Mastering Law Studies and Law Exam Techniques [9 ed.] 9780409343182

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Mastering Law Studies and Law Exam Techniques

9TH EDITION

Richard Krever

.

Lex·s ex1s Butt r

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Mastering aw Studies and Law Exa 9TH

DITIO

• Richard Kreve r

A practical and engaging guide to successful law study and assessment outcomes

Successfully navfgating the particular requirements of law school and legal study can be challenging, even for the most cap ble of students. Mastering Law Studies and Law Exam Techniques de-mystifies the process of studying law and provides the foundations for law school success. The first part of the book provides basic rules and helpful hints on study techniques. The second part shows how to apply these guidelines by presenting a range of sample exam questions and answers contributed by experienced law lecturers from leading Australasian universities. This section includes commentary from examiners about what separates an above average answer from an average answer.

Guides to success in moot court and on how to approach multiple choice and essay assessments re also included. The ninth edition of this successful book has been updated to reflect recent developments in case law and legislation. Features

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Reader-friendly guidance on how to study law effectively

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Sample exam questions and answers 1n a range of core subJect areas

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Explains what lecturers look for in exam answers

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Designed for law st dents and others studying law subjects

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Includes specific advice for commerce or business law students

About the Author and Contributors Richard Kr,e ver is a Professor at Monash University. Other Contributors The sample examination questions, answers and some commentary are contributed by experienced law lecturers from leading Australasian universities.

Related Lex1sNexis Titles •

Chisholm & Nettheim. Understanding Law, 8th ed, 2012

•

Cook. Creyke, Geddes, Hamer, & Taylor, Laying Down the Law, 9 h ed, 2015

•

Corbett-Jarvis & Grigg, Effective Legal Writing: A Practical Guide, 2014

academic lexisnexis.com .au www.lexsnexis.com.au

ISBN 978·0-409-3431 8-2 I

I

I

9 78040 343182

Contents

Contributors ix Preface xi

Chapter 1 Introduction I A Book on Law School Exams? I Who is this Book for? 3 Using this Book 3

Chapter 2 An Introduction to Law Studies and Law Exams: Understanding the Dialectic of Law 5 The Legal Process and the Doctrine of Precedent 5 What Do Law Exams Evaluate? 7 Law Exa1ns and the Role of Lawyers 9

Chapter 3 Reading and Summarising Cases

13

Detennining the Context of the Decision 13 Distinguishing Between the Ratio Decidendi and Obiter Dicta in a Case 15 Be Aware of What the Case Doesn't Tell You as Well as What it Does 17 Recording the Relevant Technical Aspects of the Precedent 21 Using Texts and Treatises 21 Using the Precis 22

iii

Mastering law Studies and Law Exam Techniques

Chapter 4 Some Studying Hints 23 C1asses 23 J Show up 23 2 Read the materials before class 26 3 Ask questions 28 Notes and Review Notes 29 l Review your notes right after class or the same evening 29 2 Consolidate your notes into review notes 31

3 Prepare a review overview 34 4 Index and tab your notes 35

5 Develop memory aids for closed-book exams 3 7 Study Groups 3 7 Practising Old Exam Questions 39 What to Do if You Fail 42

Chapter 5

Some Basic Rules 45

Some Tips 45 1 Prepare an answer outline 45 2 Organise your answer 47 (i) Do not throw out issues in a scattergun fashion 47 (ii) Do not wander in your answer 48 (iii) Do not answer in the fonn of a long continuous essay or cursory point-form summary 49 (iv) Try to keep your discussion of an argument or issue in one place 50 ( v) Present your arguments fully before presenting the conclusions to which they lead 51 (vi) Make the examiner aware of the issues that you have recognised 5 I 3 Allocate your time to maximise marks 52 4 FoJlow through with al1 levels of argumentation 54 5 Answer in propositional style 54 6 Use authorities correctly 55

iv

Contents

Some Wan1ings 56 I 2 3 4 5 6

Do not repeat the question 56 Do not repeat the section 56 Do not catalogue a case 57 Do not report a case 57 Do not cite cases without applying them 58 Do not use cases without identifying the principles behind them 59 7 Do not use superfluous introductions 60 8 Do not review entire areas of law 60 9 Do not joke 61 10 Do not forget the dialectic nature of 1avv 61 11 Do not avoid a conclusion 61 12 Do not rely on legalisms; write clearly and concisely 62 13 Do not cite secondary sources 62 14 Do not ignore your spelling and grammar 63 15 Do not look for the definitive answer 63 Issue Recognition, Rule, Application and Conclusion (IRAC) 64

Dealing with Panic 65

Chapter 6 Multiple-choice and Essay Questions 67 Multiple-choice Question Exams 67 Essay Questions 68 I Identify the question being asked 69 2 Decide upon your thesis 71 3 Prepare an outline 72 4 Start with an introduction and finish wrth a conclusion 72 5 Provide maps and guideposts throughout the answer 74 6 Incorporate authority into your thesis effectively 75

V

Mastering law Studies and Law Exam Techniques

Chapter 7 Sample Tort Exam Essay Question

77

Sample Tort Law Reflective Essay Question - in an Examination Context 78 Exarnple of an Above Average Essay Answer 79 Introduction - primary objectives 79 Regulatory objectives: punishment and deterrence 80 Ignoring the regulatory objectives to achieve the restorative objective 80 The impact of insurance - possibly diminishing the punishment and deterrent effect of the law of negligence, but serving the restorative ain1? 81

Restorative aims - sometimes unfulfilled because of over-riding regulatory objectives 83 Conclusion - resolve the tensions? 84 Examiner's Comments on the Above Average Tort Law Essay Answer 85 Addressing the question /thought and content 85 Presenting all sides of the argument 86 The need for reform (improvement) 87 Structure and signposting 87 Use of authority as part of a considered argument 88

Chapter 8 Moot Court

89

Introduction 89 Mooting v Debating 90 Predicting and Answering Questions 90

Preparation 90 Writing the Submission 91 Advocates' Duties 92

Customs and Conventions 93 Presentation of Submission 95 Answering Questions 97 Conclusion of Proceedings 98 Conclusion 98

vi

Contents

Chapter 9 Sample Examination Questions and Answers 99 Legal Methods and Reasoning (Foundations of La\v): Ross Hyams 99 Contract Law: Elisabeth Peden 117 Tort Law: Ian Malkin and Paula O'Brien 128 Criminal Law: Mary Heath 160 Constitutional Law: Melissa Castan 171 Administrative Law: Daniel Ste\vart 184 Evidence La\v: Miiko Kumar 199 Trusts La\v: Susan Barkehall Thornas 209

Company La\v: John Duns 225 Income Tax Law: Nolan Sharkey 233 Competition Law: Julie Clark 25 I

Chapter 10 Study Strategies and Suggestions for Commerce Students 270 Level of Intensity of Study in La,v Courses Undertaken by Commerce Students 271 The Search for Certainty 272 Writing Exams for Law Subjects 273 I Do not start writing your answer until you know what you are going to say 273 2 Make sure you allocate a significant amount of thinking time in the exam room 273 3 Read the question carefully and address the question asked 274 4 Plan your answer 275 5 Apply the authorities and use reasoning.. 276 6 Make your answer easy to follow 276 7 Do not indulge yourself in detailed argument where it is unnecessary 277 8 If you run out of tirne in an answer 277 9 Match practice - do old exam questions 277 IO Picture yourself in the exam room 278

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Mastering Law Studies and Law Exam Techniques

11 Do not use authorities incorrectly 279 Reading Texts, Cases and Materials - Use Reading Gears 279 Summary 280 Business La\\': Pearl Rozenberg 282

viii

Contributors

Susan Barkehall Thomas, BA't LLB (Hons), LLM, PhD (Monash) Senior Lecturer, Faculty of Law, Monash University Julie Cassidy, LLB (Hons) (Adel), PhD (Bond) Professor, Departn1ent of Commercial Law, The University of Auckland Melissa Castan, BA, LLB (Hons) (Monash), LLM (Melb), Post Grad Dip Ed (Monash) Senior Lecturer, Faculty of Law, Monash University Julie Clarke, BA, LLB (Hons) (Deakin), PG Dip (KCL). PhD (QUT) Associate Professor, School of La\v, Deakin University John Duns, BCom, LLB(hons), (Melbourne), LLM" PhD (Monash) Associate Professor, Faculty of Law, Monash University Mary Heath, BA (Juris), LLB (Adel), PhD (Flinders) Associate Professor, Flinders Law School, Flinders University

Ross Hymns, BA, LLB, LLM (Monash) Senior Lecturer, Faculty of Law, Monash University

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Michael Kobetsky, BEc (Syd), LLB (ANU), PhD (Deakin) Associate Professor, Melbourne Law School . University of Melbourne Miiko Kumar, BA, LLB (Syd) Senior Lecturer, Sydney La\.v School, University of Sydney Ian Malkin, BA~ LLB (Manitoba), LLM (London) Professor, Melbourne La\ll School, University of Melbourne

ix

Mastering Low Studies and Law Exam Techniques

Paula O'Brien, BA~ LLB (Hons) (Melb), LLM (Cantab) Senior Lecturer, Melbourne Law School. University of Melbourne Elisabeth Peden. BA (Hons) (Syd)~ LLB (Hons) (Syd), PhD (Cantab) Professor, Sydney La,v School. University of Sydney Pearl Rozenberg, BSc, LLB (Monash). LLM (Osgoode)

Sub Dean (Academic Policy & Administration)~ University of Sydney Business School Nolan Sharkey, UnivCertPsych (Derby), BA BCom (Murd), GradDipLegSt (NE), GradDiplegPr (ANU), MTax, JD, PhD (NSW) Professor, La,v SchooL University of Western Australia

Daniel Ste,vart~ BEc (Hons), LLB (Hons), GradDip (ANU)~ LLM (Virg) Senior Lecturer. ANU College of La\\>·, Australian National University

X

Preface

A few weeks into my law studies, I, along with two other students~ Brian and Philip, was asked by Dale Lastman to join a study group he was trying to establish. I was asked as a consequence of my in-class behaviour. I did not know anyone else in the class and I was not too embarrassed to ask the teachers the questions that everyone else hoped would be asked but were too self-conscious to ask themselves. I am not sure why Dale asked Brian, but it turned out to be a great choice. Brian had a brilliant sense of irreverent humour that made the hours of exam practice sessions pass quickly. And Dale asked Phi lip because Philip., it was clear to all of us, knew everything there was to know about law. Any question any teacher asked, Philip had an answer. He had canvassed all the cases, studied the statutes. dissected the digests, and tackled all the texts. If there ever was a reason to feel intimidated in law school,. Philip was it. After Philip's initial responses in classes, the rest of us were just about ready to pack it in. How could we mere mortals hope to pass courses when we were up against people the caJibre of Philip? But we did not quit. Instead, in addition to revjewing exams together, \.Ve agreed to share the task of review note-makini, each person taking a subject. Our hope, of course, was that we would have access to at least one set of brilliant review notes from Philip. It was when we first sat down to practise old exam questions that we realised Philip might not be infallible after all. Everyone else's review notes for a subject averaged 20 to 25 pages. Philip's were at least I 00 pages. They were impressive: neatly typed and entirely comprehensive, giving the facts and holdings of every case we had studied. Inconsistencies and difficult to reconcile decisions were

Mastering Law Studies and Law Exam Techniques

reconciled with references to leading texts and the Digest. In short, Philip ,vas welJ on the way to ,vriting a book himself. The notes the rest of us made were mere outlines. They contained no details about cases or statutes. Rather, they provided headings of the 1najor points and half a dozen arguments and counter-arguments under each point. Cases relevant to an argurnent were mentioned in a bracket, after the argument. And the description of a case was just enough to remind us of the decision (the ·'snail in the bottle" case, the ..poisoned pig food" case, and so forth). Philip had spent many times longer than Dale., Brian or I putting together his notes. But the three of us had each spent tar more tilne than Philip on one important task, abstract thinking. While Philip was researching and drafting extensive notes, the three other men1bers of the study group were considering the dozens ofcases and tens of dozens of pages of notes we had already assembled in each course, extracting the key points from them, and organising the resulting arguments and counter-arguments under logical and easy to access headings. And so, with two vastly different types of review notes, "''e sat down to our first practice exam sessions. Most exams ,vere three hours

and on average contained three questions. That meant allocating about an hour a question under actual exam conditions. We figured that if \Ve could jot down the outline of an answer in about IO to 15 minutes in the context of a review session, we could \\'rite out the full ans\ver in about an hour in the actual exam. Thus, the trick was to identity quickly all the potential issues in a problem and then in the shortest time possible define each of those issues, explain the rules of law that prin1a facie applied to them, show how, on the one hand, the rules could apply to the facts in the problem and ho"'·, on the other hand, they could be distinguished, and prepare a quick but \Veil-qualified and very tentative conclusion. The resource we needed for this exercise was an outline of issues likely to be covered in the exam and a resume of the arguments and counter-arguments relevant to each issue. Philip's review notes constituted a mighty legal essay, but they were useless tor our needs. By the time we had graduated from law school, Brian, Dale and I had collected between us a respectable portion of the prizes and medals availab]e in the school. I accepted a scholarship and went to graduate school, while Brian and Dale, whose interests lay in practice,

xii

Preface

not academia, accepted articling positions with the most prestigious finn in the country. There ,vere no prestigious firms offering articles to Phi lip. The profession, after lip service to a range of criteria, at the end of the day hired on the basis of marks. And Philip's marks were not high enough. He had read more cases, consulted more texts, and photocopied more articles than almost anyone else in the class. But the law school was not a,varding grades for a comprehensive knowledge of cases and legal principles. Marks were given to students who demonstrated an ability to recognise legal issues and devise legal argun1ents. In retrospect, the techniques used by Brian, Dale and me seen1 intuitive. But when we started la\\' school, we had no idea what ski11s were being examined and hOYl ,ve could demonstrate a mastery of those skills in the context of an exam. So, discovering the tricks early in our la~· school careers was largely a matter of luck. Unfortunately" many of our friends did not make the discovery until much later in their law school careers. This book is designed to provide a jump start past the luck stage to put readers directly on the path to mastering law studies and law exam techniques.

This is the ninth edition of this book. The principal change from edition to edition has been the replacement of sample exams and ans\vers with ne\ver samples that reflect changes in the case law and statutes. This edition drawn on contributions found in earlier editions prepared by Adrian Bradbrook, Richard Fox, Philip Clarke, and Nicholas Gaskell. I am deeply indebted to these contributors for the main points and examples I've borrowed from their work. While I've tried to attribute the sources, no doubt I've missed many borro\vings and my gratitude for ideas extends beyond the quoted materials to these unattributed contributions. This book is not the only book available on stuc4'ing Jaw and writing law exarns. Most law libraries have built up reasonable collections of how-to-study-law materials, including the leading overseas guides. Also, a growing number of competitor and companion volumes have appeared on the Australian market. These are avai)able from most la\\'· school bookshops. As this book emphasises time and again, studying law and writing law school exams is probably ditTerent fron1 any academic work you have attempted previously. The better you understand what is expected of you and tailor your study system to

xiii

Mastering Law Studies and law Exam Techniques

produce the results that yield higher grades in law schoot the better you'll do in la,v school and, quite possibly, the more options you'll have in choosing a satisfying post-school career in the la\\ Read as many guides as you can. A small investment no\v can yield dividends for a Ii fetime. 1 •

Richard Krever Melbourne. 2016

xiv

Chapter I

Introduction A Book on Law School Exams? Competition for places in law schools is intense and admission cut-off points for Australian 1a,\' schools and business schools are invariably high - successful applicants usual1y come from the top percentile of graduating high school students or. in the case of transfers from other faculties, from the top performers in university. There are fe,v students in law school without proven records of past academic achievements. Successful applicant'i have demonstrated their exam \.\-Titing ability well - it was on the basis of that ability that they were admitted to la,.,, school. The odds are very high that you. the reader of this book, have done well until now without the need for a guidebook on exam techniques. So \Vhy should you look at a book on \\.'fiting law school exams? There are two answers to that question. The first is simply that your past achievements have now put you in a position where you can no longer rely solely on the acquired ski 11s. inherent talent and luck that tbnnerly brought you success. Until now you have competed \Vith a whole range of students \Vith varying potentials and skills. You were admitted to law school because you demonstrated your ability to do better than 1nost of your classmates. But la,..,· school classes are composed of students who were at the top of their former academic institutions and everyone in your la,v school course will have done as ,vell as or better than you. In this new environmei1t, your past success will no longer suffice. The co1npetition for top places in the class is many multiples more intense than it was in secondary school. At the same time. you must do well at law school if you hope to succeed in a law career. Whether you hope to join a finn of solicitors, practise at the Bar, enter the public service, join the corporate sector or pursue a career in academia .. admission to the best positions is based almost exclusive)y on Jaw school performance. By the time you graduate from law school you wil I have mastered law school examination techniques. This book is designed to help you commence 1

Mastering law Studies and Law Exam Techniques

your legal studies with those ski11s, not finish with them. That advantage can pay dividends for a lifetime. The second reason for this book is that the academic discipline of la\v is unlike anything e]se you have studied in the past and la\v exan1s are quite different from any others you have written. Whatever your background~ in law school you are starting from scratch. Techniques and study skills that worked in the past will no longer see you through. If you fail to adopt new study and exam \Vriting techniques geared to laY.' school studies, you will do poorly, perhaps even running the risk of failure. Especially disconcerting for many is the discovery that la\\' studies are not only vastly different from most of their high school subjects, but are also different from most other university studies. And finally, for the not insignificant number of students who took legal studies at high school in the hope that it would ease their transition into law school, provide them with a framework for studying law and give them an edge over classmates with no similar background, there is the disappointment of discovering any advantage with which they may have begun evaporated after the first 20 minutes of the opening contracts lecture. In the end, doing well at law school is synonymous with doing well in law exams. To be sure, other skills enter the marking process - research papers, moot courts, class participation, and so forth, all count towards your final result. But in the long run, the success or failure of your law school career turns on the degree to which you have 1nastered the ability to perfonn well in writing law school examinations. The choice of evaluation method is not just coincidence or chance. The decision to evaluate in a few short hours of intense pressure a student's comprehension of materials learned over many hours in the classroom and many more in the library or at home is quite deliberate. Law studies are designed to teach you the skill of extracting legal principles from a broad range of cases and statutes and developing legal arguments based upon those principles. Law exams provide an accurate indication of a student . s abi1ity to synthesise principles quickly and accurately apply them to a set of facts involving a number of legal issues. This book explains the basis of those skills and shows how your law studies can be tailored to prepare you best for the exam process. It also explains how to present your law exam answers to demonstrate your mastery of those abilities.

2

Chapter 1 - Introduction

Who is this Book for? This book is designed for use by la\v students and students of related disciplines, such as business and comrnerce, that include law courses in their curricula. It provides a guide to the theory of legal argumentation and explains how those skills can be learned and applied for maximmn benefit in law examinations. If you are studying a law subject for the first time, reading this book will help you understand the nature of legal education and help you develop the tools and habits you will need to succeed at legal studies. If you have already completed a number of law subjects, the book can be used as both a review and a guide by which you can evaluate and itnprove your present practice and performance. Alternatively, if you are confident you have already mastered the theoretical materials in the opening chapters, you may ,vish to jump directly to the sections on review and exan1 writing techniques. Those materials, along with the sample exam questions, answers and comments found in the last chapter, will help you polish your exam style and minimise the risk of costly errors.

Using this Book Writing successful law school exams cannot be separated from the rest of law school study. Law exams do not evaluate the knowledge you have learned so much as your ability to build legal arguments by using and applying that knowledge. There is no place for cramming for a law exam - cramming may teach you a multitude of facts but cannot prepare you for an exercise in legal reasoning and argumentation, the skills on which you will be graded. This guide to successful law exam writing techniques therefore does not commence at the end of the year in the examination room. Rather, it starts in the next chapter with an overview of the legal process and the fl.iudamentals of legal argumentation. Also looked at is the inter-relationship of the skills taught and evaluated at law school and the professional practice of law. Chapter 3 then explores in depth the basic elements of legal argumentation and explains how you should read and summarise cases to distil from them the legal principles you will use in a law exam. Chapter 4 shows how to prepare and use review notes and study for a la\v exam and Chapter 5 contains a checklist of points to follow and faults to avoid in the exam itself.

3

Mastering Low Studies and law Exam Techniques

While most law school exan,s are based on problems, on occasion examiners will set multip]e-choice or essay questions. Chapter 6 contains sections on answering both these types of questions. Chapter 7~ by Ian Malkin and Paula O'Brien, presents a sample essay question, ans\.ver, and examiner's comments, as well as a further short guide to ,vriting an essay answer. Chapter 8 deviates slightly from the principal focus of this book, studying la\\ and ,vriting law exatninations, and addresses instead the techniques required for effective moot court presentations. As you wi1J see, the principles of how to learn and use the la,v are similar for moots and law exams, the major difference being the fon1111 in which you demonstrate your n1astery of those skills. Chapter 9 contains a number of sa1nple examination questions~ answers and examiners' comments. The samples cover most of the compulsory and quasi-compulsory subjects in law school. Finally, Chapter IO is directed primarily at non-la\\J· students of con1111erce or accounting ,vho study law subjects. It explains how the principles in the book should be applied to la\v exams written by non-law students and points out the areas where slightly diflerent approaches may be appropriate. This chapter contains a sample cotnmerce law question and answers geared to\vards the needs of commerce students. It wil1 soon become apparent that 1nany of the rules for writing law exams effectively cover much more than the three-hour process of putting pen to paper and answering a limited number of law exa1n questions. Successful law exams are the result of consistent work throughout the course, not silnply a fruitful few hours in the exam room. Much if not most of the trick to writing top exams comes in the preparation. Fortunately, preparation for a law examination is not necessarily difficult - in fact, once you know what you are looking for and ho\\' to prepare, the chaJlenge can become both easy and fun. 1

4

Chapter 2

An Introduction to Law Studies and Law Exams Understanding the Dialectic of Law The Legal Process and the Doctrine of Precedent In the common law system of justice used in Australia, the "law" derives from two sources- the statutes enacted by the Commonwealth or state parliaments ( or lower tier councils given delegated power to enact laws) and the common la,v rules developed by the courts. For example, the Commonwealth and state governments have passed laws dealing with all types of commercial and consumer contracts but it is the common law developed by judges that ,vill determine what elements are needed for a valid contract to exist. The common law is derived entirely from judicial precedent. Prior decisions of a higher level court create binding precedents which a later lower level court is bound to follow and holdings of a court with equal authority establish persuasive, if not mandatory, guidelines for the resolution of a case. Statute law, in theory, derives from legislation. However, legislation is drafted using words and phrases, building blocks that are subject to interpretation by the courts, again based on understandings derived from precedents. The common law system and the doctrine of pre_fedent on which it is based reveal a dialectic tension rarely duplicated in other fields. There are two sides to every legal dispute and by the time any case reaches court, both versions of an event or both arguments raised by lawyers for the parties sound not only plausible, but perhaps convincing. In the common law system, a precedent does not establish a static law; it is, rather, a device to be considered, reinterpreted and then applied or distinguished to devise a new rule applicable to a subsequent analogous but slightly differing fact situation. The need to recognise the dialectic nature of law and learn how to use it to formulate legal arguments is a theme that reappears constantly throughout this book.

5

Mastering Law Studies and Law Exam Techniques

It is one of the keys to the successful practice of law and the mastery of law studies and legal examinations. The dialectic nature of the legal process is best sho\vn with an example. My illustration is deliberately simplified and is not intended to reflect the law accurately so much as the thought process in the minds of lawyers and judges who seek to resolve a legal dispute by way of analogy and distinction from prior decisions. Let's imagine a fact situation where a householder fails to clear leaves oil" his path and a delivery person slips on the leaves and is injured. In those circumstances an appeal court might conclude that the householder had failed to satisfy a duty to visitors and is liable for the damages suffered by the delivery person. The court might say, ~'Householders are responsible for providing safe access to their houses by making sure paths are cleared of leaves and they must assume responsibility for any injury suffered as a result of their failure to perform this duty". How should the precedent be treated by a judge hearing a case involving a similar injury but this time suffered by a trespasser? The lawyers' arguments will tum on how the precedent should be interpreted. Under the common law system, the rule of Jaw in the earlier decision is binding on lower courts and almost always followed in similar level courts. But what is the rule of law set out in the earlier decision? As is explained in detail in Chapter 3, the binding part of a decision is its core element or the ratio decidendi. The parts that set out the background to the decision or help explain how it applies, the obiter dicta in the judgment, need not be followed directly in later cases. Chapter 3 provides some pointers on identifying the ratio and obiter parts of a decision. At first glance the peculiar facts of the second case do not appear to take it out of the ambit of the apparent rule of law of the first decision. The householder had a responsibi Iity and someone was hurt because the householder did not meet the standard of care required. But would the appeal court have intended its holding to apply to trespassers? There is no way of knowing what the court would have decided had the judges turned their minds to the question. Certainly counsel for the householder would argue that the appeal court, had the problem been considered directly, would not have wanted to extend to trespassers the rights resulting from the ruling. Thus, the householder's lawyer would suggest, to give effect to the real but unstated intent of the appeal court, the rule has to be read down to cover only those cases 6

Chapter 2 - Understanding the Dialectic of Law

where the injured person had an actual or an implied invitation to enter the property. Since the appeal court never did address the issue directly, counsel for the trespasser can quite correctly point out that the opponenfs interpretation of the ratio of the original decision is putting words into the original judgment, resulting in a new rule quite different from that intended. If counsel for the trespasser hopes to persuade the judge in the second case that the first holding must be followed quite literally. without considering the status of the injured person, this lawyer will have to show why the purpose of the original rule ,vould be defeated if the gloss sought by the householder were added to this rule. For example, the lawyer might try to argue that the appeal court was seeking to impose a standard of care on the householder as the person in the best position to know of and remedy the dangerous situation and the status of the injured party is less important than the status of householder as the person responsible for the property. It is only on the rarest occasions that new cases duplicate the facts of a previous binding judgment and virtually never does this occur in a law exam. Lawyers seek to apply or distinguish precedents by relying on a combination of arguments based on questions of law and questions of fact, with no clear-cut divisions between the two. The process of applying precedents to legal arguments in an exam answer is explained in more detail in the following chapters. For the moment it is sufficient to remember that, as it pertains to la,v exa1ns at least, lawyering is a matter of considering, applying and distinguishing precedents. It is important that you understand this process before you begin to read and summarise cases in preparation for your la\\1 exams. As explained in the following chapter, your goal is not to find the golden rule of law established by a case but instead to understand the apparent ratio of a decision and the context in which it was established so you can best use it either by showing how it shoutd apply to the facts of a later case or how the facts in the later case can be distinguished so the ratio of the earlier decision has no binding application in the second case.

What Do Law Exams Evaluate? In some disciplines you are tested only to see that you have memorised the required information. In most law examinations, however, you must demonstrate that you have not only learned the information,

7

Mastering Law Studies and law Exam Techniques

but have learned to apply it in the context of an exam problem. Law exams evaluate your ability to apply the infonnation you have studied to a unique purpose - the formulation of legal arguments. Through a process of application and distinction, you will be expected to reach a final conclusion by balancing precedent against precedent. Reaching the conclusion is not the ultimate goal; the aim is to demonstrate a comprehension of the issues arising from a given set of facts and an ability to create counter-arguments relevant to those issues. The key to writing successful law exams is an understanding of the legal process as well as the law that it involves. Preparation for a law exam requires learning the dynamics of the law, not simply its rules. The rules are readily accessible - they are found in the statute books and case reports in the library which your research training will help you retrieve. The reason law exams place particular emphasis on the skills of legal reasoning and argumentation and not the rules is simple - while many rules you learn will be short lived~ the legal skills you acquire wiH be relevant for your entire career. Substantive content is not unimportant, of course. But, exam problems are designed to test your understanding of underlying principles and specific (and quite possibly transitory) rules are of value only in illustrating applications and variations of the resulting arguments. If a trade practices law sets out four criteria to be used to identify an abusive rnonopoly and an exam problem outlines facts that may amount to an abusive monopoly, the examiner may allocate at most one or two marks for mentioning the criteria used to identify a monopoly. The exarniner may allocate another 8-10 marks for analysing the facts in the problem and explaining, by reference to precedents that can be applied or distinguished, why the facts in the problem may or may not satisfy the criteria set out in the legislation. One reason tbr this emphasis on using precedents to build arguments on why the rules may apply or may not apply to the facts in a case rather than testing knowledge of specific rules is the astonishing pace at which rules date. Recent cases you read in the first weeks of class may be overruled by later decisions or legislation or distinguished into extinction long before the academic year is over. Some statutes alter with equal rapidity. In areas such as company law and income tax la\\', the law changes so quickly that the legislative materials you purchase at the beginning of the course may be out of date and replaced by a new volume less than half-way through the year.

8

Chapter 2 - Understanding the Dialectic of Law

My advice that you look for principles and issues rather than concentrate on the exact state of the law will no doubt seem out of place when you discover that for the most part your la\\' lecturers teach nothing but cases and statutes. Those cases and statutes are not intended to be ends in themselves. Rather, they are tools. They are used to illustrate the legal process of recognising issues, extracting them from fact situations, devising principles to solve legal conflicts and then applying this process to a new.. but analogous scenario. A good exam answer will demonstrate these skills, not a detailed intimacy with facts or figures.

Two features of law exam format should help demonstrate the validity of this proposition. To begin with, it should be obvious that you are not expected to put more than a fraction of what you have learned over the year onto paper during the exam. The ratio of class, reading and study time to exam time is probably somewhere between 20: l to 40: I. That necessarily means you are expected to extract important principles from the mass of information you looked at, not to reproduce the fine details of every case or statute. If you have failed to learn issues and principles instead of details, you will find yourself with a great pool of knowledge and no time in \vhich to use it. The second feature of law exams which should provide an insight into the preferable la,v exam answer is the fact that many, if not most, law exams you will ·write are conducted as "open book" exercises in which you are permitted to take ,vith you into the exam a wide selection of reference materials. Clearly, if the examiner is willing to permit you to bring almost any data you wish into the exam room, you are not being examined on memorisation skills. And given the time constraints of law exams, it should be obvious the that examiner does not expect you to know how to find the Hanswers" in your materials. At best, you will be able to rely on an outline to help jog your memory - if you have not learned and understood how to use the cases and materials studied in the course by the time of the exam, the best notes, texts and references will be useless.

Law Exams and the Role of Lawyers A lawyer who is not able to understand and use the dialectic nature of

the law would not survive long in practice. In the real world lawyers must represent persons on every side of every legal issue. On one day a plaintiff will walk into the office while a defendant in another 9

Mastering law Studies and Law Exam Techniques

case involving almost identical facts ·will enter the next. The good lawyer should be prepared and able to represent both and put forward a plausible case for either client. And even if you choose only to represent one type of client - detendants rather than plaintiffs~ unions rather than n1anagement, taxpayers rather than the Tax Office - you \vill still need to fully understand the position of your opponent to effectively represent your client. Understanding the practice of law, the goal towards which your legal education is geared, is thus a good starting point for understanding the dialectic nature of law exams. The lawyer is an advocate. The advocate 's role is to represent or advise a party. For the most part, the job involves comparing and evaluating argu1nents. Unlike the doctor who is expected to give a factual answer - '"if you take this pill, it should clear up that disease'\ or the engineer who is expected to give technical advice - ~•if you build the wall this thick it will support that weight'\ the lawyer is employed to provide relative advice. At best the Jawyer can advise a client of the arguments that can be raised in the client's favour and the opposing arguments that will be raised by the party with whom the client is having a legal dispute. The lawyer is, of course, paid to offer a probable conclusion on the basis of research about those arguments. But when the lawyer does provide an opinion, it will be qualified and carefully drafted to include the many uncertainties inherent in any legal conclusion: As the la»' nolv stands I think your arguments \·Viii be accepted over your opponent~-. This conclusion is only tentative and may not be valid if a higher court hands down a decision reversing the law benveen now and the time J'OUr dispute comes to court or (f the legislature passes a new statute in that time or ifyour opponents Ja,,vyer is able to distinguish all the cases establishing the present lalv .from your situation or ij' I misunderstood the scope and meaning of' an.,i, of the judgments on H,•hich I relied to reach this tentative conclusion.

The dialectic nature of the legal profession is also evident in the outcome of cases. Over your law school career you will read hundreds of High Court decisions that cost some la\vyers' clients thousands or hundreds of thousands of dollars to argue. The lawyers arguing those cases were neither fools nor charlatans - in every case they sincerely believed a good, indeed \Vinning, argument could be raised on behalf of their client. (Perhaps I should say "almost every case'" - there are inevitably cases where litigious clients insist on proceeding with an appeal even after their lawyers have advised them that they will 10

Chapter 2 - Understanding the Dialectic of Law

probably fail.) Even where the law \\/as apparently certain, two sides with opposing vie\vs thought they each could ,vin and were ,villing to gamble enormous sums of money on that prediction. The uncertainty of the law and the dialectic nature of legal argument is often further revealed by the progress of a case through the courts as it is reversed t\vo or three times on its appeal route. Indeed, it frequently happens that a losing party has convinced more judges of the correctness of the losing party's case than that of the winning party. This could happen, for example, if a litigant \.Von at the trial level (a single judge) and again before a Supreme Court (three judges) but lost at the full High Court in a 4-3 split decision. Although it turned out that the law did not favour the losing party's arguments, seven of the eleven judges hearing the dispute thought it did, while only four thought it did not. The fact that judicial decisions are regularly appealed and the outcomes are often reversed on appeal illustrates well the dialectics of law. However "well-settled" an area of law may seem, it is always possible for a skilled lawyer to guide sympathetic judges to reach a different result by distinguishing the result in contrary cases that in theory are persuasive or even binding on the court and drawing upon arguments or principles from other cases to support by analogy the desired outcome. Additional arguments based on analogy can be marsha11ed as you climb up the appeal ladder. Lower court decisions may be persuasive, but they can be directly overruled, not merely distinguished, by a higher level court convinced there is support for an opposite conclusion. At the top, the High Court may distinguish or overrule decisions of lower level courts that are inconsistent with its proposed ruling. Where it is faced with an earlier High Court decision that is inconsistent with its proposed holding, the High Court judges usually try to distinguish the previous inconsistent judgments. On much rarer occasions, when a majority of the Court can be convinced on the basis of principles and precedents that a previous decision should not stand, the Court will simply reverse itself, acknowledging the previous decision is not good law and a different result should follow (in effect, overruling itself). The point of this discussion of judicial processes is simply to illustrate that in every legal dispute, plausible arguments can be developed for both sides of the dispute. The role of the lawyer in the dialectic of law is not only evident in the courtroom. Indeed, in most disputes the matter is resolved long before the trial. The lawyers for 11

Mastering Law Studies and Law Exam Techniques

both parties know their mandate is to construct the best case possible for their clients. If they are reasonably competent, they should be able to accomplish this. But both lawyers are cognisant of the substantial risk to their own cases posed by the opposing counsel's arguments'! as well as the weaknesses in their opponents, briefs. They know that some of the precedents upon which they are relying have tenuous connections with the actual problem of their clients and might, therefore, be easily distinguished by the other side. Silnilarly, they know the strength of the cases upon which the other parties will rely. It is thus not unexpected that most legal disputes are settled out of court. The plaintifrs lawyer will explain that the plaintiff might be successful and win it all but could lose and win nothing. The defendant's lawyer will point out that although the defendant might prevail and lose nothing, there is a risk of an adverse judgment in which case the defendant could be liable for the entire amount claimed. Depending on their views of the relative strengths and weaknesses of the opposing arguments) the lawyers w·ill recommend settlement at some figure bet\veen the total sought and zero. A final word on the role of lawyers and the dialectic nature of law is needed, lest I leave the impression that lawyers are solely concerned with devising arguments and counter-arguments to resolve disputes. It is true that championing the interests of clients caught in legal disputes is one of the important aims to which the teaching of legal skills is directed. But while many clients seek lawyers to help the1n after the fact, in the real world much of a lawyer's job is to guide clients so they do not fall into legal disputes in the first place. Clients expect their lawyers to draw up contracts that will not give rise to later problems, to draft \\'ills that will not be challenged when they come into effect, to organise businesses in the preferable form so later changes will not be needed, and to organise transactions that attract the preferable tax consequences without the risk of reassessment. The primary goal is to keep the client out of court. Winning the case, if it goes to court~ is a second tier responsibility. These primary tasks cannot be competently carried out unless the lawyer as advisor has carefully worked through the arguments and counter-arguments that might be raised about the interpretation of the contract or will or the application of the business form law or taxation law to the client's proposed structure. The skills needed by a la\\'yer to keep a client out of disputes are identical to those required to win once the client is in court.

12

Chapter 3

Reading and Summarising Cases Law students can usually skip over the first step in finding the common law, that is, unearthing the relevant cases. In most courses the instructor or casebook editor will have already assembled those cases for you. Your first task, then, is to prepare a precis of a case, that is, a short summary of the facts and holding, setting out the rule of law established by the precedent. The precis will be the building block from which you will construct or neutralise arguments that can be based on that precedent. As such, it should contain whatever information is needed to apply or distinguish the holding in future analogous situations.

Determining the Context of the Decision The initial step to understanding the relevance of a la\\' report is to ascertain who is suing whom for what. Although this introductory step sounds like an easy mechanical exercise, often as not it requires a little detective work. The cases you read are appellate decisions on questions of law. (In some jurisdictions first instance decisions are reported - these, however, are the exception, not the rule.) The judges giving the decision have heard counsel for the parties explain in great detail the tacts giving rise to the dispute, the procession orhearings and legal events prior to trial and, often, details of the original trial itself. The appellate judges then deliver an opinion on their interpretation of a point of law without necessarily setting out all this background context clearly. It is important that you carefully read a decision to draw out this information. You cannot understand the relevance of a judgment - where it should be applied and where it can be distinguished unless you understand the factual basis for the case. The more times a decision is appealed, the further complicated the task becomes. In some jurisdictions the names of the parties reverse as 13

Mastering Law Studies and Law Exam Techniques

one party and then the other appeals - Smith v Jones becomes Jones v Smith when Mr Jones appeals and then reverts to Smith v Jones when Ms Smith appeals that decision. In other jurisdictions., the order of names remains the same al I the way up. Some parties have been joined to the action by an original party and appear as "third parties.,'. And sometimes parties are added or dropped at various appeals. Acme Pty Ltd may lose a case against the Cominonwealth of Australia on constitutional grounds but be joined by the States of Victoria and Queensland as intervenors when the case is appealed if those States see their powers threatened by the original decision. The labels attached to the various parties change, too, as decisions proceed through the courts. Plaintiffs and defendants may become appellants, applicants or respondents. To complicate matters further.,judges will usually refer to parties by their judicial labels (appellant, plaintiff~ etc), not their real names. And to top it off, they will do so inconsistently - one judge 1night speak of the appellant while another refers to the same party as the plaintiff, ,vhich was the party's status in the court below. The next step after determining which party is suing which and why the action was brought is to decide who won. Once again, what sounds like an easy task is sometimes anything but that. After a long discussion of the precedents and doctrines applicable to the dispute at hand, an appellate decision may finish with a cursory '"order upheldn or "order nisi granted". Who won and why? To answer that question you will have to go back to the judgment and extract from it the facts of the underlying dispute and the exact relief sought in the judgment being appealed. In many important cases there will be no winner or loser - the appellate court will have been asked to determine a point of law and not decide the outcome of the case. This was the situation, for example, in Donoghue v Stevenson~ the famous precedent that established the basis for the modem law of liability for negligent manufacturing. To this day, no one knows whether there was a snail in the bottle of ginger beer that led to the case. We only know that if there was and it could be shown the snail got there as a result of the manufacturer's negligence, the manufacturer could be liable to the consumer. In Donoghue v Stevenson the facts of the case had not been established by the time the appeal reached the House of Lords. In most cases there will be a judgment delivered on the basis of found facts before a question of law reaches the appellate court. Even then, appellate courts will not deliver a final decision in cases where the 14

Chapter 3 - Reading and Summarising

Cases

final determination may tum on the facts of the dispute. In these circun1stances they may suggest the matter be retried in light of the statement of law they have handed down or they may send the case back to the trial court to give a ruling based on the decision they have just delivered. In the end, you ,vill know an apparent rule of law but have little firm guidance as to \\'here it wil1 or will not apply. Its ambit must be determined by future courts.

Distinguishing Between the Ratio Decidendi and Obiter Dicta in a Case The theoretical key to the common law system of precedent is the all important distinction between the ratio decidendi and obiter dicta in a case. The ratio decidendi is the actual rule of law stated in the holding of a decision, a rule that will be binding on future courts. An obiter dictun1, on the other hand, is a judicial pronouncement on the la,v that is not integral to the holding itself. While it may be considered by a later court, an obiter dictum will not establish a rule of Jaw that must be followed by any court. Although this distinction is for the most part merely a legal myth, it is carefully retained by the lawyers who utilise

it to formulate legal arguments. Recognising this fact, you should read and summarise cases in a manner that will enable you to argue a rule is the ratio decidendi or obiter dictum, as the need arises, when an analogous hypothetical situation appears in an exam question. On some rare occasions,judges will assist you to identify the ratio decidendi or an obiter dictum by couching part of their decision in hypothetical terms. For example, you may come upon a discussion that reads something like this:

An alternative ground relied on by the appellant was ... and ifI were lo decide on that basis I would probably conclude that ... However, since 1 am basing my decision on the first argument presented by the appellant~ I do not have to decide on the basis o_f this alternative argument. Presumably, the entire discussion of the alternative argument and the conclusion to which it would lead are obiter. While they could, and most likely would, be cited by a counsel hoping to rely on a similar argument in a future case, opposing counsel should be able to present it as non-binding dicta. This does not mean the argument would fail, of course. An obiter dictum in one case may become ratio decidendi in the next. The fact that the conclusion was obiter dictum would be

15

Mastering Law Studies and Law Exam Techniques

a principal plank in the opposing lawyer's campaign to avoid the application of the alternative rule in a later case, however. Another fonn of hypothetical situation that sometimes appears in reported decisions is the factual hypothetical. In this situation~ a judge explains how the case would have been decided in the presence or absence of certain facts unlike those in the actual case. For example~ a judge may explain somet!1ing along these lines: The issue is whether the defendant is liable for the injury suffered by the plaintiff as a result o.f slipping 011 the leaves on the defendants pathway. Had the defendant posted a sign stating ''Caution, path slippery because o_f leaves'', a strong case could be made.for relieving the de_fendant o.,f liabili(v on the basis qf notice to the plaint[ff. In this case, however, there ¾-'as no sign posted so I cannot use that logic to reach my decision. The obvious question is what happens in the next case when there is a sign posted. The discussion in this case is prima facie obiter dicta and would be so presented by counsel for the injured plaintiff in the next

case if there is a warning sign next time. But if the defendant landlord were found liable in the first case where there was no warning sign, the landlord's lawyer in the next might be able to use these apparently obiter dicta to help redefine the ratio to suit the client's case. For exa1nple, if the ratio decidendi seemed to be that a defendant is liable for injuries resulting from failure to clear pathways on the property, the defendant landlord's lawyer could recast it in these terms: the defendant is liable for injuries resulting from failure to clear pathways on the property unless visitors are notified of the danger. There are not many cases (relatively speaking) where the judge explicitly states that part of the reasons for judgment is obiter. In most cases the dividing line bet\veen rationes decidendi and obiter dicta will be determined subsequent to the decision by other judges choosing between conflicting interpretations offered by lawyers who seek to apply or distinguish the precedents. Your task is to prepare a precis that contains enough information for you to use the case as a precedent in a law examination. To ensure you've covered the essential elements of the facts and holding, you should project ahead and think how the case might be applied and distinguished in the future. Take, for example, our"leaves on the path" case. Ifthe following case involves a warning sign, the lawyer for the injured plaintiff will argue the ratio decidendi of the first case turns on the absence or presence of a dangerous pathway and posting a sign has no effect on the ratio.

16

Chapter 3 - Reading and Summarising Cases

Counsel for the defendant landlord, on the other hand, will try to limit the holding to cases in which the plaintiff was not adequately ,vamed. Let·s assume for the moment that in the first case the judge found for the victim but suggested in obiter that a different result could follo\v if there had been a \Vaming sign. We'll also assume that in the second case where there was a ,varning sign, the court adopted the obiter suggestion of the judge in the first case and tbund for the landord in the second case. Which rule should apply in a third case ~·here there is no warning but the injured person is an uninvited trespasser? Should the basis of the first decision (a homeowner is liable for his path\vay) or the logic of the second case (a ,varning absolves the homeowner of liability) apply to the third case, or should a new, third rule apply (the liability turns on the status of the injured person)? In the exam you will be expected to develop the arguments each side will raise to expand or contract the rationes decidendi of the prior decisions in their efforts to apply or distinguish the precedents. A good precis will point the ,vay to those arguments by outlining the facts and holdings of each decision in the chain and showing ho,v each distinguished or applied the apparent rationes of earlier cases.

Be Aware of What the Case Doesn't Tell You as Well as What it Does As you prepare your precis of a case you should note not only the details of the case, but also their immediate relevance to the holding in the case. This preparation will provide you with the tools for constructing and dismantling arguments in an exam context. The facts that ,vere absent in the original case are as important as those ,vhich were present Let's illustrate the later point with another example. This one is based on an actual fact situation taken from the famous English contract case of Parker v The South Eastern Railway Co. In Parker., a customer had deposited a bag in a cloak-room at the defendant's railway station, paid the clerk 2d, and received a paper ticket, on one side of which was printed a number and a date and the words usee back". The reverse side contained a number of clauses relating to articles left by passengers, the last of which was, "The company will not be responsible for any package exceeding the value of£ IO". A notice to the same effect was printed and hung up in the cloak-room. The customer, plaintiff in the subsequent case, had left a bag worth 17

Mastering Law Studies and Law Exam Techniques

£24 in the cloakroom and sued for compensation when the railway lost the bag. At the trial he claimed he had not seen the notice in the cloak-room and had not read the front or back of the ticket. He further claimed he had thought the ticket was simply a receipt for money paid by him. It seems intuitive, even to those who have never studied contract law, that the customer should bear the risk of loss if the railway's disclaimer of liability had been made explicitly clear to the customer prior to payment and the customer had explicitly agreed to the conditions before handing over 2d and the bag. Most observers would probably agree that the customer should also be expected to bear the loss even if there were no explicit agreement regarding the conditions so long as they were clearly explained before the fee was paid and the bag passed over - in those circumstances it could be presu1ned that the payment and bag deposit amounted to implicit agreement with the tenns of the contract. Some might say, of course, that it would be unfair to pass the entire burden of risk to the customer if he or she had no option but to agree to the railway's terms, as wou)d be the case, for example, if the railway held a monopoly on the transport of goods between two points. This may be so, but such policy decisions are usually considered to be within the realm of the legislature, not the courts. As a matter of pure contract law. we assume parties enjoy equal bargaining power, however fictitious that assumption may be in the rea) world, although the presumption has certainly been tempered by the doctrine of unconscionability in more recent times. To return to the case at hand, the issue to be decided in future cases where the facts resemble those of Parker is at what point the customer will be taken to have agreed to the conditions set down by the railway as its terms for the unwritten contract to store the customer's goods. If the railway explicitly read out its conditions of storage prior to acceptance of the customer's money, those conditions would clearly be considered to have been incorporated into the contract. The court in Parker suggests a similar result would follow if the customer knew the railway's conditions were on the ticket but chose not to read them. In fact, the court in Parker concluded the customer would be bound even if he did not know the railway's conditions were on the back of the ticket, so long as the ticket was delivered to him with "reasonable'' notice that the conditions were spelled out on the ticket. Will the railway have given reasonable notice if it simply erects a notice in the

18

Chapter 3 - Reading and Summarising Cases

cloak-room setting out its conditions and prints thetn on the back of the ticket ,vith a note on the front of the ticket saying ··see back"?

The answer to that question is not to be found in Parker. Although Parker is considered one of the leading precedents in the area, at the end of the day ,ve don't know if the customer in that case won or lost. The appellate court that established the rule of la,v sent the case back for retrial to see whether there had been reasonable notice in that particular case. The results of the retrial were never reported. At the retrial, the judge ( or jury as was the case in Parker) might conclude one large sign placed so as to be noticed by anyone in the cloak-room ,vould be sufficient to make the customer aware of the conditions. But if the room had two dozen posters in it, of which the notice of conditions was only one, the judge might conclude the company had not done enough to make the customer aware of the existence of its conditions. Similarly, if the attendant explicitly commented on the conditions, a judge might be entitled to conclude the railway had satisfied its obligation in that case. On the other hand, if the attendant said, "Here's your claim ticket" when handing the ticket to the customer, he or she might be entitled to presume the conditions on the back did not form part of the contract, notwithstanding the notice and "See back'' note which otherwise might be sufficient to make the customer aware of the existence of the conditions. Or, if the attendant's comments implied conditions different from those on the back of the ticket, the judge might conclude there was no notice of the existence of the actual conditions. Alternatively, the judge might conclude the customer was made aware of the actual conditions, but was enti tied to conclude they had been superseded by the oral conditions. What would happen if the customer were illiterate? Does the railway have to take each customer as it finds him or her or can it

presume a large notice is sufficient to make the customer aware of the existence of conditions so that the onus is on the customer to ask what the conditions are if he or she cannot read the notice or writing on the ticket? What would happen if the customer knew there were conditions on the back of the ticket but discovered the writing too small to read? What if the writing was small but could be read by most customers not suffering from the bad sight which afflicted the particular customer who lost the bag? Parker doesn't tell us the answers to any of these questions. But the very absence of definitive answers should show you what can be extracted as the holding of the case and what issues

19

Mastering law Studies and Law Exam Techniques

it raises, issues that should be considered in the context of an exam proble1n. In any case following Parker, the customer's la,,,yer will seize upon alJ the facts peculiar to the subsequent case to sho,v \vhy the basic condition stipulated in Parker, making the customer aware of the existence of the conditions, was not satisfied in the case of this particular client. The process is t\Vo fold. First, the lav,yer will try to sho\v that the raihvay's actions were insutlicient in the subsequent case to make custorners a,vare of the existence of its conditions. Second, and in the alternative~ the lawyer will argue that even if the railway's actions in the subsequent case ,vere sufficient to make customers a,vare of the conditions in ordinary circumstances, the actions were not sufficient ,vith regard to that particular client. In this case, the lawyer \viii have to convince the court that the rule in Parker \\'as meant to apply to each individual customer, not the railway's average customer. In an exam, if you are asked to advise the customer, you will be expected to follow the sa1ne process. You will also be expected to evaluate the impact of the facts in the proble1n which undermine your arguments about the know ledge of customers in general and the customer in the problem in particular. As to the second point, if you conclude the railway provided sufficiently reasonable notice to ensure ordinary customers would be aware of the existence of the conditions but their efforts were not sufficient in the case of your particular client, you \Viii be expected to explain \vhy a court should adopt a rule of la\v placing the onus on the railway to draw attention to its conditions to each particular custotner, not adopt a procedure sufficient for average customers. Finally, it is important to realise that the exarn problem is unlikely to be based on a custo1ner depositing a bag ,vith a railway. Instead, it ,vill deal with another contract problem - a customer leaving a jacket at a dry cleaners, a commuter parking a car in a city lot, a child leaving a bicycle in a shop for a new tyre (\vhat would the result in Parker have been if the customer were a child!), a customer checking a jacket at the opera or in a restaurant, and so forth. The analogies and arguments that arise out of the Parker doctrines must be transposed into completely different factual situations, a process which will allow you innumerable opportunities to apply the facts in the problem to develop new arguments.

20

Chapter 3 - Reading and Summarising Coses

Recording the Relevant Technical Aspects of the Precedent lt is irnportant that you include whatever inforn1ation may be relevant to any ''technical" arguments you 1nay wish to raise in favour of or against the application of a precedent. Thus, your precis should note the jurisdiction of the court, the level of the court and . "'·here appropriate, the judges responsible for the opinion that counsel would likely cite. So1ne of the so-called technical arguments are purely factual, for exan1p)e: "This is an English Court o.f Appeal decision and 0;[ persuasive value on~v'\ while others are less tangible and rest more on conventions and un\\-Titten legal codes. For example, an important factor in many situations is the respect accorded to the judge delivering a decision. Developing a sense for these codes takes time but after a few years at law school you ·will begin to realise which judges command greater respect in later courts and which do not. Otten these intangible factors have quite an impact on the legal process, though they are not found any,vhere in the theoretical fran1e\vork forthecommon Ja\v system of precedent. Thus, forexample, without kno\.ving ho\\' \vell respected and often cited Dixon CJ is, you would not think to argue that a court might be convinced to follow a dissent by Dixon CJ in preference to the clear majority decision of less respected judges. After a fe,v years of reading High Court decisions, however, you'll likely have run into more than one example of a later court adopting a dissent of Dixon CJ in preference to a majority holding of other judges. You \\ ould then feel comfortable suggesting that a court might accept a result based on a dissent by Dixon CJ even though it ,vas inconsistent \Vith the majority holding that would be cited by the other side. 1

Using Texts and Treatises At this point a brief interjection on texts and treatises is appropriate. It should be clear that the facts of the case are essential to its precedential value. It is on the basis of those facts that la\vyers will seek to characterise aspects of a judgment as ratio decidendi or obiter dicta. Not all lawyers pursue this objective ho\vever. While considering, applying and distinguishing cases on the basis of their facts is the in1mediate challenge facing the practising lawyer and examinee la\\' student, others such as the authors of legal texts and treatises rely

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Mastering law Studies and law Exam Techniques

on precedents to develop the ... rules of law" - the propositions and doctrines which reconcile all the cases and fit the pieces into a neat and cornplete jigsa\v puzzle that never exists in the real ,vorld of litigation and appeals. Be sure you remember the role of a text and use it accordingly. Texts will help you understand an area of law and learn the basic principles and legal doctrines forming the infrastructure of a legal subject. They will not, however, spelJ out the many \vays in which precedents and fact situations can be applied or distinguished in an attempt to achieve the result sought by a client.

Using the Precis Reading and summarising the cases gives you the kno\vledge to begin learning the la\\'. You ,viii become aware of some of the issues that arise in the decisions and recognise arguments that you can use to apply or distinguish the precedents in analogous situations. Many more ideas wit l flow from the lecturer's analysis of the case and classroom discussion. Both will also be of use in understanding how the decision and arguments arising out of a case relate to those raised in other cases and other areas of law. Ho,v to learn best and apply this knowledge in the context of a la,v course geared towards evaluation by means of a final examination are explored in the next chapter.

22

Chapter 4

Some Studying Hints The all-important skill of legal argumentation in an exam context cannot be )earned in a pre-exam rush of enthusiasm and self-discipline. It comes through a long process of exposure to competing principles and dogmas, disti11ation of facts and doctrines, and assimilation of reasoning and advocacy skills. Studying will hone your exam writing ability and focus it for maximum effectiveness in the exam room but studying alone will not give the tools you need to master a law school examination. The skill of legal argumentation is part of a process, the final step in mastering law studies and law examinations. Each of the preceding steps is as crucial. And thankfully, if you know how to approach them, all the steps are surprisingly easy. Let's look at them in turn.

Classes If you understand how to approach them and what to get out of them, classes can provide an excellent return for a mini1nal investment. Here are six things that ,viii help you realise maximum benefit from classes.

1. Sho~v up At 9 am on a Monday morning in a law class conducted by the only faculty member whose lectures make memorising the index to the 1903 volume of the Commonwealth Law Reports sound exciting by way of comparison, you are going to find it hard to believe that there are no easier ways to raise marks. And you may be right for one or two lecturers or subjects - but as a general rule, the most efficient thing you can do at law school is show up for classes, however much of an endurance test it feels at the time. There is no denying that the pain of wading through a nearly incomprehensible judgment in the evening and then struggling to focus on a lecturer's discussion of the case the next day can be immense. If the experience is so unpleasant and you can read the case yourself later, why bother coming to class? Part of the answer is that however ~

23

Mastering Law Studies and Law Exam Techniques

dreadful the lecture may be~ learning by yourself is likely to be that much more agonising. Another part of the ans,ver is because doing it on your own involves no bright lines to mark the point at which you have got all you need fron1 a case. If you are attacking it by yourself, you ,viii never be certain when you have found the principles or argun1ents your instructor intended you to pick up Y.rhen the case was assigned. And even if you do find the important aspects of all the decisions you read, in almost every case it would have been easier to let the lecturer do the bulk of the \.\rork for you. These two grounds should be sufficient to justify attendance at classes. But the extra work and uncertainty of learning outside of class are not the reasons why I stress the importance of sho\.ving up. One of the most convincing reasons for coming to class instead of trying to do it all on your own is simply that you will not do it all on your own. Ho\vever great your self-discipline and however sincere your intentions. doing the job properly, that is, reading a case and analysing it in depth, is something you are un1ikely to do on a consistent basis. And because the job is too great to do properly at the end of the year when it's time to review for exams, it will never be done as it should have been. To make sense of half a year's \\i'ork takes half a year; there is sitnply no ,vay it can be compressed into a fe\.\ ,veeks. It can be reviewed in that time, but only if it has first been set out and developed over 1nany months of incremental building. A fourth reason you should attend class is to find out where your fe11o,v students are having difficulty. There is a strong likelihood that if something in the course is confusing you, it is also confusing many others. Social dynamics in the competitive environment of law school and ordinary shyness may inhibit you from putting up your hand confessing in front of the entire class that you are completely bewildered. However., if you're lucky there will be some sensible student in the class who realises that what matters in the long run is the mark he walks a,vay with on the final exam, not whether he exposes his contusion to fellow students on the way. He "II probably also realise that there are dozens 1nore in the class wanting to ask the same question he's about to ask but who are too inhibited to do so. Fortunately, almost every class \.\'ill have one or hvo students willing to ask the question you \vanted to ask but were afraid to and showing up to class will provide the opportunity for you to find the answer to that question. 1

24

Chapter 4 - Some Studying Hints

There remains one final, but very itnportant, reason tor regular attendance in class. As those of you who follow this advice will no doubt discover, exams are based on cases covered in class. Inevitably there will be lecturers assigning materials not to be covered in class and inevitably there will be threats to 1nake these materials examinable., in the often vain hope that this \Viii stimulate students to read what it is unlikely they would otherwise read. The threats are aln1ost ahvays unfulfilled. The exam is based on n1aterials covered in class. Ifs not mere coincidence, nor a consequence of conscientious concern by the lecturer, that students have been taught everything on \\'hich they are to be examined. It is sin1ply a result of the fact that lecturers dra,v up exams on the basis of lecture notes. Consciously or subconsciously, lecturers inevitably re1nember best the items they have discussed in detail in class. Often exam questions reflect questions that first arose in class or in hypothetical situations first presented in the course of a lecture. There are few things so depressing as ,valking out of an exam with the realisation that some or even most of your studying efforts were wasted on materials unimportant for the exam. The only way of making certain you cover the 1naterials you need and avoid those you do not is to come to class. One final point about class attendance should be noted. Physically sitting in class is the first, and least important, part of class attendance. Staying alert is the second, and most important . element. In many cases that will actually take some planning. Occasionally., but far too infrequently, law cases are inherently interesting and you ,viii find yourself reading or paying attention ,vith ease - there are fact situations in some law reports that fiction writers for television or screen have yet to match. Most often, however, students find classes a drug-free opiate and just staying awake can be a struggle. Fortunately, there is often a simple solution to tfie problem. A boring class is usually attributable to a boring teacher, and a boring teacher is usually the result of the lecturer's inability to project to a large class. But however boring the lecture is to the rest of the group, for a s1nall core of students who sit centre and close to the front and who catch the teacher's facial expressions, hand movements, nuances in voice inflection and the occasional eye contact, maintaining attention throughout the class is not difficult. Contrary to popular belief, students sitting front and centre are not asked questions n1ore often. But they can come out of class with

25

Mastering Law Studies and law Exam Techniques

better notes. The better notes are partly the consequence of better attention and partly because those students have caught the emphasis in mannerisms or voice that revealed the most important elements of the lecture. Choosing the right seat is possibly the easiest step to better performance you will encounter in law school. 2. Read the materials before class

More often than not, reading cases before class is difficult. Some cases involve peculiar or perverse fact situations or arise out of significant historical events which 1nake them particularly exciting. HoYt·ever, many cases, especially those with unfamiliar legalese, seem turgid as you struggle for the first time through the concepts and princip1es they introduce. Reading cases requires concentration and intellectual effort sufficient to discourage many from carrying out the task. What's rnore, it is usually difficult or impossible to perceive the benefit of showing up to class having prepared beforehand. The worst risk appears to be the chance that you will be etnbarrassed if asked a question you cannot answer - which usually isn't very embarrassing because 85% of the remainder of the class also haven't read the materials. But while you may not realise it at the time, reading materials before classes is important - in tact, it is an integral step in effective law exam preparation, and for many students this accounts for the difference between passing and failing. Why is reading before classes so important? The answer is not because you will learn a great deal from the reading itself. Most cases will leave you more confused about an area of law than you were before you read them. Often, it will be difficult to follow the fact situations in a cas~ and figure out which party is which, let alone understand the doctrinal analysis and judicial reasoning used to reach a final decision. Reading is important not because you learn from the cases but because it will make it possible for you to learn in class. Unless you are a trained stenographer with many years of experience before law schoo], you will not be able to write down everything that's said in class. And even if you could, you would not be able to show the inflection and tone that are crucial to effective understanding of spoken English. This means that at best you will be able to record only a fraction of the class proceedings. The importance of getting down the right portion is obvious.

26

Chapter 4 - Some Studying Hints

Reading beforehand \\'ill give you a rough idea of the problem to be looked at in class. It ,vil1 help you realise which part of the lecture is background and \\'hich part is crucial to the point you are supposed to pull out of that class. It will help you distinguish bet,veen the parts that are relevant and those that are uni1nportant. It will help you identify arguments and resolutions of conflicting doctrines. It will help you understand ,vhy the lecturer has chosen a particular hypothetical situation and help you discover the issues the lecturer hopes the hypothetical ,viii raise. Lecturers' questions and hypotheticals often appear again in thinly disguised forn1s in exan,s~ so it is crucial that you recognise the issues each is intended to raise. If you do not read first, you will not know what to write down in class. Invariably you ,vill discover after the fact that you have taken do,vn the \\Tong material. Equally frustrating is the discovet)' that you have recorded infonnation of great in,portance and no longer understand your notes. Cotnments by the lecturer and other students only n1ake sense in context -- if you do not kno\v the context in which they arc speaking~ you wil1 not have caught the intended rncaning of a question or response. You \viii be letl re-reading notes and wondering what they should have said. ()nee you understand why you arc reading n1aterials before class, you will have a better idea how to read then,. You could try to read the cases in depth so you understand the argun1e11ts and counterargun1cnts. The cflort is rarely ,vorth it, however. Unless you have a rigorous socratic teacher, a quick, but not completely superficial, read wi11 give you enough of a grasp of the dispute to answer n1ost questions and understand ,vhich parts of the lecture arc crucial and ,vhich parts are filler. Your tin1e is at a prcn1iu1n so the n1ost ctlicicnt ,vay lo tackle the cases is to save the in-depth reading for after class when you kno\V what you arc looking for. It will save you a Jot of discon1fo11. But be sure not to neglect doing the in-depth analysis and precis at some ti,ne - the process covered in Chapter 3 is an essential one. A final co1nn1ent on class preparation is needed. Sorne students are unable to prepare for class because of other co1nn1itrnents or responsibilities. The solution relied upon by many in this situation is to tape lectures. read the cases later. and then listen to the tapes while 111aking notes. Whether you wilt be able to tape depends on your lecturer~ of course. Son1c pcm,it it. others do not. The potential disadvantage of this technique is that you have to sit through the san1e lecture t,vicc. although that could be an advantage in sonic cases. It is a

27

Mastering Low Studies and Law Exam Techniques

luxury that fe,v students have time for. ho,vever. Furthermore. students ,vho try the taping route often discover its fatal tla\\' - because they have the lecture on tape they tend to put off the reading, listening and note-making. often until the ,vork has advanced too far and they have slipped so far behind it is aln1ost ilnpossible to catch up.

3. Ask questions La\v is not an easy discipline to study. There ,,.,j)) be rnany ti1nes ,vhen you are lost, sitting in class not having the slightest idea ,vhat is being discussed. You may have done the reading and listened carefully but still find yourself missing the point. When that happens. the natural reaction tor most students is to let it ride in the hope that another student or a textbook will n1ake it clear later. That response is a mistake -- do not leave the c]ass not understanding something that has con1e up in the lecture. However confusing a point may be at the time it is raised, unravelling the 1nystery is much rnore difficult after the fact outside of class. The odds are you are not alone in your confusion and if you do not understand sornething iCs likely n1ost of your classmates arc also lost. Other resources may also prove unhelpfu1. Outside of class, once the problem is removed fron1 the context in ,vhich it was raised its nature is difficult to rernember. Texts and other sources ,viii not approach the subject in exactly the satne manner and recognising the problem in the nev.·· environment is often difficult or impossible. S01netirncs your confusion ,viii be the result of negligence by the lecturer who has inadvertently skipped a point in the development of a lecture or presun1ed you understood sorne in1portant background point of \vhich you were actually unaware. But often the confusion is deliberate - the result of a carefully n1anaged lecture designed to de1nonstrate hov.' t\vo competing doctrines both apply to the same fact situation or two irreconcilable precedents should both govern the situation at hand. In such cases there often is no anS\\.'Cr to your question and you w iII not learn a point of la~· by asking it. Instead . and much more importantly. you will confirm a divergence ofjurisprudence. the very thing exam questions are based on. In either case. the reason for your confusion becomes clear and you are in a better position to apply the 1naterial in an exam question. The corollary to the recommendation that you ask questions \vhenever you are confused is the importance of listening ,vhenever other students ask questions. The odds are good they ,vi JI have caught

28

Chapter 4 - Some Studying Hints

a discrepancy or conflict you rnissed and their questions wilJ reveal one rnore dichotomy to be applied in the exam.

Notes and Review Notes Preparing for a law exam is really only a matter of preparing revie,,/ notes. If you learn and understand material ,vel] enough to prepare good review notes, you know it \vell enough for exam purposes. Your marks wi II reflect the point at ,vhich you discover that preparation of good reviev., notes is almost synonymous ,vith the successful study of la\\. . For the top law students~ studying consists only of revie,v note preparation and practising to apply those notes on previous years' examinations. Studying in the traditional sense of reading notes time and again is a useless exercise in laV- school and the sooner you break old habits and establish new learning patterns the better you \viii do. Conversely, if you have not mastered the art of making )avv review notes, the sincerest efforts will bring you little reward in marks and the risk of failure is great. Some fail because they do not \\'Ork. Most law school failures have put in the tirne . ho\\'ever. Some have worked day and night . weekdays and weekends. Too late they discover that great energy expenditures count for nothing ,vhen it is spent on the wrong type of exan, preparation. Revie,v notes are actually the centre stage of a three step process. That process con1mences with the initial recording and correction/ supple1nentation/revision of lecture notes. It finishes with a brief outline of the central issues covered in your review notes. The four points belo,,, \Vill set you on the right track for preparing effective review notes. Read the following paragraphs carefully - they can easily pay dividends in the fonn of higher marks for less effort. 1

~

I. Review your notes right ajier class or the same

.

evening

Ho\\·ever con1mendable your note taking abilities are, you will never catch everything that happened in class. It is, therefore, crucial that you first revie\\l your class notes as soon as possible after you put the n1aterial on paper- ideally, it should be done immediately after class or on the same evening. Even leaving the job of putting class notes into shape until the 'Weekend can be dangerous. After three or four

29

Mastering Law Studies and Law Exam Techniques

days you ,vill not remeinber exactly ho\V the lecturer explained some point that no,,, appears cryptically in your notes, you will no longer be able to mticulatc the crucial distinction or reconciliation that came to 111ind in the closing tninutes of class and you will be at a complete loss to comprehend the no,v n1eaningless short fonn expressions that stood in for \Vords or argu1nents you no longer recal I. If you rcvie\v notes while the n1aterial is still fresh in your rnind~ you \'w ill be able to fill in all the gaps. You \vill rernember \vhat the lecturer and fellow students said, the context in \Vhich things \vere said. and the exan1ples and hypotheticals so crucial for exam purposes that \Vere tossed out in the course of the lecture. If you haven't co1npleted the precis of cases prior to this tin1e. no,v is the ti111e to do that. Once the precis have been co111pleted and incorporated into your class notes" you should not have to go back to the prin1ary sources . that is. the cases. again. The notes should contain suflicient information on which to build revie\v notes. Tin1c spent on this stage of exan1 preparation is ,veil invested. It ,viii be impossible to re-read all the cases covered in a year. This 111cans you have to do it right the first time around. A \~/ord of caution: in a guide he prepared for Monash Lav.' students. Richard Fox began with a stark ,varning: ''If you think that you \Vill have tirnc to bring your scattered lecture notes up to date and cornplete the reading of the additional references and wit1 be able to consolidate all the n1aterial into a coherent \vhole bet\veen the end of lectures and the beginning of the exarns. you arc in trouble." Professor Fox ~s ,van1ing bears repeating - several tin1es. In other disciplines it 1nay be possible to cran, and fit a sen1estcr's \vork into the short period between the end of classes and beginning of exa1ns. It is not possible in lav~'. There simply isn ·1 tin1e in that brief period to read the cases. work through trails of lcgis]ation, prepare the precis of cases, prepare revic\\r notes. and practise old exa1n problen1s in one subject, let alone in several. And even if there \Vere tin1e to n1echanically perforn1 these tasks., an understanding of how to use concepts and precedents in legal argun,ents conics fron1 working \vith the n1aterials over an extended tin1c, gradually appreciating ho,v cases looked at several ,vecks earlier can be used to reinfrlrcc doctrines in later cases. ho\v later cases can be used to distinguish the principles set out in earlier ones, and so forth. Distilling the 1nass of n1aterials covered in any la,v course to the fe,\ salient points that \Viii be used in the short period of an exan1 is a process that takes a scn1ester - don "t n1ake the 111istake of thinking 1

1

30

Chapter 4 - Some Studying Hints

that if you fall behind you can catch up when classes end. It \Viii be too late.

2. Consolidate your notes into revie»' notes The .following instructions are probab(v the 1110s! i,nportanl tips in this book. Follo,ving these suggestions is not 1nerely helpful~ they are essential steps for ,vriting successful law exan1s. Preparing proper revie,v notes is the n1ost djfficu1t exercise you w·ill encounter at la,v school. It is so tough that most students do not bother to do it properly. The price for not having good revie\V notes is high - you cannot do ,velJ ,vithout thcn1 -- and the re,vard for n1aking the etTort is substantial - it's all do\vnhill frotn the review notes. Good review notes 1nay not ]eave you relaxed during the exan, but they should leave you confident. It is impossible to prepare proper revie,v notes without understanding what intonnation you need tor a law cxan1ination. The relationship bct\veen legal theory. legal practice and la\v exan1inations ,vas revie,ved in Chapter 2. It should suflice to repeat at this point that ,vriting an etlective la\v exa1nination involves four distinct steps:

I

2 3

Locate all the legal issues, that is. issues over \Vhich a conflict could or has developed; Outline all the possible resolutions of the issue/conflict; Sho\v how application of the different doctrines and rules you have lean1cd ,vould affect the resolution of the issue.,. pointing out how· alternative doctrines and rules lead to conflicting resolutions;

4

Explain ho,v various precedents support the alternative resolutions and explain ,vhy they can (or should) be distinguished, including sho\ving ho\v the fact situations in the precedents ditfer fro111 those in the exan1 problen1, noting the efte~ts of dilTerences in jurisdictions~ etc. Your review notes should contain the infon11ation needed to carry out these four steps, no rnore and no less. They are a synthesis of in1portant concepts and ideas. not a review of everything that appeared in the original notes. Far too often. students see revic"·· notes as a co1nprehensivc and improved set of notes based on original lecture notes. To prepare review notes they take the originals. re,vrite (or type) then, rnore neatly and add organised headings and perhaps tabs for easv., identification. ()ther students consult textbooks and other sources

31

Mastering law Studies and law Exam Techniques

to prepare review notes that can substitute as a survey of an area of law or the beginnings of a legal encyclopaedia. The preparation of such notes requires a great deal of time and students assume that the effort must bring some reward in the end. It does not. More often than not, in fact, it is a complete \vaste of time. If your revie\\ notes are properly prepared~ they \\'ill contain the ans,vers to all the questions appearing in the exa1nination paper and the three hours in the exam room \\ ill be spent applying the issues and problems set out in the review notes lo the actual fact situations found in the exan1 paper. Redrafting your lecture and home study notes into a neat and tidy set of study materials is physically and mentally tiring. It is not a strenuous intellectual exercise, however. Redrafting or expanding notes requires no great comprehension of the doctrines and legal argun1ents that underlie the cases covered in the course. Preparing genuinely effective review notes, by ,vay of contrast will be the n1ost intellectually challenging task you face in law school. To prepare profitable review notes you will have to distil the essential conflicts raised in the cases and recognise which facts influencing the resolution of the conflict will be usable later to demonstrate \vhy a precedent should or should not apply to the fact situation given in the exarn. The most ditlicult part of review note preparation, and the aspect that generates almost its entire lean1ing value~ is organising the notes. Establishing headings and subheadings is a consequence of synthesising the cases and deciding ,vhat issues they raise, ho\\i' those issues can be used and what facts were essential to the decision and what changes in facts ,vould have changed the result in each case. Because the preparation of review notes involves the synthesis of doctrines, arguments and fact situations, they cannot be prepared following each class or each case studied. The logical point at which notes should be prepared is at the end of an identifiable segn1ent of the course ,vhen attention is being directed to new areas of law. At that point . the l O or 15 cases covering the various aspects of the law just co1npleted can be revie,ved. If your course is based on a casebook or corn pi la ti on of cases prepared by your instructor, you may find the chapter headings or subheadings separate the materials into handy review note topics. The basis of review notes is legal issues. You should not organise the notes around the cases~ instead, the notes should fit in to support arguments raised under the headings established by your issues. You should not repeat the tacts of the case and an explanation for the 1

1

32

Chapter 4 - Some Studying Hints

holding. If you have read the case once, \\"ritten notes about it in class, tidied up those notes atler class~ and read the class notes in preparation for drawing up your revie,v notes, you know it ,vell enough. It is highly unlikely that you will forget the facts of the case or the holding before the end of the acadernic year. And if the worst con1es to the worst and you do not recal1 it \\l'hen you prepare an overvie,v of your review notes prior to the exam, re-reading your class notes or even the case itself at that point should leave an in1pression that will remain until after the exam. You should knov~· the cases well enough that details on w the revie,v notes are unnecessary - a sin1ple reference to the "snail in the bottle'~ case ,viii sutlice. When planning your review note headings. you should project forward to the argu1nents you can use in an exam. For example, you n1ight study three or four torts cases involving infants~ some of ,vhom ,vere liable not\vithstanding infancy (or their parents ,vere) while others ,vere not liable because of their infancy. It is not a course on infancy and it is highly unlikely that an exam question \Vill ask you directly about the liabiJity of infants. More likely, the question wil1 be about a possible tort (,vhether a tort has been comn1itted will certainly be another issue the examiner expects you to discuss) committed by someone to whom the infancy doctrines might apply. Revie\\" notes should be tailored to present you imn1ediately with the issues you would raise in such an examination question - under a heading such as "defences'" you might use the subheading "infancy'". And under that heading will be all the argun1ents supporting a defence of infancy and all those against such a defence. When you have finished you should have t\.VO, three or four legal propositions, cases to support all of them and in1portant aspects of the cases that can be used to distinguish the1n fron1 the tacts in the exam or show why the fact situations are analogous. The actual reference to the case should be limited to the name or enough of it to remember the case by, a· short description of the facts (not more than a few key words long, just enough to trigger a memory) and the proposition of la,v for \\'hich you believe the case stands. Ahvays keep in mind how the revie\V notes \Vil) be used when they are being prepared. Main headings should be issues because that is ,vhat you \viii first look for in the exam - "Assuming a tort~ are there any potential defences avai]able? The first possibility is infancy". Once you have established the issues~ you turn to the competing doctrines - •1.p will argue this doctrine is the Ia,v to be applied while D will

33

Mastering Law Studies and Law Exam Techniques

argue that another doctrine should applyH. The next step is applying and distinguishing the cases supporting the doctrines -- ·•p ,viii rely on x case to support his argument ,vhilc D will argue that.\' case governs. P might argue that the infant in y case had these special attributes that do not apply to the infant here \Vhile D \Viii argue that the ratio of the x decision only applies to torts of the ·so-and-so· type. such as that found in the x case ... Finally, you ,viii outline the fallback arguments - ""If Pis unable to distinguish they case, he n1ight argue it is not binding or as persuasive as the x decision. 1f that fails for soand-so reason., he will argue it is ,vrong and x should be tbllo,ved in preference toy because ... ,. and so forth. Revie,v notes of that area of law should set out all the inforn1ation studied so that it is readily accessible and adaptable to an ans,ver similar to that set out imtnediately above. This classification process is the point at ,vhich you .. learn" the dynaanics of the la\v. To synthesise class notes into review notes. you have to step back fron1 the cases you have read, their facts. holdings and reasons for judg1ncnt, and articulate first what propositions the decisions stand for and why they give rise to those propositions and. secondly. how they can be titted in ,vith all the other cases and legal propositions you have encountered in that area of law. When you have accon1plished this step you have learned the la,\: and \Viii be fully prepared for applying it in an cxmn. If your rcvie,v notes consist of the inforn1ation in your class notes si1nply reorganised or rearranged~ but not synthesised into exatn usable propositions and rationale1 you ,vill have no fra1nework in which you can tack le an cxan1 question.

3. Prepare a rei-·ieu· overvieu-' In the process of drafting rcvie,v notes you learn the la\v. Usually you learn it ,veil enough that one or t\\'O readings through the review notes will he sutlicient to ren1ind vou of the fact situations, argtunents. etc that are detailed in your lecture notes. There may be sorne areas fron, the first rnonths of classes that are ditlicult to reme1nber \vhen you re-read the revie\v notes at the end of the year. but a quick reading of the original class notes shou]d rcn1ind you how you fitted the cases together and ,vhy you dre\v out the principles and argu111cnts that you did in the revie\\/ notes. Since you kno\v all the inforrnation contained in your revie\v notes4 you should no longer have to rely on then1 during the exam. For exam purposes. you need a review of the revie,v notes~ a brief overview of ~

34

~

Chapter 4 - Some Studying Hints

issues and principles '".rith a guide to the argun1ents to be raised under each point. The review overvie\v for an entire course need be no longer than four or five pages. The review overvie\v relies on key \Vords and cases to trigger your men1ory - it is not intended to explain anything. For explanation or elucidation you can tum back to the revic\\r notes. Rather, the revie\v overvie,v is a checklist of points you should n1ake cc11ain appear in your exan1 ans\vcrs at the appropriate point. The function of the revie,v overview· can be illustrated with an example. Let's take a torts problen1 in ,vhich you have concluded a tort n1ight have occurred. The next step in this situation is to consider all possible defences. They \Viii a11 be listed in the revie\\'· overview. Thus~ in the revie,v overvic\V there should be a heading of ·~defences,· . one of which ,viii be •-infancy". That defence \Vill be follo,ved by the naines of appropriate cases. No n1ore should appear in the reviev,/ overview. The function of the overview is sin1ply to ren1ind you to rnention the defence and the cases \Viii ren1ind you of the arguments and countcr-argun1ents you will raise in your discussion of the possible defence. You should re1ncn1ber those arguments fron1 the exercise of working the cases into the review· notes. If the worst comes to the worst and you sutTer a blank under exarn pressure. your case index (see bclcl\v) ,vii] help you tun1 to the appropriate section of your review notes ,vhere the essential points or each argument and countcrargun1cnt will be listed. .,_;

4. Index and tah __vour note.\· Ho,vever hard you study and hcnvever great your n1cn1orisation skills, it is inevitable that you ,vill forget son1cthing and at sonic point in an cxan1ination wish to refer to your notes (assun1ing it is an open book exam). Many students find an indexing and tabbing systen1 to be useful at that point. The l

-

.c

C·

"0 •'

~

1/o

0%

The market demand for decking and floorboard timber has remained relatively steady over time; importantly. there are very fe\v suitable substitute decking products and, in relation to floorboards. while substitutes exist (like soft\\'ood. tiles, concrete and carpet). customers who have a prefere nee for tloorboards tend not to be highly price sensitive.

It is relatively easy to S\\'itch production between the various types of hardwood timber products (decking. floorboard and structural) but more difficult to switch from production of sotlwood to hardwood timber products. and vice versa. because it requires long term logging plans. New entry into the hard\\'Ood tiinber market is very difficult and, as a result. no new entrants have emerged in the past decade. FolJowing a significant market review and the development of a ne,v five year strategic plan for Empire. Vader implernented the following strategics: • He offered a discount of 20% on decking and floorboard timber to retailers \\'ho agreed to acquire all of their decking and floorboard timber from Empire or a 15% discount to those who agreed not to sell decking and floorboard timber products acquired from Millennium. • He sent a letter to all of his retailers encouraging them to review their discounting practices in relation to hardwood floorboards. The letter made reference to an attached recommended price list and warned retailers that if they continued to price below the recommended prices he would feel compelled to revie\v his supply contracts \\'ith them. As hardwood flooring is marketed as a high end and sophisticated flooring option, Vader feared that any significant or sustained discounting might reduce demand for the product in the future.

252

Chapter 9 - Sample Examination Questions and Answers

The CEOs of Mi11ennium and Falcon also reviewed their long tenn business plans. Both \Vere concerned that a decline in demand for hard\\i·ood structural tirnber rnight result in lmperia] entering that n1arket and clain1ing some of their market share. They agreed to n1erge their companies, subject to receiving infom1al approval from the ACCC. The CEOs hoped that the generation of scale ctl1ciencies would both in1prove their co1npetitiveness against Empire and deter Imperial fron1 entering into the market. Questions

l. Mr Solo . CEO of Mi11ennium, has written to the ACCC expressing concern about the discounts being otTered to retailers by Empire. You are a con1petition lawyer at the ACCC tasked ,vith reviewing these discounts. Please advise whether or not Empire's discounting practices infringe the Conrpelitio11 and C,,nsu,ner Act (Ct/1) (CCA), providing full reasons for your ad, ice. 1

(1 hour)

2. Ms Rey, marketing directorofJakku Pty Ltd, a hardware retailer, is concerned about Empire's letter relating to the pricing of hardwood floorboards. She regularly discounts hardwood noorboards sourced fron1 Empire and this strategy has been etfective in increasing sales of flooring and other related products from her retai I stores. She \Vi shes to continue discounting but cannot risk having her supply from Empire cut otT. Ms Rey has written to the ACCC . attaching a copy of the letter and seeking advice about whether Empire can la\\ fully stop supplying her if she continues to offer discounted timber. You have been tasked \Vith reviewing Ms Rey's complaint. Please advise whether or not Empire's letter to retailers contravenes the CCA and whether or not it call lawfully refuse 1

to supply Jakku if it continues to discount hardwood flooring. Provide full reasons for your advice. (30 r,1ins)

3. You work in the mergers branch of the ACCC. Please advise whether or not the A CCC should grant informal clearance for the proposed merger between Millennium and Falcon. Provide full reasons for your advice. (30 ll1ins)

{Suggested tilne: 2 hours plus 30 ,ninutes reading tilne]

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Competition Law: Average Answer I. Question I

Empire's ofler of discounts may constitute exclusive dealing or misuse of 1narket pO\\'er. (a) Exclusive dealing (i) E~\-l.·lusive dealing conduct

Exclusive dealing is prohibited by s 4 7( I) of the CCA and includes offering a discount in relation to the supply goods on condition that the person to whom you supply wil1 not acquire goods or services (or will not acquire them except to a limited extent) from a co1npetitor or will not re-supply goods or services acquired from a competitor. In relation to the 20% discount . Empire offered to supply goods at a discounted price on condition that retailers did not acquire the product from any competitor. In relation to the 15% discount~ En1pire offered to supply goods at a discounted price on condition that the retailers did not acquire goods from a particular competitor. Both are forms of exclusive dealing. (ii)

Substantial lessening of con1petilion (SL(~)

To contravene the CCA the exclusive dealing involved must have the purpose. effect, or Jikely effect of SLC: s 47( I 0). In O'Brien, the Court held that sin1ilar discounts had the effect of substantial1y lessening con1petition. 0 'Brien held approximately 40% of the market; in this case En1pire holds 60% of the market and the discounts are likely to be held to have the cflect of substantially lessening co1npetition. Ernpire 's two existing competitors have not increased their n1arket share significantly in recent years and any exclusive contracts En1pire obtains from retailers are likely to make it harder for them to do so in the future. Although there is the scope for producers of structural tin1ber to enter the market, the fact that they do not appear to have done so to date suggests that this does not present a great risk. More information about the market is needed before a conclusion can be reached; for example., ho-Yl n1any retailers are there and are there existing discount schemes in place fro1n Empire or other suppliers. Ho,vever., on the facts available there is a risk that this conduct will be

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held to have the effect or likely etTect of SLC. Even if eflect or likely eftect cannot be established, it is arguable the conduct has the puqJose of SLC; this ,vould be sufficient to establish a contravention. (b) Misuse of 111arket power

Empire's conduct n1ay also constitute a 1nisuse of rnarket pow·er (s 46). (i) Substantial 111arke1 po1-ver (SA,fP)

Empire holds 60% of the 1narket; its nearest rivals only hold 25% and I0% respectively. Barriers to entry are high and the potential tbr imports is limited. It is almost certain that Empire will be held to have substantial market po\ver. {ii)

Taking udvantage c?l 111arket pou,..er

Section 46 requires that the party with market power .. take advantage" of that market po,ver. This is a ditlicult test to satisfy (Mebvay; Rural Press).

Discounts like this are frequently offered by firms lacking 1narket po\\'er and do not depend upon market po\ver. Based on the courts' narrow interpretation of take advantage'\ it is unlikely this element would be satisfied. 0

(iii)

Pu,pose

The final element to be established is a prohibited purpose. In relation to the 20% discount it is arguable that Empire had the prohibited purpose of preventing cornpetitive conduct or preventing entry by, for example, rnaking it more ditlicult for other suppliers to obtain access to retailers. In relation to the 15% discount, it is almost certain that En,pire had the substantial purpose of eliminating or substantially damaging a competitor (Mi11ennium). Although Empire has substantial market power and (aln1ost certainly) a prohibited purpose, as there has been no ~'taking advantage'" of n1arket power, s 46 has not been breached.

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2. Question 2 Empire's letters to retailers encouraging the1n to revie\v their discounting practices raises the issues of resale price 111aintenance (RPM) and n1isuse of market power. (a) Resale price n1aintenance (RPM)

Section 48 prohibits a corporation engaging in RPM. (i)

The feller lo retailers

RPM inc]udes a supplier inducing. or attempting to induce a second person not to sell at less than a specified price (s 96(3)(b)). This is ,vhat has happened here. The only issue is ,v hether or not the reco1nmended price list constitutes a ~'specified price'' below \Vhich the titnber could not be so]d. Even though it is referred to as a recommended price, and recommended prices are not auto1natically prohibited (s 97), in this case the list was accon1panied by a threat to reconsider future deals if the recommended price was not tollov..·ed. As a result, it will constitute a specified price and, combined with the threat to reconsider supply, will constitute a prohibited form of resale price maintenance. It is not necessary to prove that the conduct \vould substantially lessen co111petition. (ii)

Refitsal Iv .,·upp~v

Empire cannot lawfully refuse to supply Jakku because of continued discounting. This would constitute RPM under s 96(3 )(d) (Ylithholding goods because a retailer has sold at less than specified price). Provided that this was the reason for withholding (and Empire will have the onus of proving it is not: s I 00) then En1pirc ,vould be guilty of RPM if it stopped supplying Jakku in the future. (b) Misuse of rnarkct power

It is arguable that the letter, and threat to refuse supply for discounting, could constitute a 1nisuse of rnarket power. Empire has substantial market power and it may be possible to estab]ish that it had a prohibited purpose of deterring con1petitive conduct. However. it is unlikely the take advantage element ,vould be satisfied .. because it is not necessary to have market po\ver in order to engage in RPM.

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3. Question 3 Millennium and Falcon ,vish to merge. Mergers are prohibited ,vhere they have the etfect or likely effect of substantially lessening competition in a rnarket (s 50). The ACCC is guided by their Merger Guidelines 2008 ,vhen assessing merger. In this case the relevant n1arket is the ,vholesale n1arkct for hard\\ ood decking and floorboard timber in Australia, in ,vhich Empire ho]ds 60% of market share. Millennium holds 25% and hnperial holds 10%> 1

(s 50(6)).

To detennine whether the merger will SLC a counterfactual test C'\vith and without"" test) is applied. Without the merger the rnarket \Viii remain substantially the same. With the rnerger. the second and third largest firms will combine to become the second largest. The question is whether the level of competition in each of these counterfactual markets is substantially different. Section 50(3) sets out a number of mandatory criteria for the court to consider when assessing ,vhether there will be an SLC: • hnport cornpetition (not much); • Barriers to entry (high); • Concentration (high-· the ACCC \Viii use the HHI test to determine concentration levels. This will show a high level of concentration and also a significantly higher level of concentration with the merger than without); • Countervailing power (more infonnation needed about the retailers - not likely to be significant countervailing po\ver); • Likelihood the merger will increase prices and profits (not clear; merged entity ,viii stiJl be smaller than Empire so will not be able to unilaterally increase post-merger. but it may reduce competitive pressure in the market and increase market prices generally); • Substitutes (no good den1and substitutes; but could be supply substitutes); • Dynamic nature of market (not particularly dynamic - appears little innovation - but some product differentiation (quality/ sustainabi Ii ty )); • Likelihood 1nerger ,viii remove vigorous competitor (it will merge two vigorous competitors~ effectively eliminating one); • Extent of vertical integration (no apparent vertical integration).

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In sotne respects the merger may help the merged entity to compete ,vith Empire. However. as this is a rnerger fron1 effectively three cornpanies to two companies, there is a serious concern that it ,viii have the potential to substantially lessen competition, including by lin1iting choice for retailers. I ,vould recommend against granting infonnal clearance.

Competition Law: Above Average Answer 1.

Question I

Empire's offer of discounts to retailers who agree to acquire all of their hardwood timber and floorboards fro1n E1npire, or who agree not to supply such ti1nber from its competitor.. Millennium, constitute forms of exclusive dealing which may contravene the Competition and Consumer Act 2010 (CCA). This conduct may also constitute a misuse of market po,ver. (a) Exclusive dealing (i)

Exclusive dealing conduct

Exc1usive dealing is prohibited by s 47( I) of the CCA. It includes offering a discount in relation to the supply goods (s 47(2)(c)) on condition that the person to who1n you supply will not acquire goods or services (or \vill not acquire them except to a limited extent) from a competitor (s 47(2)(d)) or ,viii not re-supply goods or services acquired from a competitor (s 47(2)(e)). In relation to the 20% discount .. this is a form of solus agreement; Empire has offered to supply goods at a discounted price (s 47(2)(c)) on condition that the retailers do not acquire structural timber from a competitor (s 47(2)(d)). Although the condition is expressed in the positive rather than negative (purchase all timber from me instead of "'don't purchase from C") the effect is the same (see (J 'Brien Glass v Cool & Sons). In relation to the 15% discount, this constitutes an offer to supply goods at a discounted price (s 47(2)(c)) on condition that the retailers do not re-supply the goods acquired from a particular competitor (s 47(2)(e)).

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Chapter 9 - Sample Examination Questions and Answers (ii) Suhstanlial /e:,:sening t?f co111petition (SLC)

These forms of exclusive dealing \vill only contravenes 47( I) of the CCA if they have the purpose, effect or likely effect ofSLC: s 47(10). When making this determination, it is possible to take into account conduct Hof the same or a similar kind" \vhich together might have or be likely to have the effect of SLC (s 47(10)(b)). The O'Brien case involved similar discounts. The Court held that the purpose of the discounts was to coerce retailers into dealing with it rather than its competitors, and that this had a tendency to "lower the forces of competition in the n1arket" by reducing the capacity of retailers to choose between suppliers. In determining that this substantially lessened competition~ the Court was influenced by the fact that O'Brien occupied approximately 40% of the market and had a retail business. In this case, although Empire does not have a retail business~ it is at least arguable that the discounts may have a similar impact. We are told that Empire holds 60% of the market for decking and floorboard timber, the largest share by a considerable margin. The challenges of market entry and cost of imports suggest little threat to its share from new entry or imports. Although Empire's two existing competitors have increased their share of the market in recent years as a result of their reputation for quality and sustainability., there does not appear to be a risk that they will expand so significantly as to threaten Empire's market position, particularly given the significant scale efficiencies enjoyed by Empire. Although there is the potential for producers of structural timber (like Imperial) to switch production to decking and floorboard timber, the tacts do not suggest that there is a significant threat of this occurring; however, more detail about the current state of the structural timber market ,vould assist in making this assessment. The facts also indicate that there are few substitutes for decking products and that, although there are alternatives- to floorboards, consumers who favour floorboards do not appear to be price sensitive. As a result~ it does not appear that the availability of substitutes would limit the risk of the conduct lessening competition. However, before a conclusion can be reached about whether the conduct would be likely to SLC, more information is required about the 1narket. The following information would assist in making an assessment of competitive impact: the number of retailers in the market the extent to which retailers currently stock products from more than one supplier, the extent to which trade customers value retailers

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stocking n1ore than one product (a]though a market can be competitive not\vithstanding exclusive suppliers ((Jutboard Marine)), the extent to which Empire's products are considered essential stock (either because of volume or range) and the extent to which exclusivity or volume discounts are already offered by Empire or by other suppliers. None of this information is available on the facts. On the facts available, it is arguable the conduct would substantially lessen competition, particularly if it had the capacity to make entry or expansion more ditlicult (0 'Brien). Even if the conduct would not have the effect or likely eflect of SLC, it is arguable that the purpose of the conduct is to SLC. If it can be established that this \\'as a substantial purpose (s 4F) of Empire ~s then they will have contravened s 47. More information is needed in order to make this deterrnination. (b) Misuse of n1arket power

It is a]so possible that Empire's conduct constituted a n1isuse of rnarket power (s 46). (i) Substantial 111arket polver (S.MP)

The first elen1ent in a s 46 claim is SMP. Section 46(3C) provides that a corporation may have SMP even though it doesn "t substantially contro] it or have absolute freedom fron1 constraint from competitors or customers. We are told there is a broad market for the \vholesale supply of hard\\·ood decking and floorboard timber products to retailers in ,vhich Empire holds about 60% and its nearest rivals only 25% and I0% respectively" with the potential for imports limited because of high costs; we are also told barriers to entry are high, although it would be possible for suppliers of structural decking products to switch production to decking and floorboard timber. Despite a possible threat of entry from Imperial or expansion from Millennium and Falcon" Empire's share of the market is considerable and it is likely to remain so in the short to rnedium tenn. Given the substantial barriers to new entry and the lack of threat from imports. it is likely Empire ,vill be held to have substantial rnarket power. It is likely that En1pire has SMP in the ,vholesale decking and floorboard timber 1narket.

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(ii) Taking advantage