IDENTIFYING MATERIAL FACTS & LEGAL ISSUES

ASSOCIATE PROFESSOR DR. MAJDAH ZAWAWI

AIKOL
LEARNING OUTCOMES

Upon completing this Lecture, students will be

able to:
▪ Identify material facts of the Moot Problem or any
legal problem that is presented to them;
▪ Extract legal issues that arise from the material
facts;
▪ Design legal issues that are clear and will later
allow them to formulate legal arguments with ease.
READING THE MOOT PROBLEM

PREVIEW •TO GET AN OVERVIEW –READ TITLE & SUMMARY

•READ THROUGH HEAINGS

SKIM •GRASP KEY PARTS OF THE TEXT

•LOOKING
FOR KEY
SCAN WORDS

• DEEP
SCREEN READING
WHEN SCANNING
This time, when you read, there are three things that you must
keep in mind:
▪ Which party you are representing,
▪ What are the material facts, and
▪ What area of law does the question relate to and what legal
issues materializes from the material facts.
SCREENING THE MOOT PROBLEM
At this stage, you have three objectives to meet as your read:
(1) to identify the most important points,
(2) to recognize how they fit together, and
(3) to note how you as a mooter has to respond to them.
IDENTIFYING THE MATERIAL
FACTS
▪ Finding material facts, “… is a process of considering through
what issues of fact a court should take into account when arriving
at a legal conclusion in a case.”
▪ Identify which facts may have a “logical bearing” on both your
client’s legal position and what is the best way to solve this
problem.
▪ By identifying only the material facts, you will be able to
identify the relevant legal issues involved.
HOW TO IDENTIFY MATERIAL FACTS?
1. Using the “what if” method.
▪ This method works by asking what if a fact were to be taken
out, would it change the outcome of the decision given by the
Court?
▪ If the answer is yes, then the fact would be material, but if the
answer is no, then that fact would be immaterial.
Who are the people involved
in the problem?
PARTIES, EVENTS, CLAIMS
What are the parties’ roles in
the problem?
What was the relationship
between the two parties?
The names of the parties, the gender,
the age, unless there is another fact
which would relate this fact to a legal
issue.
What were their jobs or what car they
were driving unless the issue is related
to a situation where there was a need to
identify that a specific type of car which
caused the accident.
The fact that the parties are married but
were having fights would be relevant to
a divorce proceeding but would not be
relevant in a tort case where it was the
husband who had hit the victim.
EVENTS
MATERIAL NOT MATERIAL
What was the cause When did it happen?
of the dispute? Unless it could give
rise to a legal issue.
How did it happen? Where did it happen?
Unless it could give
rise to a legal issue.
CLAIMS
MATERIAL NOT MATERIAL
Which party is complaining? Usually a material fact, because
it gives a background of who is at
fault or involved.

What is the complaint? This is a material fact because it

would directly lead you to the
legal issue.

What are the parties This is also material due to

claiming for? similar reasons above.
REMEMBER!
The examples that are listed here as
material facts are not final and
exhaustive. They may not be applicable
in all types of cases! What is material
and immaterial will very much depends
on the areas of law involved and the
grounds of appeal. There are times when
factors like genders, age, specific type
of cars etc would be relevant.
PERCEPTION & PRESENTATION OF
MATERIAL FACTS
▪ Once you have identified the material facts,
you now have to go about the business of
presenting it in “such a way as to lead the
court to view the controversy from the
viewpoint of your client” .
▪ When you are presenting your material facts,
be it in your written or oral submissions, you
must create the right perception in order to
persuade the judges.
WHAT DO YOU SEE?
WHAT DO YOU SEE?
▪ THOSE WHO SEE 1 IMAGE MOVE TO
THE LEFT SIDE OF THE ROOM;
▪ THOSE WHO SEE 2 IMAGES MOVE TO
THE RIGHT SIDE OF THE ROOM;
▪ THOSE WHO SEE NO IMAGES STAY IN
THE MIDDLE OF THE ROOM.
REMEMBER! CREATE PERCEPTION!

When presenting the material facts of the case to the Court,

remember that you are not expected to regurgitate the
facts exactly as they had been presented in the moot
problem. Be smart, and reword/reconstruct the facts to
your client’s advantage.

Create Perception!
Reconstructing does not however mean that you are adding
new facts or changing the facts available. It is merely a
representation of the facts in a different way.
IDENTIFYING LEGAL ISSUES
▪ WHAT ARE LEGAL ISSUES?
▪ Simply put, legal issues are the legal problems or legal
questions that arise from the material facts.
▪ It is a statement that shows that a particular position can
be argued in one way or another.
▪ This statement is usually characterized with the word
“whether” at the beginning of the statement.
▪ The use of the word “whether” signifies that a particular
position is arguable. This means that the position is still
open to moot.
NEVERTHELESS,

▪in formulating the legal issues, you

will need to know not only the
material facts but also some
knowledge of the area of law in
which the problem is concerned
with.
▪ Frame the issues in a precise way. It is not enough to mention
that the issue is “Whether or not there was a breach of
contract”. That would be too general and it would give a
negative impression on your abilities to recognize the correct
legal issues.
▪ Legal issues are usually presented in the form of a
question that allows two possibilities. Hence, the use of
the word “If” or “Whether” at the beginning of the
sentence. This shows that there are two ways to look at the
problem. However, frame the issues in such a way that the
option favoring your client is emphasized.
▪ For example, the above statement would be the way an
Appellant would be framing their first legal issue.
▪ The Respondent however, would put it slightly differently,
“Whether giving the Respondent’s act of giving one
month’s notice amounted to giving sufficient notice to the
Appellant when they ended the Appellant’s contract of
employment”.
▪ Legal issues need to be formulated in a precise and concise
manner;
1.Be precise – determine your client’s involvement in the
problem.
2.Consider your client’s legal position in the problem.
3.Be concise – choose your words carefully.
1. “Whether the Appellant, Mrs. Chan Ah Tick may be
considered as the legal parent of the child, as she gave birth
to the child.
CONTINUE…
4. Use the active voice when formulating your legal arguments.
Using the active voice allows you to be more direct and
sends a clearer picture to the audience and the judge.
▪ This would later assist you in formulating your legal arguments
later on.

EXAMPLE OF PASSIVE VOICE:

“Whether giving birth to the child could result in the Appellant, Mrs.
Chan Ah Tick to be considered as a legal parent .”
SAMPLE - APPELLANT
▪ Therefore, if you were representing Mrs. Chan as the Appellant,
the possible legal issues would be;
▪ Whether the Appellant, Mrs. Chan Ah Tick may be considered as
the legal parent having care, custody and guardianship over the
child as she has given birth to him.
▪ Whether the Appellant could claim for the amount promised to
her by the Respondents?
SAMPLE RESPONDENT
▪ In the case given above, for example, the Respondents could
possibly raise the following legal issues:
▪ Whether the Respondents may be considered as the legal parents
of the child having care, custody and guardianship over him as
they are the child’s genetic parents.
▪ Whether the Appellant had breached the agreement by refusing
to deliver the child to the Respondents.
▪ Whether the Respondents were legally bound to pay the
Appellant although she had breached the agreement.
REMEMBER!
▪ Remember that the issues that you have identified will
later need to be converted in the form of submissions.
When you frame your issues, it will be in a form of
questions. But when you convert the issues into a
submission, they will be turned into statements, in favour
of your client.
▪ For example, the issue might be ‘whether there is a
contract between the parties?’ i.e. in a form of a question.
However, when you turn it into a submission it will be
either “We submit before this honourable court that there
is a contract between the parties” or “We submit before
this honourable court that there is NO contract between
the parties”
LEGAL ISSUES LEAD TO ANSWERS ON HOW TO GET TO THE
REMEDIES
▪

▪ If you were representing Mrs. Chan as the appellant, which

among the following is the suitable remedy to be claimed to
get her the money promised by the Respondents?
▪ a. Damages
▪ b. Restitution
▪ c. Rectification
▪ d. Specific Performance
THE TASKS FOR EVERY FIRM…
▪ Draft the Notice of Appeal according to the
sample given in the Court of Appeal Rules;
▪ Extract the material facts and list them down
in a chronological order;
▪ Identify the legal errors made by the High
Court judge and list them down;
▪ Extract the Legal Issues arising from these
errors;
▪ All 3 tasks are to be to be presented in class
next week.