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Mastering Law 9TH EDITION

Studies and Law Richard Krever
Exam Techniques

.
Lex·s ex1s
Butt r rth
Mastering aw Studies and Law Exa
9TH DITIO • Richard Kreve r
A practical and engaging guide to successful law study and assessment outcomes

Successfully navfgating the particular Guides to success in moot court and on

requirements of law school and how to approach multiple choice and
legal study can be challenging, even essay assessments re also included.
for the most cap ble of students. The ninth edition of this successful
Mastering Law Studies and Law Exam book has been updated to reflect
Techniques de-mystifies the process recent developments in case law
of studying law and provides the and legislation.
foundations for law school success.
Features
The first part of the book provides
• Reader-friendly guidance on how
basic rules and helpful hints on study
to study law effectively
techniques. The second part shows
how to apply these guidelines by " Sample exam questions and answers
presenting a range of sample exam 1n a range of core subJect areas
questions and answers contributed • Explains what lecturers look for in
by experienced law lecturers from exam answers
leading Australasian universities. This
section includes commentary from • Designed for law st dents and
examiners about what separates others studying law subjects
an above average answer from an • Includes specific advice for
average answer. commerce or business law students

About the Author and Contributors

Richard Kr,e ver is a Professor at Monash University.
Other Contributors The sample examination questions, answers and some
commentary are contributed by experienced law lecturers from leading
Australasian universities.

Related Lex1sNexis Titles

• Chisholm & Nettheim. Understanding Law, 8th ed, 2012
• Cook. Creyke, Geddes, Hamer, & Taylor,
ISBN 978·0-409-3431 8-2
Laying Down the Law, 9 h ed, 2015
• Corbett-Jarvis & Grigg, Effective Legal
I I
Writing: A Practical Guide, 2014

academic lexisnexis.com .au

www.lexsnexis.com.au 9 78040 343182
I
Contents

Contributors ix
Preface xi

Chapter 1 Introduction I
A Book on Law School Exams? I
Who is this Book for? 3
Using this Book 3

Chapter 2 An Introduction to Law Studies

and Law Exams: Understanding the
Dialectic of Law 5
The Legal Process and the Doctrine of Precedent 5
What Do Law Exams Evaluate? 7
Law Exa1ns and the Role of Lawyers 9

Chapter 3 Reading and Summarising Cases 13

Detennining the Context of the Decision 13
Distinguishing Between the Ratio Decidendi and
Obiter Dicta in a Case 15
Be Aware of What the Case Doesn't Tell You as Well as
What it Does 17
Recording the Relevant Technical Aspects of the Precedent 21
Using Texts and Treatises 21
Using the Precis 22

iii
Mastering law Studies and Law Exam Techniques

Chapter 4 Some Studying Hints 23

C1asses 23
J Show up 23
2 Read the materials before class 26
3 Ask questions 28
Notes and Review Notes 29
l Review your notes right after class or the same
evening 29
2 Consolidate your notes into review notes 31
3 Prepare a review overview 34
4 Index and tab your notes 35
5 Develop memory aids for closed-book exams 3 7
Study Groups 3 7
Practising Old Exam Questions 39
What to Do if You Fail 42

Chapter 5 Some Basic Rules 45

Some Tips 45
1 Prepare an answer outline 45
2 Organise your answer 47
(i) Do not throw out issues in a scattergun
fashion 47
(ii) Do not wander in your answer 48
(iii) Do not answer in the fonn of a long continuous
essay or cursory point-form summary 49
(iv) Try to keep your discussion of an argument or
issue in one place 50
( v) Present your arguments fully before presenting
the conclusions to which they lead 51
(vi) Make the examiner aware of the issues that
you have recognised 5 I
3 Allocate your time to maximise marks 52
4 FoJlow through with al1 levels of argumentation 54
5 Answer in propositional style 54
6 Use authorities correctly 55

iv
 Contents

Some Wan1ings 56
I Do not repeat the question 56
2 Do not repeat the section 56
3 Do not catalogue a case 57
4 Do not report a case 57
5 Do not cite cases without applying them 58
6 Do not use cases without identifying the principles
behind them 59
7 Do not use superfluous introductions 60
8 Do not review entire areas of law 60
9 Do not joke 61
10 Do not forget the dialectic nature of 1avv 61
11 Do not avoid a conclusion 61
12 Do not rely on legalisms; write clearly and concisely 62
13 Do not cite secondary sources 62
14 Do not ignore your spelling and grammar 63
15 Do not look for the definitive answer 63
Issue Recognition, Rule, Application and Conclusion
(IRAC) 64
Dealing with Panic 65

Chapter 6 Multiple-choice and Essay

Questions 67
Multiple-choice Question Exams 67
Essay Questions 68
I Identify the question being asked 69
2 Decide upon your thesis 71
3 Prepare an outline 72
4 Start with an introduction and finish wrth a
conclusion 72
5 Provide maps and guideposts throughout the answer 74
6 Incorporate authority into your thesis effectively 75

V
Mastering law Studies and Law Exam Techniques

Chapter 7 Sample Tort Exam Essay

Question 77
Sample Tort Law Reflective Essay Question - in an
Examination Context 78
Exarnple of an Above Average Essay Answer 79
Introduction - primary objectives 79
Regulatory objectives: punishment and deterrence 80
Ignoring the regulatory objectives to achieve the restorative
objective 80
The impact of insurance - possibly diminishing the
punishment and deterrent effect of the law
of negligence, but serving the restorative ain1? 81
Restorative aims - sometimes unfulfilled because of
over-riding regulatory objectives 83
Conclusion - resolve the tensions? 84
Examiner's Comments on the Above Average Tort Law
Essay Answer 85
Addressing the question /thought and content 85
Presenting all sides of the argument 86
The need for reform (improvement) 87
Structure and signposting 87
Use of authority as part of a considered argument 88

Chapter 8 Moot Court 89

Introduction 89
Mooting v Debating 90
Predicting and Answering Questions 90
Preparation 90
Writing the Submission 91
Advocates' Duties 92
Customs and Conventions 93
Presentation of Submission 95
Answering Questions 97
Conclusion of Proceedings 98
Conclusion 98

vi
 Contents

Chapter 9 Sample Examination Questions

and Answers 99
Legal Methods and Reasoning (Foundations of La\v):
Ross Hyams 99
Contract Law: Elisabeth Peden 117
Tort Law: Ian Malkin and Paula O'Brien 128
Criminal Law: Mary Heath 160
Constitutional Law: Melissa Castan 171
Administrative Law: Daniel Ste\vart 184
Evidence La\v: Miiko Kumar 199
Trusts La\v: Susan Barkehall Thornas 209
Company La\v: John Duns 225
Income Tax Law: Nolan Sharkey 233
Competition Law: Julie Clark 25 I

Chapter 10 Study Strategies and Suggestions

for Commerce Students 270
Level of Intensity of Study in La,v Courses Undertaken
by Commerce Students 271
The Search for Certainty 272
Writing Exams for Law Subjects 273
I Do not start writing your answer until you know
what you are going to say 273
2 Make sure you allocate a significant amount of
thinking time in the exam room 273
3 Read the question carefully and address the
question asked 274
4 Plan your answer 275
5 Apply the authorities and use reasoning.. 276
6 Make your answer easy to follow 276
7 Do not indulge yourself in detailed argument
where it is unnecessary 277
8 If you run out of tirne in an answer 277
9 Match practice - do old exam questions 277
IO Picture yourself in the exam room 278

vii
Mastering Law Studies and Law Exam Techniques

11 Do not use authorities incorrectly 279

Reading Texts, Cases and Materials - Use Reading
Gears 279
Summary 280
Business La\\': Pearl Rozenberg 282

viii
Contributors

Susan Barkehall Thomas, BA't LLB (Hons), LLM, PhD (Monash)

Senior Lecturer, Faculty of Law, Monash University
Julie Cassidy, LLB (Hons) (Adel), PhD (Bond)
Professor, Departn1ent of Commercial Law, The University of
Auckland
Melissa Castan, BA, LLB (Hons) (Monash), LLM (Melb),
Post Grad Dip Ed (Monash)
Senior Lecturer, Faculty of Law, Monash University
Julie Clarke, BA, LLB (Hons) (Deakin), PG Dip (KCL). PhD (QUT)
Associate Professor, School of La\v, Deakin University
John Duns, BCom, LLB(hons), (Melbourne), LLM" PhD (Monash)
Associate Professor, Faculty of Law, Monash University
Mary Heath, BA (Juris), LLB (Adel), PhD (Flinders)
Associate Professor, Flinders Law School, Flinders University
Ross Hymns, BA, LLB, LLM (Monash)
Senior Lecturer, Faculty of Law, Monash University
'
Michael Kobetsky, BEc (Syd), LLB (ANU), PhD (Deakin)
Associate Professor, Melbourne Law School . University of
Melbourne
Miiko Kumar, BA, LLB (Syd)
Senior Lecturer, Sydney La\.v School, University of Sydney
Ian Malkin, BA~ LLB (Manitoba), LLM (London)
Professor, Melbourne La\ll School, University of Melbourne

ix
Mastering Low Studies and Law Exam Techniques

Paula O'Brien, BA~ LLB (Hons) (Melb), LLM (Cantab)

Senior Lecturer, Melbourne Law School. University of
Melbourne
Elisabeth Peden. BA (Hons) (Syd)~ LLB (Hons) (Syd),
PhD (Cantab)
Professor, Sydney La,v School. University of Sydney
Pearl Rozenberg, BSc, LLB (Monash). LLM (Osgoode)
Sub Dean (Academic Policy & Administration)~ University of
Sydney Business School
Nolan Sharkey, UnivCertPsych (Derby), BA BCom (Murd),
GradDipLegSt (NE), GradDiplegPr (ANU), MTax, JD, PhD
(NSW)
Professor, La,v SchooL University of Western Australia
Daniel Ste,vart~ BEc (Hons), LLB (Hons), GradDip (ANU)~
LLM (Virg)
Senior Lecturer. ANU College of La\\>·, Australian National
University

X
Preface

A few weeks into my law studies, I, along with two other students~
Brian and Philip, was asked by Dale Lastman to join a study group he
was trying to establish.
I was asked as a consequence of my in-class behaviour. I did not
know anyone else in the class and I was not too embarrassed to ask
the teachers the questions that everyone else hoped would be asked
but were too self-conscious to ask themselves. I am not sure why Dale
asked Brian, but it turned out to be a great choice. Brian had a brilliant
sense of irreverent humour that made the hours of exam practice
sessions pass quickly. And Dale asked Phi lip because Philip., it was
clear to all of us, knew everything there was to know about law.
Any question any teacher asked, Philip had an answer. He had
canvassed all the cases, studied the statutes. dissected the digests, and
tackled all the texts. If there ever was a reason to feel intimidated in
law school,. Philip was it. After Philip's initial responses in classes,
the rest of us were just about ready to pack it in. How could we mere
mortals hope to pass courses when we were up against people the
caJibre of Philip?
But we did not quit. Instead, in addition to revjewing exams together,
\.Ve agreed to share the task of review note-makini, each person taking
a subject. Our hope, of course, was that we would have access to at
least one set of brilliant review notes from Philip.
It was when we first sat down to practise old exam questions that
we realised Philip might not be infallible after all. Everyone else's
review notes for a subject averaged 20 to 25 pages. Philip's were
at least I 00 pages. They were impressive: neatly typed and entirely
comprehensive, giving the facts and holdings of every case we had
studied. Inconsistencies and difficult to reconcile decisions were
Mastering Law Studies and Law Exam Techniques

reconciled with references to leading texts and the Digest. In short,

Philip ,vas welJ on the way to ,vriting a book himself.
The notes the rest of us made were mere outlines. They contained
no details about cases or statutes. Rather, they provided headings of
the 1najor points and half a dozen arguments and counter-arguments
under each point. Cases relevant to an argurnent were mentioned in
a bracket, after the argument. And the description of a case was just
enough to remind us of the decision (the ·'snail in the bottle" case, the
..poisoned pig food" case, and so forth).
Philip had spent many times longer than Dale., Brian or I putting
together his notes. But the three of us had each spent tar more tilne
than Philip on one important task, abstract thinking. While Philip was
researching and drafting extensive notes, the three other men1bers of
the study group were considering the dozens ofcases and tens of dozens
of pages of notes we had already assembled in each course, extracting
the key points from them, and organising the resulting arguments and
counter-arguments under logical and easy to access headings.
And so, with two vastly different types of review notes, "''e sat
down to our first practice exam sessions. Most exams ,vere three hours
and on average contained three questions. That meant allocating about
an hour a question under actual exam conditions. We figured that if
\Ve could jot down the outline of an answer in about IO to 15 minutes
in the context of a review session, we could \\'rite out the full ans\ver
in about an hour in the actual exam. Thus, the trick was to identity
quickly all the potential issues in a problem and then in the shortest
time possible define each of those issues, explain the rules of law that
prin1a facie applied to them, show how, on the one hand, the rules
could apply to the facts in the problem and ho"'·, on the other hand,
they could be distinguished, and prepare a quick but \Veil-qualified
and very tentative conclusion.
The resource we needed for this exercise was an outline of issues
likely to be covered in the exam and a resume of the arguments
and counter-arguments relevant to each issue. Philip's review notes
constituted a mighty legal essay, but they were useless tor our needs.
By the time we had graduated from law school, Brian, Dale and
I had collected between us a respectable portion of the prizes and
medals availab]e in the school. I accepted a scholarship and went to
graduate school, while Brian and Dale, whose interests lay in practice,

xii
 Preface

not academia, accepted articling positions with the most prestigious

finn in the country.
There ,vere no prestigious firms offering articles to Phi lip. The
profession, after lip service to a range of criteria, at the end of the day
hired on the basis of marks. And Philip's marks were not high enough.
He had read more cases, consulted more texts, and photocopied more
articles than almost anyone else in the class. But the law school was
not a,varding grades for a comprehensive knowledge of cases and
legal principles. Marks were given to students who demonstrated an
ability to recognise legal issues and devise legal argun1ents.
In retrospect, the techniques used by Brian, Dale and me seen1
intuitive. But when we started la\\' school, we had no idea what ski11s
were being examined and hOYl ,ve could demonstrate a mastery of
those skills in the context of an exam. So, discovering the tricks early
in our la~· school careers was largely a matter of luck. Unfortunately"
many of our friends did not make the discovery until much later in
their law school careers. This book is designed to provide a jump start
past the luck stage to put readers directly on the path to mastering law
studies and law exam techniques.
This is the ninth edition of this book. The principal change from
edition to edition has been the replacement of sample exams and
ans\vers with ne\ver samples that reflect changes in the case law and
statutes. This edition drawn on contributions found in earlier editions
prepared by Adrian Bradbrook, Richard Fox, Philip Clarke, and
Nicholas Gaskell. I am deeply indebted to these contributors for the
main points and examples I've borrowed from their work. While I've
tried to attribute the sources, no doubt I've missed many borro\vings
and my gratitude for ideas extends beyond the quoted materials to
these unattributed contributions.
This book is not the only book available on stuc4'ing Jaw and writing
law exarns. Most law libraries have built up reasonable collections of
how-to-study-law materials, including the leading overseas guides.
Also, a growing number of competitor and companion volumes have
appeared on the Australian market. These are avai)able from most
la\\'· school bookshops. As this book emphasises time and again,
studying law and writing law school exams is probably ditTerent fron1
any academic work you have attempted previously. The better you
understand what is expected of you and tailor your study system to

xiii
Mastering Law Studies and law Exam Techniques

produce the results that yield higher grades in law schoot the better
you'll do in la,v school and, quite possibly, the more options you'll
have in choosing a satisfying post-school career in the la\\ Read as
1
•

many guides as you can. A small investment no\v can yield dividends
for a Ii fetime.
Richard Krever
Melbourne. 2016

xiv
Chapter I

Introduction
A Book on Law School Exams?
Competition for places in law schools is intense and admission cut-off
points for Australian 1a,\' schools and business schools are invariably
high - successful applicants usual1y come from the top percentile of
graduating high school students or. in the case of transfers from other
faculties, from the top performers in university. There are fe,v students
in law school without proven records of past academic achievements.
Successful applicant'i have demonstrated their exam \.\-Titing ability well
- it was on the basis of that ability that they were admitted to la,.,, school.
The odds are very high that you. the reader of this book, have done
well until now without the need for a guidebook on exam techniques.
So \Vhy should you look at a book on \\.'fiting law school exams?
There are two answers to that question. The first is simply that your
past achievements have now put you in a position where you can no
longer rely solely on the acquired ski 11s. inherent talent and luck that
tbnnerly brought you success. Until now you have competed \Vith a
whole range of students \Vith varying potentials and skills. You were
admitted to law school because you demonstrated your ability to
do better than 1nost of your classmates. But la,..,· school classes are
composed of students who were at the top of their former academic
institutions and everyone in your la,v school course will have done as
,vell as or better than you. In this new environmei1t, your past success
will no longer suffice. The co1npetition for top places in the class is
many multiples more intense than it was in secondary school.
At the same time. you must do well at law school if you hope to
succeed in a law career. Whether you hope to join a finn of solicitors,
practise at the Bar, enter the public service, join the corporate sector
or pursue a career in academia .. admission to the best positions is
based almost exclusive)y on Jaw school performance. By the time
you graduate from law school you wil I have mastered law school
examination techniques. This book is designed to help you commence

1
Mastering law Studies and Law Exam Techniques

your legal studies with those ski11s, not finish with them. That
advantage can pay dividends for a lifetime.
The second reason for this book is that the academic discipline of
la\v is unlike anything e]se you have studied in the past and la\v exan1s
are quite different from any others you have written. Whatever your
background~ in law school you are starting from scratch. Techniques
and study skills that worked in the past will no longer see you through.
If you fail to adopt new study and exam \Vriting techniques geared to
laY.' school studies, you will do poorly, perhaps even running the risk
of failure. Especially disconcerting for many is the discovery that la\\'
studies are not only vastly different from most of their high school
subjects, but are also different from most other university studies.
And finally, for the not insignificant number of students who took
legal studies at high school in the hope that it would ease their transition
into law school, provide them with a framework for studying law and
give them an edge over classmates with no similar background, there
is the disappointment of discovering any advantage with which they
may have begun evaporated after the first 20 minutes of the opening
contracts lecture.
In the end, doing well at law school is synonymous with doing
well in law exams. To be sure, other skills enter the marking process
- research papers, moot courts, class participation, and so forth, all
count towards your final result. But in the long run, the success or
failure of your law school career turns on the degree to which you
have 1nastered the ability to perfonn well in writing law school
examinations.
The choice of evaluation method is not just coincidence or chance. The
decision to evaluate in a few short hours of intense pressure a student's
comprehension of materials learned over many hours in the classroom
and many more in the library or at home is quite deliberate. Law studies
are designed to teach you the skill of extracting legal principles from a
broad range of cases and statutes and developing legal arguments based
upon those principles. Law exams provide an accurate indication of a
student . s abi1ity to synthesise principles quickly and accurately apply them
to a set of facts involving a number of legal issues. This book explains
the basis of those skills and shows how your law studies can be tailored
to prepare you best for the exam process. It also explains how to present
your law exam answers to demonstrate your mastery of those abilities.

2
 Chapter 1 - Introduction

Who is this Book for?

This book is designed for use by la\v students and students of related
disciplines, such as business and comrnerce, that include law courses in
their curricula. It provides a guide to the theory of legal argumentation
and explains how those skills can be learned and applied for maximmn
benefit in law examinations. If you are studying a law subject for the
first time, reading this book will help you understand the nature of
legal education and help you develop the tools and habits you will
need to succeed at legal studies. If you have already completed a
number of law subjects, the book can be used as both a review and a
guide by which you can evaluate and itnprove your present practice
and performance. Alternatively, if you are confident you have already
mastered the theoretical materials in the opening chapters, you may
,vish to jump directly to the sections on review and exan1 writing
techniques. Those materials, along with the sample exam questions,
answers and comments found in the last chapter, will help you polish
your exam style and minimise the risk of costly errors.

Using this Book

Writing successful law school exams cannot be separated from the rest
of law school study. Law exams do not evaluate the knowledge you
have learned so much as your ability to build legal arguments by using
and applying that knowledge. There is no place for cramming for a
law exam - cramming may teach you a multitude of facts but cannot
prepare you for an exercise in legal reasoning and argumentation,
the skills on which you will be graded. This guide to successful law
exam writing techniques therefore does not commence at the end of
the year in the examination room. Rather, it starts in the next chapter
with an overview of the legal process and the fl.iudamentals of legal
argumentation. Also looked at is the inter-relationship of the skills
taught and evaluated at law school and the professional practice of
law.
Chapter 3 then explores in depth the basic elements of legal
argumentation and explains how you should read and summarise
cases to distil from them the legal principles you will use in a law
exam. Chapter 4 shows how to prepare and use review notes and study
for a la\v exam and Chapter 5 contains a checklist of points to follow
and faults to avoid in the exam itself.

3
Mastering Low Studies and law Exam Techniques

While most law school exan,s are based on problems, on occasion

examiners will set multip]e-choice or essay questions. Chapter 6
contains sections on answering both these types of questions.
Chapter 7~ by Ian Malkin and Paula O'Brien, presents a sample essay
question, ans\.ver, and examiner's comments, as well as a further short
guide to ,vriting an essay answer.
Chapter 8 deviates slightly from the principal focus of this book,
studying la\\ and ,vriting law exatninations, and addresses instead the
1

techniques required for effective moot court presentations. As you

wi1J see, the principles of how to learn and use the la,v are similar for
moots and law exams, the major difference being the fon1111 in which
you demonstrate your n1astery of those skills.
Chapter 9 contains a number of sa1nple examination questions~
answers and examiners' comments. The samples cover most of the
compulsory and quasi-compulsory subjects in law school.
Finally, Chapter IO is directed primarily at non-la\\J· students of
con1111erce or accounting ,vho study law subjects. It explains how
the principles in the book should be applied to la\v exams written
by non-law students and points out the areas where slightly diflerent
approaches may be appropriate. This chapter contains a sample
cotnmerce law question and answers geared to\vards the needs of
commerce students.
It wil1 soon become apparent that 1nany of the rules for writing
law exams effectively cover much more than the three-hour process
of putting pen to paper and answering a limited number of law exa1n
questions. Successful law exams are the result of consistent work
throughout the course, not silnply a fruitful few hours in the exam
room. Much if not most of the trick to writing top exams comes in
the preparation. Fortunately, preparation for a law examination is not
necessarily difficult - in fact, once you know what you are looking
for and ho\\' to prepare, the chaJlenge can become both easy and fun.

4
Chapter 2

An Introduction to Law
Studies and Law Exams
Understanding the Dialectic of Law

The Legal Process and the Doctrine of Precedent

In the common law system of justice used in Australia, the "law"
derives from two sources- the statutes enacted by the Commonwealth
or state parliaments ( or lower tier councils given delegated power to
enact laws) and the common la,v rules developed by the courts. For
example, the Commonwealth and state governments have passed laws
dealing with all types of commercial and consumer contracts but it
is the common law developed by judges that ,vill determine what
elements are needed for a valid contract to exist.
The common law is derived entirely from judicial precedent. Prior
decisions of a higher level court create binding precedents which a
later lower level court is bound to follow and holdings of a court with
equal authority establish persuasive, if not mandatory, guidelines for
the resolution of a case. Statute law, in theory, derives from legislation.
However, legislation is drafted using words and phrases, building
blocks that are subject to interpretation by the courts, again based on
understandings derived from precedents.
The common law system and the doctrine of pre_fedent on which it is
based reveal a dialectic tension rarely duplicated in other fields. There
are two sides to every legal dispute and by the time any case reaches
court, both versions of an event or both arguments raised by lawyers
for the parties sound not only plausible, but perhaps convincing. In
the common law system, a precedent does not establish a static law;
it is, rather, a device to be considered, reinterpreted and then applied
or distinguished to devise a new rule applicable to a subsequent
analogous but slightly differing fact situation. The need to recognise
the dialectic nature of law and learn how to use it to formulate legal
arguments is a theme that reappears constantly throughout this book.

5
Mastering Law Studies and Law Exam Techniques

It is one of the keys to the successful practice of law and the mastery
of law studies and legal examinations.
The dialectic nature of the legal process is best sho\vn with an
example. My illustration is deliberately simplified and is not intended
to reflect the law accurately so much as the thought process in the
minds of lawyers and judges who seek to resolve a legal dispute by
way of analogy and distinction from prior decisions. Let's imagine
a fact situation where a householder fails to clear leaves oil" his path
and a delivery person slips on the leaves and is injured. In those
circumstances an appeal court might conclude that the householder
had failed to satisfy a duty to visitors and is liable for the damages
suffered by the delivery person. The court might say, ~'Householders
are responsible for providing safe access to their houses by making
sure paths are cleared of leaves and they must assume responsibility for
any injury suffered as a result of their failure to perform this duty".
How should the precedent be treated by a judge hearing a case
involving a similar injury but this time suffered by a trespasser?
The lawyers' arguments will tum on how the precedent should be
interpreted. Under the common law system, the rule of Jaw in the
earlier decision is binding on lower courts and almost always followed
in similar level courts. But what is the rule of law set out in the earlier
decision? As is explained in detail in Chapter 3, the binding part of a
decision is its core element or the ratio decidendi. The parts that set
out the background to the decision or help explain how it applies, the
obiter dicta in the judgment, need not be followed directly in later
cases. Chapter 3 provides some pointers on identifying the ratio and
obiter parts of a decision.
At first glance the peculiar facts of the second case do not appear to
take it out of the ambit of the apparent rule of law of the first decision.
The householder had a responsibi Iity and someone was hurt because
the householder did not meet the standard of care required. But would
the appeal court have intended its holding to apply to trespassers?
There is no way of knowing what the court would have decided had
the judges turned their minds to the question. Certainly counsel for the
householder would argue that the appeal court, had the problem been
considered directly, would not have wanted to extend to trespassers
the rights resulting from the ruling. Thus, the householder's lawyer
would suggest, to give effect to the real but unstated intent of the
appeal court, the rule has to be read down to cover only those cases

6
 Chapter 2 - Understanding the Dialectic of Law

where the injured person had an actual or an implied invitation to enter

the property.
Since the appeal court never did address the issue directly, counsel
for the trespasser can quite correctly point out that the opponenfs
interpretation of the ratio of the original decision is putting words into
the original judgment, resulting in a new rule quite different from that
intended. If counsel for the trespasser hopes to persuade the judge in
the second case that the first holding must be followed quite literally.
without considering the status of the injured person, this lawyer will
have to show why the purpose of the original rule ,vould be defeated
if the gloss sought by the householder were added to this rule. For
example, the lawyer might try to argue that the appeal court was
seeking to impose a standard of care on the householder as the person
in the best position to know of and remedy the dangerous situation
and the status of the injured party is less important than the status of
householder as the person responsible for the property.
It is only on the rarest occasions that new cases duplicate the facts
of a previous binding judgment and virtually never does this occur
in a law exam. Lawyers seek to apply or distinguish precedents by
relying on a combination of arguments based on questions of law and
questions of fact, with no clear-cut divisions between the two. The
process of applying precedents to legal arguments in an exam answer
is explained in more detail in the following chapters. For the moment
it is sufficient to remember that, as it pertains to la,v exa1ns at least,
lawyering is a matter of considering, applying and distinguishing
precedents. It is important that you understand this process before you
begin to read and summarise cases in preparation for your la\\1 exams.
As explained in the following chapter, your goal is not to find the
golden rule of law established by a case but instead to understand the
apparent ratio of a decision and the context in which it was established
so you can best use it either by showing how it shoutd apply to the facts
of a later case or how the facts in the later case can be distinguished
so the ratio of the earlier decision has no binding application in the
second case.

What Do Law Exams Evaluate?

In some disciplines you are tested only to see that you have memorised
the required information. In most law examinations, however, you
must demonstrate that you have not only learned the information,

7
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