To intelligently answer your client’s question, you would have to decide the following

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One of the main keys to doing well on the written examination is issue-spotting. If an issue is not perceived, it cannot be discussed. The reason why issue-spotting is so important is because if, as an Advocate, you recognize all of the legal issues, you can always ascertain the applicable law (if there is any) by researching the question.

However, if you fail to perceive an issue, you might very well mislead yourself. It is important to remember that (1) an issue is a question, and (2) a legal point is “in issue” when it could be disputed or argued about.

The key to issue-spotting is approaching a hypothetical problem in the same manner as an Advocate would. Let’s assume someone enters your office with a legal problem. He/she would recite the facts to you and give you documents which might be pertinent. He/she would then want to know if he/she could sue (or be sued, if your client was the party who desired to avoid liability).

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To intelligently answer your client’s question, you would have to decide the following:

(1) what tort theory or theories could possibly be asserted by the plaintiff,

(2) what defence or defences could possibly be raised to such causes of action,

(3) what issues might arise if these causes of action and defence were asserted,

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(4) what arguments each side could make to the fact finder to attempt to persuade the latter to resolve the issue in his/her favour, and

(5) finally, what the outcome of each issue would be. The issues which could possibly arise at trial are those which should be discussed in your answer.

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