How to solve the legal case

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How to solve the legal case

Based on

Introduction and General Presentation (Cristina Verones, Sebastien Rosselet) –

exercisebook for students

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General remarks

• AT THE BEGINNING, IT IS IMPORTANT TO READ THE WHOLE CASE (INCLUDING ANY

‘NOTA BENE’ PARTS AT THE END) CAREFULLY.

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General remarks

• Afterwards, the legal problems and issues have to be identified in order to structure

your legal arguments. The questions asked at the end of each case will help you determine the relevant legal problems to be dealt with in this case. It is important to stress here that

you should only answer the question asked,

regardless of the fact that other legal issues

might be present in the case as well.

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General remarks

• It is highly advisable to make a plan of your solution of the case. This allows you to verify if the structure of the solution is logical and correct and if you have forgotten any

elements. Once the plan has been made, the

writing stage starts.

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General remarks

• First of all, you should identify the relevant legal issue or issues in the case. For example, is there a problem in relation to a treaty, or is the issue rather use of force? You should not simply rewrite the entire case, but determine the legal issues that need to be solved in

function of the questions asked.

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General remarks

• Once you have identified the issues that need

to be determined, you have to set out the law

that is applicable specifically to your issues. It

is necessary to cite and explain the ‘relevant

law’.

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General remarks

• Afterwards, you have to apply the law to the facts of your case. This is the reasoning part of your solution and you should clearly

indicate why, or why not, you consider that

this rule is applicable to this situation. It is

essential to find evidence in the facts of the

case to support all of your conclusions.

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General remarks

• Finally, never forget to conclude on all the issues, even if this means writing several

intermediary conclusions (after each issue)!!!

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The following is a schema proposed for the successful resolution of cases:

• Question asked:

• 1. Applicable law in general (eg Vienna Convention on the Law of Treaties)

• 2. Issue 1 (eg invalidity of the treaty on basis of Article 46 VCLT)

• (a) set out the relevant legal facts for issue 1

• (b) set out, explain and develop the applicable law to issue 1, where necessary

• complemented with case law and academic writing

• (c) application of the law of issue 1 to the facts of issue 1

• (d) conclusion of issue 1

• 3. Issue 2 (eg termination of the treaty based on Article 60 VCLT)

• (a) set out the relevant legal facts for issue 2

• (b) set out, explain and develop the applicable law to issue 2, where necessary

• complemented with case law and academic writing

• (c) application of the law of issue 2 to the facts of issue 2

• (d) conclusion of issue 2

• 4. Issue x

• Etc

• 5. General conclusion on the question asked

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IMPORTANT

• It should be pointed out that one question often raises several different issues. Sometimes,

depending on the subject, it is necessary first to solve some preliminary questions before

continuing with the analysis. For example, for the question whether or not the use of self-

defence was legitimate or not, it has first to be

analysed whether the conditions underlying the

exercise of self-defence are fulfilled.

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IMPORTANT

• In these cases where there are several issues to be solved for one question, it is important to structure your answer well and to separate the different problems. Your reader has to be able to follow your reasoning as well as

possible. Thus, also the order in which you

deal with the different issues should be logic

and coherent.

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Some advice on how to deal with practical cases (schema)

• How to start with a practical case

• Legal syllogism when many conditions have to be examined

• Answer the question asked

• Arguments invoked by the parties

• Chronology of events

• Argumentation

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How to start with a practical case

• When you start with a practical case, read it carefully and in its entirety for a first time and also have a close look at the questions asked. Afterwards, read the case a second time, in order to identify the relevant (legal) facts that you need to solve the legal

questions asked.

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Legal syllogism when many conditions have to be examined

• Practical cases, and especially interconnected cases, often contain a large number of relevant facts and

conditions to be examined. Such a complex structure can lead to the situation where certain conditions are

forgotten and are not dealt with in the application of the law to the facts. When there are many conditions to be analysed, it is advisable to use the general plan for each specific issue and not to mix the analysis of different

conditions. It will thus also be easier for the reader to

follow your reasoning and to avoid errors and to forget

certain conditions.

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• For example: when dealing with legitimate self-defence under Article 51 of the United Nations Charter, a series of conditions have to be dealt with; each condition needs to be

accompanied by a development and analysis of the relevant law. Thus, instead of writing one long paragraph and mixing the different conditions, it is advisablem to deal with each condition one after the other. So, in our example, start by developing the notion of armed attack. Then, apply the

relevant law in relation to this condition to the facts of your

case. After that, make a conclusion on this condition of the

occurrence of an armed attack. Proceed to the following

conditions, one by one.

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Answer the question asked

• It is indispensable to reply to the question asked in the case. Not doing so, but also going beyond what the question asked, will not satisfy the requirements.

Therefore, there needs to be a certain parallel

between the question and the conclusion, including all the issues that have been identified. In fact, this parallel is easy to verify, since it is enough to take your conclusion and confront it to the question asked. If your conclusion is an answer to the

question, then the parallel is respected.

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Arguments invoked by the parties

• The facts of the cases often mention the different

arguments made by the different parties in the case in support of their position or in questioning the others’

position. These arguments are frequently crucial and offer lines of reasoning or issues to be dealt with in

your solution. Furthermore, often one of the arguments is well founded and will thus indicate important

elements for your answer. It is therefore sensible to

address the different arguments made by the parties

well, since they can serve as a guide in your solution.

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Chronology of events

• The potential problem of the chronology of events usually occurs in the interconnected cases. If you have time, it is often useful to write down the different events in

chronological order on a time line. This

allows you to visualise better the chain of events, which can be important when the

order of the different actions is crucial for the

analysis of one question.

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Argumentation

• It is often not necessary to make very big and complicated arguments. It is preferable to write and argue in a clear and concise style. This method will give your argumentation

more force and will demonstrate your facility with the

matter. It is also useful to keep in mind that the cases have often been written with a solution in mind. Thus, in general, the difficulty lies rather with the identification of the relevant legal facts for a particular argument, than with the way of