Wednesday, November 18, 2009

The Question is: What is the "Legal Question?"

I realize that for some of us, this is getting down to the basics, but that's precisely why I'm writing about it.  What, exactly, is the legal question?  And how do we get to it?

Many 1Ls will notice that professors often pause during lectures, look to the the frightened students in the peanut gallery, and ask, "So, what's the legal question here?"

Some brave students--the Gunner likely beginning the trend--attempt to answer this question.  The Broad: "How should the court decide?"  Uhh... no.  The Slightly Confused: "Whether the buyer relied on the seller?"  No... that's the issue.  But that's a good try.

The fact is that almost nobody explains how you're supposed to figure out what the hell the legal question is!

Another fact: I didn't know what in the world anybody meant by the mysterious legal question until my second year of law school, while I was taking a course on advanced legal writing.  Even then, the professor didn't come out and explain it in the way that I'm about to, but that's when things finally hit me.

Furthermore, I know 3Ls who have not understood the concept of the legal question until we've spoken about it.  It's sad.  These students in particular remain closeted; they are afraid to ask for help... to admit to anyone that they have no idea what's going on.

And who knows whether there are junior attorneys out there who are likewise closeted.  Whether there are not-so-junior attorneys . . .

Fear no more!  Here's how you know what the legal question is, and it's really quite simple.  You'll thank me later.

So, let's say we have a legal theory--something that you can bring someone into court for committing or violating.  For instance, trespass, battery, negligence, breach of contract... these are all legal theories.

Typically, the definitions of legal theories are found in a statute.  For instance, in order to recover for negligence (a legal theory) in tort (your class... the body of law), you must demonstrate the following elements (part of the definition of the legal theory): duty, breach, causation, and damages.

However, usually the ways in which those elements are defined/applied is determined by the court through various cases, not statute.


It has everything to do with the elements of a theory.

If the element is a noun, the legal question is, "What is [the noun]?"  Implied after that question is "according to the courts."

If the element is a verb, the question is, "When does one [the verb]?"

If the element is an adjective, the question is, "When is something [the adjective]?"

It's that simple.

For example, in negligence, our first element is duty.  Duty is a noun.  The legal question is: "What is a duty?"  This means:  According to case law, what have courts interpreted duty to mean?

Let's take a verb example.  If memory serves me correctly, under the theory of battery, there has to be a touching.  Now, this can be a noun or verb, but let's make it a verb for fun.  The legal question is: "When does one touch?"  Or, if you like the noun version better: "What is a touching?"

Finally, let's look at an adjective.  One theory in employment discrimination (body of law) cases is hostile work environment, which contains an element that the harassment an employee experiences must be pervasive and severe.  The legal question is: "When is something pervasive and severe?"

If understanding and determining the legal question was a fuzzy area for you, I hope that I've helped simplify and clarify the problem of the Legal Question for you.  It seems mysterious when we're left without any direction.  But it's really quite simple.  Spread the word and the love, especially if you think this blog will help others.

Until next time . . .

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