 Hello, I'm Professor Vanille Urandel and I'm here to talk to you today about issue spotting and it's the first in a series on what issue spotting is and how to go about spotting issues. It is the foundational skills to doing well on the law school exams for doing well on the FAR exam and certainly for doing well as an attorney, social justice attorney, racial justice attorney, you will need a well developed issue spotting skills. So I want to go back to doing well in law school exam and put this in context because oftentimes students think that knowledge and understanding of the law is what will get them. And I've said this before and you'll hear me say it again. I have students bring in their skit the exams and they don't understand why they got enough on the exam because they came to the right conclusion overall, but they didn't do an analysis and they didn't do analysis because they didn't have issue spotting skills. And their exam showed a decent level of knowledge, but lots of people know the law. Knowing the law will get you enough on an exam. Understanding the law may get you a D in order to do well on exams and the baby bar and the bar. You will be along with good exam writing skills. You will need issue spotting skills and we're going to talk about issue spotting skills today. So one of the main things that people always say is so what is an issue in the context of the law? There are two kinds of main issues, especially on exam. Your legitimate points of controversy, which can be either legal of factual and there are near miss issues. So a legitimate point of controversy is something that two good, well-informed creative lauders would fight about. It's a dispute, it's a controversy, it's a conflict. So what are they about? So lawyers will fight over what is the law. So there is existing law, but lawyers disagree over what the law is. Sometimes there's no existing law and the argument is over what the law should be. Even when there's no argument over the law, there can be an argument over what facts are key facts. So there's an argument over facts. And a lot of the controversy that people get into is over interpretation of what key facts are. Finally, you can have a controversy over, you don't disagree over what the law is. You don't disagree over what the facts are. You disagree over how the law should be applied to the facts. So you can have one or all of those in a one case. And these are all issue. Issue what is the law? Issue what should be the law? Issue what are the key facts? Issue how should the law be applied to the facts? So let's start with legal points of controversy. So examples of legal points of controversy is when you have more than one formulation of a rule, then you have an argument over which formulation of the rule should apply. For instance, in the defense of entrapment, where there is more than one controversy. Contributory versus comparative negligence. Now, in practice, in a state, states have gone one way or the other on this. They're either a contributory negligence state or a comparative negligence state, and they're usually not both. However, on the law school exam, on the bar exam, on the baby bar exam, you will want to show that depending on which state you're in, there could be a different outcome over whether there's a contributory negligence or whether there are comparative negligence. Even if you're in a comparative negligence state, there are more than one formulation over comparative negligence. There's been split on insanity defense, split on responsibility for wild animals. So you get the point that a legal point, a legitimate point of controversy are points over what the law is and those can be because there's no existing law. Or because there are more than one formulation of the law. Factual points of controversy occur when the facts are critical to a particular legal rule. So generally, people think, well, how can you have a factual controversy? Facts are facts, but where the legal principally demands a factual analysis, then you can have different interpretation on what that means. So anytime a room calls for reasonableness, even though we use a reasonable person standard, who is that reasonable person? Are they from the south? Are they from the north? Are they Democrats? Are they Republicans? Are they conservative? Are they liberals? Are they black? Are they white? Are they Native Americans? Are they women? Are they men? Are they poor? Are they rich? Are they from America? From the Europe? Are they from Ghana? Are they from South America? Who is the reasonable person? All those things, culture, age, gender, religion, sexual identity, all those things make a difference on what a person will see as reasonableness. And so you can't, if the only thing you can do is assume your view of the world is reasonable, you'll have problems because there are many views of the world and everybody thinks their view is reasonable. What is material to a discussion? Materiality. You know, whether something is relevant. Probable cause, which we get into this all the time from a police point of view, it is perfectly rational to look at somebody's race and think that they have probable cause for doing something. Or to look at a broken tail light and think that they have probable cause for doing something. But probable cause has a standard and how you interpret the facts on that standard is going to different. Whether you acted in good faith, whether there was necessity, whether something, the person had an intent, especially if you, so intent can be, excuse me. Intent can be subjective, which is less of a factual analysis, because if it's subjective, you looking at whether the person actually had the intent. But an objective standard of intent looks at whether a reasonable person would have intended something or would have interpreted that as intentional. So these are all factual analysis and those analysis are going to be influenced by other factors such as culture and background. Those are points of controversy though. People go to court all the time over behavior being one person interpreting behaviors, unreasonable and the other person interpreting the behavior as reasonable. If your rule has any of these standards, either of these standards. And if you get a fact pattern that doesn't clearly tell you that the behavior was satisfied and you may assume that you probably have a factual analysis of these principles. So we talked about legal points of controversy and in practice, those are the only things you deal with. But on exams, you may need to deal with what is called near miss issues. So a near miss issue is when all reasonable attorneys are not going to argue and you're not even going to raise it to the court because some element can never be satisfied or all of the elements are satisfied. You're not going to argue over that. Despite the popular media, attorneys only argue over things in which there is some factual reasonable point of controversy. But exams are different because on exams sometimes you want to show that you recognize that an element is missing. So if your faculty member gives you an exam in which let's say you're taking criminal law, someone breaks into a house. The rule is that you have a respiratory breaking and entering of a dwelling in the night time with the intent to commit a felony. That's a burglary. Trespatory breaking and entering. Assume that every element except one is satisfied. There was no breaking because the window was left open so they just entered. So a reasonable attorney might not raise the argument of burglary because there's an element that can never be satisfied. Now this is assuming that the way the state defines breaking requires an actual breaking down a door, breaking a window. And if a window was left open, then there was no breaking and a reasonable attorney might not raise this to the court. But a savvy law student should discuss why there is no burglary. Now, you need to ask your faculty member how they want to deal with these kinds of issues. In fact, you need to take some example like this from your course. And you should say how should I discuss these? Will I get points for discussing it? Or will I lose point if I discuss it? The only way to know how to handle near missed issues is to ask your faculty member. But you should know that different faculty members will want to deal with them in different ways. And in doubt handle them. We're going to talk about crack, how to organize an answer. You do not want to IRAC, which is the term that a lot of schools use, issue rule analysis, conclusion. We prefer crack conclusion rule analysis in terms of an organizational form. We don't want to do that on these kinds of issues. And we will talk about in a later video about how to deal with these issues in a way that doesn't take a lot of time. Show that you know that there can never be a legitimate point of controversy. But as I said, on exams, these come up often and the only way you know how to deal with them is to ask your faculty member. If you don't ask your faculty member, you should deal with them. You should not ignore them. So we're back to our prepare for success, trust the process. The process and requires you to write like a lawyer. Writing like a lawyer requires that you be able to do issue spotting because issue spotting is the foundational skill. Now, you will need to be able to do a lot more than issue spotting in order to pass the bar and be a good attorney. But if you can't do issue spotting, well, you'll never get that far. If you have any questions and comments, post them on Moodle.