Questioning Like a Lawyer: From Issue Spotting to Case Development

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By Aida Alaka from Washburn University School of Law

When I was a junior attorney working on a particularly contentious and emotionally charged case, the attorney representing the opposing party remarked that “a case is never as good as when it walks in the door.” In other words, the “story” the client first presents is as good as it gets. Because the initial presentation of facts is one-sided and incomplete, it is only though probing and discovery that the entire story emerges, warts and all.

When we first teach our students to “think like lawyers,” that often means teaching them to analogize facts and apply precedent. With our hypotheticals, we ask them to “spot the issues” and determine the likely legal outcome based on their understanding of the law. We might also teach them to take a developed set of facts and argue for an outcome favorable to their client. In such cases, the facts are substantially developed; they have not had to find the “warts.” Such hypotheticals also suggest that facts remain static.

What we do not often teach students is how to find the facts based on their reading of cases and the presentation of an undeveloped set of facts. They do not necessarily learn that, while the initial presentation of facts may lead to an initial assessment of what law applies, the law often necessitates a reevaluation of the facts. The relationship between law and facts is dynamic, continuous, and cyclical and it is not until after researching the law that an attorney begins to understand what facts she needs to know.

Instead of asking students to simply spot issues, consider using hypotheticals to train them to ask questions designed to develop the case. This can be particularly useful when the subject matter is dense or when overlapping and potentially conflicting law may apply. For example, in employment law, any one set of facts can raise potential claims under state and federal constitutions and statutes, and state common law. To test their comprehension of the complex intersection of state and federal law, like most law professors, I often start my classes with a hypothetical. Rather than ask my students to identify which law applies, however, I ask them to identify the questions they have for the employer and the employee, and to state the reasons for their answers. I also ask them to articulate the advice they would give to each of the parties and to state the bases for their advice.

The benefits of this type of exercise are two-fold. First, it enables me to assess my students’ comprehension of the material, and, second, it requires students to engage in an analytical process that they have limited experience in. Students’ failure to ask all of the relevant questions can reveal a deficiency in their understanding of the law and their lack of facility in using the law as a lawyer does – to discover material facts. Asking relevant questions requires students to accurately recognize potential claims and defenses while simultaneously training students to develop the facts; they must know the law to recognize gaps in the facts.

These types of questions can also reveal whether students possess a fundamental understanding of how the law operates and affects behavior in “real life.” When students provide advice that conflicts with the law, the ensuing discussion can be far more instructive than simply asking how one set of facts compares with another set of facts. Training students to ask questions is necessary if they are ever to get beyond the story that first walks in the door.

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