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Bar Exam Techniques 1011

Lesson: Issue Spotting and Question Design Dissection2

Atty. Ahmedsiddique B. Dalam3


Presenter

Introduction
For the most part, essay questions in the Bar Exam, and substantially applied in
Law School Exams primarily deals with the approach known as “issue spotting”, and
its higher form “question design dissection”. Knowing these approaches
significantly increases the chances of an examinee to succeed in the said exams.
Among law students, understanding these principles at an early stage will definitely
affect the comprehension efficiency in studying law subjects. As to how the same
affect4 law students and bar candidates, will be discussed thoroughly later on.

Issue Spotting and Question Design Dissection as techniques, caveat.


These techniques are applicable only to hypothetical essay questions designed for
factual analysis and legal resolution based on pertinent legal principles. Objective
type questions do not necessarily require these techniques for the simple reason
that said questions require only on the spot statement of law being required.
Therefore, “true or false” questions, typical enumeration questions, and similar
objective type questions do not require the application of these techniques.

The concepts of “Issue Spotting”, “issue”, and “topic”.


Issue-spotting can be termed as “the minimal knowledge of determining the topic
upon which a question is based”. This implies the knowledge or the competence to
identify the “topic” upon which a legal query is premised. “Topic”, on the other
hand, refers to any legal principle, pertinent legal provision, or any subject matter
which has something to do with laws, including jurisprudence explaining a legal
principle, and thus, may verily be a subject matter of a legal query. As such, the
term topic may include a particular discussion. For example, in Civil law, particularly
in Persons and Family Relations, the concept of “psychological incapacity” may very
well become a topic. A source of legal query. Other legal principles such as
“marriage”, “void marriages”, “voidable marriages” are also considered as “topic”.
In criminal law, general principles on “conspiracy”, “stages of execution”, “intent”,
and “motive” are considered “topics”.

1
Taken from “Law Student Weekend Tablework: A Scientific Approach in Answering Legal Queries”.
2
This is a copyrighted piece. Any unlawful reproduction or publication of this work under the pertinent laws on
Intellectual Rights will be dealt with accordingly. As such, no part or portion of this work may be so reproduced or
published without the consent or proper citation of the creator, in accordance with pertinent laws.
3
Dati law student, Ninja na ngayon! Hihi.
4
See page 3 of this work under the subtitle “Importance of Identifying the topic”.

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“Issue” on the other hand, is the statement of the problem presented in the
question that must be answered as legally sound as much as possible. Issue may be
presented as “Whether or not the accused committed the crime”, “Whether or not
conspiracy is applicable in the given problem”, among others.

Simply put, every discussion on a particular subject matter which has something to
with the application of law can be considered as “topic”. Accordingly, the process
of determining the “topic” necessarily involves the application of the knowledge on
“issue spotting”. “Issue spotting” is the process, and the end goal of that process is
determining the “issue”. The “topic” is important because it leads to the
determination of “issue”, which is necessary in organizing a structurally sound
proposition, sometimes known as “legal claim”. Thus, the process of issue spotting
may be well interpreted as:

Identification of Identification of
“topic” “issue”

Logically and scientifically


sound legal claim which
should support a logical
and scientific answer.

To illustrate:

“Abe, married to Liza, contracted another marriage with Connie in


Singapore. Thereafter, Abe and Connie returned to the Philippines and lived as
husband and wife in the hometown of Abe in Calamba, Laguna.
xxx
1) Can Abe be prosecuted for bigamy?
x x x”
(1994 Bar Exam Question, Criminal Law)

Looking at the question, if you say that the topic in the problem is “bigamy”,
then sorry but you must consider practicing more. To be sure, the question has
something to do with bigamy, but the “topic” is about “general characteristics of
criminal law system under Philippine legal system” to be particular, the topic
really is “territoriality”, the said topic is under the discussions for characteristics of
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criminal law system, as already mentioned. Another bar exam problem is called for,
let’s try to identify the topic.

“A and B, both store janitors, planned to kill their employer C at midnight


and take the money kept in the cash register. A and B together drew the sketch
of the store, where they knew C would be sleeping, and planned the sequence of
their attack. Shortly before midnight, A and B were ready to carry out the plan.
When A was about to lift C's mosquito net to thrust his dagger, a police car with
sirens blaring passed by. Scared, B ran out of the store and fled, while A went on
to stab C to death, put the money in the bag, and ran outside to look for B. The
latter was nowhere in sight. Unknown to him, B had already left the place. What
was the participation and corresponding criminal liability of each, if any?
Reasons.” (2005 Bar Exam Question, Criminal Law)

In this question, the topic is about conspiracy. Necessarily, the answer must
have something to do with application of principles under the topic “conspiracy”
which is discussed thoroughly under Article 8 of the Revised Penal Code. Let’s take
a look at another example.

“The employees of the Philippine Tobacco Administration (PTA) sued to


recover overtime pay. In resisting such claim, the PTA theorized that it is
performing governmental functions. Decide and explain”. (1999 Bar Exam,
Political Law).

Assuming you happen to read the case of Philippine Viriginia Tobacco vs.
Court of Industrial Relations, 65 SCRA 416, then definitely, you know the nuances
of this question. However, in case you did not check this jurisprudence, and it
happens this was asked in your examination or Bar exam for that matter, then the
good starting point to design your answer scientifically as possible is to consider
identifying the topic. The part of the question which sates “In resisting such claim,
PTA theorized that it is performing governmental functions” will give an idea as to
what the topic in the present case is. Basically, the question has something to do
with the State’s claim of exemption from liability. Under Political Law, a State’s
obligation may arise from sources which are either enforceable judicially or
enforceable extrajudicially, typical of which are those contractual in nature, and
those arising from torts or negligence of its agents which may be claimed before
Commission on Audit. One way a State may exempt itself from satisfying said
obligations is by way of claiming “State Immunity”. Exactly, this is the case in the
present problem. The topic here is the principle of “State Immunity”. Given this
matter, again, it necessarily follows that your answer for this question must have
something to do with the principle of state immunity.

Importance of Identifying the topic.


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Issue spotting’s main goal is to determine the “issue”. In the beginning, one must
understand that other than simplifying the process of determining the answer in
an given legal query, the more apparent advantage of this aptitude in this
technique is that, as already mentioned, the answer in a legal query is structured
and logical. The deduction made to conclude that the resolution to a particular
query should lead to a particular legal principle not only simplifies the answer, it
also makes it scientific and well thought. This in turn presents the examinee as one
capable of organizational skills, which is an essential tool for every soul desiring to
become a legal ninja.

Issue, the end product; the “almost” ultimate weapon.


Let’s go back to the first problem we identified, to wit:

“Abe, married to Liza, contracted another marriage with Connie in


Singapore. Thereafter, Abe and Connie returned to the Philippines and lived as
husband and wife in the hometown of Abe in Calamba, Laguna.
xxx
1) Can Abe be prosecuted for bigamy?
x x x”
(1994 Bar Exam Question, Criminal Law)

You have now the necessary tool to go hand in hand with this question. Now,
common tendency of one answering above-mentioned legal query is to formulate
an “issue”, in this case, the immediate issue that would come to mind is “Whether
or not Abe committed the crime of bigamy”. First, following our discussion, you
know by now that this a fatal mistake. First, the process did not start with
identification of “topic”. As already mentioned, identifying the topic is essential in
structuring the most sound and scientific issue. Jumping the gun and committing
to determine the issue without first identifying the topic will lead to a convoluted,
if not totally absurd legal position, in turn, leads to weak legal claim. This will lead
to a weak answer for a law school examination, much more in the Bar examination.
For sure, shallow issue leads to shallow legal proposition. We want to avoid that as
much as possible.

As mentioned above, the topic in this problem is about “territoriality”. Since we


identified that topic in this query is territoriality, it necessarily follows that the issue
is not entirely premised on “whether or not Abe committed the crime of bigamy.”
Considering that the topic is about “territoriality”, then it is submitted that the
logical conclusion is that the issue must have something to do with the capacity of
our courts to take cognizance of the case of Abe, in this case, a possible liability for
bigamy. Since territoriality has something to do with jurisdiction of our courts to
try and hear a case, therefore, the issue must be structured in this premise. As such,
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the issue should be: “Whether or not Abe could be tried for bigamy in our courts”.
Between “Whether or not Abe committed the crime of bigamy” and “Whether or
not Abe could be tried for bigamy in our courts”, it is believed that the latter
promotes a better avenue for a more sound and responsive answer to the legal
query. True enough, the suggested answer in the said Bar question is;

“No, Abe may not be prosecuted for bigamy since the bigamous marriage
was contracted or solemnized in Singapore, hence such violation is not one of
those where the Revised Penal Code, under Art. 2 thereof, may be applied
extraterritorially. The general rule on territoriality of criminal law governs the
situation.”

Again, between “Whether or not Abe committed the crime of bigamy” and
“Whether or not Abe could be tried for bigamy in our courts” as issues, which one
do you believe will promote and encourage a sounder answer? One which would
lead the suggested answer above mentioned?

Bro tip:
It is suggested that the skill of issue spotting must be
developed at an earlier stage. Indeed, there is virtue
in the proverbial that “The earlier, the better!” 😊

Ability to determine topic.


There is only bulletproof way of mastering the ability to identify the topic in a
particular legal query. That is by extensive and repetitive reading law textbooks and
legal references, such as jurisprudence. Consistent immersing and encountering
legal principles and provisions, including their application is the only way one will
acquire the aptitude to identify the topic in a legal query. After all, DILIGENCE is
POWER!

Exercises:
Exercise I. For this exercise, kindly identify the “issues” for the questions below.
Start with the statement “Whether or not” and then proceed with the best possible
issue you can think of:

A. A and B, both store janitors, planned to kill their employer C at midnight and
take the money kept in the cash register. A and B together drew the sketch of the
store, where they knew C would be sleeping, and planned the sequence of their
attack. Shortly before midnight, A and B were ready to carry out the plan. When
A was about to lift C's mosquito net to thrust his dagger, a police car with sirens
blaring passed by. Scared, B ran out of the store and fled, while A went on to stab
C to death, put the money in the bag, and ran outside to look for B. The latter was
nowhere in sight. Unknown to him, B had already left the place. What was the
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participation and corresponding criminal liability of each, if any? Reasons. (2005
Bar Exam Question, Criminal Law)

Topic: Conspiracy.
Issue:______________________________________________________________
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
.

B. The employees of the Philippine Tobacco Administration (PTA) sued to recover


overtime pay. In resisting such claim, the PTA theorized that it is performing
governmental functions. Decide and explain. (1999 Bar Exam, Political Law).

Topic: State Immunity

Issue:______________________________________________________________
___________________________________________________________________
__________________________________________________.

Exercise II. For this exercise, identify both the topic and the issue using the process
of issue spotting.

A. Rafael, Carlos and Joseph were accused of murder before the Regional Trial
Court of Manila. Accused Joseph turned state witness against his co-accused
Rafael and Carlos, and was accordingly discharged from the information. Among
the evidence presented by the prosecution was an extrajudicial confession made
by Joseph during the custodial Investigation, implicating Rafael and Carlos who,
he said, together with him (Joseph), committed the crime. The extrajudicial
confession was executed without the assistance of counsel.

Topic:_____________.

Issue:______________________________________________________________
___________________________________________________________________
______________________________________________________________.

B. John, an eight-year old boy, is fond of watching the television program "Zeo
Rangers." One evening while he was engrossed watching his favorite television
show, Petra, a maid changed the channel to enable her to watch "Home Along
the Riles." This enraged John who got his father's revolver, and without warning,
shot Petra at the back of her head causing her instantaneous death. Is John
criminally liable?

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Topic:_________________.
Issue:______________________________________________________________
___________________________________________________________________
___________________________.

(Next discussion: Question Design Dissection. The way of the Mighty and the
Bold)

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