How to discuss all possible issues?

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As just noted, a student should draw some type of conclusion or opinion with respect to each issue.

Regardless of your conclusion pertaining to a particular legal controversy, however, it is essential to discuss all of the other issues which would arise in a litigational context (i.e., if the hypothetical where actually tried in court).

If you were to terminate your answer after a discussion of the definiteness problem only, you would be getting lesser marks.

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Why should you have to discuss every potential issue if you are relatively certain the outcome of a particular issue would be dispositive of the entire case?

The answer is because at the commencement of litigation, neither party can be absolutely positive as to which issues he/she will prevail upon at trial. It can be stated with confidence that every Advocate with some degree of experience has won issues he/she thought would be lost and has lost with respect to issues which he/she thought victory was assured.

Since one can never be absolutely certain how a factual issue will be resolved by the fact finder, a good Advocate (and exam- writer) will discuss all possible issues.

Another way of understanding the importance of discussing all of the potential issues is to think about what you will do during the actual practice of law. If you represent the defendant in an action, it is your function to raise every possible defense. If there are five potential issues, and your pleadings only raise three of them (since your are confident that you will prevail on all three), and the plaintiff is somehow successful with respect to those issues, your client might well sue you for malpractice.

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His/her contention would be that you should be liable for the judgment against him/her because if you had only raised the two additional issues, you would have prevailed on at least one of them, and therefore liability would have been avoided. It is an Advocate’s duty to raise all legitimate issues. A similar philosophy should be adhered to when taking written essay exams.

What exactly do you do when you have resolved the initial issue in favour of the defendant; and, as a consequence, discussion of any additional issues would be moot? The answer is simple. You simply begin the discussion of the next potential issue with something like, “Assuming, however the plaintiff prevailed on the foregoing issue, the next issue would be……………. “The evaluer will understand and appreciate what you have done.

The corollary to the importance of discussing all potential issues is the rule militating against the discussion of non-issues. Negating non-issues is detrimental in two ways. First, you receive absolutely no points for discussing a legal doctrine which the evaluer deems unimportant.

Secondly, it suggest to the evaluer that you lack the ability to distinguish the legally significant from the irrelevant. The best guideline for avoiding the discussion of non-issues is to ask yourself, “Would you, as an Advocate, tell your client about that particular legal point if you only had 20 minutes (the approximate amount of time in which you will have to write your answer after reading and analyzing the question) to discuss his/her situation?” Thus, there is a judgmental aspect about exam writing which requires a prioritization of the potential legal points. If you would consider it a waste of your client’s time to advise him/her with regard to a particular point, then don’t waste the evaluer’s time with it!

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