These notes include all relevant material tested in the SQE2 Case and Matter Analysis written exam, information on the assessment criteria and objectives, techniques on how to develop CMA skills and mock samples of CMA in each of the practice areas tested in the SQE2 exam.
UNIT 1: CASE AND MATTER ANALYSIS AND THE SQE2 ASSESSMENT
Case and Matter Analysis (CMA) is the scaffold around which you will build the other skills which you are
currently practising as part of your SQE2 course. Most, if not all, of these skills will require you to identify
the issues which need to be addressed; recall the relevant law; apply the law to the facts of the case and come
up with some workable solutions for your client. Having carried out this analysis, you will then go on to draft
a letter or conduct a piece of advocacy for a client. Even though CMA is assessed as a separate skill, it is a
common theme running through SQE2. It will require you to consider your client’s aims; cost effectiveness;
wider ethics and the changing legal landscape. You may also need to advise on negotiation in this context.
Assessment objective: Candidates can demonstrate they are able to produce a written report to a partner
giving a legal analysis of the case and client-focused advice.
Assessment criteria:
Skills:
1. Identify relevant facts.
2. Provide client-focused advice (ie advice which demonstrates an understanding of the problem from the
client’s point of view and what the client wants to achieve, not just from a legal perspective).
3. Use clear, precise, concise and acceptable language.
Application of law:
4. Apply the law correctly to the client’s situation.
5. Apply the law comprehensively to the client’s situation, identifying any ethical and professional conduct
issues and exercising judgement to resolve them honestly and with integrity.
Correct and comprehensive application of the law may include:
Identifying relevant legal principles;
Applying legal principles to factual issues, so as to produce a solution which best addresses a client’s
needs and reflects the client’s commercial or personal circumstances, including as part of a negotiation;
Interpreting, evaluating and applying the results of research;
Ensuring that advice is informed by appropriate legal analysis and identifies the consequences of
different options;
Drafting documents which are legally effective;
Applying understanding, critical thinking and analysis to solve problems;
Assessing information to identify key issues and risks;
Recognising inconsistencies and gaps in information;
Evaluating the quality and reliability of information;
Using multiple sources of information to make effective judgements;
Reaching reasoned decisions supported by relevant evidence.
Although there is no separate assessment called negotiation, all deliveries of SQE2 will contain at least one
assessment involving negotiation. Negotiation may be assessed in either interview and attendance note/legal
analysis and/or case and matter analysis and/or legal writing.
Case and matter analysis:
Case and matter analysis involves analysing facts, setting these in the context of your legal knowledge and
experience, and devise a strategy which meets the client’s needs.
What is required, in legal practice and the SQE2 assessments, is an analysis of the law as it relates to the
client’s particular project (e.g. forming a company) or problem (e.g. challenging a will).
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,It should take into account the client’s circumstances and objectives and produce some workable solutions.
The analysis should explain the pros and cons of the options open to the client, so that they can select most
appropriate one.
It should also reflect the needs and objectives of the other parties, as far as you can discern these.
The SQE 2 assessments:
In the SQE2 Case and Matter Analysis assessments candidates will be required to produce a written report to
a partner giving a legal analysis of the case and providing client-focused advice.
o May include options and strategies for negotiation.
o Questions on ethics and professional conduct will be pervasive
o
Instructions (in the form of a case study with documents) will be provided electronically.
Candidates will have 60 minutes to complete each CMA assessment.
Statement of Solicitor Competence, B3, developing and advising on relevant options, strategies and
solutions, including:
(a) Understanding and assessing a client’s commercial and personal circumstances, their needs, objectives,
priorities and constraints.
(b) Ensuring that advice is informed by appropriate legal and factual analysis and identifies the consequences
of different options.
Practical considerations:
Time management:
One approach is to decide in advance how you are going to organise your time. For example, you might
allocate 20 minutes to reading and planning, 30 minutes to drafting and 10 minutes to checking your work.
Initial read through:
You will be looking for the subject matter (considering a will or a letter of offer, for example) and the
background story.
Then identify the issues you need to address.
The instructions may specify issues you are NOT to consider.
Focus on what you have been asked to advise upon, and the specific issues which arise from your
instructions.
Planning:
Allocate time to mapping out the contents of your written report, before beginning drafting.
Having pinpointed the issues, you might then use bullet points next to each one to pick out the relevant
facts from your instructions and then set out your analysis.
When checking your report, you can use your plan as a tick list, to ensure that you have covered everything.
Providing analysis and advice:
Your written report to the partner must contain both analysis and advice.
For example, simply recommending that the client should try to negotiate settlement up to £75,000 without
further explanation is not sufficient. You will need to ‘show your working’ so that it is clear to the partner
why you have reached the conclusion you have. E.g.:
The client should be willing to negotiate settlement up to £75,000. This represents 65% of the value of her
claim and takes into account a possible reduction for contributory negligence and other risks of litigation.
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, Correspondence from the other side suggests that they are willing to increase their offer from £60,000 so
settlement should be available at this level.
The IRAC model:
Issue Issue (instructions) is the question which arises from your instructions and the case study, and which you
have been asked to address.
Issues in SQE2 may be framed precisely or more generally, where you may need to spot issues of which the
client will be unaware.
Go through the information and establish what is relevant and irrelevant.
What if the information which you are given is incomplete, and you would need instructions from the client
to advise fully on a particular point? You should flag this in your written report. E.g.
(‘To advise fully I will need to know the date upon which the breach of contract occurred’).
In your analysis and conclusion sections you can then consider alternative scenarios (‘If the breach of
contract occurred more than six years ago then x, if not then y...’).
Rule Legal principles which will be used to determine the issue(s).
E.g. if one of the issues in a claim for breach of contract is limitation, the rule you would apply is that the
limitation period in contract is six years from the date of breach. In practice you would usually set out the
source of the rule and identify that the six-year limitation period derives from s 5 of the Limitation Act 1980.
NOT in SQE2: you will not be expected to know or address detail that a Day One solicitor would look up.
e.g. Rylands v Fletcher, CPR Part 36, Section 25 notice = yes
In all other circumstances candidates are not required to recall specific case names, or cite statutory or
regulatory authorities.
Of course, if the materials provided to you in the SQE2 assessments do include legal detail, in the form of a
case or legislation, or an excerpt from a practitioner text, then you would be expected to refer to this.
Application Having identified the relevant issues and legal principles, the next stage of is application (or analysis).
Focus your attention on how the legal principles you have identified apply to the facts of the case study.
Ask yourself: what does this mean for the client? If you find yourself stuck come back to this question.
(A) The facts:
Identify relevant facts —> facts which are important in ensuring that the client’s needs/objectives are met
or are relevant to the legal analysis.
Mention specific facts in written report: need to be precise about the facts to apply the law accurately.
(B) Applying the law to the facts:
Apply the law correctly and comprehensively.
Comprehensive: go further than identify the issues, provide a legally comprehensive analysis of them.
This includes approaching the issues from different angles:
from the client’s point of view
the other side’s point of view
Consider advantages and disadvantages of a course of action.
Ie. Analysing an offer of settlement from the other side, involves a mixture of law and fact:
What is the amount offered as a % of the amount sought in the particulars of claim? (fact)
What are the risks of litigation: is it possible or likely that the client will lose the case? (law)
If the client wins, how likely are they to achieve the sum sought? Are there factors such as
contributory negligence which might reduce the award of damages? (law)
What are the costs consequences of rejecting the offer? (law)
Should the client put forward a counter-offer? (law and fact)
What is the client’s attitude? Risk averse? Anxious about trial? Willing to give evidence? (fact)
= Consider client’s commercial and personal circumstances and their needs, objectives, priorities and
constraints, as required by the SoSC at B3.a.
This is sometimes referred to as a PESTLE analysis, to refer to the political (P), economic (E), social (S),
technological (T), legal (L) and environmental (E) changes that can affect commercial organisations.
Conclusion Pull the threads together and bring your analysis to a conclusion.
You will need to ‘reach reasonable conclusions supported by relevant evidence’.
Common mistake: set out an analysis but fail to round this off with clear recommendations.
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, Client is looking for a solution, or a choice of solutions, tailored to their individual circumstances.
Identify the realistic options available and to set out the consequences of each.
Suggest which option is more appropriate - if applicable.
If you are missing a key piece of info, you can advise on different hypotheses.
Case analysis in dispute resolution:
Analyse evidence at the outset to give the client preliminary advice on liability and quantum and identify
further lines of enquiry.
o The cause of action: breach of contract? negligence?
o The breach: what did the other party do wrong?
o The consequences of breach: what happened as a result of the breach?
o The financial consequences for the client: what loss have they suffered?
This approach reflects the order in which the issues will be pleaded in the particulars of claim in due course.
Where the cause of action is breach of contract, find out the type of contract (oral or written) and whether
there is any dispute about whether a contract was formed at all.
o Check for relevant express terms, implied terms (ie by statute)
Try to anticipate any arguments which the proposed defendant might raise.
o Ie argument that your client failed to mitigate loss, or losses are too remote
Negotiation:
Written report may include options and strategies for negotiation.
Be prepared to provide, as part of your written report, suggestions and recommendations to the partner as to
how they, or the client, might negotiate a favourable outcome.
Negotiation includes:
o identifying all parties’ interests, objectives and limits;
o developing and formulating best options for meeting parties’ objectives; and
o presenting options for compromise persuasively.
** The instructions may indicate the position of the other party —> Is it clear from your instructions that
there is a deadline, an ambition or a commercial pressure which is important to them?
Factor this in so that your proposals are realistic and likely to lead to compromise.
Ethics and professional conduct issues:
Spot ethics issues and resolve them honestly and with integrity, they will not be flagged.
In particular, at the outset of a case you should consider the risk of a conflict of interest.
o Ie two prospective clients whose interests diverge, or prospective client’s interests conflict with those of
an existing client.
o Ie client asks to withhold info form opponent or the court in a way which amounts to a breach of the
SRA Code of Conduct for Solicitors, RELs and RFLs.
If such issues arise —> address them in the written report, unless instructed not to.
Identify issues and recommend how this could be resolved.
The IRAC method can be used here to
o identify the ethical or conduct issue;
o what the Codes say about it;
o what it means for the firm and the client;
o and how it can be resolved.
The written report:
Presentation:
No template for report. It is usual for a report sent within a firm to say who it is from (you) and to (partner).
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