Strategy and written reporting - Applying law to facts and a...

Learning Outcomes

This article outlines strategy and written reporting for applying law to facts and assessing legal merits, including:

• Identifying the client’s objectives and the material facts in a scenario, distinguishing core facts from background detail.
• Translating facts into precise legal issues and constructing the relevant legal framework (rights, causes of action, elements to be proved).
• Applying statute and case law to the material facts using a structured approach (IRAC and charting) and updating sources to ensure accuracy.
• Evaluating legal merits through prediction assessments and credible position assessments, weighing strengths and weaknesses and evidential quality.
• Structuring written analysis and advice logically and concisely, tailored to clients or supervisors, with clear recommendations and next steps.
• Recording advice and reasoning accurately (including costs, risks, and assumptions) in reports, memoranda, or attendance notes.
• Integrating practical considerations (procedure, timing, costs, client priorities) and ethical duties when advising on options.
• Using plain, inclusive English and appropriate definitions; proofreading and checking citations, cross-references, and currency of law.

SQE2 Syllabus

For SQE2, you are required to apply law to material facts and assess legal merits through structured written reporting and strategic advice, with a focus on the following syllabus points:

• Identifying material facts and relevant legal issues in client scenarios and dispute files, including separating substantive and procedural questions.
• Applying statute and case law to specific factual circumstances and ensuring sources are current (updating legislation and checking case treatment).
• Evaluating legal merits, including strengths and weaknesses of parties’ positions, burdens and standards of proof, and evidential gaps.
• Structuring and presenting written legal analysis and advice clearly, concisely, and logically (e.g., IRAC and five-level charting).
• Making reasoned recommendations, advising on options and risks (legal and non-legal), and recording costs information appropriately.
• Recording and presenting legal advice in a form suitable for internal or client reports, with accurate citations and clear next steps.
• Ensuring ethical compliance (duties to the court, confidentiality, conflicts, and honesty) within written reporting and recommendations.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. When assessing the legal merits of a case, what must you identify first: the legal issues or the client's objective?
2. What is a "prediction assessment" in the context of written legal reporting?
3. True or false: You should reach a legal conclusion before evaluating the risks and options with your client.
4. In preparing a written advice, name at least three features that should appear in your answer to receive full marks on the SQE2.

Introduction

Written reporting of legal merits requires a disciplined, client-centred approach: identify the objective, extract material facts, frame precise legal issues, apply current law, and evaluate outcomes before recommending steps. In practice, legal analysis is both informative and persuasive: informative when explaining the law and procedure; persuasive when advising on strategy and options. Examiners expect logic and clarity, but supervisors and clients expect practical, risk-aware advice. Adopt consistent methods for mapping facts to law, assessing merits, and presenting advice that is robust, concise, and actionable.

Key Term: Material Fact
A fact that could affect the application or outcome of the relevant legal rules to the client's situation.

Key Term: Legal Issue
A specific point of law raised by the facts, which must be analysed to advise or resolve the case.

Key Term: IRAC Method
A common structure for legal writing: Issue, Rule, Application, and Conclusion.

Identifying Material Facts and Client Objectives

Start by clarifying the client’s aim, then gather and organise the facts that matter to achieving that aim. Avoid imposing your own assumptions; check authority to instruct, confirm names, dates, and figures, and manage documents methodically. In practice, your fact-gathering should be iterative: new legal points often prompt follow-up questions.

A helpful lens is to distinguish symptoms from causes. Clients often present a symptom (e.g., non-payment, dismissal), but effective advice addresses the root cause (e.g., a defective contract term, procedural unfairness). Mapping both prevents premature conclusions and shapes the legal frame and options.

Key Term: SCOC Model
A framework for problem definition: identify Symptoms and Causes (the problem side), then Outcomes and Constraints (the solution side).

Use active listening techniques and a funnelling approach to gather data efficiently:

• Begin with open, factual invitations (what happened, who was involved).
• Establish context (when, where, what else was occurring).
• Explore mechanics (how and why).
• Confirm with closed questions to crystallise detail.

Avoid over-reliance on detailed checklists during the initial narrative; instead use topic lists that you can flex as the interview unfolds. Note-taking should be concise and structured; prioritise attentive listening during the narrative phase, then record details with headings and accurate verbatim extracts where necessary. Your attendance note must record facts, advice, client decisions, and follow-up steps to preserve a clear audit trail.

Spotting Legal Issues

Translate facts into legal questions with precision. Identify:

• The source of rights or duties (e.g., contract, statute, common law, regulations).
• The cause of action or procedural route (e.g., breach of contract, unfair dismissal, negligence; summary judgment, interim relief).
• The elements that must be proved (ingredients of the claim or defence).
• Procedural considerations (limitation, jurisdiction, track allocation, burden/standard of proof).

Key Term: Charting
A five-level analysis mapping law to facts and evidence: (1) source of rights, (2) cause of action, (3) legal ingredients, (4) propositions of fact, (5) items of evidence.

For instance, in a contractual dispute:

• Level 1: Statutory context (e.g., Sale of Goods Act 1979, Consumer Rights Act 2015).
• Level 2: Cause of action (e.g., breach of implied term).
• Level 3: Elements (existence of contract; term; breach; causation; loss).
• Level 4: Facts supporting each element.
• Level 5: The evidence (contract, delivery records, quality reports, witness statements).

Issue identification is iterative—research may reveal new issues (e.g., misrepresentation, exclusion clauses, statutory uplifts)—and may require revisiting facts. Record your scope and assumptions to avoid drift.

Applying Law to Facts

Once issues are set, apply law to the material facts using IRAC or charting so your reasoning is transparent:

• State the issue precisely.
• Set out the rule with current authority (statutes, leading cases), citing appropriately.
• Apply the rule to each material fact, addressing arguments and counterarguments.
• Conclude clearly and conditionally where appropriate (e.g., subject to further evidence).

Updating law is essential. Use reliable sources for current legislation and case law:

• Legislation: legislation.gov.uk (with caution about consolidation status), and annotated versions on Westlaw or Lexis (check statutory annotations and provision details).
• Case law: Westlaw, Lexis, BAILII; check case treatment (applied, followed, distinguished, disapproved, overruled, reversed).
• Parliamentary materials: refer to Hansard only where statutory meaning is ambiguous and ministerial statements clarify intent (Pepper v Hart principles).
• EU-derived law: confirm current status post-Brexit and check UK implementing changes where relevant.

Key Term: Application
Explaining how the applicable rule or legal principle operates on the specific facts in the scenario.

Key Term: Balance of Probabilities
The civil standard of proof requiring that a fact is more likely than not to be true.

Address evidential strengths and weaknesses: credibility, consistency, documentary support, and potential gaps. Distinguish facts helpful to your client from those that may undermine their position, and flag further evidence needed (e.g., expert opinion, contemporaneous communications). Always tie legal propositions to specific evidence.

Worked Example 1.1

You act for Dana, who loaned £10,000 to Max. Max claims the loan was a gift; Dana insists it was repayable. There is no written contract. You are asked to advise on the prospects of recovery.

Answer:
The absence of a written agreement does not prevent recovery, but Dana must prove there was an intention for the sum to be repaid. The burden is on Dana to establish a loan rather than a gift on the balance of probabilities. Evidence (such as communications or witnesses) supporting her version would increase the chances of success. Practical steps include gathering bank transfer references (e.g., “loan” notation), messages referring to repayment terms or dates, any partial repayments, and witness testimony of the agreement. Consider limitation: for a simple contract, the period is generally six years from the date of breach or from the date repayment fell due. If the loan was repayable on demand, time typically runs from the demand (or when repayment could first be demanded). Absence of strong contemporaneous evidence is the key weakness; early evidence-gathering is essential.

Analysing Legal Merits

Merits assessment goes beyond reciting law and addresses who is likely to succeed and why. Two related tools help structure this:

Key Term: Legal Merits
The likelihood that a party will succeed in a dispute, based on the substantive legal principles and the available facts or evidence.

Key Term: Prediction Assessment
A forward-looking evaluation of how a court or tribunal is likely to resolve identified legal issues on the facts and evidence.

Key Term: Credible Position Assessment
An appraisal of whether an opponent could plausibly maintain an alternative legal position that may generate future conflict or bargaining advantage.

Use prediction assessments to estimate outcomes and remedies (including reductions or uplifts), and credible position assessments to identify risks that need to be neutralised (e.g., undisclosed beneficial interests in conveyancing, potential set-offs, or counterclaims). Evaluate:

• Substantive strength (elements proved or vulnerable).
• Evidential sufficiency and reliability.
• Procedural posture (time limits, track, interim relief viability).
• Non-legal factors (costs, time, disruption, reputational concerns).

Document assumptions, degrees of uncertainty, and the impact of unknowns on your conclusions.

Worked Example 1.2

The client’s dismissal was for alleged misconduct. You identify the key legal issue—whether there was a fair procedure and a reasonable belief in misconduct. The employer followed a process but there is conflicting evidence on what was said.

Answer:
The merits depend on whether the tribunal will find the employer’s process and belief reasonable on the evidence. Weaknesses include lack of written warnings and inconsistent accounts by a key witness for the employer, which you should highlight in your report. In an unfair dismissal claim, the employer must show a potentially fair reason (e.g., misconduct: Employment Rights Act 1996 s.98) and that dismissal was fair in all the circumstances. The Burchell test requires a genuine belief, reasonable grounds for that belief, and reasonable investigation. Procedural fairness (including adherence to the ACAS Code) matters; failure can lead to an uplift in awards. Consider Polkey reductions if procedural defects would not have changed the outcome. Non-legal factors (client’s appetite for reinstatement vs compensation; time to hearing; costs) should inform recommendations.

Structuring Written Legal Analysis

SQE2 expects logically structured writing. A clear report or memo typically:

• Summarises the client’s objective and the core legal issues.
• Addresses each issue using IRAC, with concise citations and targeted application.
• Maps facts and evidence against legal ingredients (use charting for complex files).
• Weighs arguments and counterarguments and explains evidential strengths/weaknesses.
• States a reasoned view on likely outcomes (including scenarios and ranges).
• Advises on options, risks, costs, and next steps with clear action planning.

Numbered headings and subheadings aid clarity; tabulate compound sentences where helpful. Use active voice and plain English, define technical terms briefly, and avoid padding, tautology, and archaic expressions. Proofread and check that cross-references and figures are correct.

Making Recommendations

Advice must be practical and decision-focused. Engage clients in shared decision-making:

• Distinguish “go/no-go” outcome decisions (client-led) from “way to go” process decisions (lawyer-led, but consultative).
• Present options neutrally, with pros/cons, risks (including opponent’s likely moves), costs, and timeframes.
• Consider non-legal constraints (cash flow, business disruption, emotional stress, reputational implications).
• Identify the best alternative to a negotiated agreement (BATNA) and settlement ranges.
• Agree an action plan: steps, responsibilities, dates, resource needs, and contingencies.

When an opponent could maintain a credible position that risks future conflict, recommend protective steps (e.g., confirmations, releases, or interim relief). Be specific about evidence to obtain, procedural applications to consider (e.g., summary judgment, strike-out), and negotiation strategy (cooperative vs competitive style depending on context).

Exam Warning

SQE2 examiners penalise candidates who merely repeat the law or copy large case extracts without linking them to the facts. Always apply the law to the question’s specific scenario.

Recording and Presenting Legal Advice

Written advice must be sufficiently detailed to be actionable and concise enough to be read and understood quickly. Tailor style to the reader:

• For supervisors: include legal authorities, currency checks, and clear recommendations.
• For clients: emphasise plain English explanations, outcomes, options, costs, and next steps; minimise jargon and explain any necessary technical terms.

Adopt the plan–write–revise cycle: plan structure and content, write to your plan, then revise for accuracy, coherence, and tone. Check names, dates, figures, and citations; confirm currency of legislation and case law; read aloud for clarity where feasible.

Costs must be addressed in line with professional conduct obligations. Provide best possible pricing information at engagement and when appropriate as the matter progresses, including likely overall cost, disbursements, and potential exposure to opponent’s costs. Use inclusive language and consistent forms of address; be mindful of sensitivity around protected characteristics.

Key Term: Prediction Assessment
A structured estimate of adjudicative outcome, used to inform recommendations and risk management.

Key Term: Credible Position Assessment
An analysis of plausible adverse positions that may influence negotiation or future conflict, used to pre-empt risk.

Revision Tip When practicing legal writing, use bullet points or tables for clarity, but ensure narrative answers in the exam are presented in structured paragraphs with clear headings.

Key Point Checklist

This article has covered the following key knowledge points:

• A systematic process is needed for applying law to facts and assessing legal merits for SQE2.
• The client’s objective and the material facts must be explicitly stated at the outset.
• Legal issues must be precisely identified before legal principles are applied.
• Use structured methods (IRAC and charting) to map law to facts and evidence.
• Update and verify the law (legislation and cases) before relying on it; check case status and statutory amendments.
• Assess strengths and weaknesses, including factual and evidential aspects affecting legal merits, using prediction and credible position assessments.
• Recommendations should include options, risks, costs, and clear action plans with contingencies.
• Reports must be written in clear, professional language, suitable for clients or supervisors, with accurate citations and consistent style.
• Attendance notes and written advice should record facts, advice, client decisions, and agreed next steps to maintain a robust audit trail.
• Ethical duties (honesty, integrity, client care, conflicts) apply to strategy and written reporting; costs information must be clear and timely.

Key Terms and Concepts

• Material Fact
• Legal Issue
• Application
• Legal Merits
• IRAC Method
• SCOC Model
• Charting
• Balance of Probabilities
• Prediction Assessment
• Credible Position Assessment