Legal problem solving

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This article is a topic within the subject Introducing Law & Justice.

Contents

Required reading

Supplementary materials - Legal problem solving.

MIRAT

MIRAT is applied to solve problems in cases and scenario’s and understand/explore all arguments or rules of logic surrounding the case.

  • Material Facts: A 'material fact' can be described as a fact which is of vital importance to a line of deductive reasoning in order to solve a problem or to give helpful advice on a range of options in response to a particular or social problem.
  • Issues of Law and Policy: what are the legal issues - what does the judge have to decide upon. Issues surrounding any particular social debate or micro problem solving exercise can be stated at different levels:
    • Macro: Big picture questions
    • Micro: Specific questions
  • Rules and Resources: Refer to cases, research and knowledge to find supporting information that may assist in legal reasoning.
    • What are the rules/policies that will influence the outcome of the issue?
    • What alternative versions of this rule/policy can you locate?
  • Arguments (or Application): Argument and counter argument for a specific outcome, with responses to ensure discussion of all possible points of reason.
    • Identify and applying moves.
    • Identify and applying counter moves.
  • Tentative Conclusion: Justified by the weight of arguments, but must express tentative conclusion as to not be misleading with an over-confident, under-confident or premature conclusion. That is having multiple outcomes with probabilities and different situations and implications.
    • Avoid misleading, over-confident, under-confident, or premature conclusions.
    • Write things like “probable”, “it is likely”, “it is uncertain given missing key facts”.

Reasoning

  • Deductive reasoning: proving a conclusion by means of at least two other propositions. Most legal issues can be solved by deduction. The conclusion is compelled by known facts.
  • Syllogism: an argument where a conclusion is inferred from two premises. (More appropriate for case notes)
    • Major premise: [Doing something] [violates the law]
    • Minor premise: [The defendant] [did something]
    • Conclusion: [the defendant] [violated the law]
    • Words that qualify the major premise, “some”, “a”, “this” mean the major premise is not universal.
  • Inductive generalization: can be used to revive lost causes. Where an issue of law is unsettled and there is no binding precedent to supply a major premise for your syllogism, deductive logic is no use. It is a logic of probabilities, not certainties. But you need a reasonable data base to draw on and a representative sample.
  • Reasoning by analogy: a kind of inductive reasoning for solving problems that are beyond precedent, and hypothetical’s. Analogy is used to draw similarities between things that appear different. Lawyers use them to compare new legal issues to firmly established precedents.
    • Establish similarities between 2 cases
    • Announce the rule of law embedded in the first case, and
    • Apply the rule of law to the second case
    • To find enough similarities between the new case and old precedent raises issue of the relevancy of similarities or differences.

Tips for responding to case scenarios

  • Begin by discussing the facts of a similar case that you are familiar with, and then
  • lay out particulars of the hypothetical that has been asked.
  • Draw as many comparisons between the two cases as you can.
  • If the relevant similarities outweigh the relevant differences, the outcomes of the cases should be the same.

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