Using the Law Class to Teach Problem-Solving and Writing Skills

Problem solving and writing skills are vital to an understanding of the law and how it applies to situations arising in the construction industry. The law class can be used to teach both skills. This paper presents a process for teaching students how to make a legal argument supported by premises. It also outlines a method to use in preparing a complete stand-alone paper containing the argument. The Appendix contains a set of three in-class assignments which can be used to teach the problem-solving skill, and begin working on the writing skill.

                    Keywords: writing, analytical thinking, education, construction law

Introduction

Problem solving, also called analytical thinking, is one of the most important aspects of the law class. That is, requiring students to solve legal problems or hypotheticals, as they are more commonly called in law classes, is extremely important to gaining an understanding of the law. Another important skill to be learned by college students is writing. (Ray, 1998). Both can be effectively combined in the law class. By teaching students how to solve a legal problem, and then requiring them to write out the solution, they will gain practice in both problem solving and writing.

Learning how to solve a legal problem will give the student experience in solving any problem based upon a fundamental law or principle. For example assume the problem is overpopulation. The fundamental principle to be applied is: populations grow or decline through a combination of the birth rate, the death rate and migration. Different factual scenarios can then be analyzed, using this rule, to determine how to solve overpopulation.

Taking a management example assume the problem or issue to be solved is how to motivate employees. One rule or principle that could be used in developing a solution to the problem is the theory of Maslow’s Hierarchy of Needs. Under that theory a person will strive to reach the next level of need. The problem solver then needs to determine what level the employees are at, and set goals geared toward the next higher level. Just as in the law, other principles could be used instead of this one. For example, Herzberg’s Motivation/Hygiene Theory is used as the principle from which solutions will be derived, a different solution to the problem will be produced. This is exactly what happens in the law – different solutions are reached depending on the law used.

Argumentation/Analysis

In order to solve a legal problem it is necessary for the student to prepare an argument in support of a conclusion. In law school this process is usually called analysis, however this term seems to be confusing to students. By using the term argument, a term with which most students are familiar, students can more easily and quickly grasp the concept being presented, that is how to come to a legal conclusion given a particular set of facts.

To prepare an argument students must have a basic understanding of logic, the science that evaluates arguments. A small amount of time should be spent reviewing fallacious arguments such as "appeal to pity", "begging the question", and "attacking the person". Many students find this very interesting and it has proved effective in preventing students from using these types of arguments later when they are trying to support a legal conclusion.

Though familiar with arguments and the concept of arguing, many students do not have a clear understanding of what an argument is, and certainly will have trouble preparing one. They will need practice in recognizing arguments.

In a very general and basic sense, an argument is a passage or discussion purporting to prove something. An argument is composed of a premise or a set of premises used to support some conclusion. Many kinds of premises exist: rules, facts, opinions, and evidence can be used as premises. An argument may be good, bad, logical, illogical, valid or invalid depending on the premises. Not all passages are arguments. Some are merely statements or information. If the passage does not try to prove anything, the passage is not an argument. Generally there is insufficient time to study these concepts in much detail and at most the students can be introduced to some basic concepts of logic.

This definition of argument is specialized to the science of logic, and should not be confused with a more common meaning. In everyday life the term "argument" is frequently used to mean a highly emotional interaction or emotional exchange between two or more people. The term "argument" may be used to describe a situation where one person tries to dominate another through the use of emotions such as fear or anger. However, for the purposes of the science of logic and problem solving an argument is defined as a passage or discussion composed of premises, used to support a conclusion.

In addition to the premises and conclusion, every argument contains an issue, though most arguments assume the reader will recognize the issue from the passage. Most arguments do not contain a sentence stating, "This issue here is…". Students often find it difficult to define the issue being discussed and to tell the difference between the premises of the argument and the conclusion. Practice is necessary.

It is often best to start with non-legal arguments. Students usually have some familiarity with these. This also has the advantage of being able to relate something new to something already known. Here is a sample of an argument that might be given to a student to analyze, that is to determine the issue, premises and conclusion:

"…If a work plan falls behind schedule, the standard reaction is to somehow increase the production effort in order to get back on schedule. When the production effort is increased, accidents have an increased chance of occurrence. That effect demonstrates the need for the work to progress smoothly and in an organized fashion so that the scheduled work activities take place as planned With the many different tasks involved in most construction projects and with the large number of subcontractors that participate in the construction effort, it is clear that a great deal of coordination is required to deliver project in the specified period of time." Hinze, Jimmie W., Construction Safety, Prentice Hall, 1997, p. 283.

 

The issue being discussed here is: Is coordination of the construction project important to safety on the project?

This argument is trying to convince the reader to believe the following, which is the conclusion of the argument:

Coordination and planning of the work are necessary for a safe project.

The premises of the argument can be stated as follows:

If a work plan falls behind schedule, the standard reaction is to somehow increase the production effort in order to get back on schedule.

When the production effort is increased, accidents have an increased chance of occurrence.

The following argument comes from the A Guide to Successful Construction – Effective Contract Administration, Arthur O’Leary, 1997. BNI Building News, p. 3:

In recent years, informed opinion has reverted once again to favor the architect’s traditional role of monitoring the construction contract. This has several advantages which outweigh the disadvantages. With the architect more intimately involved in the conversion from drawings and specifications to physical reality, there is a greater chance of preventing contractor misconceptions and misinterpretations in a timely manner. It also affords the architect an opportunity to correct errors and anomalies in the documents before the construction progress makes them impossible, impractical or too costly to rectify.

The issue being discussed here is: Should the architect monitor the construction contract?

This argument is trying to convince the reader to believe the following, which is the conclusion of the argument:

The architect should monitor the construction contract.

The premises of the argument can be stated as follows:

Though there are disadvantages to the architect monitoring the construction contract, there are more advantages.

The architect can prevent contractor misconceptions and misinterpretations in a timely manner.

The architect can detect errors in the documents before the construction progress makes them impossible, impractical or too costly to rectify.

Students often have trouble recognizing and analyzing arguments. The following exercise gives them practice in this skill, plus gives them practice in using the internet to find information:

1. Using the Internet, find two arguments from books, magazines, newspaper articles, etc. A good source of arguments are: letters to the editor, editorials, political commentary. These arguments DO NOT have to be related to the construction industry or even law, though you will be making legal arguments in the future. Attach a copy of the argument to your return memo.

For each argument, answer the following questions:

a. What is the issue being discussed by the argument?

b. What is the argument trying to convince you to believe? In other words, what is the conclusion of the argument?

c. What are the premises of the argument?

Legal Argumentation

Once the students have reviewed arguments in general, the concept of the legal argument can be introduced. Legal argumentation, which can also be called legal analysis, is merely a specialized form of argumentation using facts and law in the premises of the argument.

Facts

When confronted with a legal argument it is not uncommon for students to have difficulty determining the difference between facts, rules, issues and conclusions. It takes practice. In general a fact will answer a question such as:

Who are the people involved in this claim?

What happened?

Where did it happen?

Why did it happen?

How much did it cost to fix?

What does the contract say?

Notice the contract is a fact, not a rule or law. This is because the law does not uphold every provision of the contract and therefore no legal conclusion can be reached merely by referring to the contract. In order to uphold a provision of a contract in a court of law, a law must be found that will support the contract provision. Of course the basic premise of contract law is: A party must uphold its contract. This premise can be used to support any contractual provision, unless another, more specialized rule contradicts it. A special rule will prevail over the general rule.

Another concept related to facts which causes some confusion is the concept of proof. In a court of law no fact can be used to support a legal conclusion unless it is proved by admissible evidence. For example the contract is ‘proved’ by admitting into evidence the contract or by testimony of the parties if the contract is oral. For purposes of most classes the students must be told all facts given are assumed to be proved, unless specifically told otherwise.

The issue is what the parties are arguing about. Students will occasionally want the issue to be something they want to argue about, rather than what the parties are arguing about.

There are always many, many ways to phrase the issue in any legal problem. In general, the issue can be worded very simply as: Who will win? Note that in legal argumentation or analysis, the issue is always worded as a question, with the conclusion being a short answer to that question. Because it is difficult for students to recognize the issues, at this level of learning the issues are generally given to them.

Here is an example of a hypothetical containing the facts and issue. The issue is pulled out of the hypothetical for the student, and the student is given the rule to apply:

Facts: General contractor submits bid to owner using subcontractor's bid of $100k for the concrete. General is awarded contract. Subcontractor determines it made a mistake, and the actual cost to do the concrete work will be $125k. The subcontractor refuses to do the work for $100K, and the contractor pays the subcontractor $125K because it cannot get anyone else to do the work cheaper.

Issue: Can the subcontractor rescind (revoke) it’s bid without incurring any liability to the general contractor?

Rule #1: A party must honor its contract. (Basic premise of contract law)

Rule #2: "Justice demands that the loss resulting from the subcontractor’s carelessness should fall upon him who was guilty of the error rather than upon the principal contractor who relied in good faith upon the offer that he received." Drennan v. Star Paving Co., 333 P.2d 757 (Cal. 1958).

Most students can come to the correct conclusion in the above problem. Writing out an answer however is the difficulty and the approach to this is discussed below in the section "How to FIRAC."

Premises

Developing the premises of the argument will be difficult for students. Several different types of premises exist. Four will be reviewed here: the Simple Premise, Basic Premise Of Contract Law, Premises Based Upon Opinion and Creative Thinking, a last, Premise Based Upon Lack of Evidence.

Almost every legal argument employs what a type of premises herein termed the "Simple Premise" which consists of the application of a rule to the facts. Only two Simple Premises exist. The first is: Facts = Rule, therefore the Rule applies. The second is: Facts ¹ Rule, therefore the Rule does not apply. For example, an extremely simple argument on the issue of whether a drunk driver hitting a pedestrian is negligent would look like this: Driving while drunk (fact) is unreasonable (rule), and therefore the driver was negligent. Only when the law is entering previously uncharted or new legal territory are these types of premises NOT used. In introductory classes the simple premise should always be used.

In all legal arguments discussing contracts one of the rules or laws applied is ALWAYS the Basic Premise of Contract Law: "A party must honor its contract". All arguments involving contract interpretation start from this basic premise. However, since this basic premise is so fundamental, most authors just assume the readers realize its existence and may not discuss it at all.

Some of the most difficult premises for students to use are Premises Based upon Opinion and Creative Thinking. Unless a legal argument is based upon a case containing exactly the same facts as the one under discussion, any argument must contain the author’s opinion that the facts of this case are similar to the applied case and therefore the applied case does apply. An example of such an opinion premise is in the example below dealing with the Wrights home. Creative thinking arises when the author looks at the facts in a slightly different way to support the result. This is extremely difficult for undergraduate students and is not discussed in this paper.

How to FIRAC

In order to get the argument down on paper a process herein termed FIRAC is used. FIRAC is similar to the process called IRAC (Issue, Rule, Analysis, Conclusion) in law school, but is more effective to quickly teach students how to prepare a well-written stand-alone legal argument. FIRAC stands for Facts, Issue, Rule, Argument and Conclusion. By making sure each of the FIRAC elements is included in the written paper, the student will have a complete, stand-alone document that can be understood by a reader unfamiliar with the situation.

The following hypothetical will be used to illustrate the FIRAC process:

Facts:

A couple of weeks ago your boss at Reveille Contractors informed you that perhaps the company need not pay Best Hardware the outstanding invoice they keep sending. You are told to review the file, assess the problem, do a preliminary legal analysis and make suggestions for how to proceed. You work and work and review the file and you come up with the following facts. You work some more and call some friends and come up the legal issues below. You are now ready to begin drafting the memo in response to your boss’s instructions.

You review the section entitled "How to FIRAC" in your old Construction Law class text before preparing the memo. Your assignment: Prepare a memo to your boss analyzing the legal problems presented by the issues below. Remember your boss does NOT have the facts and issues below – you must include them in your memo. (Note: This introduction emphasizes to the students that what they are given is normally obtained by hard work and also emphasizes the need to prepare a stand-alone document).

Mr. and Mrs. Wright are the owners of a home recently built by Reveille Contractors. The Wrights have a performance/payment bond with Slow Pay Insurance Co. guaranteeing Reveille Contractor’s indebtedness for all "labor and material furnished " in connection with the work. Shortly after the work on the house is completed, Best Hardware sends the Wrights a copy of an invoice for hammers, pliers, and screwdrivers which Best claims were purchased by Reveille for the Wright job, and in fact Reveille did use these items on that job site. Reveille did not, however, pay Best. The Wrights turn the claim over to Slow Pay to pay pursuant to the performance/payment bond.

ISSUE: Is Slow Pay required to pay the invoice of Best pursuant to its bond with the Wrights?

RULE: The surety on a performance bond must pay for all materials and equipment actually consumed in performing a construction contract.

Approach the preparation of the argument using the FIRAC model.

1. Read through the information given at least twice.

2. Fill in the conclusion to be supported. The last paragraph will be built around this word.

Last paragraph: CONCLUSION: No.

Notice this conclusion is a one word answer to the ISSUE: Is Slow Pay required to pay the invoice of Best pursuant to its bond with the Wrights? A "yes" conclusion could also be supported. For learning purposes, it makes no difference which conclusion a student has come to: yes or no. It is only the argument that is important.

3. Determine the legal issues and find the applicable legal Rules. This is always difficult and takes study and practice. In introductory classes the issues and rules are generally given. Toward the end of the class a problem just containing facts could be given to students.

4. Preparing the premises of the argument: Without a doubt preparing an argument will be the most difficult part of the FIRAC for students. Here is a method which helps the students learn how to form Simple Premises. Review the rule. Circle or hi-lite all of the elements or important words in the rule. These words MUST be repeated in the argument section. This cannot be emphasized enough to students. Students want to minimize their writing and feel if something has been given to them the do not have to write it down. They need to realize something has been given to them to use, like a tool. In this example the most important rule words are: materials/equipment, actually consumed.

5. Put each unrelated rule word into its own paragraph. For this problem there will be:

Paragraph discussing: materials/equipment (Note: each item, pliers, hammers and screwdrivers could be discussed in a separate issue, however, to simplify matters all are included in one issue).

Paragraph discussing: actually consumed

Last paragraph: CONCLUSION: No.

Notice an outline of the argument is starting to appear. Presently it has three paragraphs; a paragraph discussing "materials/equipment", another paragraph discussing "actually consumed" and the final paragraph will restate the conclusion.

The entire rule must be completely discussed. Students have a tendency to only discuss parts of the rules, particularly parts of rules that have more than one element. While it is true not all of the facts must be discussed, ALL of the rule must be discussed.

6. Review the facts. Circle or hi-lite all of the facts dealing with the rule words in the argument. Fact words dealing with "material/equipment" in the hypothetical are: hammers, pliers, and screwdrivers. Fact words dealing with "actually consumed are: "Humm, I can’t find "consume" the closest word, or most similar word is "use".

7. Develop the Simple Premises. Copy or paste the above fact words in the paragraphs discussing the rule words. Put an "equal" sign [=] between the fact words and the rule words or a "not equal" [¹ ] sign between them. The outline now looks like this:

Paragraph: FACT WORDS hammers, pliers, and screwdrivers ¹ RULE WORDS: materials/equipment. What is being said is: "hammers, pliers and screwdrivers do not equal materials/equipment" or more simply "facts do not equal rule". Note if you are supporting a "yes" conclusion you must have an equal here: "hammers, pliers and screwdrivers equal materials/equipment" or "facts equal rule".

Repeat the above for each element of the rule. Paragraph: FACT WORDS: use ¹ RULE WORDS: actually consumed. This is stating: "using" something (facts) is not the same as "actually consuming" something, or the facts do not equal the rule.

8. Add an introductory paragraph(s) telling your reader the facts and issue. You may want to include the rule here if it is very complicated. The writer now has an outline containing four paragraphs as follows:

Paragraph #1: Introductory paragraph summarizing facts and telling reader what the issue is.

Paragraph #2: hammers, pliers, and screwdrivers ¹ materials/equipment (rule)

Paragraph #3: use (facts) ¹ actually consumed (rule)

Paragraph #4: Conclusion: No

9. Finally, write out a complete argument using complete sentences and paragraphs. This example has an added sentence discussing the Basic Premise of Contract Law in the final paragraph:

The issue in this case is whether or not Slow Pay must pay for the hammers, pliers and screwdrivers purchased by Reveille Construction for use on the Wrights’ construction project. (Issue). These hammers etc. were supplied by Best Hardware, and used by Reveille on the Wrights project, however, Reveille did not pay Best for them. Best has submitted the invoice to the Wrights for payment. The Wrights have turned over the invoice to Slow Pay, the bonding company, to pay because they have a performance/payment bond with Slow Pay. (Facts).

The law requires Slow Pay to pay for all materials and equipment actually consumed in the project. (Rule). However, hammers, pliers and screwdrivers are not materials or equipment. (Simple premise). In the construction industry materials are such things as paint and wood that are used in a particular construction job and cannot be reused. (Opinion premise). Since the hammers etc. are not material or equipment, Slow Pay does not have to pay for them. (Conclusion).

In addition to paying for materials and equipment, the rule requires Slow Pay to pay for them only if they were "consumed" in the construction. (Repeat of Rule) The facts indicate the hammers etc. were not consumed, but were merely used in the construction. (Simple premise). There is no evidence the hammers were consumed. (Lack of Evidence Premise). Slow Pay is not required to pay for items merely used. (Conclusion).

In this matter Slow Pay is not required to pay Best’s invoice. While it is true a party must generally honor its contract, that rule is not applicable here. (Basic Premise of Contract Law). This is because there is no contract between Slow Pay and the Wrights to pay for hammers and similar items used on the site. The rule requires Slow Pay to pay only for materials/equipment actually consumed. However, in this case Best’s invoice is not for materials nor equipment. Additionally, Best’s invoice is not for items consumed on the Wrights’ project, but only used. (Summary).

Teaching Methodology

Checklist for Arguments

Checklist for Arguments

Once the argument is finished, completing the following checklist is useful:

1. Change the conclusion to the opposite of what was discussed. For example, in the above argument change "no" to "yes". Only a few words should need to be changed to support the opposite conclusion, for example "Hammers and pliers are materials or equipment" and "Use is the same as consume". Does this argument sound unfair, unethical, illogical or immoral? If yes, the original conclusion is probably correct. If no, look more carefully at the original conclusion. Is it the best one?

2. Does the argument stand-alone? That is, can the reader understand what is being said without having to refer to any facts, issues, and rules given to the writer to help complete this problem?

3. What are the premises(s) of the augment? Is there at least one Simple Premise? Will a Premise Based Upon Lack of Evidence help me? If yes, use it.

4. Have the rules been COMPLETELY discussed? Even if a rule, or part of a rule, does not apply, it must be explained to the reader why not.

5. The following words should appear in the writing of a beginning writer: "the issue is..", "the rule is…" "the rule applies because...", "the rule does not apply because...". While it is not necessary for an argument to contain exactly these words, when learning to write an argument, it is a good idea to have them.

Summary

Problem solving, also called analytical thinking, and writing skills are vital to an understanding of the law and how it applies to situations arising in the construction industry. By teaching the students how to solve a legal problem, and then to write it down, they will learn both. In order to solve a legal problem students must understand the concept of an argument and a legal argument. FIRAC is a method that can be used by students to write out a legal argument so that a complete, stand-alone argument is produced. This same method can be used to solve any type of problem in which some guiding principle is the source upon which an issue is to be resolved. For example solutions to the problem of overpopulation can be determined by taking the rule, applying different factual scenarios and coming to a conclusion. The rule is: population grows or declines through the interaction of the birth rate, the death rate and migration. By substituting various factual scenarios into the rule, a plan for controlling population could be developed.

By requiring students to write a complete argument they will learn valuable writing and problem solving skills, skills which will help them in their future employment.

References

Ray, Christopher S. (April 1988) An Action Research Plan for Developing and Implementing Writing Skills in Construction Project Administration. Proceedings of the 34^th Annual Conference of the Associated Schools of Construction.

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