PROBLEM-SOLVING, REFERENCING AND PLAGIARISM

What is a problem question?

A problem question is based upon a hypothetical scenario that

could occur in real life. It raises one or more questions that need
to be answered by reference to the law. A problem question is
designed to test a student’s understanding of a particular area of
law, and his or her ability to apply the law to a scenario, in order
to come to a possible legal outcome.

Why are problem questions important?

The answer is simply that this is what is required of a lawyer from

his or her client on a daily basis. The client is not interested in
what a particular legal principle is, but more so in a lawyer using
that principle to resolve the issue at hand and give a legal
solution. It is therefore pertinent that every legal student is
equipped with how to resolve a problem question in preparation
for ‘real life’ legal work. Honing the skill of lawyering, particularly
problem solving, takes practice, which is why it features
throughout Law School.

It must be emphasised that these guidelines must not be

interpreted as some rigid formula – they are intended only as a
guide, to help you to develop your own problem-solving
techniques. Solving a human problem is not the same as solving a
quadratic equation in mathematics. These guidelines, while useful
starting points, are no substitute for experience of answering
problems yourselves: i.e. by practising, practising, practicing
GUIDELINES TO PROBLEM-SOLVING

PROBLEM SOLVING PILLARS

Problem solving can be simplified into four phases:

Reading

Planning

Writing

Proof-reading.

These entail the steps one must take when attempting to answer
a problem question.

Phase One: The Reading Process

Read the question carefully. This may seem obvious, but it is

surprising how many students do not do it, particularly in the
pressure of an examination or test. Read the question slowly and
with attention. The first time you read the question is simply for
you to familiarize yourself with it and take note of the important
information. Do not skim-read as you are likely to miss out what is
pertinent to the question. Try not to be too critical when you read
the question — read for information rather than trying to work out
what all the legal issues are. Your goal in undertaking the first
reading should be “Do I have a good grasp of the facts?” Reading
the question once is not enough – you should read it again to now
look at the question critically. Where a question has several sub-
questions, e.g. a), b) and c), it is important to read all questions
before formulating an answer. This is to avoid the common
mistake of addressing c) in a) when the question in a) is specific.
Once you are familiar with the facts, the second reading allows
you to identify the legal issue and gradually start formulating a
strategy for unpacking and answering the question. This
addressed further below when we look at the problem-solving
technique.

Phase Two: Planning

Never start writing until you have thought out your answer. All too
often, the student launches into writing only to realise half-way
through or to the end that the answer is contradictory or has
irrelevant material. This wastes a lot of time especially in an exam
setting. One way to think of planning is packing a suit-case: one
person could simply throw everything in the suitcase – socks,
jeans, t-shirts, shoes, toiletries with no particular order. This
makes finding items particularly challenging. Another could for
example neatly fold and stack on jeans on one side of the suit
case, then t-shirts, put socks and shoes in different compartments
and toiletries in a zip lock bag, and into the suit case. This makes
it easy to find items. When packing for a trip you will also
carefully pick out what should go into the suitcase. Similar to
packing a suit case, planning enables you to work out your
answer and to structure it in a logical and coherent manner. This
helps you write with ease, only adding the necessary detailed
elaboration. This phase easily distinguishes one student’s writing
from another.
Phase Three: Write Out Your Answer

To re-cap: only once you have done good planning are you in a
position to start writing your answer. Those who start writing
straight away tend to produce bad answers, and get bad marks.
However, those who have planned carefully will now simply be in
a position to write out the answer in a largely seamless fashion.
Most of the hard work will have been done in the planning phase!
Nuggets on how to write You will learn on the first day of your
Legal & Academic writing class that clarity, conciseness and good
organization are all important elements of a good piece of writing.
First impressions are significant. A bad, sloppy or vague start to
an answer is indicative of a lack of planning, or someone who is
confused or unsure what to say.

Phase Four: Proof-Reading

It is not always enough to have merely employed the technique

above as more often than not your work could do with
improvements. These could be spelling checks, grammatical
corrections or perhaps a deficient answer. Proof-reading your
work is simply good manners as it could be the line between
sloppy work and a good piece of writing. This may prove
challenging during an examination or test but is of great
significance for any research task such as an assignment. Many of
your research assignments will be problem solving tasks. Here,
checking is critical, as there is much less tolerance for sloppy
mistakes than in an exam situation. It is not good practice to be
printing out your answer a minute before the deadline. It is critical
to give yourself good time for checking, and even redrafting, of
answers to such problem questions.

PROBLEM SOLVING TECHNIQUE – IRAC

Problem-solving relates to building an argument.

Consider the analogy below:

Building an argument Planning and building an argument is very

similar to constructing a building. Do you have the right
materials? Do you have a good foundation? Does everything fit
together seamlessly, layer by layer? Does it all culminate in a tidy
finished product? Think about it by analogy again. Would you start
building a house by building the roof first? Would you jump
around from level to level indiscriminately, or would you build one
level after another in sequence? Again, building an argument is a
similar exercise.

A problem question must be answered by using a four stage

technique called the IRAC rule. The IRAC method helps break
down complex terminology, fact patterns, and legal analysis into
easier to understand blocks of text as follows:

Identify the legal issues

State the relevant Rule or law

Analysis of the law

Make a Conclusion
Identifying the legal issue Legal issues arise from the hypothetical
facts that are in a question. These may be established by isolating
the material (relevant) facts from those that are immaterial. It is a
complex process of analysis that depends on numerous factors,
including your research/preparation skills, your knowledge of the
law, your comprehension skills, your skills of reasoning and
analysis, and your experience. But two complementary factors
need to be in place. First, you need to know your law. But
secondly, you need to understand those legal rules and principles
you have studied. Rules and relevant law.

The rule describes which law or test applies to the issue. Knowing
your relevant sources of law, and the law they articulate, is very
important, as in any answer you will have to do some planning
about which legal rules and principles you need to explain, and
provide authority for where these rules/principles come from. The
rule should be stated as a general principal, and not a conclusion
to the particular case being briefed.

To crystallize the issue(s) posed by the question it is necessary to

know not only what authorities bear on the specific problem but
also precisely in what way they do so. In a research assignment
this process requires research, but in a test or exam you will have
to rely on your knowledge. If statute law applies, which parts, and
how should it be explained? If case law, how much of the case
should you use in your explanation? All these questions depend
on the nature of the problem and the time available, but in your
planning you have to consider carefully which of these authorities
are relevant and appropriate, and how much detail you ought to
go into when discussing them.

Always caution yourself that you are going to be using an

authority to explain a legal rule or principle, and NOT to tell a
story. This is especially true of case law. You should be planning
to use the facts of a case only for illustrative purposes, if this is
necessary to guide your argument. In so far as case law is
concerned, you should be thinking about the following questions:

What were the reasons for the court coming to its decision?

What legal rules or principles did the court rely on in coming to its
conclusion, and how did it apply those?

In turn, how will I use that to reason out a solution to my set of

facts?

Application/analysis of the law

Once you have, in your planning phase, identified the legal issues
which arise on the facts, and have identified the relevant law and
authorities to which you will refer in your answer, the next step is
to think about how the law is going to apply to the facts. This is a
critical phase of your planning process, because this is really
where you start answering the question! Surprisingly, many
students do not take this vital step when answering problem
questions. They offer textbook-like dissertations, perhaps give a
list of cases, and leave their examiners to draw their own
inferences about what the answer might be. To do this is
obviously not to answer the question at all. The issues must be
combined with, or applied to the law in order to answer the
question. The analysis is the most important, and the longest,
part of your answer. It involves applying the Rule to the facts of
the problem or question. You should use the facts to explain how
the rule leads to the conclusion. In simple terms, on these facts,
on which side of the line does your client fall (guilty/not guilty;
liable/not liable etc.) and why? This requires you to adopt a
reasoning process.

How best can you use the law and authorities available to you in
order to develop an argument that indicates quite clearly where
your client stands?

Do not think there will always be one absolute answer to the

problem. Once again, law is not like maths: there may be
numerous ways of solving the problem, and which use any of the
authorities you might know.

Conclusion

A conclusion must be made based on the manner in which the law

was analysed. Do not merely state a conclusion without also
stating reasons for it. A conclusion without reasons or explanation
means that you have not used the rule and the facts to analyse
the issue. This is the crux of your answer: it must explain to the
client simply and clearly what the legal consequences are, on the
basis of your analysis of law and fact.

SAMPLE IRAC ANALYSIS EXAMPLE

1. Yemba Yachi is a member of a notorious gang known as The
44 Cats. He was arrested by Inspector Thumelo on 26th
March 2019, and he is currently in police custody at
Woodland Police Station in Lusaka. The events that led to his
arrest are explained below:
On an unknown date between 1st January 2019 and 8th
January 2019, a motor vehicle battery, a modulator a flash
and two cell phones were reported missing from a Toyota
Passo motor vehicle that was parked at Woodlands Stadium.
The items belonged to Dora Explorer and they were valued
at ZMW 580.00.
They were found at Yemba’s house by Inspector Thumelo on
16th February 2019. Dora was able to identify the items
because she has inscribed her initials on them. On 15th
February 2019, Yemba was found within the premises of
House Number 999 Cats Close in Woodlands. He had in his
possession a motor vehicle wheel, a motor vehicle battery, a
modulator and a flash valued at ZMW 1,500.00. The items
were reported missing by Mr. Thando Achebe of House
Number 998 Bulwe the previous day. Mr. Achebe was able to
identify the items because he had placed identity marks on
them with pink nail polish. Yemba Yachi is scheduled to
appear for trial before the Subordinate Court. Advise him on
the offence that he is likely to be charged with.
Instructions Read the excerpt of The Penal Code, Chapter 87
of the Laws of Zambia listed below, and prepare an answer
to the question above by using The IRAC rule.

CHAPTER XXVI THEFT 264.

(1) Every inanimate thing whatever which is the property of
any person, and which is movable, is capable of being
stolen. Things capable of being stolen
(2) Every inanimate thing which is the property of any
person, and which is capable of being made movable, is
capable of being stolen as soon as it becomes movable,
although it is made movable in order to steal it.
265. (1) A person who fraudulently and without claim of right
takes anything capable of being stolen, or fraudulently
converts to the use of any person other than the general or
special owner thereof anything capable of being stolen, is
said to steal that thing.
Definition of theft Suggested Answer Issue Can Yemba Yachi
be charged with the offence of theft of the items that were
found in his possession and at his house? Rule Section 265
(1) of the Penal Code provides that the offence of theft is
committed when a person fraudulently and without claim of
right takes anything capable of being stolen, or fraudulently
converts to the use of any person other than the general or
special owner thereof anything capable of being stolen. In
addition, Section 264 of the Penal Code defines a thing that
is capable of being stolen as every inanimate thing whatever
which is movable and is the property of any person. Analysis
The pieces of motor vehicle equipment that were found at
Yemba’s house and those that were found in his possession
at house number 999 Cats Close in Woodlands are things
that are capable of being stolen as defined in Section 264 of
the Penal Code. This is because they are inanimate things
that are capable of being stolen. Yemba Yachi obtained the
items fraudulently, and without permission from Dora
Explorer and Mr Achebe, who had claim of right over them.
His actions were contrary to section 265 (1) of the Penal
Code. Therefore, he committed the offence of theft.
Conclusion Yemba Yachi is likely to be charged with the
offence of theft, contrary to Section 265(1) of the Penal
Code.
Points to Note:
The issue is summarized as a question or an inquiry. There
are various ways to write it, depending on one’s writing
style.
The rule has been provided and must be explained in a
logical and coherent manner.
The analysis must be restricted to the application of the law
to the issue(s) that are identified. DO NOT RESTATE THE
FACTS OR EXPLAIN THE LAW AGAIN.
The conclusion must be summarized in one or two short
sentences. Note: This example is based on a simplistic model
of IRAC that is taught in Legal & Academic writing.
A criminal situational question is used because at this stage,
the student has not learnt any other legal principles. It must
however be emphasized that the use of the IRAC technique
is not limited to situational or scenario questions as will be
noted in later examples below.

EXAMPLE 2 ‘An employer is not permitted to protect himself

by contract against competition as such on the part of his
former or ex-employees, but he may enforce any agreed
restrictions or restraints which are necessary to protect his
legitimate interest.’ With the aid of decided cases, discuss
the above statement. Suggested Answer Issue The issue in
the above question is under what circumstances is an
employer allowed to protect himself against completion from
his former or ex-employees. Rule The rule in this question
will be the general rule with regard to contracts in restraint
of trade which are considered void but the exception is if it is
justifiable in the sense that it is reasonable and there is a
proprietary interest worth protecting.
The cases to be used to support your answer will be Forster
& Sons v Suggett and Herbert Morris Ltd v Saxelby
Conclusion The student will then have to conclude by telling
us what the general is and when restraint of trade is
acceptable when applicable to an ex-employee. Points to
Note:  In the above illustration, there is no subtitle for
analysis as the analysis happened when the “rule” or the law
was being explained.  Unlike the first example, here the
issue is phrased as a statement not a question. The rule has
also not been provided but is to be determined by the
student based on what has been taught.  Further, when
writing the finished product, the student should not put the
subtitles, i.e. issue, rule, conclusion as seen below.  This is
not a model answer of the question but merely a guideline.
Points can thus be expanded on through elaboration and
written in prose or essay form.

EXAMPLE 3 Taking into account the overarching principles of

the CEDAW, discuss the implication of Section 18 of the
Education Act, 2011 in relation to the girl child. The issue to
be identified by the student is the implication of Section 18
in relation to the girl child and how this aligns with the
overarching principles a State is obliged to follow under the
CEDAW. The CEDAW provides two overarching principles
that include: Non-discrimination and Substantive equality.
Substantive equality has two key elements that are de facto
and de jure protection of women’s rights. The student is
expected to explain in detail these two overarching
principles and the underlying obligations states have.
Section 18 of the Education Act, 2011 makes it an offense to
marry off school-going children. The key aspect of
consideration is that as long as a child is in school they
cannot be taken out of school for the purpose of marriage.
12 The student is expected to analyse conflict between the
de jure and de facto protection in light of this Section. The de
jure element provides protection of the girl child that is in
school, preventing a parent from stopping them from going
to school for the sake of marriage. The de facto protection
on the other hand where, in practice, a parent can claim that
the child is no longer in school and can therefore be sent off
to marriage making the protection possibly null and void
ought to be discussed. Further, in response to the issue at
hand, a student must discuss the state’s obligation to
provide complete protections and how this legislative
loophole may compromise this obligation. The final
conclusion on what this section has done in terms of fulfilling
the principles in the CEDAW and protecting the girl child
from early marriage should be provided by the student.
Points to Note:  Again, this is not a model answer but
provides a general overview of how this question could be
addressed using IRAC.  The suggested answer has no
subtitles but still addresses the different aspects of IRAC
described above.  It illustrates development of a student’s
understanding of IRAC and incorporation into an essay in
order to address a legal issue.
SUMMARY
Based on the above examples, it is notable that IRAC is not
only a technique but also a writing style that develops over
time through practice. For example, at L101 level it is
permissible to use subtitles of the four components of IRAC.
However, as a student progresses through Law school and
into practice, subtitles should not be used. The different
aspects can still be organized using paragraphs. Use of IRAC
ensures that the pertinent aspects are addressed by
providing a useful way to organize one’s thoughts.
Articulation may differ between different writers. Again, this
is not meant to be a rigid way of writing but can be adapted
with time. Students should therefore not be under pressure
to sound like the next person as each person has their own
writing style.

PLAGIARISM
What is plagiarism? Plagiarism is the act of stealing and
passing off the ideas or words of another person as one's
own, without crediting the source or the author of the idea or
words. It should be avoided because it amounts to literary
theft. This is not to say that a student cannot incorporate
another person’s work. There are 3 main ways of
incorporating another person’s work:  Summarizing The
original words of the author are rewritten in a shortened
form, but the key points that were made by the author are
captured.  Paraphrasing The author’s original words are
rewritten but the original meaning is retained  Direct
quotation The original words of an author are reproduced
exactly as they appear in the text that is being read. In all of
the above instances, such work ought to be referenced
properly and correctly. Turnitin This is a platform that the
University uses to check for and hopefully dissuade
plagiarism. It is software that detects plagiarism by
highlighting a submission to similarities to a global collection
of internet, academic and student content. Essentially, once
an assignment is handed out a Lecturer will create a link
through which students are to upload their submissions. This
work is then matched with various online sources as well as
other students’ submissions, highlighting similarities. A
Similarity report is then generated indicating in percentage
form how similar your work is to other sources. This is to be
attached to a hard copy submission of an assignment or
research task