The Legal Problem Solving Process 1

In a nutshell, legal problem solving is simply figuring out what your problem is
about, finding the relevant law and applying the law to your particular situation.
Although there is no single best way to approach every situation, given the sheer
number of laws and legal cases that interpret the law, all legal problems should
be approached systematically.
In my first week at law school, a law professor gave me and all the first-year
law students a three-page legal research assignment. We were told to complete it
by going into the law library and "not bothering the law librarians too much".
There were no other written instructions and there was no textbook that
explained how to conduct legal research, so we had no idea where to start. As a
result a mass of first-year law students descended upon two very patient law
,librarians and wandered around the library for hours.
I remember that particular day (maybe it was foreshadowing) for one specific
reason. In my frustration I mentioned the absurdity of this situation to another
law student and she told me a secret. As a history major, she had completed
many research projects during her undergraduate years and thus knew the short
cuts. She said this to me, "You don't need to find the law; you simply need to
find an article on the topic or the law professor who is the expert on the topic."
These words were very wise, albeit not quite complete for legal research. I think

\ she failed the assignment because she never did find that one special article or

I professor, but more importantly, even if she did, she did not realize that no
article (which is often opinion) could address our unique legal scenario, which is
different in every single situation. This one was devised by a particularly
ingenious law professor. The lesson is this: Although there may be short cuts to
finding the law, you still have to do your homework.
Although today things may be a bit different, every single law student will
typically start to solve a legal problem on Google. Why not? There is nothing
wrong with that and indeed an Internet search should definitely be part of any
legal research strategy. However, it will never answer your legal question and at
best can be either the very first or very last step. Let me explain why.
Let's say your friend Bob has come to you for "legal" advice. His Rottweiler
dog has bitten a small girl and the mother of the girl said that she was going to
sue him and get his dog put down. He is afraid and wants to know about the law
and his possible liability. You turn on your computer and pull up Google or
Yahoo and type in a search like: "liability for dog bite". You will likely find
about 1,000 websites or biogs from around the world that talk about dog bites.
You might read a few excerpts and notice that most of the infonnation refers to
dogs in the United States. This triggers you to refine your search since you think
2 legal Problem Solving Chapter I: The legal Problem Solving Process 3

that maybe the laws on dog bites are specific to each country (although you have Indeed, at the end of this book, you will find a complete Sample Research Plan
no clue). (Appendix 12A) that summarizes this entire process.
At this point you start to realize that this "legal research stuff' might be As well, please consult The Ultimate Guide to Canadian Legal Research, 1 a
harder than you thought. After a while you will, however, likely notice that the booklet which provides a complete checklist for the steps described in this book
relevant websites typically fall into a number of categories. Here are a few: (and is often sold with this book).
This book provides a basic introduction, framework and strategy for solving
veterinarians who care for dogs; legal problems. It teaches all of the skills necessary to complete any research
animal lovers and advocates, including dog breeders and SPCAs; problem from beginning to end by duplicating the entire research process that
• municipal dog licensing offices; lawyers use to solve legal problems. You will learn how to analyze a legal
insurance companies that sell animal insurance; and problem, design a research plan, locate the law, reason legally and present
lawyers (or law professors) who are experts on animal liability. research results in an understandable way. At its core is a step-by-step approach
that can be utilized by newcomers to legal research.
As you can see, you have located many people and organizations that know The skills taught here are designed to supplement other legal education and
and care about dog bites. The most interesting for your purposes are, of course, training. Although designed as a law textbook, it can be used by non-lawyers,
lawyers and law professors, so you might look further into these websites, but articling students, junior lawyers, legal assistants and paralegals. This book
this is very time consuming. If you are extraordinarily lucky you may find a should be used as a springboard towards development of expert research skills.
local lawyer expert who has just written an article or conference paper on the Although the process of legal problem solving has, herein, been broken down
liability of dog owners. This article will likely refer to the recent relevant cases into distinct steps for purposes of learning, it must be recognized that legal
and statutes. This is gold. Still, there is no guarantee that it is up to date or that research is robust and complex and will be shaped by the researcher and the
her ideas are sound (indeed, a legal case may have been decided last week). The individual problem.
fact is this: the bulk of what is available online is someone's opinion. Even if This chapter provides an overview of the entire five-step process of legal
you know a lawyer personally and can pay his or her legal fees, it's still his or problem solving. The remaining chapters discuss these steps in more detail.
her opinion (albeit based on law) and law students cannot rely on opinions. So
what do you do now?
The best thing to do at this point is simply save the websites that you think LEARNING OBJECTIVES
are relevant and make some general notes if you want, then follow the FILAC
strategy for solving legal problems described in this book. This is because
At the end of this chapter you will be able to:
without knowing your situation better, like where the bite happened and a bit
about the laws in your jurisdiction, you will either get stalled or get hopelessly • Describe the five-step process of legal research.
lost in the vortex of the Internet. • Explain what is meant by factual analysis.
You have not wasted your time at all. You have begun to map out your area • Explain what is meant by issue determination.
of enquiry and this can be very helpful. If nothing else, you have identified some • Explain what is meant by legal analysis.
of the tenns and laws related to your legal situation. You also know about a few
people who are experts. You may eventually want to speak to them or locate
articles that they have written on the topic.
The FILAC strategy (which stands for Facts, Issues, Law, Application and THE LEGAL PROBLEM SOLVING PROCESS (FILAC)
Conclusion) is essentially your plan of action. I designed this fonnat not just
because it is logical and systematic, but also because it is the precise fonnat that All legal research begins with a legal problem and ends with a solution or
law students and lawyers see day in and day out. conclusion about how the law applies to that problem. The complete process of
legal research involves tasks that can be translated into the FILAC five-step
• It is the fonnat used by judges when writing legal cases (see Appendix approach to legal research:
9A: Anatomy of a Judicial Decision).
• It is the fonnat used when students write their legal memoranda (see
Appendix I IA: Sample Memorandum of Law).
It is the format used by lawyers in writing client letters (see Appendix
11 B: Sample Opinion Letter).
1 Maureen FilZgcrald & Suson Barker, The Ultimate Gulde to Canadian legal Research, 4th ed.
(Toronto: Lexis Nexis Cnnada, 2019).
4 Legal Problem Solving Chapter I: The Legal Problem Solving Process
5

Step I: Facts - Analyze the facts. should be planned and the results of the search should be recorded, as the research
Step 2: Issues - Detennine the legal issues. process sometimes extends over weeks or months.
Step 3: Law- Find the relevant law.
Step 4: Analysis - Analyze the law and apply it to the facts.
Step 5: Communication - Communicate the results of the research. AN EXAMPLE OF THE PROBLEM SOLVING PROCESS
These five steps overlap and are repeated over and over as a researcher The following is a simplified example of the five steps of the legal problem
begins to solve a legal problem. For example, a researcher will analyze the facts solving process.
initially but will continue to hone the facts as the research continues. Each of the
steps is revisited periodically as the research evolves.
The following is a brief description of each step. Fact Pattern

Step l: Analyze the facts - Each new legal problem will have aspects to it that Dear Law Student,
are totally foreign to the legal researcher. The first task, therefore, is to make
some sense of the problem by gathering the necessary facts and separating the I am a security guard at a toy store downtown. About a week ago, after
legally relevant facts from the irrelevant ones. This is called factual analysis. carefully checking the store, I inadvertently locked a small boy (Sam) in a
closet. He had been hiding and I did not see or hear him. The next day the boy
Step 2: Determine the legal Issues - After the facts have been analyzed, the was found unharmed but his parents are threatening to sue me (and the toy
next step is to identify the legal issues raised by the facts. This involves store) for false imprisonment. I had no intention to confine the boy and I have
detennining the legal questions that need to be examined. This is called issue no money to hire a lawyer. I would like to know if the boy's parents have a
determination and requires reading about the law generally. basis for their threatened suit and what I should do.
Step 3: Find the relevant law - After the legal issues have been identified, the Signed,
researcher should visit the library or use online resources or the Internet to Ms Sally Safety (Security Guard)
locate the relevant cases, statutes and other legal sources. In order to do this, the
researcher must have a basic understanding of what the law is and where it is
located. The majority of research time is spent at this stage.
THE FILAC PROCESS
Step 4: Analyze the law and apply It to the facts - Analyzing the law
involves reading the relevant law, synthesizing it and applying it to the facts. Facts: The relevant facts are that Ms. Safety inadvertently locked Sam inside a
Some refer to this step as thinking like a lawyer, legal reasoning or legal store. His parents suggest that this is false imprisonment.
analysis.
Issues: After reading about the law you decide that the legal question to be
Step S: Communicate the results of the research - The last step involves answered is: was the inadvertent locking of Sam in the store false
communicating the results of the research to the person in need of the research, imprisonment?
such as clients, judges or other lawyers. The results must be communicated
either orally or in writing and must be understandable, accurate, clear and Law: You search the law library and electronic materials and find that there are
concise. This communication usually takes the fonn of a memorandum of law or no statutes that describe the law of false imprisonment, but there are a number of
an opinion letter. cases. You read these cases and synthesize them. See the example below.
The researcher should continually review each of the above steps and Analysis: After reading the relevant cases, a researcher mifht synthesize this
confinn the results of each as the law and the problem become clearer. Although part of the law into a statement that reads something like this:
the research process has been divided into five steps, it must be emphasized that
the process is an art as opposed to a science. Researchers should feel free to
develop their own techniques in addition to the basics learned here.
In the FILAC model, as with any research model, the researcher must be
systematic. Research should never be approached in an ad hoc way. Each step ,
This is only on c,mmple and should not be considered on accurate statement oflhc low.
6 Legal Problem Solving

To be found guilty of false imprisonment, the person imprisoning the other

must have been aware of the imprisonment. If there is no intent to imprison
Appendix 1 A: The Legal Problem
there cannot be false imprisonment. Solving Process (FILAC)
Applying this law to the facts, it is likely that because Ms. Safety was not aware
of the boy hiding in the store, she had no intent to imprison and therefore I ikely
cannot be said to have falsely imprisoned Sam.

Communication: You can tell your client that it is unlikely that her inadvertent
locking of Sam in the store would be considered to be false imprisonment.

SELF TEST
The following is a self test based on the information provided in this chapter.
The answers to these questions, and the answers to all the other self test
questions at the end of each chapter, are found at the end of the book in the
"Answers to Self Tests" section.

I. What is the five-step process of legal research?

2. What is factual analysis?
3. What is issue detennination?
4. What is legal analysis?