For purposes of writing a legal exam, issues are anything that a professor may give you points for noticing or discussing. Generally, unless the question asks only about specific issues, you should discuss all applicable legal theories, claims, causes of action and defenses assertible by or against any and all parties or potential parties. In addition to the subjects of the hypothetical and other obvious parties, be alert for less-obvious parties like the following: the manufacturer of a product that caused an injury; the “innocent bystander” who ostensibly suffered no injury or has no liability; the owner of land where an injury occurs; the government agency responsible for doing an act or protecting obvious parties; and any individual or entity who at any time might have exercised some control or authority over a person, place, thing or policy which has caused an injury.
There are five important things to remember when spotting issues.
First, read the question! Before reading the body of the hypothetical, read the question or questions following it. Some academics call this the “call of the question.” You may find an open-ended question such as “Discuss the parties’ rights and liabilities,” a more narrow question focused on particular parties such as “Discuss A’s rights against B,” or an extremely narrow question focused on only one issue such as “Was there consideration for A’s promise?”
Now that you know the question(s), read the hypothetical with each question in mind. Obviously, you don’t want to reread or scrutinize a hypothetical more often than is necessary. If a question asks only for A’s rights against B, don’t waste time thinking about A’s rights against other parties.
Your first read of a hypothetical should be just a quick scan to get a general understanding of the facts and the chronology. The second time you read it, spot issues and note them in the margin. As you go through the hypothetical, circle dates, transactions, terms and parties that suggest issues or elements of legal rules. Mark up the hypothetical to your heart’s content – your professor’s not going to see it, and any notations you make will facilitate your outlining process. Finally, read the hypothetical a third time, making absolutely certain you are familiar with all relevant facts and have noted every conceivable issue.
Second, think like a lawyer. Adopt an attitude that is at once aggressive, objective and creative. Remember that in many cases, the only thing distinguishing a superior answer from a mediocre answer is that the superior answer discusses more issues. Analyze the facts from every perspective, putting yourself in the shoes of each party’s lawyer in turn. Imagine that real clients are involved, and that they want to win! Muster every argument which each party could advance in its favor.
Also, think about the objectives of the parties. What does each party want, and what will he, she or it have to establish to get it? For example, in the sample contracts exam on page 81, Mary’s objective is to establish that a valid contract was formed between Doug and her so she can recover damages from Doug for his breach. Doug’s objective, on the other hand, is to establish that no contract was formed so that he can avoid paying damages. Simplifying the parties’ objectives in this manner will often help you to think of arguments and legal theories which they might advance.
Third, consider every fact. Professors will rarely insert extraneous facts in a hypothetical, so if you come across facts that do not immediately suggest an issue, look at them from different perspectives and go through your checklist until you find an issue. Dates, places and events are facts worthy of particular mention.
Fourth, pay particular attention to adjectives and adverbs. Often, these will provide a clue to a potential issue. For example, if a party to a contract is described as “young,” she may be a minor and therefore lack capacity to contract. If a hypothetical indicates that a party was driving a car “quickly,” he may have been exceeding the speed limit and therefore breaching a duty owed to a potential plaintiff.
Fifth, use your checklist. After you have gone through the hypothetical three times, run through your checklist quickly to see if there are any potential issues that you have omitted. You may have already jotted down the first letters of each item in your checklist. If so, check off each item on the list as you come to it, so that you’re satisfied either that it’s not present in the hypothetical, or that it’s present and you’ve covered it in your outline.