Rashad Gray, Attorney at law11

All testable Issues whether factual or legal can be describe within a four level framework Transactional Issue
Theory Issue
Rule Issue
Element Issue
Near Miss Issue
Flowchart


Transactional Basic facts that form the corner stone of all other issues Isolate each transaction or occurrence which, under the call of the question is legally significant
Most exams multi-Transactional
Required to recognize and label each transaction
Absolute condition precedent to demonstrating any level competence
Events or occurrences
Examples:
Separate motions in civil procedure
Distinct pieces of evidence in evidence
Each injury in torts
Every agreement in contract
Multiple parties
Example
Each separate party whose rights or liabilities
Items of property
Example:
Listed item of property
Theory
Arises out of Transactional Issues
Determine what legal theories and concepts are involved in each transaction
Require legal competence
must be creative and well informed
Advanced level of competence "problem-solving" and "judgment" deals with
the capacity to prioritize among these theories
ability to assess likelihood of success
For Issue-spotting sufficient to see the possible application of a theory so that he/she can subject it to further analysis
If a student fails to identify a theory issue, the student also loses the opportunity to demonstrate competency on the sub-issues related to that theory.
Questions to be answered
What Theory or Concept applies
What Cause of Action applies
What Defenses applies
Rule
Arises out of Theory Issues
Determine the rule that must be applied to controversy
What rule or legal proposition must be applied to the controversy
Applicable rule of law
Alternative Rules
Unsettled or first impression = develop a rule
Example
What formulation of the felony murder rule
Questions as to the applicable rule of law are rule issues
Some legal issues have only one possible formulation
Others (felony murder rule) require that student recognize splits among states and alternative rules
Most law school test items directly or indirectly test a student's ability to spot and handle rule issues.
Element
Arises Out of Rule Issues
Determine which elements are met/not met by the facts
Whether the individual elements of the rule are satisfied by the facts.
Each rule can be broken down into operative element
Example
larceny is
trespassory taking
carry away of
personal property
known to be another
with the intent of permanently depriving.
Systematically examine.
May be legal or factual
Example =
carrying away = legal
personal property = legal
intent to permanently deprive = factual
Near Miss Issue
troublesome - teacher wants to see the student discuss possible points of controversy even if it is clear that there is no legitimate basis for dispute:
Example

Burglary - the trespassory breaking and entering of a dwelling in the nighttime with the intent to commit a felony or larceny.
Assume every element present except one, the window was left open
while reasonable attorneys might not raise the issue of burglary,
the savvy law student knows he/she should discuss the issue of burglary and state whey there is none in this case