Citation of authorities
One of the most important requirements for answering questions on the law is that you must be able to back the points you make with authority, usually from either a case or a statute. It is not good enough to state that the law is such and such, without stating the case or statute that says that that is the law.
Some examiners are starting to suggest that the case name is not essential, as long as you can remember and understand the general principle that that case laid down. However, such examiners remain in the minority and the reality is that even they are likely to give higher marks where the candidate has cited authorities by name; quite simply, it helps give the impression that you know your material thoroughly, rather than half-remembering something you heard once in class.
This means that you must be prepared to learn fairly long lists of cases by heart, which can be a daunting prospect. What you need to memorise is the name of the case, a brief description of the facts, and the legal principle that the case established. Once you have revised a topic well, you should find that a surprisingly high number of cases on that topic begin to stick in your mind anyway, but there will probably be some that you have trouble recalling. A good way to memorise these is to try to create a picture in your mind that links the facts, the name and the legal principle – the more bizarre the image, the more likely you are to remember it.
Knowing the names of cases makes you look more knowledgeable, and also saves writing time in the exam, but if you do forget a name, referring briefly to the facts will identify it. It is not necessary to learn the dates of cases, although it is useful if you know whether it is a recent or an old case. Dates are usually required for statutes.
You need to know the facts of a case in order to judge whether it applies to the situation in a problem question. However, unless you are making a detailed comparison of the facts of a case and the facts of a problem question, in order to argue that the case should or could be distinguished, you should generally make only brief reference to facts, if at all – long descriptions of facts waste time and earn few marks.
When reading the ‘Answering questions’ sections at the end of each chapter in this book, bear in mind that, for reasons of space, we have not highlighted every case that you should cite. The skeleton arguments outlined in those sections must be backed up with authority from cases and statute law.
There is no right answer
In law exams, there is not usually a right or a wrong answer. What matters is that you show you know what type of issues you are being asked about. Essay questions are likely to ask you to ‘discuss’, ‘criticise’, or ‘evaluate’, and you simply need to produce a good range of factual and critical material in order to do this. The answer you produce might look completely different from your friend’s but both answers could be worth ‘A’ grades.
Breadth and depth of content
Where a question seems to raise a number of different issues – as most do – you will achieve better marks by addressing all or most of these issues than by writing at great length on just one or two. By all means spend more time on issues that you know well, but at least be sure to mention other issues that you can see are relevant, even if you can only produce a paragraph or so about them.
The structure of the question
If a question is specifically divided into parts, for example (a), (b) and (c), then stick to those divisions and do not merge your answer into one long piece of writing.
Law examinations tend to contain a mixture of essay questions and what are known as ‘problem questions’. Tackling each of these questions involves slightly different skills, so we consider each in turn.
Answer the question asked
Over and over again, examiners complain that candidates do not answer the question they are asked – so if you can develop this skill, you will stand out from the crowd. You will get very few marks for simply writing all you know about a topic, with no attempt to address the issues raised in the question, but if you can adapt the material that you have learnt on the subject to take into account the particular emphasis given to it by the question, you will do well.
Even if you have memorised an essay that does raise the issues in the question (perhaps because those issues tend to be raised year after year), you must fit your material to the words of the question you are actually being asked. For example, suppose during your course you wrote an essay on the advantages and disadvantages of limiting compensation for nervous shock, and then, in the exam, you find yourself faced with the question ‘Should compensation for nervous shock be subject to the same rules as for physical damage?’ The material in your coursework essay is ideally suited for the exam question, but if (after briefly explaining what the rules on compensation for physical damage and for nervous shock are) you begin the main part of your answer with the words ‘The advantages of limiting compensation for nervous shock include . . .’, or something similar, this is a dead giveaway to the examiner that you are merely writing down an essay you have memorised. It takes very little effort to change the words to ‘There are a number of good reasons why compensation for nervous shock should not be subject to the same rules as physical damage . . .’, but it will create a much better impression, especially if you finish with a conclusion that, based on points you have made, states that special rules are a good or bad idea, the choice depending on the arguments you have made during your answer.
During your essay, you should keep referring to the words used in the question – if this seems to become repetitive, use synonyms for those words. This makes it clear to the examiner that you are keeping the question in mind as you work.
Plan your answer
Under pressure of time, it is tempting to start writing immediately, but it is well worth spending five minutes planning each essay question – it may mean that you write less overall, but the quality of your answer will almost certainly be better. The plan need not be elaborate: just jot down everything you feel is relevant to the answer, including case names, and then organise the material into a logical order appropriate to the question asked. To put it in order, rather than wasting time copying it all out again, simply put a number next to each point according to which ones you intend to make first, second and so forth.
Provide analysis and fact
Very few essay questions require merely factual descriptions of what the law is; you will almost always be required to analyse the factual content in some way, usually highlighting any problems or gaps in the law, and suggesting possible reforms. If a question asks you to analyse whether individuals are adequately protected by the law on defamation, you should not write everything you know about defamation and finish with one sentence saying individuals are or are not adequately protected. Instead you should select your relevant material and your whole answer should be targeted at answering whether the protection is adequate, by, for example, pointing out any gaps or problems in it, and highlighting changes that have improved protection.
Where a question uses the word ‘critically’, as in ‘critically describe’ or ‘critically evaluate’, the examiners are merely drawing your attention to the fact that your approach should be analytical and not merely descriptive; you are not obliged to criticise every provision you describe. Having said that, even if you do not agree with particular criticisms that you have read, you should still discuss them and say why you do not think they are valid; there is very little mileage in an essay that simply describes the law and says it is perfectly satisfactory.
However good your material, you will only gain really good marks if you structure it well. Making a plan for each answer will help in this, and you should also try to learn your material in a logical order – this will make it easier to remember as well. The exact construction of your essay will obviously depend on the question, but you should aim to have an introduction, then the main discussion, and a conclusion. Where a question is divided into two or more parts, you should reflect that structure in your answer.
A word about conclusions: it is not good enough just to repeat the question, turning it into a statement, for the conclusion. So, for example, if the question is ‘Are the rules on compensation for negligence causing economic loss satisfactory?’, a conclusion that simply states that the rules are or are not satisfactory will gain you very little credit. A good conclusion will often summarise the arguments that you have developed during the course of your essay.
In problem questions, the exam paper will describe an imaginary situation, and then ask what the legal implications of the facts are – usually by asking you to advise one of the parties involved.
Read the question thoroughly
The first priority is to read the question thoroughly, at least a couple of times. Never start writing until you have done this, as you may well get halfway through and discover that what is said at the end makes half of what you have written irrelevant – or, at worst, that the question raises issues you have no knowledge of at all.
Answer the question asked
This means paying close attention to the words printed immediately after the situation is described. If a question asks you to advise one or other of the parties, make sure you advise the right one – the realisation as you discuss the exam with your friends afterwards that you have advised the wrong party and thus rendered most of your answer irrelevant is not an experience you will enjoy. Similarly, if a question asks about possible remedies, simply discussing whether a tort has been committed will not be enough – you need to say what the injured party can claim as a result.
Spot the issues
In answering a problem question in an examination you will often be short of time. One of the skills of doing well is spotting which issues are particularly relevant to the facts of the problem and spending most time on those, while skimming more quickly over those matters that are not really an issue on the facts, but which you clearly need to mention.
Apply the law to the facts
What a problem question requires you to do is to spot the issues raised by the situation, and to consider the law as it applies to those facts. It is not enough simply to describe the law without applying it to the facts. So in a question raising issues of negligence, for example, it is not enough to say what constitutes a duty of care and breach of it. You need to say whether, in the light of those rules, there was a duty of care and breach of it in the situation described in the problem.
Do not start your answer by copying out all the facts, or keep referring to them at great length. This is a complete waste of time, and will gain you no marks.
Unlike essay questions, problem questions are not usually seeking a critical analysis of the law. If you have time, it may be worth making the point that a particular area of the law you are discussing is problematic, and briefly stating why, but if you are addressing all the issues raised in the problem you are unlikely to have much time for this. What the examiner is looking for is essentially an understanding of the law and an ability to apply it to the particular facts given.
As always, you must back up your points with authority from case or statute law.
The introduction and conclusion are much less important for problem questions than for essay questions. Your introduction can be limited to pointing out the issues raised by the question, or, where you are asked to ‘advise’ a person mentioned in the problem, what outcome that person will be looking for. You can also say in what order you intend to deal with the issues. It is not always necessary to write a conclusion, but you may want to summarise what you have said, highlighting whether, as a result, you think the party you have advised has a strong case or not.
There is no set order in which the main part of the answer must be discussed. Sometimes it will be appropriate to deal with the problem chronologically, in which case it will usually be a matter of looking at the question line by line, while in other cases it may be appropriate to group particular issues together. If the question is broken down into clear parts – (a), (b), (c) and so on – the answer can be broken down into the same parts.
Whichever order you choose, try to deal with one issue at a time. Jumping backwards and forwards gives the impression that you have not thought about your answer. If you work through your material in a structured way, you are also less likely to leave anything out.