Legal Problem Solving Toolkit is a guideline for the legal practitioners that enables them to understand and solve various legal issues and problems that they might come across by virtue of their law practice. It contains various stages and approaches that must be addressed while solving a legal problem. A proper Legal Problem Solving Toolkit must contain all the necessary tools, which can ensure that all the viewpoints involved in a particular legal problem have been explored. The toolkit must enable and analyse a breakdown of the stages the legal practitioner must go through while addressing a legal problem. It must include different tools, strategies and theories, which will assist the legal problem solving process. The main objective of implementing a Legal Problem Solving Toolkit is for the development and advancement of the legal profession. It must be implemented to improve the problem solving skills of the legal professionals. This paper will focus on a discussion on the problem solving process. It will strive to discuss in detail specific tools, theories and strategies to be included in a legal problem solving toolkit. This paper will present a reflection on the professional development that can be achieved by using the legal problem solving toolkit.
The legal problem solving toolkit involves a process of breaking down the legal problem into various stages and parts. The breakdown will enable a better and thorough understanding of the problem. This will enable a person engaged in solving a particular legal problem to explore all the aspects of that problem. Then all the stages must be addressed and analysed, in order to obtain a clear view of all the stages of a particular problem. The following paragraphs will discuss in excruciate details the different stages and approaches in the process of problem solving.
A thorough understanding of the problem is necessary before solving the problem. The first step to be taken for understanding a problem is to separate the legal aspects of the problem from the regulatory aspects. The regulatory aspect of the problem generally involves rules and regulations applicable to that particular person or group of persons in which a particular person is included, it is more of a rule regulating the conduct and behaviour of an individual for being part of an association. Whereas the legal aspect of the problem implies the problems that is likely to violate or actually violated the legal principles. This is a more serious problem than the regulatory aspect. This would be accompanied with legal sanctions. The identification of the problems and separating the legal aspects from the regulatory aspects involved in the problem would enable a thorough understanding of the problem that needs to be solved.
Another important step in the legal problem solving process is to frame your audience. The audience whose attention you are concerned with is important. Generally, in legal problem solving the client who is involved in the problem must be addressed. The solution of the legal problem must be designed in such a way that the audience is able to understand and realize the problem, rules involved in it and consequences that might follow.
Legal thinking and inductive reasoning is another step in the legal problem solving process. Legal thinking implies an approach to the problems, which involves an analysis of the process under a legal perspective. Whereas inductive reasoning is more of a logical process, which would consider different perspective and combine them to obtain a prediction or conclusion. The legal thinking and inductive process would clarify the issues involved in a legal problem.
The expression and balance of all the alternative positions needs to be ensured to arrive at the solution to the legal problem. All the positions that might be faced in a legal problem must be expressed and explored in a detailed manner and all of such positions must be balanced.
Another step in the legal problem solving process will be to establish resilience in research. Resilience involves an adaptation of an optimistic view while researching even if the research presents some adversity.
The legal problem solving process must also involve a knowledge of the problem. This knowledge must be based on evidence. A legal problem must always be solved with regard to evidence. There are certain evidences that has been fixed based on which subsequent problems needs to be solved. The different evidences upon which the knowledge regarding a solution of a legal problem needs to be reached will be discussed in the following paragraph.
Firstly, the legal problems must be solved based on the predetermined rules and precedents. The problem having similar situation to that of a particular decided case must be solved in line with that case. Similarly, the rules prescribed in a particular situation must be followed in solving a legal problem involving similar situation.
A precedent generally has two aspects, namely ratio decidendi and obiter dicta. Ratio decidendi is the rule of law depending on which a particular case has been decided. On the other hand, obiter dicta implies an expression provided by the judge while deciding a case, which strives to analyse the case. In a legal problem solving process, ratio decidendi is a law which is applied to arrive at a conclusion. However, the obiter dicta may also be referred in order to analyse the case.
Every merit point must supported by a source from which the merit point has been discovered. This involves a thorough referencing of all the points involved in the legal problem solving process. The same can be effected using the Australian Guide to Legal Citation. Different legal theories and approaches must be considered while addressing a legal problem. The legal problem needs to be analysed in the light of different theories and approaches that might be relevant to the same to achieve a better solution of the legal problem. Several techniques must be implemented for managing the complicated legal information that has been gathered while solving a problem.
The final step of a legal problem solving process is to present a solution. The solution must be expressed in a technical legal language. The use of legal language important in solving a legal problem. The arguments arrived at while solving that problem needs to be presented logically. The critical analysis of the problems, its arguments and legal principles involved must be presented in the solution. A critical analysis implies a scrutiny of all the principles and facts involved both from a positive and negative perspective. An argument must be presented in both favour and against a particular issue. The key concepts present in a solution must be defined in details. The audience must have a clear idea about all the concepts presented in a solution of a legal problem. The legal principles must be clearly stated in a solution, depending upon which the solution has been developed. An opinion must be formed involving both the merits and the demerits of a particular problem in question.
A legal problem solving toolkit needs to include different tools, strategies and theories. A legal problem needs to be discussed in the light of different tools, strategies and theories, which are to be involved in solving the legal problem for a better solution. Several tools strategies and theories are there, which can be referred to while solving a legal problem. The following paragraphs would strive to cover some of the tools, theories and strategies that might be referred to while addressing a particular legal problem.
One of the theories, which is of utmost importance in legal problem solving is the doctrine of precedent. The doctrine of precedent is a general rule that a case, which has been decided by a court is binding upon the subsequent cases, which are to be decided later. A decided case gains the authority of law. Any subsequent case, which has the similar situation as that of the pre-decided case, would be decided in line with the pre-decided case and the judicial decision of the previous case would have the authority of law over the subsequent case. , the legal problems must be solved based on the predetermined rules and precedents. The legal problem having similar situation to that of a particular decided case must be solved in conformity with that case. Similarly, the rules prescribed in a particular situation must be followed in solving a legal problem involving similar situation.
Another important example of a tool required for a legal problem solving process is distinguishing a case. The given problem must be compared with other previously decided cases. The previously decided case, which would present a similar situation as that of the problem in question must be applied. Inductive reasoning is another important tool in the legal problem solving. It involves the analysis of a problem from different perspective and then arriving at the conclusion, which is a combination of all the perspectives.
HIRAC is a tool of legal problem solving which involves the breakdown of the situation into several parts and then analysing each of that parts for a better solution addressing all the perspectives. HIRAC can be abbreviated as heading, rule, application and conclusion. A legal problem must be broken down into several logical divisions to ensure a thorough discussion and explanation. Rule of Law needs a special mention as a tool of legal problem solving. It is the law, which is applicable in a particular situation. The law is of the supreme authority and the solution must not be in violation of the law.
A precedent generally has two aspects, namely ratio decidendi and obiter dicta. Ratio decidendi is the rule of law depending on which a particular case has been decided. On the other hand, obiter dicta implies an expression provided by the judge while deciding a case, which strives to analyse the case. In a legal problem solving process, ratio decidendi is a law which is applied to arrive at a conclusion. However, the obiter dicta may also be referred in order to analyse the case.
An adherence to an efficient legal problem solving process is required to develop my skills of legal problem solving. This would involve an adaptation of a well-equipped legal problem solving toolkit. I should ensure that my toolkit must contains all the important tools that are required to solve a legal problem irrespective of the complexities involved in the same. I should carry out a vivid research in the problem present. The legal problem must be fragmented into several logical sections. All such sections must be analysed logically involving all the tools that my legal problem solving toolkit contains. The creation of an efficient legal problem solving tool is of utmost importance in developing my legal problem solving ability. This would ensure a professional development.
Reference
Douglas, James, Eleanor Atkins, and Hamish Clift. “Judicial Rulings with Prospective Effect in Australia.” Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions. (2015) Springer, Cham, 349-358.
Davies, Chris, and Luke Neal. “Phillips v the queen: A doctrine of precedent case?.” (2016) James Cook University Law Review 22: 119.
Bardach, Eugene, and Eric M. Patashnik. A practical guide for policy analysis: The eightfold path to more effective problem solving. (CQ press, 2015.)
Berman, Greg, and John Feinblatt. Good courts: The case for problem-solving justice. Vol. 8. (Quid Pro Books, 2015.)
Seidman, Ann. State and law in the development process: problem-solving and institutional change in the Third World. (Springer, 2016.)
Van Aken, Joan Ernst, and Hans Berends. Problem solving in organizations. (Cambridge University Press, 2018.)
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Burton, Kelley. “” Think Like a Lawyer” Using a Legal Reasoning Grid and Criterion-Referenced Assessment Rubric on IRAC (Issue, Rule, Application, Conclusion).” (2017) Journal of Learning Design 10.2: 57-68.
Burton, Kelley. “” Think Like a Lawyer” Using a Legal Reasoning Grid and Criterion-Referenced Assessment Rubric on IRAC (Issue, Rule, Application, Conclusion).” (2017 Journal of Learning Design 10.2: 57-68.)
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