Liddle, M --- "The Varied Landscape of Legal Problem Solving" [2004] LegEdDig 29; (2004) 12(4) Legal Education Digest 17

The Varied Landscape of Legal Problem Solving

M Liddle

[2004] LegEdDig 29; (2004) 12(4) Legal Education Digest 17

38 Law Teacher 1, 2004, pp 55–79

In Hong Kong, law has traditionally been seen as a hard subject to learn because students, who generally perform well in assignments or examinations for other subjects, perform poorly in law modules, despite hard work and effort on the part of the student. This has created a conundrum for tutors and students. Students’ failure to do well in law can be traced to the nature of legal problem solving and students’ inability to understand the problem’s breadth and depth. Inexperience in understanding the nature of a legal problem and the legal problem-solving process means that many students have difficulty in problem solving effectively. Without an appropriate problem-solving strategy students are hampered in demonstrating their understanding of legal principles.

The linchpin of legal problem solving can be summed up in the following six stages: the ability to identify (1) the legal issues raised by the facts; (2) find the relevant law; (3) apply the law to the facts of the problem appropriately; (4) develop a cogent and persuasive argument to justify the particular application of law to facts; (5) reach a conclusion; and (6) check that each of the previous five stages have been completed. The combination of these stages creates a template for an effective problem solving strategy.

The Problem Based Learning (PBL) process consists of the following stages: (1) encountering the problem in a real-life setting; (2) problem solving by engaging in clinical reasoning skills; (3) identifying learning needs as a guide to self-study; (4) applying the newly gained knowledge to the problem; (5) summarising what has been learned; and (6) self-integration of knowledge and skills. Students acquire legal knowledge and problem solving skills as they move through these stages.

The PBL process is an interactive one which uses small group learning to encourage and initiate students into how to interact with the problem with which they have been presented. Students analyse the problem individually and then as a group. The skills learnt in the PBL small groups are integral to the legal problem solving process.

This study was conducted to explore the strategies employed by students when answering a legal problem. The students were then asked to fill in a form stating whether or not they would be willing to participate in two interviews to take place at the beginning of the course and after completion of the eight weeks of PBL. This study sought to identify the qualitatively different ways that surface and deep-learners use to solve a legal problem.

In this study the participants are the experiencing individuals and the PBL problems and intervention are the phenomena they experience. The student cohort for this investigation comprised 45 final-year students enrolled in an Applied Legal Studies course, which is taught in the first semester of the student’s final year of study, with the language of instruction being English.

The first four weeks of the course are taught traditionally with one hour of lecture and one hour of seminar activities. The following eight weeks incorporate PBL modified for the discipline of law. Assessment for the course is based entirely on problem solving. During the first PBL lecture students are introduced to PBL and presented with the first problem statement. The following seven lectures are subject discipline-based. Throughout the PBL intervention students were not explicitly taught how to solve a legal problem. However, the course reading list included several books and articles on legal research and legal problem solving.

Eight students, four surface learners and four deep learners, were interviewed one on one at the beginning of the course and at the end of the eight weeks of PBL. During the interview, the interviewer acted as facilitator and interjected at appropriate points in the problem solving process to probe and draw out useful information on how, and why, students were responding in a particular way to the problem. This allowed students to repudiate or affirm their problem solving. The transcribed interview data of students verbally working through these negligence problems were analysed by the author: first, to determine the steps students employed when solving a legal problem; and second, to consider the differences, if any, in problem solving between students with different learning approaches. This study found that surface and deep learners employed four qualitatively different problem solving strategies when verbally working through a legal problem. These strategies appear to be different levels of problem solving and are progressive.

Students using the Insular Strategy hurried through the reading of the problem. This strategy is an example of surface learning, employing lower cognitive skills. There is little interaction with the problem which students considered as a whole. There was little interaction with the problem in the sense of breaking it down into sub-categories of parties, actions, relevant law and remedies. Consequently, problem closure was quick. Students were also unable to recognise key facts. They did not question the factual information provided or explore beyond the stated facts. Although students relied on their common sense, they were not able to integrate knowledge from other disciplines to create depth to their answer nor could they generate a range of solutions. Students were unwilling or unable to check their answer or reflect on how they solved the problem. This resulted in a weak and unfocused legal argument.

The Conical Strategy appears to be an extension of the Insular Strategy, and represents a combination of both surface and deep learning. A fundamental characteristic of this strategy is that students begin by considering the problem from a broad perspective and are able to identify a number of potential parties and issues. Unfortunately, the students were either unable or unwilling to consider the interrelationship of the parties and the issues they had identified.

The Integrated Non-Reflective Strategy is characteristic of deep learning. Students adopting this strategy broke down the problem into its component parts of people, actions, legal issues and law, but neglected to discuss the plaintiff’s remedies in depth. In the first interview students using this strategy understood the breadth of the problem. This strategy enabled students to go back to the facts of the problem to see if the facts, the law, and the relationships matched. Where there was a mismatch, students took time to consider if they had all the information needed to solve the problem. If information was missing, students considered how best to obtain it. However, students failed to reconsider and check that all the elements of negligence had been discussed, and whether or not particular issues such as contributory negligence, res ipsa loquitur and calculus of risk applied.

The Integrated Reflective Strategy is only used by students in the post-PBL interviews and is highly associated with deep learning, as exemplified in Bloom’s higher level cognitive skills or analysis, synthesis and evaluation. Unlike the Conical Strategy, students did not limit their solution to one party but systematically worked through the facts and law as they applied to each of the parties, drawing out the interrelationships. Students are able to integrate the actions to be taken by the parties with the legal outcome and substantiate their conclusion by integrating legal principles, legislation, case law and evidence. Unlike the Integrated Non-Reflective Strategy, students were able to go back through their problem solving process to check for errors in problem solving, the hypotheses, the law and the application of the law to the facts of the problem.

The analysis of students’ problem solving strategies revealed four points of interest: (1) only three out of the eight interviewees entered the law course with the Insular Strategy, which is the lowest level of problem solving strategy identified in this study; (2) one student remained entangled in the Insular Problem-solving Strategy; (3) by the second interview there was a clear progression in the problem solving strategies employed by seven out of eight student interviewees; and (4) the highest level of problem-solving strategy identified was the Integrated Reflective strategy which only appears in the second interview which follows student exposure to PBL.

The findings of the study include that all students enter legal study with the same level of problem solving strategies. However, they also show that, while students with different learning approaches employ different learning strategies and cognitive skills at the outset of study, improvement in the problem solving strategies and cognitive skills of both surface and deep learners is attainable. There appears to be a contrast between how deep and surface learners perceive a legal problem, which impacts on problem solution. Finally, the Integrated Reflective Strategy is the most sophisticated of the four problem solving strategies identified. The fact that it was only present in the second interviews which took place after student’s exposure to PBL is encouraging for proponents of PBL.