The Research Process – Issue Determination: Identify the Issues!
- Legal issues are fact-dependent and defining the issues is a creative process.
- Your first year of law school is largely designed to teach you how to identify the different issues arising from a set of facts.
- Depending on how you frame the facts, several legal issues may begin to take shape.
- This is important for a client. Sometimes a claim won't be successful if the issues are defined one way, but will be if the issues are framed another way. You can't change facts, but you have control over the issues. So, be creative!
- Charter litigation is an excellent example of a legal field where issue determination plays a critical role in the outcome of the case.
EXAMPLE: In Alberta v. Hutterian Brethren of Wilson Colony, the plaintiffs were challenging a provincial requirement that all licensed drivers had to be photographed. The plaintiff's claim was framed both as a s.2(a) (freedom of religion) and a s.15(1) (equality) issue. The s.2(a) claim was initially successful, but the s.15(1) one was not. This goes to show that a simple set of facts can give rise to multiple legal issues with diverging success!
- Charter litigation is an excellent example of a legal field where issue determination plays a critical role in the outcome of the case.
- Different legal issues will also naturally drive research in different directions.
- Issue determination is therefore of critical and central importance to legal research.
Practice makes perfect!
- Try to spot the issues when reading cases in your first year courses.
- The ability to draw out the salient issues from a set of facts is a critical skill! It will help you to:
- do well on your law exams;
- develop efficient interviewing techniques; and
- construct and present well-reasoned legal arguments.
- The ability to draw out the salient issues from a set of facts is a critical skill! It will help you to:
- With practice you'll begin to feel more comfortable eliciting the legal issues from the facts.
For a more robust, step-based approach to issue determination, see Chapter 3 of Legal Problem Solving: Reasoning, Research and Writing.
Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.
Maureen F Fitzgerald, Legal Problem Solving: Reasoning, Research and Writing, 7th ed (Markham: LexisNexis Canada, 2013) c 3.