- THE ANALYSIS OF THE FACTS AND QUESTION OF THE CASE
- The apprehension of the facts of the case
- At the beginning of every case-solving grasp at first carefully the facts of the case (the “story”). What exactly happened? When and where? Who is involved? In your future daily routine, this question will often cause problems, because not all necessary information may be available, some information may be doubtful or you may have the impression that important information is withheld from you. Furthermore, it is difficult to extract the relevant from the abundance of information (not everything the client tells his lawyer, is important for the case…).
- If an interpretation of the facts of the case is necessary, choose the interpretation that is the closest to the general experience of life. Do not develop any fantasy in order to make the case more interesting and do not try to know the facts better.
- Be careful if the facts of the case seemingly correspond to those of a known court decision. They might have been modified deliberately in order to lead you to a different solution
- Pay attention to the details of the facts of the case. For instance, it is important if someone wants to bring an action or has already brought an action and who wants to sue whom and when. It is recommended to read the case description repeatedly; at the first review, important details are easily ignored. If the facts are complicated, it is advisable to draw a sketch, which outlines the involved persons, the chronology of the story and certain events (e.g. payments). This diagram must be prepared carefully. It must show all relations and correlations between persons, payments, applications etc correctly and precisely. The making of the sketch already presents an advanced stage of the apprehension of the facts of the case.
- Try to see the facts from the perspectives of the involved persons and their desires and interests. Pay attention to the objections and arguments mentioned in the case description. Often they will lead you to the legal questions, which have to be discussed. Caution, however, if you think to recognize classical legal problems: Only the data in the case description are decisive for the case solution. Avoid reading the problems, which are familiar to you, into the facts of the case. You should also be cautious with regard to the legal terms used by the “common citizen” involved in the case because it is not sure that they are used correctly; to find out about this is part of your task.
- The working out of the question of the case
It is decisive for the merit of your work that your solution corresponds exactly to the question of the case. Only this question is to be answered. Discussions on other topics, which you know about but which are not relevant, are not just superfluous, but may damage the result considerably. In examinations, they may lead to a worse grading than the non-response to a question, because no examiner likes it if one disregards his question, and no one likes to waste his time with the reading of obviously irrelevant remarks. The same is true in legal practice: The client expects his lawyer to see to his request and not to “impress” him with irrelevant knowledge. Judges are disgruntled when lawyers shower them with blabbing that is unimportant for the proceedings. The disregard of that central basic rule is one of the heaviest and nevertheless a frequent mistake in case-solving.
It is simply not possible to solve a case successfully without working out exactly the question of the case. Therefore, you should allow the necessary time for this step and reconsider the result several times. If the case description ends with a general question (e.g. “How is the legal situation?”), you must identify the actual question of the case with special regard to the information given just before the question is formulated.
- Brainstorming and comprehension test
It is advisable to gather spontaneous ideas on a separate sheet of paper during the analysis of the facts and question of the case. That prevents that important thoughts get lost. You should resist, however, to the temptation to busy yourself already now with these ideas. Before you have not completely apprehended and understood the facts of the case, and before you have not conclusively identified the question of the case, you cannot know if they are indeed relevant. You might walk right into a trap where you can lose a lot of your precious time.
Before you proceed to the solving of the case, you should bring to mind the facts and question of the case once again. For this purpose I recommend a simple test: Attempt to summarise both, facts and question, confining yourself to the essential, in few sentences. You will soon notice that this is not easy and that the attempts of different persons may differ considerably. Possibly, you should repeat this step. It is not reasonable to start the actual solving process before this step has led to a satisfactory result.
- THE DRAWING UP OF A DRAFT OUTLINE
In order to guarantee that your solution precisely follows the question of the case, you must first set up a framework in the form of an exactly tuned outline. The quality of the case solution will strongly depend on its composition (structure). It reflects your skill to relate reality (the facts) and normativity (the law) according to the principles of logic and to the dogmatics of the relevant field of law. Only an accurate structure provides for an easy orientation, allows following the analysis step by step and enables the reader to avoid misunderstandings and fallacies.
Most cases will require a complicated construction of the solution. Therefore, you must plan the presentation.
- Create at first a draft outline on a separate sheet of paper. In so doing you will recognize at an early stage pseudo problems, i.e. problems, which might bear upon the case in a large context but which do not need to be discussed to answer the case question
- Furthermore, the draft outline facilitates to orientate yourself within the abundance of information and ideas, to focus on the central issues, to develop a well-structured solution and to avoid all redundant deliberations (and, thereby, superfluous writing).
- When preparing a course paper or master thesis, compile the draft outline with a computer and synchronise it constantly with the latest state of your knowledge and reflection. From time to time, you will have to reconsider the emphasis.
III. THE SYSTEMATIC SOLVING OF THE CASE ON THE BASIS OF THE DRAFT OUTLINE
- Early focusing on the main topics, examination of the case, time management
- The draft outline must specify all aspects of the examination, all relevant legal norms and all problems, and it must specify them all at the correct place. It is advisable to focus early on the main topics. To achieve a higher quality of the case solution, it is important to have the right main emphasis. Most cases centre upon a few crucial questions; all other aspects should be treated shortly. Furthermore, it may happen that the client or the litigants present new information that makes it necessary to reconsider your ideas.
- The intellectual process of solving the case must be strictly linked to the draft outline, in order not to forget important aspects, to see things constantly in their context, to have an overview on the achieved results (they must be noted at the relevant places in the draft outline) and especially to avoid blind alleys and dead ends or loosing much time with unimportant issues. As far as the dogmatic context allows it, you should split up complex problems into separate questions, which may be easier to handle. Furthermore, your solution will be more exact. By the way, this is an effective method to find the mistakes in the case solutions of others. – As a matter of course, the draft outline is to be updated constantly.
- Often it is useful to plan the amount of pages or time you want to spend on the individual aspects of the examination and to note it down in the draft outline. Using this basic method of effort and time management you will enable yourself to work more efficiently. However, check frequently if the estimated total expenditure does not exceed the (still) available resources. If you get under time pressure, you should correct your plans at an early stage in order to avoid that later important parts of the case solution will be missing.
- Examination schemes
Examination schemes have the function of “check lists”. They show what you have to examine and where you must integrate the examination into the comprehensive solution. They reflect the dogmatic structures of the respective field of law and allow a line of thoughts that exactly corresponds to the legal dogmatics and which every expert can easily follow. They usually build on a common understanding of the basic dogmatic structures that has evolved in a long tradition of science, practice and jurisprudence and is stable for decades. Often it is useful to orientate the draft outline of the case solution by an appropriate examination scheme. But be careful only to use schemes from reliable and competent sources: Every logical or dogmatic mistake in the scheme will inevitably result in a wrong or wrongly structured case solution.
- Auxiliary expertise
It may happen that you are asked if a certain legal remedy would be successful and that it turns out that it would be inadmissible under the given circumstances but that there are details in the facts of the case that indicate that it might be well-founded. In some case constellations it may even not be clear if the remedy would be inadmissible because a relevant question is not yet settled in jurisprudence and legal doctrine. Then you must first answer the actual case question and second proceed to a so-called auxiliary expertise.
The most common reason to write an auxiliary expertise is that an important problem concerning the admissibility of a legal remedy is still controversially discussed in legal doctrine and jurisprudence but has a decisive impact on the case. Then the conclusion of the case solution is not obvious. It happens that in such cases within a panel of judges a judge-rapporteur (reporting judge) has to prepare the decision of the court. He must adapt his case-solution to the fact that his colleagues might not follow his reasoning that denies the admissibility.
- THE WRITING DOWN
- No start of the writing down before the case is completely solved
Do not start the writing down before you have
- solved the case completely in your mind,
- noted down all results at the right places in your draft outline and
- decided in detail on the amount of pages or time you will expend on the individual sections of your case solution.
- The temptation to start the writing down at an earlier stage is immense, but it bears the risk (if not the certainty) to loose a lot of time and energy in super-fluous efforts.
- Rigorous focusing on the main problems in the final product
Make sure that your final product rigorously focuses on the main problems of the case because this will be crucial for its success. Avoid an imbalanced presentation, which deals too extensively with the first and too shortly with the last topics.
- Exact reasoning, comprehensible line of thoughts, analytical style of writing
- Cultivate an exact and accurate reasoning, which provides for a consistent and comprehensible line of thoughts.
- Use short introductory sentences at the beginning and short concluding sentences at the end of every sec-tion in order to illustrate the significance of the relevant part in the general context of the examination.
- Objective style of writing
Finally, legal case-solving is characterised by a scientific, objective and precise style of writing. Important statements should be formulated as exactly as possible; Avoid long and encapsulated sentences, since they might be confusing. Express your main thoughts preferably in main clauses and not in subordinate clauses. Use concise verbs and refrain from converting adjectives and verbs unnecessarily into nouns. If possible, use the active voice instead of the passive voice, since sentences in active voice are shorter, more illustrative and particularly more precise.
- THE FINAL CHECK
Before finishing the case solution, you must complete a final check. Check once more if your expertise exactly answers the case question and if this becomes apparent. In particular, the results presented at the end (e.g. in an “overall conclusion”) must refer logically and in content to the case question. Eliminate all discrepancies and inconsistencies, superfluous (unasked) considerations and stylistic shortcomings.