Judicial Officer's Examination Course Material

Citation preview

Examination Course

‘Material

th tel

PANCHAYAT PUBLICATIONS

ASIA LAW HOUSE

Sifha Fi craRUNNY

yi

aR ge? LOS ;UTR

Gea SEATY i

ienn

Judicial Officers’ Examination Course Material (Civil & Criminal)

By PADALA PADALA

RAMA

SRINIVASA

Volume

PANCHAYAT

PUBLICATIONS

REDDI REDDY

l

ASIA LAW HOUSE

Judicial

Officers’

Examination

Course

Material

VOLUME 2 Transfer of Property

433

Law of Evidence

54]

Amendments

Act

625

to I.P.C. & Indian Evidence Act

632(i)

to I.P.C. & Indian Evidence

(Information Technology Act, 2000)

. Amendments

(Information Technology (Amendment) Act, 2008)

.

Law of Limitation

633

.

Law

69]

of Contracts

Law of Negotiable Instruments

723

. Law of Specific Relief

773

.

815

Law of Easements

VOLUME

3

. Criminal Procedure Code

833

. Indian Penal Code

943

. Hindu Law

Mohammedan Law

104] 1081

Civil Rules of Practice (A.P)

1129

Criminal Rules of Practice (A.P)

1219

. Criminal Procedure Code (Ame ndment Act, 2008)

1289

Examination

[JOECM-1]

Judicial

Officers’

Examination

Course

Material

Contents Study)? Preparing for Exam — Alone or together (Group

rs The importance of going through Previous Question Pape Preparing Effectively for Written Examination The “ERC” Process Cases Beginning Your Answer

Issue Spotting What Should You Discuss? How to discuss an issue?

Discuss Oo oO WH ND

all possible issues

. The relationship of facts and legal principles . Delineate the transition from issue to the next

Understanding the “Call” of a question , Importance of analyzing the question a before writing . Case names

. Need for practice . How to handle Time Pressure . Sentence Structure

. Write Legibly

1. Preparing for Exam Alone or together (Group Study)? A revered technique for preparing for the exam is group study. The study of group experience can range from exhilarating to disastrous. Discussions among talented candidates can produce intellectual synergy, opening doors to understanding you could never have passed through on your own. Sometimes the very act of verbalizing your thoughts results in deeper comprehension. Study Group may not be for everyone and finding a study group that works for you may require some trial and error. However, most students benefit from participating in a study group. The exchange of ideas in the intimate environment of a small group of peers is often important to understanding complex legal concepts. People learn different concepts at different rates. You may have to explain a concept to others in your group one day and someone else will have to explain another concept to you the next day. And explaining a concept will help solidify your own understanding of issues.

However one important factor is competitiveness. Some candidates would stop at nothing to get ahead, even if that means sabotaging the efforts of others. Looking at the pleasures and dangers of group study, should you join one?

It depends on your prospective cohorts and the degree to which you feel you can benefit from group study. You give something up when you study with others - the prerogative to direct your attention exclusively at the problems that vex you most. In return for aid with the objects of your confusion, you agree to spend time helping to relieve the confusion of others. Those who work best on their own will feel shackled by group study.

To organise a study group, you obviously need to identify like minded partners whom you trust to make a commitment. Then you need some ground rules. 1.

That everyone participates and contributes equally.

2.

How often will you meet ?

3.

For how long.

Judicial

+

4.

Officers’

Examination

Course

Material

abi and assign each The most common approach is to divide the syll one an equal portion.

5.

Set deadlines.

6.

When are all contributions due ?

7.

Agree on a basic format.

Law is one subject where group study is advised. However think clearly before deciding.

EXAM COVERAGE You must answer all questions subject to the choice as provided in the question paper

Examination

5

2. The importance of going through Previous Question Papers It is extremely important to go through previous question papers Although a few previous question papers are provided in this book, here ! It is strongly suggested that you make a copy of every previous can obtain at the beginning itself. The demand for these usually dramatically as “finals time” draws closer.

practiced. don’t stop exam you increases

The pattern in the previous papers is to be studied carefully. Generally, the same pattern is followed. Eventhough the examination and the recruitment process is undertaken by the Hon’ ble High Court, and there could be a change in pattern. Keep in mind that no one is born with the ability to analyze problems and write better. Like any skill, it can be developed and perfected only through application. If you don’t take the time to analyze numerous examination papers from prior years, this evolutionary process just won’t occur. It’s also wise to solve previous question papers. You will invariably see— (1) ways in which the writing could have been improved, and (2) points that had been missed.

As already noted, if you don’t understand how rules of law translate into issues, you won’t be able to achieve superior rank. Reviewing papers from prior years should also reveal that certain topics tend to be included.

If you can write an issue-packed exam, you probably know that particular area of law. If you can’t, then you probably haven’t yet acquired an adequate understanding as to how those principles of law are applicable to the issues.

6

Judicial

Officers’

Examination

Course

Material

3. Preparing Effectively for Written Examination The “ERC” Process (Elementize, Recognize and Conceptualize) To achieve higher ranking in written exam, you must— (1) have memorized an adequate quantum of the “blackletter” law for each subject, and (2) have an understanding as to how these principles of law may arise within an alien fact pattern. It is not necessary to memorize each word on every page of your textbook or notes. Unfortunately, one can have the capability of committing an entire telephone book to memory and still do poorly in an exam. Experience tells that most of the students know the law. However, the ones who achieve superior ranks are those who grasp how legal problems (i.e., issues) are likely to emanate from the rules of law which they have memorized.

To study effectively a student must be able to “ERC” each legal doctrine. ERC is an acronym for Elementize, Recognize and Conceptualize. Elementizing means reducing the legal theories and doctrines down to a concise, straightforward statement of the elements which just be satisfied for them to apply. Without a knowledge of the precise elements, it is not possible to anticipate each of the potential issues which that legal theory could yield.

If asked, “what is a firm offer?” it is not sufficient to say, “a firm offer is one that is irrevocable because it states that it will not be withdrawn.” Such a layperson type of description would communicate to the evaluer that you have filed to carefully read the relevant Sections of the Contract* Act. “Recognizing” means perceiving or anticipating which words or phrases within a legal principle are likely to be the source of issues; and how they are likely to arise within the context of a problem. With respec t to the firm offer doctrine, there are at least four potential issues. Was the party making the offer a merchant (i.e., a person who deals in goods of the kind involved in the transaction)? Did the offeror “sign” the writing in which the alleged firm offer is

Examination

a

embodied? Was the alleged offer “firm” (1.e., did it, by its terms, give assurances that is would be held open)? What constitutes a reasonable period of time when the offeror has not stated a date upon which the offer will automatically cease to be outstanding ?

““Conceptualizing” means imagining situations in which each of the elements of a rule of law would become the source of a factual issue. Unless a student can illustrate to him/herself an application of each element of a rule of law, he/she does not truly understand that legal principle! The inability to conjure up hypothetical problems involving particular rules of law foretells a likelihood that issues involving that legal concept will be missed in the exam. It is therefore crucial to (1) recognize that issues result from the interface of facts with the relative words and phrases within a rule of law, and (2) develop the ability to conceptualize situations involving each of the relative words and phrases contained in a legal principle.

An illustration of the “merchant” aspect of the firm offer doctrine might be the following. Let’s assume that S ordinarily sells heavy equipment, but not generators. However, S decides to expand its inventory and acquire a new X-12 model generator for Rs. One Lakh. S states in writing to B that he will sell the generator to the latter party for Rs. 1,30,000.00 and that the offer will be held

the open for one month. Two weeks later, however, S advises B in writing that

offer is being withdrawn. Two days later, B purports to accept S’s offer. S might with contend that no firm offer had been made because he was not a merchant respect to X-12 model generators (i.e., he had never sold that type of item before). to goods However, B could contend in rebuttal that S was a merchant with respect Rs. One Lakh of the type involved in this transaction, because a generator costing could certainly be characterized as heavy equipment. ances that An example of whether the language WATERY 5 choo-senss* give assur n, signed, “nonit will be held open” might be the following. S extends a writte “non-revocable” revocable” offer to ‘B’. ‘S’ might contend that the mere words however, could argue do not give “assurance that the offer will be held open.” ‘B’, offeror has deliberately in rebuttal that the words “non-revocable” do suggest that the consideration). relinquished his/her right to revoke (despite the lack of nts of each legal Such mental gymnastics should be played with the eleme concept.

Judicial

8

Officers’

Examination

Course

Material

4, Cases containing the decision Law is learnt primarily by reading cases. Each case ng discussion. of the Court as expressed is a ruling and supporti Elements of Case

onent parts, though Before you analyse a case intelligently separate its comp . Sorting out the ‘t seems mechanical, it is the only way to get a firm grasp skill overnight. different pieces helps to cut through confusion. You can’t acquire the cases. By This skill you can achieve only after you have read enough number of can extra effort in the beginning, consciously identifying the various elements you reduce the time it takes to analyse the case. Facts are of two types: 1. Procedural facts ; 2. Substantive facts.

You should be able to separate pertinent information from irrelevant rubbish. The object is to discern the important features of a case. It is only through practice that you can do this. Apart from uncovering the important facts of a case, the following aspects are also important. (1) Parties ; (2) Places ; (3) Events Issue

You can’t go further until you have a reasonably precise idea of the issues involved. Often it can be boiled down to a single question of law. Some facts are more important than others in determining the outcome of a case. Identification of facts that bear on the operation of a legal rule is significant. This exercise requires a certain amount of discipline. Unimportant facts always lurk in the background, tempting the reader to stay away from the analytical path. You must resist such blandishments; consideration of such irrelevant facts only hampers understanding and application of the rule.

Facts are not neatly divided into significant & insignificant. They are all over the places & distributed. Then the question is how do you separate. The key is to keep your eye on the legal rule, that is involved.

Examination

9

5. Beginning Your Answer 1. Read the question at least twice before you start writing. Read it quickly, the first time, to get to the "call" of the question: what exactly are you being asked to discuss? If it's Criminal Law, for example : Mr. A, Mr. B & Mr. C are busy committing crimes, there's nothing gained by starting to think about Mr. A and Mr. B's crimes, only to find out that the examiner wants you to discuss only Mr. C (unless, of course, the three of them are co-conspirators). 2. As you read through the question the second time, start writing down thoughts concerning legal issues that you perceive. While you are doing that, highlight facts that are of apparent importance to your analysis. Note :— There is no excuse for mis-reading important facts in an exam question. 3. After reading through the question the second time, formulate a basic plan of attack-- not an elaborate outline (you don't have time for that), and write it down as a simple outline. All you want to do here is to— (1) preserve your initial thoughts about what to discuss--since it would be a shame to spot an issue and then forget to discuss it, and (2) quickly decide on a presumptively logical sequence in which to deal with them. (Sequence is usually not critical, and you will probably revise your sequence as you write.)

READ Read and understand the question carefully!! This is your most critical task. Answering the Question asked is your second most important task.

Judicial

10

Officers’

Examination

Course

Material

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

(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.

Do not stop at issue spotting A common mistake is to spot the issue but not include much analysis. This problem occurs often when the student has spent most of her or his time dealing with tenuous causes of action or issues.

Examination

|

7. What Should You Discuss? 1. Keep in mind that, because the duration of the exam is limited, the examiner almost certainly cannot test you on every aspect of the subject . The chances are great that some topic or topics that were truly important will not appear in the exam. Don't force them in if they're just not there. (Of course, one of the major challenges to you, is to understand when different issues really should be raised. Accordingly, that should be a focal point in your studying.) 2. Ideally, all issues that are even potentially troublesome should be addressed. By that we mean this: If the case before you were an actual case working on it, ask yourself whether a particular legal issue (which has already come to your mind in connection with this case) would possibly be a point of contention or difficulty in the case. Unless the answer is clearly "no" (meaning that the lawyers on both sides would surely view this as a non-issue), you should address it. We understand that you will have to make this determination quickly, so that you may reasonably raise points that, on reflection, you would deem to be non-issues.

3. This leads to one of our major pieces of advice to you: When in doubt, cover it, but: if you really are in doubt about whether to discuss a particular point, address it after you've discussed all the issues you're sure you're supposed to discuss. [Admittedly, this piece of advice presumes that there is something in the question that you are sure you're supposed to discuss.] 4. One of the biggest (and costliest) weaknesses that candidates display, in the exam-taking process, is a tendency to spend a significant amount of time discussing points of law that are clearly not called for by the examiner's question. Among the likely causes of this misguided tendency are: uncertainty about what to discuss, a failure to focus on the precise call of the question, and the mistaken belief that one is likely to receive a higher grade if one volunteers more than what has been asked for.

BE SMART Don't leave your common

sense at the door

Officers’

Judicial

12

Examination

Course

Material

8. How to discuss an issue? sources of issues (i.€., It is crucial to keep in mind that rules of law are the phrases of a rule of law the intersection of the facts with the relative words and cause an issue to arise); they do not dispose of issues. g you to The best means of explaining how to discuss an issue is by askin . read the example and the five student responses to it which follow Example

A offered in writing to sell his used Maruti car to B, for Rs. 90,000. B advised A that he was very interested in buying the car, and that he would advise

A of his decision within a week. Five days later, B tendered to A the Rs. 90,000

payment. However, A stated to B at that time that he had decided not to sell the vehicle. Pertinent Principle of Law :—An offer expires after a reasonable time where no time is specified by the offeror for acceptance. Student Answer I

Did A’s offer terminate prior to B’s acceptance ?

An offer expires after a reasonable period of time where no time is specified by the offeror for acceptance. A will contend that a reasonable period of time has expired because the amount involved (Rs. 90,000) is relatively minimal and it is well known that persons desiring to sell Used cars ordinarily desire to consummate the sale in as short a time period as possible. B, however, would argue in rebuttal that Rs. 90,000 is ordinarily a large snip of money for his age (a fact about which A was aware) ahd that he had indicated to A that it would take a week to make his decision. A’s arguments are probably stronger, and therefore the offer lapsed prior to B’s attempted acceptance. Student Answer

II

Lapse

A might contend that his offer lapsed prior to B’s attempted acceptance (an offer expires after a reasonable period of time when no time has been specified

Examination

3

cee tae by the offeror) since Rs. 90,000 is a small amount and persons ats selling their used cars usually want to do so in a short time. Although B could argue in rebuttal that Rs. 90,000 is a lot of money to a youngman and he indicated that it would take a week to decide, A should prevail. Student Answer III

A should be able to successfully contend that a reasonable period of time expired to B’s attempted acceptance since Rs. 90,000 is a small amount and persons desiring to sell used cars ordinarily want to do so quickly; even though B might have argued in rebuttal that Rs. 90,000 is a lot of money to a young man and he had advised A that it would take a week for him to decide.

Student Answer IV Did A’s offer terminate prior to B’s acceptance ?

An offer expires after a reasonable period of time where no time is specified by the offeror for acceptance. Since the amount involved is relatively small (Rs. 90,900) and persons desiring to sell used cars usually want to do so quickly, five days was too long a period to accept. Therefore, a reasonable period of time had passed and A’s offer terminated prior to B’s acceptance. Student Answer V

Did A’s offer terminate prior to B’s acceptance? An offer expires after a reasonable period of time where no time is specified by the offeror for acceptance. B will contend that five days is a reasonable period of time A will contend that five days is not a reasonable period of time. A should prevail.” Let’s examine Student Answer V first. It would receive the minimal amount of points. It represents the epitome of the “overly conclusionary” discussion. While Answer V communicates to the evaluer that there is potential issue with respect to whether the offer lapsed prior to the offeree’s purported acceptance, the evaluer can only guess why the student-writer believes this to be the case. The answer does not explain to the evaluer why there is a question as to whether a reasonable time did (or did not) expire prior to the attempted acceptance. This is because absolutely no facts of the hypothetical are included in the analysis of the issue.

rs’

Examination

Course

Material

Judicial Office eee Oe ili nOne Ei and he/ The key to arguing an issue is pretending you’re in front of a judge e the she is asking you, as the Advocate for each side, why he/she should resolv ate issue in favour of your client. In this case, the court would be asking the Advoc 14

for each side, “Why should it conclude that five days was (or was not) a reasonable a period of time within which to accept the offeror’s offer?” Student Answer V

does not address this inquiry. It’s as if when the judge asked each of the Advocates why five days was (or was not) a reasonable period of time within which to accept the offerer’s offer, (1)A stated : “Five days is not a reasonable period of time because five days is not a reasonable,” and (2) B stated : “Five days is a reasonable period of time because five days is reasonable.” Thus, neither side has actually advanced reasons why five days, under the circumstances described in the hypothetical, was (or was not) a reasonable period of time for B to have accepted A’s offer. Student Answer IV is far superior to Student Answer V, but is still too conclusionary. Notice that after the applicable rule of law is indicated in the initial sentence, the balance of the discussion is devoted to justifying the writer’s conclusion. This student has obviously concluded that five days was not a reasonable period of time within which to accept A’s offer. While making reference to the facts which support A’s contention that five days was not a reasonable period of time within which to accept his offer. Student Answer IV makes no mention of the factual arguments which might have been asserted by B to persuade the fact finder that five days was a reasonable period of time for acceptance under the circumstances. Thus, the fatal flaw with respect to Student Answer IV is that the discussion belies the issue statement which precedes it.

It is crucial to remember that a legal point is not in issue unless there is an argument on each side of it. A evaluer reading student Answer IV would be apprehensive that this student would, (1) if he/she represented A, assure A that his offer had terminated prior to B’s purported acceptance, or (2) if he/she represented B, unequivocally advise B that it would be pointless to commence an action against A (since A’s offer had lapsed prior to B’s attempted acceptance). In either case, the advice given would not be sound. There is at least the possibility that fact finder could resolve the issue in favour of either side. Studen t Answer IV, despite the initial issue statement, does not effectively commu nicate the existence of a legal coniroversy to the evaluer.

Examination

15

Student Answer I would receive the maximum possible points. It utilize s the entire hypothetical by indicating how each side’s Advocate would assert the facts which are most advantageous to his/her client, the evaluer can easily see that the student-writer recognizes that whether acceptance within five days was (or was not) a reasonable period of time is at issue, since the arguments which each side’s Advocate would advance to persuade the fact finder to resolve the legal problem in his/her favour are clearly set forth. Finally, the concluding sentence is not unequivocal. The use of the word “probably” acknowledges to the evaluer that if a legal point is at issue, there is at least the possibility that either side could be successful.

I-R-A-C IRAC

FORMAT

means : Issue, Rule, Application, Conclusion.

Issue :—Identify the legal issue that you are addressing.

Rule :—This is a shorthand reference to the legal principles that govern the issue at hand. Application :—Application of the Law to the Facts Conclusion :—This is, generally, the least important of the four aspects of

IRAC.

I-R-A-A-O format I-R-A-A-O is a more preferable acronym than IRAC. The “TI” stands for the word “Issue,” the “R” for the words “Rule of law,” the “A” for the words “‘one

side’s Argument,” the second “A” for “the other party’s rebuttal Argument,” and the “O” for your “Opinion as to how the issue would be resolved.” The latter acronym emphasizes the importance of— (1) discussing both sides of an issue, and (2) communicating to the evaluer that where a legal point is in issue, an Advocate can only advise his/her client as to the probable outcome of that controversy.

An IRAC or IRAAO format to discuss an issue is not always possible. Where numerous principles of law warrant discussion, it may not be possible to utilize an approach which requires a minimum of five to six sentences per issue. Student Answer II is an illustration of how an issue can be discussed in other than

Judicial

Officers’

Examination

Course

Material

eect Fp 2 as many points as Student Answer I, an IRAAO format. It would receive almost the decreased verbiage, Student but contains about 40% fewer words. Despite uer the issue and how the facts Answer II still clearly communicates to the eval of the hypothetical relate to that legal problem. tion which requires a Finally, in a true “racehorse” question (i.¢., a ques to its conclusion to possibly student to write from the very beginning of the exam represents the correct format. cover all of the potential issues). Student Answer III e of law as completely as While this answer does not define the operative principl uer the problem which the foregoing ones, it nevertheless communicates to the eval using the word could arise if this factual pattern were ultimately litigated. By informed of “successfully” prior to the description of A’s argument, the evaluer is e word. In the the student’s view as to the ultimate result of the issue in a singl l an entire classic IRAC or IRAAO format, the conclusion of opinion would entai 16

sentence.

It is important to remember to treat both sides of an issue with equal intensity. If the hypothetical describes how a destitute widow is about to lose her home because her deceased husband entered into an unwise contract with a huge oil company, your sympathies might understandably fall on the side of the former. Despite this, the evaluer will expect you to make every possible argument which could have been asserted by the oil company. Don’t permit your personal an issue, viewpoint to subconsciously affect your answer! When discussing always describe the arguments which each side would make. Finally, don’t forget to communicate your conclusion with respect to an issue. Keep in mind, however, that your conclusion is probably the least important part of your exam answer. Why ? Because evaluer knows that no Advocate can tell his/her client exactly how a jury is going to decide a particular factual issue. By definition, an issue is a legal point which is capable of dispute. An Advocate can therefore offer his/her client only an opinion as to the likelihood of victory or defeat on an issue. Since it is the court which determines the outcome of a particular issue, no Advocate can be absolutely certain of its resolution.

DON'T WASTE TIME ON UNNECCESARY ————_.

DETAILS

Examination

i7

9. Discuss all possible issues 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.

Why should your 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 factfinder, a good Advocate (and examwriter) 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. 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 understana and appreciate what you have done.

Judicial Officers’ Examination Course Material 18 Es... ————————— rr

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!

10. The relationship of facts and legal principles It is important to remember that facts only have significance as they relate to legal principles. This relationship arises in two ways. First, facts create an issue

when there is a question as to whether they do, or do not, satisfy an element of

a rule of law. Secondly, facts also have importance when they are argued for the resolution of an issue.

It is important to communicate to the evaluer the precise rule of law with which the facts are interfacing. In their eagerness to commence the argumentative process, students sometimes fail to define the applicable rule of law. It is ordinarily wise to place the operative rule of law in the initial sentence of the paragraph pertaining to that legal principle. This permits the evalue r to easily see that you have recognized the correct legal principles.

Examination

11.

19

Delineate the transition from Issue to the next

It’s a very good idea to make easy for the evaluer to see the issues which you’ve discerned. One way to accomplish this objective is to cover no more than one issue per paragraph. Another way is to underline each issue statement. Provide (time permits, both techniques are recommended. One frequent error usually committed is to have a two-paragraph answer. All of the one side’s arguments are made in the initial paragraph; and all of the other party’s rebuttal contentions are described in the next paragraph. This is no wise. It obliges the evaluer to reconstruct the exam answer to determine what arguments each party made with respect to each issue. It will also cause you to state the same rule of law more than once. Thus, it is organizationally superior to “break-out” the issues or legal problems on a paragraph-by-paragraph basis.

PREPARATION Preparation is crucial. There is simply no substitute and no avoiding preparing thoroughly for the

examination. If you don't know the legal principles of the subject matter, you have severely reduced your chances of success.

20

Judicial

Officers’

Examination

Course

Material

12. Understanding the “Call” of a question is sometimes The statement that normally follows the conclusion of an essay

thing like : ‘discuss,’ referred to as the “call”? of the question. It is usually some

etc. The call “discuss the rights of the parties,” “what are X’s rights,” “advise X,” ips of of the question should be read carefully since it may limit the relationsh “what issues about which you must be concerned. If the inquiry in a question is, are X’s rights against Y ?”, you don’t have to worry one iota about Y’s rights against Z. You will usually receive absolutely no credit for discussing relationships that are not required by the question. On the other hand, if the call of the question is simply “discuss” or “discuss the rights of the parties”, then all potential relationships must be covered by your answer. Unfortunately, students are sometimes led astray by a question’s call. For example, if you are asked for ““X’s rights against Y”’ or to “advise X,” many students will present only X’s viewpoint with respect to the issues contained in the hypothetical. This is not correct! You cannot advise a client of his/her rights or describe one’s rights against another party without indicating the issues which would arise (and the arguments which would likely be make) if litigation occurred. In short, although the call of the question may appear to focus on only one of the parties to the litigation, a superior answer will cover all of the issues and arguments which that person would encounter in attempting to pursue his/her rights against the other side.

PREPARATION Read the facts Carefully. are the partiesare in a mistake involves argument on wrong

Make sure you know who case. Another common making the right behalf of the party.

A foolish way to loose points.

ee i AP 970 toi «2 13. Importance of analyzing the question carefully before writing Examination

71

The overriding time pressure of a written exam is probably a major reason why many students fail to carefully analyze a question before writing. What frequently happens is that five minutes into the allocated time for a particular question, you will notice that the person next to you is writing furiously. The following thought then flashes through your mind, “oh my goodness, he/she’s putting down more words on the paper than I am, and therefore he/she is bound to get better marks.” The next moment, you’re writing feverishly also. It can be unequivocally stated that there is no necessary correlation between the number of words on an exam paper and the marks that paper will receive. Students who begin their answer after only about five minutes of analysis have probably seen only the most obvious of issues. They are also likely to be very disorganized.

Opinions differ as to how much time should be spent analyzing and outlining a question before actually writing it. At least 15 to 20% of the time should be expended in analyzing, organizing and outlining a question (problem) before actually commencing the answer. These parameters will usually provide sufficient opportunity to analyze and organize the question thoroughly, yet permit a relatively complete answer. It is important to remember that each word of the question (problem) must be scrutinized to determine if it : (1) could produce an issue when applied against the operative rules of law, or (2) has pertinence with respect to making an argument for the resolution of an issue. Since you can’t receive points for an issue which is not perceived, it is usually wise to read a question (problem) twice before creating your outline.

THE FIRST PARAGRAPH First impressions are important. Evaluer can usually tell the quality of the exam from the first paragraph

22

Judicial

Officers’

Examination

Course

Material

14. Case names prior to an One of the most frequently asked questions that students pose r to whether you exam is whether they have to remember case names. Our answe describing should cite case names is both yes and no. Accurately citing cases and ant to the their holdings is unlikely to hurt you, provided that the cases are relev hand problem at hand. Moreover, citing cases correctly can often be a useful short to communicate to the evaluer that you are familiar with relevant law. Above all, case citation is not an acceptable substitute for analysis. You are ordinarily not expected to recall case names in an exam. You would have to be a memory expert to have all of them at your fingertips. If you confront a factual situation similar to a case which you have reviewed (but cannot recall the name of it), just state something like “One case has held that............... * Orn hasbeen, held that...2.