Gathering and Identifying Relevant Facts †Myasssignmenthelp.Com

Question: Explanation Gathering and Identifying the Relevant Facts? Answer: Introduction As students of law, we often come across stages where it becomes difficult to address a legal problem. In fact, finding a solution to the problem seems difficult because our approach to the problem is unsystematic. We stop questioning and start seeking answers. Then I came across MIRAT[1] which gave me clarity of reasoning as the use of this acronym helped in arranging my thoughts in a pattern. MIRAT, which was first discussed by Wadein his legal problem solving article is an extension of Charles Engels PBL (Problem-Based Learning) process. The purpose of PBL process is not to focus on a problem with a defined solution, but to develop definite skills and attributes which allow access to ways of finding a solution. The acronym 'MIRAT" stand for: M - Material facts - present or absent I - Issues of law and "policy" R - Rules and Resources A - Arguments (or Application) T - Tentative Conclusion In my opinion, IRAC - Issue, Rule, Application, and Conclusion is also a suitable way. Gathering and Identifying the Relevant Facts Material Facts: Analysing the Problem Broadly, a "material" fact is described as that fact which we can use for creating a line of deductive reasoning and becomes vitally important for solving the problem. I presume that material facts can be helpful even in providing advice to our clients in selecting from a range of options in finding a solution to a problem. [2] I can create a useful model for this concept by illustrating three categories of facts: Clear Material Facts, such as John pulled the guns trigger[3]; or net income of the company showed a 40% decline[4]. Clear Immaterial Facts, such as Mary has freckles; or Steven once travelled to Auckland. But if the immaterial facts can become material facts if they are stated as facts, policies or rules for identifying the issues, such as Mary had freckles at the age of 17; or Steven travelled to Auckland in 2007. Know the Adversary In the light of above factors, my advice to the client would be to know your adversary. I would attempt at understanding who they are; what is their lifestyle; and what factors motivate them. In case my clients adversary is a firm, my effort would be to learn about its values or the way in which they do business, and then use these facts to identify the decision-making factors for resolving the dispute[5]. Although information about the adversary obtained from my client is important, I would prefer not to rely solely on it, because my client may have formed a biased opinion of the adversary. Among the many other ways of finding the material facts is the straightforward way of questioning the adversary at their deposition. I also find that interviewing or getting depositions of those involved in the case is a more reliable source of gathering the material facts about an adversary[6]. It is also possible that research about the adversary may produce some useful negative material facts and as a lawyer I could use these for undermining the position of the adversary in the dispute and may help me in putting a resolution which they willingly accept. Strategies for Identifying the Legal Issue Issues of Law: Identifying the Information Identifying the issue, in my opinion, is the first stage of finding the solution to a legal problem. To initiate this process, I need to identify a rule or a group of rules which are the nearest to the material facts of the problem. And then to phrase it as a question. I often hear my teachers saying "It is more important to ask the right questions then to find the right answers" Example Problem When I was studying the case ofBernstein v Skyviews General Ltd[1978] Q.B. 479, I came across the following passage about this case in a textbook, and I quote: InBernstein v Skyviews, the defendant company flew an aircraft over the claimants land and took a picture of his house. He alleged trespass on the basis that he who owns the land owns everything from the depths of the earth to the highest heavens. It was held that this maxim did not apply and that the claimant should only be able to sue for trespass into his airspace to the extent to which it was necessary for the reasonable enjoyment of his land. This was not the case here. In my view, I analysed the situation in the form of this question Mario flew an aeroplane over Janes land in order to take photographs. In my analysis, I identified the legal problem in the following way: Identification of problem The problem identified by me in accordance with the case ofBernstein v Skyviews General Ltd[1978] Q.B. 479 was whether Mario is liable for trespass into the airspace above Janes land. My teacher suggested to study the extracts of the judgment and I will understand the way how the judge formulated the legal problem which he had to deal with in this case. My analysis of this disputes was that a misunderstanding between the parties about rights and obligations under the law led to this case[7]. My effort would be in getting the parties to come to an understanding of the law in achieving an agreed resolution. I am of opinion that if a dispute arises in an area of the law with which I am not very familiar, I must invest time and effort to determine the law which will govern the dispute. This is because of fact that law has become so extensive that it is not possible for a lawyer to know it all[8]. Hence, once I confirm the legal principles involved in the identified problem, I am in a better position to resolve any misunderstanding my client may have. Make Sure to have the Facts Right My assertion is that like material facts, issues also emerge gradually. Initially, they may arise from first impression, experience or the gut reaction, but will arise from details as the legal research progresses. According to my teacher, as an issue gets identified, it gives rise to the question How did you decide that was an issue? As has been seen in the above case, most of the disputes arise from misunderstanding of the facts by one of the parties[9]. I believe that if the parties can reconcile by understanding the facts, arriving at a resolution becomes easier. But for that, each party to the dispute must confirm own understanding of the facts before addressing the misunderstanding by the adversary. It is common for people to make assumptions about the facts or jump to conclusions, because they or their employees think that they did what was to be done and the fault is of other party. I always insist that every party to the case must invest quality time and effort in understanding the facts. They must go through the documents and review them carefully. Even if this means going to the adversary for additional information and documents[10]. Researching the Most Relevant Law Rules, Research and Resources Sometimes I get too intimidated into using books as I think that is where the solution to the problem lies. But my teacher tells me that they are not the only research resource. My teacher insists on development of interviewing skills and to use them for the right person at the right time[11]. In the class, we are repeatedly asked these questions: "Please tell me, according to the books, what rule applies to this particular issue?" "How did you locate that rule?" "What alternative versions to that rule did you discover?" Two Approaches I have deduced from my classroom debates that there are often two approaches to achieve a resolution by agreement. One by fighting it out in the court with the adversary. Second by approaching the legal dispute as a problem and find the solution. I am of opinion that problems do get solved if people apply their persistence, resources and skills in finding out ways towards a solution. When a legal problem is viewed in this way, one uses the legal procedures and rules as tools and skilfully works through the dispute. I find that the problem-solving approach offers some very potential advantages[12]. In case the parties find a way of working through the legal dispute, it becomes easier to get to the resolution. It not only saves on time, effort but is comparatively inexpensive. It also offers control over the outcome and there is the possibility of an ongoing harmonious relationship between the parties. But the problem lies in the challenge of applying the problem-solving approach to the legal dispute[13]. Disputes arise because of human relationships as these are variable and sometimes volatile. Hence, each dispute has a uniqueness of the facts, the parties, their circumstances and sometimes the lawyers. In my learning experience, I found that the problem-solving approach had potential advantages and the warfare approach had potential drawbacks. In my opinion, a persistent and skilful application of the problem-solving approach can be effective in overcoming several key problems[14]. Applying the Law to the Facts Arguments and Application It has been observed that most law students initially yearn to have the certainty of a clear answer. In achieving this, they often leap quickly from the facts or issues or rules to a definitive conclusion. It is required that they be taken a few steps back and asked to develop an argument involving both the parties to the issue. They must develop a counter-punch for every punch delivered; develop a counter-move for every move[15]. This writer's experience is that most often, the creative arguments and counter-arguments developed by the students is based on their own experiences or perceptions of the policy about which they are arguing. Applying the Law: Although not much information is available in the Jane v Mario problem discussed above, but we can carry forward our argument based on the overall structure of the judges argument, which I reproduce below In the problem we have been given there is insufficient information to be able to form a definite conclusion as to whether a court would hold Mario liable in trespass to land followingBernstein. However, if Mario had been taking lots of photographs and being doing so persistently, it might be that he could be held as interfering with Janes reasonable use of her land. Also, if Jane was running a park which involved putting things in the air, or which needed extra quiet, such as a nature reserve, and Mario were flying his aircraft at a low height, then Jane will be able to argue convincingly that she needs to exclude people from that airspace for the reasonable enjoyment of her land. Unquote. My statement in this matter is that every convincing argument can be met with a proposition, such as - "well, how would you respond to your own argument?" I still believe in the dictum that educationally there can never be such thing as a wrong or foolish argument. In every lawyer's career, maybe at a later stage, there may come some culturally inappropriate arguments which occur because of public ridicule or gossip or loss of clients but these should not lead to a social excommunication[16]. Problem-based Learning (PBL) Thus I come back, again, to the Problem-based learning (PBL) process, which, with its emphasis on active learning, still appears to be the best way to encourage students, especially those in their early years of learning, to develop the required skills which they would need when dealing with the frequently confronted complexities. My teacher believes that this is an approach which can be effective in teaching the skills of legal problem solving[17]. We are often confronted with Professor Charles Engel explanation of this PBL process of PBL as follows: analysis of the problems presented; identification of information required; specification of the required information; study in order formulate answers; and application of newly acquired knowledge. Communicating Your Advice Conclusion When educational goals, such as thinking like a lawyer are used, they become the cause of a sloppy course preparation, not to mention the students frustration. In my opinion, the MIRAT framework of analysis ably provides a simple and structured goal. Although MIRAT may not help all types of students, it is effective as it has been tested by the experts for number of years with enthusiastic response. As a novice practitioner of this art, I prefer not to use the adjective tentative with conclusion. No doubt, a confident and unqualified conclusion is justified when the weight of the arguments is towards such conclusions. In my view, the acronym MIRAC seems more appropriate than MIRAT, when it comes to describing the reasoning process. As law students, we need to practise various style of expressions so as to avoid being misguided with an over-confident or an underconfident or a premature conclusion. How many permutations are required to be pursued so that we can analyse a problem properly? This is one aspect which often daunts the law students. There are often multiple ways of endeavour which naturally come into existence once the student acknowledges that the issue can have more than one possible conclusion. Some teacher give a relief through repetitive models to suggest the correct route of the probable conclusions. We have been taught that at the law school, development of reasoning and process skills is more important than discovering what is probably the right answer[18]. Regularly Reconsider Clients Position On basis of the above discussion, it can be safely vouched that a lawyers initial analysis of the clients perspective in a dispute may change as the case progresses. The lawyer may learn facts which change the perspective substantially or he may attain an improvised understanding about some stated facts. Sometimes, the lawyer may discover a legal principle or statute or a term in the contract which was not known initially or was overlooked or wasnt realized to be applicable to the dispute. Hence, in view of this author, a regular reconsideration and analysis of the clients position during the progress of the dispute is essential. Make Litigation Tactics Consistent with Resolution Tactics As a lawyer, I am constantly facing the challenge of trying either to achieve the agreed resolution to the dispute and at the same time litigating and preparing the case for trial. In case my problem-solving tactics not in tune with my litigation tactics, there is strong possibility that it may undermine my ability of achieving the agreed resolution. Hence, I need to tread carefully every step which I take in the lawsuit. Do my claims asserted have a solid basis in fact and law? Is there a sound argument for the damages sought? Do my answers admit those allegations about which there is no dispute? Am I focused on the facts which need to be developed for understanding the case? It is not advisable for early stage lawyers to submit to a scorched-earth approach when finalising their theories for discovery or extreme positions in their claims or defences. An excessive position may poison the cordial atmosphere for reaching an agreed resolution and is hence usually considered unnecessary for making the trial preparations effective. As discussed in this paper, use of available legal procedures and tools should be made in the lawsuit to work through the issues which are hindering the process of the agreed resolution. It is for the lawyer to take a stand on behalf of the client. If the client views the facts differently, it is for the lawyer to see that the right perspective is used to develop the facts. In case the client understands the law differently, the lawyer should reconsider the legal principles involved. References Alexander, M. 2013, The New Jim Crow. The New Press, New York. Bargen, J. 2014, Young people and crime/Disadvantaged young people. Hot topics, Sydney, N.S.W. no. 73. Bryant, C.D. (ed.) 2012, Routledge Handbook of Deviant Behaviour. Taylor Francis, Oxon. Carl, J., Baker, S., Robards, B., Scorr, J., Hillman, W. and Lawrence, G. 2011, Think Sociology. Pearson Higher Education AU, Frenchs Forest, NSW. Dunbabin, H. 2011, CHILD CRIMINALS IN THE MEDIA. Internet Journal of Criminology 2011. Graham, J. and Bowling, B. 2015, Young people and crime. London Home Office Research and Statistics Department, London. Lewis, B. and Lewis, J. 2014, Health Communications: A Media and Cultural Studies Approach. Palgrave Macmillan, London. Muncie, John (2006). Governing Young People: coherence and contradiction in contemporary youth justice. Critical Social Policy, 26(4) pp. 770793. Nalla, M.K. and Newman, G.R. (ed.) 2013, Community Policing in Indigenous Communities. CRC Press, Boca Raton, FL. Pope, K. 2014, Researching youth victims and offenders. Centre for Social and Educational Research, Dublin Institute of Technology, Dublin. Short, D. 2016, Reconciliation and Colonial Power: Indigenous Rights in Australia. Routledge, Oxon. Steinberg, L. 2000, Youth Violence: Do Parents and Families Make a Difference? National Institute of Justice Journal ? April 2000. pp 31-38. Travers, M. 2009, Understanding Law and Society. Routledge, Oxon. [1] First used by John H. Wade. (1990) in the article "Meet MIRAT legal reasoning fragmented into learnable chunks". Available at https://epublications.bond.edu.au/law_pubs/94 [2] Bolton v Stone [1951] AC 850 [3] Wyong Shire Council v Shirt (1980) 146 CLR 40 [4] Paris v Stepney Borough Council [1951] AC 367 [5] Chapman v Hearse (1961) 106 CLR 112 [6] Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 [7] Caltex Oil (Australia) Pty Ltd v The Dredge (1976) 136 CLR 529 [8] L. Shaddock Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 [9] Bolton v Stone [1951] AC 850 [10] Romeo v Conservation Commission (NT) (1998) 192 CLR 431 [11] Jaensch v Coffey (1984) 155 CLR 549 [12] Chester v Waverley Corporation (1939) 62 CLR 1 [13] Caltex Oil (Australia) Pty Ltd v The Dredge (1976) 136 CLR 529 [14] L. Shaddock Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 [15] McWilliams v Sir William Company Ltd [1962] 1 WLR 295 [18] Jaensch v Coffey (1984) 155 CLR 549