Step 7.3 Decide whether each element is present, absent, or an issue

Check each element and ingredient against all the facts. Describe each element or ingredient as follows.

sketch SKETCH

  • Present
  • Absent
  • An issue (in other words, arguments exist both ways)219

Table 62: 'Present, Absent, An issue' method

Several reasons might cause doubt about whether your facts satisfy the element or ingredient, such as:

  • the different facts of your client's case to other cases
  • factual and evidential disputes
  • ambiguous meaning of the relevant concept or statutory provision
  • conflicting precedents
  • no binding authority at all220

Whatever the cause, where you cannot say for sure that the law covers the facts of your problem, you have identified the issues in the case. You will now use Steps 8, 9, and 10 to help you persuade the judge to resolve those issues in your favor.

219 See HFM Crombag et al, 'On Solving Legal Problems' (1975) 27 Journal of Legal Education168, 188 (noting 3 possible answers to whether a condition is met: 'yes' (+), 'no' (-), and 'unclear' (?)) and Christopher S Enright, Studying Law (3rd ed, 1989) 472.

220 For a detailed list, see Christopher S Enright, Studying Law (3rd ed, 1989), chapter 17.

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