“Legal problem solving – identifying and diagnosing problems and generating strategies and tactics to achieve client objectives – is a legally trained person’s most basic function. Most legal problem solving activity involves some legal analysis – combining law and facts to generate, justify, and assess a legal problem’s merits.” (Legal Services Practice Manual: Skills, 2010)
All lawsuits arise as a result of disputes involving facts. Our legal system revolves around resolving disputes through the application of rules of law to the facts of a case. Yes, trials and appeals are about “law,” but remember that the trial court judge, or the jury, is referred to as the “trier-of-fact.” Determinations of facts are so important that the Bill of Rights guarantees that facts once decided by a jury are pretty much the last word. The seventh amendment provides that, “…no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” This clause forbids any court from reexamining or overturning any factual determinations made by a jury, unless the factual determinations are clearly erroneous.
The two major components of the dispute resolution process are the applicable law and the facts of the dispute. In the professional practice of law, you will be sifting through the case file to identify which of the hundreds or thousands of facts produced by discovery (for example, witness statements, deposition transcripts, answers to interrogatories, photographs, and correspondence) are “key” facts. Key facts are those facts that are critical to the outcome of the case. A key fact is so essential that if it were changed, the outcome of the case might well be different.
In law school, you are practicing this skill of focusing on facts – in order for you to learn to assess legal problems, you must be able to find the important facts… the key facts, the facts upon which the outcome of the issue in question depends. When writing an answer to a law school essay exam question, you must ferret out these salient facts from all the facts presented in the narrative. Think of them as keys that unlock point-scoring issue discussions.
But how? Here are the basic steps to determining which facts are key facts.
- Identify each claim possibly raised by the exam question.
- State the rules that will be used to resolve each issue of each claim. These rules include the elements which need to be addressed in the discussion of each issue.
- Pinpoint which facts in the question possibly relate to the elements of those issues.
This last step involves determining which facts may be legally significant. Legally significant facts might be, for example, that a tenant with an eviction notice has never been supplied with hot water; or that the shooter was an off-duty policeman; or that a party to a contract may have been a minor; or that the geographical distance between the provoking incident and the killing may have been long enough to provide adequate time for a reasonable person to “cool off” the heat of his passion.
After outlining your answer, read through the exam question one more time carefully and quickly (you should be quite familiar with the question by this time, so the reading can go much faster than it did the first time through). Make sure you have assigned all the facts presented in the hypothetical question (the exam) to some issue. If not, ask yourself if these facts suggest another issue, can be used to further explain an issue you already noted, or are merely “red herrings” (facts in the question which might lead you to an errant discussion). Then use this fact-rich outline as a roadmap for answering the question. Note that your outline need not include explanations of why facts are important – the detailed analysis comes in your answer. The outline is only your writing guide.
As for the outline, you may want to follow a traditional outline pattern (bullet points, hierarchies, mind-mapping, etc.)… or, to accent the fact-finding, you may want to think about a two-column approach. You can outline your answer using two separate columns. Specifically, you can list the issues in one column, and then note the facts that need to be discussed in relation to those rules in the column next to it. This method will allow you to match the issues or sub-issues of law with the facts of the question. Skimming through the question quickly (again) before actually writing the essay, you can quickly note if you have skipped over a fact.
Long before encountering exams, work on recognizing key facts. Focus on key facts when you brief cases for class. Some students find that including basic fact patterns in their self-made course outlines – as illustrations of the rules that appear in the outlines – helps them think of the rules in situational terms.
Many years ago, when I was a little boy, fictional Los Angeles police Sergeant Joe Friday, hero of the “Dragnet” television series, used to say to witnesses he interviewed, “All we want are the facts.” Well, there’s more to it than that when you’re trying to score high on a law school essay exam… but Sgt. Friday was zeroing in on one of the two essential components – you should too!