorting the
problem analysis) and thus giving an inappropriate answer.
For example, in the Sample Problem, the respective times at which the telephone call and the explosion
occurred may be relevant in assessing the possible liability of the Company to B. Yet a student who rushes
in after a cursory first reading may all too easily overlook significant facts such as these.
It pays to read the problem two, even three times, getting a clear grasp of the material facts and of the legal
issues to which the problem gives rise.
Note: Do not assume all the facts given are necessarily material. The assessment of material facts, and the
issues arising from them, may also need to be revisited as you proceed through the following steps.

Step Two
ALWAYS PLAN YOUR ANSWER
Never start writing until you have thought out your answer (which consists of taking steps three, four, five
and six, below). All too often, the student launches feverishly into writing and then realises half-way through
that he or she is on the wrong track, or, towards the end of the answer, is contradicting an assertion made at
the outset.
You simply cannot afford to waste time like this in an examination.
Time spent on planning is almost never wasted. Once you have worked out your plan you will in most cases
also have worked out your answer. Your only remaining task will be to write it out adding the necessary
detailed elaboration.
You may find it helpful to use a highlighter on your second reading of the problem, to mark those key facts
and statements in the problem that seem to you to bear on the answer. Although some of the facts given
may be there simply to set the story, or may be a red-herring to test your understanding of what the law
regards as material in this area, always ask yourself (twice) “why is this fact given in the problem?” If you are
sure it is irrelevant, then leave it out – but it might be wise to briefly explain why you think it has no relevance
to the problem as you understand it.
Note: Even a well thought-out answer produced in point form will score far more marks than a confused,
contradictory ramble through the authorities.

Step Three
IDENTIFY WHAT THE BROAD PROBLEMS ARE.
This identifies the broad category (or categories) of problem which the question raises. This classification is
the key to the following steps.
More often than not, you will recognise as you read through the question that it involves several problems. A
contracts question, for example, may involve problems about revocation of offers and liability for breach, as
well as quantum of damages – all of which must be discussed in a complete answer – and there may be
subsidiary problems contained within any one or more of these.
The Sample Problem, for example, would require consideration of (1) the liability in negligence (a) of the
Company and (b) of the signwriter, and (2) multiple causes. As you read and think about the problem facts,
you might usefully jot these areas down as headings – leave some space under each heading for further
detailed elaboration in the next step.
With experience, this process of classification (ie. separating out the broad problem areas) is often largely
unconscious, but it assists you to take the next step, which is to formulate with precision the particular legal
issue or issues which arise under each of the broad headings you have noted. It also helps you to organise
your discussion of the issues and authorities in a logical sequence.
All too often, the student responds to a question such as the Sample Problem by giving an unstructured
general dissertation on "the law of negligence" followed by an assertion of the outcome in the problem, but
demonstrating no appreciation of the exact legal point(s) with which the question is concerned. (It should be
obvious that a student who does this will not have answered the question satisfactorily.) The use of headings
in planning your answer helps you avoid this pitfall.

Step Four
DEFINE THE ISSUES
Tackle each of these broad problems, in turn, and identify and state the precise issues of law raised by each
of them, reducing each one to its most basic questions.
The calibre of your answer (indeed whether you answer the question at all) depends on a precise
appreciation of the legal issue(s) to which the question gives rise. You will invariably score more marks if you
show a clear understanding of what the legal issues are than if you indulge in generalisations which suggest,
for example, that you realise the question has "something to do with" breach of duty or with causation.
For example, in the Sample Problem, consideration of the Company's liability in negligence would require an
analysis of (i) whether the Company owed B a duty of care, (ii) whether such a duty, if it existed, had been
breached, (iii) whether the breach caused the damage, and so on. Stating the elements of the problem in this
generalised way, however, is not as helpful as it could be because it does not come to grips with the
particular circumstances of B's case.
If, instead of asking "whether the Company owed B a duty of care", you asked "whether a gas supplier which
has become aware of the escape of gas from one of its installations owes a duty of care to property owners
in the area of the escape", then you would be focusing attention on the specific problem and would be doing
so in such a way as to facilitate application of the relevant authorities (see Step Six), by being able to see
whether this problem is on all fours with or differs materially from them.
Precise statement of the issue also prompts recollection of relevant authorities and helps you to sift the facts.
Write the issues down under the headings you noted in Step Three. You might want to leave room under
each for jotting down the relevant authorities, and if you find you have not thought of them in a logical order
this would be a good time to number them in a more logical sequence. This will help you to write out your
answer more coherently, more logically and more persuasively.
It might safely be said that this clarification of issues together with the later application of authorities is the
crux of your answer. It is certainly more important than the ultimate conclusion you may reach, because it
reveals whether you really do understand your subject or are merely hoping the examiner will give you the
benefit of the doubt.
Step Five
IDENTIFY THE AUTHORITIES
To some extent, the process of identifying case and statute law relevant to the question overlaps with Step
Four. To crystallise the issue(s) posed by the question it is necessary to know not only what authorities bear
on the specific problem but also precisely in what way they do so.
For example, it is not particularly helpful in working out an answer to the question to note that the well-known
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case of Donoghue v Stevenson [1932] A.C. 562 may be relevant to the issue of whether a duty of care is
owed in particular circumstances. One rather needs to appreciate the extent to which it (or any other
authority you cite) helps to delineate the circumstances in which a duty of care has been held to exist. You
need to be discriminating in your reference to authorities, and it is as well to try to refine your thinking whilst
planning your answer instead of trying to sort out the mess whilst you are frantically writing it out.
In reality, you are likely to find yourself thinking of a number of cases, all of which you might note down in
your plan. When you come to Step Six, and Apply the Authorities, it might be a good idea to cross out those
you decide are strictly not on the point. This helps remove the temptation in writing out your answer merely
to cite a string of undifferentiated cases (see Step Seven).

Step Six
APPLY THE AUTHORITIES
Once you have stated the legal issues which arise on the facts (Step Four) and identified the relevant
authorities (Step Five), the next step is to apply the law to the facts. Surprisingly, many students do not take
this vital step when answering problem questions. They offer textbook-like dissertations, perhaps give a list
of cases, and leave their examiners to draw their own inferences about what the answer might be. To do this
is obviously not to answer the question at all.
To apply the law to the facts you need to do two things:
(1) You need to determine exactly what the particular statute says and/or what are the principles of law
for which the cases you cite stand;
AND
(2) You need to develop reasoned arguments as to the conclusions you would reach when these
principles are brought to bear on the facts. This process of reasoning is illustrated briefly below but
books could be written (and have been) both on determining what "the law" is and on the reasoning
process. For present purposes the following points with respect to each might be noted:
(i) Determining what is the proposition of law for which a case stands is frequently a difficult job.
For example, the ratio decidendi can often be formulated very narrowly or very expansively or
somewhere in between, depending on the level of generality at which the facts in the precedent
case are stated.
Thus, Donoghue v Stevenson [1932] A.C. 562 could arguably be confined to the liability of
manufacturers of ginger beer contaminated by dead snails for foreseeable injury suffered by a
donee from the purchaser; or it might be considered to apply whenever harm (of whatever kind,
including financial loss) is suffered by a person of a class foreseeably likely to be harmed if
something with which another deals (whether tangible or intangible) is handled negligently. Yet
again, the case might be limited to questions involving liability of persons who put foodstuffs on
the market for foreseeable harm to consumers of products of whatever kind.
The breadth of applicability of a precedent case will in practice depend not only on what the
court in that case stated the ratio to be but on what subsequent cases have held it to be – either
developing its underlying principle more broadly or restictively interpreting it.
For instance, whilst in subsequent cases Donoghue v Stevenson has been expansively
interpreted with respect to the types of activities and of harms to which its test of foreseeability
applies, the test itself has been interpreted in a fairly limited way as imposing a necessary, but
by no means sufficient, criterion of liability in negligence.
Difficulties will also arise if the precedent case in fact contains more than one ratio decidendi.
The judges may have agreed on a final result but reached their conclusions by different routes.
If that is the case, you should be careful to distinguish between the judgments. Do not simply
cite the case as supporting only one proposition.
Sometimes, it will appear that there are conflicting authorities on a particular point. If this
happens, you should consider what weight each has. For example, is the conflict between a
House of Lords' decision and a Privy Council advice on appeal from a Canadian or Australian

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in an examination or test, you are not expected to give references to the authorities you cite (it is impressive if you can, but is likely to
make your examiner wonder if the time spent learning them could have been put to better use …)
 court? OR are there two first instance New Zealand decisions suggesting opposite conclusions?
OR is there a first instance decision directly on point and a later obiter dictum of the Court of
Appeal casting doubt upon its correctness? You should discuss the opposing authorities,
consider what result each is likely to produce, and whether one case is more likely to be
followed than the other, for example, because one seems to promote the aims of a particular
statute more effectively.
You also need to be able to appreciate the limits of the principles in the decided cases. In other
words, it is as important for you to appreciate what they do not decide as what they do decide.
Many students are too ready to assume cases provide clear-cut answers when a careful reading
would show they provide only (uncertain) indicators to a likely result.
(ii) Developing Reasoned Arguments. An argument consists of a conclusion which is derived from a
premise or premises. It will be convincing only if the conclusion follows from the premises.
The clear(ish) cases – deductive reasoning
Ultimately legal argument follows the basic form of the syllogism, but few problems are so
simple as to allow this without much preliminary reasoning. A syllogism is an argument
consisting of three propositions which are of such a nature that if you admit the first and the
second, then you must accept the third (the conclusion).
For example:
[asserting an attribute that is distributed amongst
(a) All criminals have big ears. all the members of a set]
(b) Tom is a criminal. [asserting membership of that set]
(c) Therefore Tom has big ears. [any one member of that set has the attribute]

This is a valid argument. If we accept that the premises (a) and (b) are true, then we can deduce
that (c) must necessarily also be true.
Note that the premises may be true or false, but the validity of the argument does not depend on
the truth or accuracy of the premises. It is only if the propositions are true that the conclusion will
be true, and so the substantial part of your presentation must lie in convincing your reader of the
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“truth” or legitimacy of your premises.
“Good form” does not compensate for weak substance in establishing the premises and an
ability to reason logically cannot remedy any deficiency in your discussion of the law that forms
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the premises of your arguments.
Consider the similarly structured argument:
(a) Dead mice do not eat cheese. [ie All dead mice do not eat cheese.]
(b) My computer’s mouse is dead.
(c) Therefore my computer’s mouse does not eat cheese.
Although the conclusion happens to be true, this is an invalid argument because the terms
"mouse" and “dead” are used in different senses in (a) and (b) [“the fallacy of ambiguity”].
And the argument:
(a) Dead mice do not eat cheese.
(b) This mouse does not eat cheese.
(c) Therefore this mouse is dead.
scarcely fares better, although the flaw is not so clear [it suffers from “the fallacy of the
undistributed middle”].
Legal reasoning usually involves syllogistic arguments which use hypothetical or conditional
premises. For example:
The ground is wet if it has rained.
This proposition states that provided certain conditions are met, "it has rained", then it follows
that the ground will be wet. If you apply this proposition to a set of facts, syllogistic reasoning
requires that if you admit the first and second propositions you must admit the third:
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(a) The ground is wet if it has rained.
(b) It has rained.
(c) Therefore the ground is wet.
From these simple examples it can be seen that in applying a proposition of law to the facts, it is
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only if an authority is really "on all fours with" the issue under consideration that it will enable
you to give an unequivocal answer.
The not so clear cases – alternative arguments

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that is, the legal accuracy of your discussion of precedents, and/or the compelling force of your argument in other cases
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as computer scientists say, “garbage in, garbage out” …
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this equates to the assertion “It is always true that the ground is wet if it has rained.”
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that is, “not distinguishable from” – if there really is a difference in the material facts do not ignore it, deal with it!
 If the authorities suggest alternative possibilities (for example, when there are conflicting
authorities which seem to cover the point under consideration), or if you need more facts before
you can draw confident conclusions, then you should say so and give your reasons.
If the presence of a further fact would materially affect your conclusion in the light of the
authorities, then you should state what the additional fact is and explain how, and why, it might
affect the outcome.
Answering the question in such cases is less about reaching a particular outcome than the
process of analysing the issues and discussing the possible outcomes – there is probably no
“right” answer.
The not so clear cases – reasoning by similarity (analogy and induction)
In almost all problem cases you will be faced with a degree of uncertainty because the
authorities (or statutes), although sufficiently similar to be relevant, do not exactly fit the issue in
the question. You cannot yet resolve the issues by a simple syllogistic process because the
legal premise is not yet sufficiently clear to support the conclusion. What you have is a collection
of relevant, but inconclusive materials.
Do not ignore any significant points of difference but, in the light of your understanding of the
authoriites, explain how they might affect the outcome. In these cases you must weigh up the
points of similarity and discuss whether the similarities are so strong that they outweigh the
differences and support the conclusion that the two cases are so alike that they should lead to the
same result (under the principle that “like cases are decided alike”). Whether the instances under
comparison are sufficiently the same to warrant reaching the same decision is ultimately a matter
of practical judgment.
Such reasoning, by the comparison of similarities, is reasoning by analogy; it is a simpler form of
reasoning than the deductive style discussed above, and only invites the conclusion – it
suggests a conclusion, but does not compel it in the way that deductive reasoning does.
In other cases where there are a number of earlier, similar decisions you may find you can extract
their common elements and argue for a general proposition covering the class of events which
they illustrate (and which will be applicable to all other cases of the same kind). In this way a
collection of decisions can be rebuilt into one comprehensive rule, a general proposition that can
then be used as the major premise in the syllogism. This process of deriving a general
proposition from a series of related particular instances is reasoning by induction.
In practice, much of this work will be done at the stage of writing out your answer, but it is
desirable for you to have thought through your application of principles, and the logical form(s)
of your argument, before you start writing.

Step Seven
WRITE OUT YOUR ANSWER
In writing an answer, clarity, conciseness and good organisation are all important.
In particular:
(a) When presented with a specific problem, give a specific answer. Do not tell the examiner everything
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you know about Donoghue v Stevenson.
(b) Never waste your time prefacing your answer with a general discourse about "the law on" negligence
or standard of care.
Cut to the chase and ANSWER THE QUESTION!
If the problem raises points which require detailed discussion, the appropriate place for that
discussion will usually be in the body of your answer, after you have stated the issue.
(c) State clearly the proposition of law supported by the case you cite.
Never simply cite a string of authorities. Nor is it good enough to start off your answer with, for
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example, “On the facts the Company owed B a duty of care: Donoghue v Stevenson”. Indicate what
issue is posed, then state the relevant legal principle(s) and the authorities for them, then apply the
authorities and state a conclusion. Do this separately for each issue you have identified.
(d) Avoid dogmatic assertions when the case can really be argued either way.
If alternative arguments are open (as they usually are even if one line of argument seems stronger
than the other), state them, give reasons as to why they are available and demonstrate to which
conclusions they are likely to lead.

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or worse, about some other irrelevant case(s) you know about, just to fill up the pages. You will not get credit for it, but you will
convince the examiner that you cannot recognise the key authority!
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you might well be right, but you should explain why – just so your marker does not think it was a lucky guess …
 (e) If an issue cannot be resolved, it is far better to pose it, discuss it and say it cannot be resolved than
to pretend it is not there (or, worse still, that it is really another, "simple", issue).
(f) If you need more facts to answer the question, state what those facts are, and why you would need
to know them. Never base your argument on an assumed fact which you have not explained to the
examiner.
(g) Keep to the order of issues you have worked out in your plan and be systematic in your treatment of
them. It is in the nature of legal problems that the particular issues are often interconnected – if you
have alternative conclusions to discuss on one issue, these may well affect the significance of others;
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you must cover all the possibilities in an organised, well-structured fashion. This is not always easy,
but try to deal with one coherent line of reasoning before considering the next. Never work to and fro
from one to the other and back again; trying to deal with everything at once is more likely to confuse
your examiner.
(h) Once you have reached a conclusion in relation to each issue, go on to the next one. Repetition
wastes time; it earns you no marks. (Again, it is more likely to be avoided if you follow a plan.)
(i) After dealing with each of the issues that you identified in Step Four, you will also need to consider
their combined effect in an overall conclusion to your answer that indicates your assessment of the
likely outcome to the problem originally presented.

__________________________________________

A POSTCRIPT ON OPEN-BOOK EXAMINATIONS

Two general points may be made about open-book exams which are held in some subjects:
(1) Because you are expected to have your materials with you, the examiner will probably feel justified in
posing problems that test your understanding of the subject-area more searchingly than if you were
relying on your memory. Certainly, the examiner will NOT be interested in demonstrations of your
capacity to transcribe large tracts from lecture notes or text books.
(2) It does NOT follow that because you can look things up in the exam room you can dispense with
rigorous exam preparation. A student who has not developed a sound understanding of his or her
materials before the exam is guaranteed to flounder. You will not have time in an open book exam to
develop your understanding during the exam.
The purpose of having access to your books is to check finer points, such as clarifying whether a particular
case or the particular section of a statute does provide an answer to your problem. You need to know where
to look, and how the cases and statutes you have studied relate to each other.

Some further reading

nd
Patrick Keyzer, Legal problem solving: a guide for law students (2 ed, 2002)
th
Glanville Williams: Learning the Law (12 ed, 2002)
rd
John H. Farrar, Introduction to legal method (3 ed, 1990)
Richard Scragg, New Zealand' s legal system : the principles of legal method (2005)
th
Richard E. Krever, Mastering law studies and law exam techniques (5 ed, 2001)
nd
Enid Mona Campbell, Students'guide to legal writing and law exams (2 ed, 2003)
rd
McDowell & Webb, The New Zealand Legal System (3 ed, 2002)
nd
Margaret Greville, Scott Davidson and Richard Scragg, Legal research and writing in New Zealand (2 ed,
2004)

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which is why time spent carefully planning your answer is likely to be well rewarded!