AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2007 >> [2007] LegEdDig 15

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Taylor, G --- "Structured Problem Solving: Against the 'Step-by-Step' Method" [2007] LegEdDig 15; (2007) 15(1) Legal Education Digest 40

Structured Problem-Solving: Against the ‘Step-by-Step’ Method

G Taylor

[2007] LegEdDig 15; (2007) 15(1) Legal Education Digest 40

[2006] DeakinLawRw 1; 11 Deakin L Rev 1, 2006, pp 89–101

Recently, Professor Lutz-Christian Wolff, currently of the City University of Hong Kong but qualified as a professor (according to the extremely demanding German requirements) in Passau, Germany, wrote in praise of the German problem-solving method. In his article, he referred to that method (as will I) as the ‘step-by-step’ method and explained its principal features well. Wolff’s article provides me, however, with a welcome opportunity to write a short ‘counterblast’ based on my reflections on that method informed by my experiences as a law student in Germany when I was required to use that method in examinations — even if it must be necessity appear elsewhere, as the journal in which he published does not make a practice of publishing replies.

I cannot, of course, repeat here the detailed analysis of the ‘step-by-step’ method that Wolff puts forward. In summary, however, it involves (in civil law matters) the identification of the basis of a possible claim by the plaintiff, and then a listing of all the preconditions for making the claim together with an analysis of whether the legal prerequisites for the satisfaction of that claim have been fulfilled. This must, furthermore, be done in such a way that the answer does not appear until the end so that it appears that the answer emerges as the analysis progresses and is a result of applying the law to the facts rather than, perhaps, of instinct or prejudice divorced from the precise content of the law. It is a syllogistic style, or rather a style involving a series of syllogisms, in which the major premise is always a proposition of law, the minor premise a statement about the facts and their relation to the proposition of law in the major premise, and the conclusion a statement about whether the claim does or does not succeed.

The style advocated by Wolff is not, in its German home, merely a scheme to be used in planning examination answers or identifying the issues raised by problems. Nor is it just one way, or even merely the dominant way, of structuring students’ answers to problems in law examinations. It is, rather, the one and only approved way of answering examination problems. Every student must use the style outlined by Wolff in examination answers. A student who does not do so will fail, and even minor lapses from the approved style will lead to rude comments in the margin by the marker and to this point, I take it that Wolff is advocating that the ‘step-by-step’ method should be adopted in the same capacity as it is in Germany: as the one and only approved means of answering examination problems. If it is to have that function, it had better be pretty good. My case will however be that, while it has some minor virtues, they are greatly outweighed by its defects. It should be considered, at most, a help for those who find it useful, not a compulsory structure to be used by everyone.

What then are the virtues of the ‘step-by-step’ method? Somewhat surprisingly, in my view, Wolff claims that the chief virtue of the ‘step-by-step’ method is the stereotypically Teutonic virtue of efficiency. Indeed, he praises the ‘step-by-step’ method at some length for its efficiency, claiming that efficiency is ‘the sole criterion’ by which approaches to problem-solving should be assessed, and that the ‘step-by-step’ method ‘embodies efficiency’ because it requires ‘a minimum input of resources’. Accordingly, ‘[n]o more efficient way of problem solving is available’.

It will be seen at once by anyone who takes the trouble to read it that the problem-solving method advocated by Wolff requires a considerable waste of time and ink dealing with non-issues. This is because it requires the problem-solver to deal, step by step, with every single requirement for the creation of a valid contract and the assignment of obligations under it, even those that are not in the least doubtful. And, because there are two possible plaintiffs...this has to be done not once, but twice.

Could this lengthy procedure have some other advantage to recommend it? One German author says that an answer written using the ‘step-by-step’ method: ‘[I]s to be written, as a rule, for someone who does not know the legal position, but needs to discover why the relevant legal question must be answered in the way suggested by the writer. The answer must therefore be understandable on its own even for a layperson who knows only the facts and the text of the law’.

It has accordingly been suggested to me that the ‘step-by-step’ method might assist future lawyers to hone their communication skills with the lay public who will later be their clients and require the reasoning behind the lawyer’s answer to a legal problem to be explained to them. But such skills are not well taught by means of requiring them to be practised in examinations on the substantive law. Communication with clients is much more than, and very different from, just taking them through the steps involved in concluding that the law produces a particular result in their case. Apart from that alleged advantage, there is no reason at all to proceed as if one were explaining the answer to a layperson.

As Wolff’s example shows, if the ‘step-by-step’ method has a virtue, it is not efficiency — for the reasons given, it is one of the most egregiously inefficient methods for answering questions that could possibly be devised — but the equally stereotypically Teutonic virtue of thoroughness. The advantages of thoroughness are not to be underestimated, especially for students, such as those in their first years of law, who might otherwise overlook a particular issue. The question is whether this virtue is purchased at too high a cost. It is my case that it is.

First, of course, thoroughness is a double-edged sword. A problem-solving method that may help first-year students to ensure that they do not miss anything important is not necessarily appropriate for later-year students who, one might hope, have managed to get over the teething problems of the first couple weeks of law studies. On the other hand, the ‘step-by-step’ method does not — no method could — absolutely guarantee that nothing will be missed out: it is always possible that a student will entirely fail to see that a problem raises a particular type of legal norm, or legal institution (such as unjust enrichment as well as contract) or defence (such as expiry of the limitation period) and thus fail to consider the issue concerned. So we should not overestimate the extent to which the ‘step-by-step’ method promotes the virtue of thoroughness. The great waste of time and effort which it requires in the consideration of things which are not controversial also means that students may run out of time, panic and forget something, or simply not have time to reach the real issues in the case after dealing with the non-issues.

First, the ‘step-by-step’ — at least in its German home, and in the form advocated by Wolff — places far too much emphasis on questions of form rather than content. The chief reason for this is that, as Wolff points out, it proceeds on the assumption that the writer starts with an open mind about the outcome and proceeds through the relevant legal requirements, considering whether each is satisfied, until a conclusion can be reached, and that the conclusion is not known until the end of the analysis. Thus, any language that appears to suggest that the problem-solver might know the outcome before the end is reached must be avoided.

As an empirical proposition, the assumption that the result is never known until the end of legal analysis is, of course, entirely false. Better law students will be able to develop an instinct for the solution to many legal problems before even putting pen to paper. Not only is the assumption false as a matter of fact; it would be undesirable if students proceeded in that way. We should encourage students to work out the solution to which they will come before they start writing, as that will lead to better planned answers, rather than let them think that they should start writing first and come up with the solution as they go along.

Even leaving aside, however, the empirical falsity and pedagogical undesirability of its starting point, the ‘step-by-step’ method also requires students to use a prescribed structure and form a language reflecting the hypothesis that they do not know the answer until the end. This applies to the answer to the question as a whole, but also to each sub-issue within the problem (even the unconventional ones).

That being so, a vast quantity of effort has to be devoted by the student to learning this style and then, under the stress of examination conditions, ensuring that it is adhered to. One must always pay attention to ensure that one both adheres to the syllogistic form and also does not slip into the natural habit of betraying the solution to the problem before reaching the very end of the analysis. To assist students not to make an error, books of advice are written about how to comply with the required style. Debates are conducted in learned journals about whether a particular form of language or even particular words (‘because’ or ‘therefore’, for example) are suitable for use by students in examination answers, and to what extent short cuts are permissible especially later-year examinations when the answer to a particular sub-problem is not controversial. This is a gigantic waste of effort (and the discussion about permissible short-cuts makes one wonder what the point of the whole procedure is anyway if it can be modified in later-year examinations in relation to non-controversial issues). In the end, who cares what words are used?

Admittedly, some students manage all this almost effortlessly — as a student in Germany, I did not find it particularly hard, partly because I was watching my language anyway as a non-native speaker — but others have terrible difficulty with it, and I know people who have withdrawn from law studies because of it.

The most objectionable features of the ‘step-by-step’ method are not, however, those already mentioned. Nor is it the fact that law students are required to write in a completely uniform style — a requirement which unfairly advantages those who are able to master its peculiarities at the expense of permitting a diversity of style and approaches suiting a diversity of temperaments. It is rather the basically incorrect assumptions about the nature of legal thought that the method involves.

It will be seen from Wolff’s example that the ‘step-by-step’ method proceeds by stating, first, that a possible legal consequence might ensue from a set of facts; secondly, by stating what rule governs that consequence; thirdly, applying the rule to the facts; and, finally, reaching a conclusion. This syllogistic procedure is quite appropriate for the sort of problems one might encounter in one’s first weeks of law study. We all know the type. In contract law, they are problems along the following lines: ‘A sends a letter to B offering to sell A’s library for £100; B posts a letter by return accepting the offer, but before A receives the letter; A sends a telegram retracting the offer. Is there a valid contract? (A always sends a telegram — rather than an e-mail or an SMS — because the problem has been passed down through the generations and is at least a hundred years old.) The ‘step-by-step’ method might well be quite appropriate at this stage of one’s studies for a number of reasons: the simplicity of the problem and of the rules it involves; the need for practice in the application of rules even to noncontroversial facts; and the law student’s limited degree of appreciation of the way in which the law works and need for guidance in problem solving. Using something like the ‘step-by-step’ method in solving what might be called ‘kindergarten’ problems also helps to take the law student through the concepts of consideration and intention to create legal relations even though they are not of course in question in the problem.

Pretty soon, however, the brighter students realise — and eventually, it might be hoped, everyone realises — that most legal problem-solving is rarely as straightforward as it was in the first Contract tutorial: know the rule, apply it to the facts, get a clear simple answer.

Perhaps things are different in a jurisdiction, such as Germany, in which the law is codified? (I should be happier with the proposition that the law in Germany claims to be codified, as any glance at the commentaries will indicate how much case law and interpretation are required to make sense of the codes, but leave that aside.) No, there too many authors on legal methodology have been long been attacking the idea that the law is a simple process of applying rules to facts. As Professor Karl Larenz, for example, writes, ‘The assignment of a state of affairs to a category or to the area of operation of a standard in need of interpretation is not a process of syllogistic logic but a value-laden characterisation’.

This is not new surprising, and it is not my intention to collect a large number of quotations from German authors saying similar things to commonplaces long since current in the English-speaking world as well. It is merely necessary to demonstrate that the existence of what claims to be codifications of the law does not make much difference to the degree of uncertainty involved in first ascertaining legal rules or principles and then applying them to the facts.

That process is one which the syllogistic procedure of the ‘step-by-step’ method conceals, because of its assumption that the law consists of rules which can be stated in a few words as the major premise in a syllogism and then automatically applied to facts in a mechanical fashion — rather than a value-laden system involving judgment (in the broadest sense of the word) as well as applying rules to facts. Its misleading conception of how the law works, even more than the vast waste of time and effort that it involves, is why it should not be foisted upon law students in this or any other country.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback