Many times the court will clearly state what the issue to be resolved is. But at other times it is not quite as clear. It is those times that you must be very cognizant of what is going on and what the court is really trying to resolve.

The issue of a case is merely the problem or dispute between the parties involved. So the first thing you must do when spotting the issue is ask yourself “why are the parties in court?” Courts will sometimes sidetrack the real issue and attempt to make policy decisions that stray from the real issue at hand. Don’t get caught up in this exercise. Keep focused on why the parties are there.

Issues can very often be stated in a single sentence, and generally courts are focused on a single, specific legal issue, so look for the narrower problem in a dispute. Take the following for example.

Mary had just broken her leg and was walking in the park with the aid of crutches. John was coming toward her and made a snide remark.  Apparently, Mary looked a lot like John’s old girlfriend that just dumped him two hours ago.  As he passed her his foot caught the end of her crutch knocking it from under her arm. She fell and further injured herself. Mary filed suit against John for battery.

What is the main issue in the above example? Here are some possibilities:

• Did John’s act of knocking Mary’s crutch from under her constitute battery? While this is the broader issue, it is too general and not focused enough.
• Was John negligent when his foot caught Mary’s crutch causing her to fall? Maybe, maybe not. Who cares! A common mistake is getting sidetracked by reading into the facts things that are not there. Mary is not suing John for negligence. She is suing for battery. Even if John was negligent it doesn’t matter because that is not what he is being sued for. Don’t get caught making this mistake. What makes this point very difficult at times is that the court may very well talk about negligence in the opinion. But keep focused. No one is being sued for negligence, so it cannot be the issue.
• Did John knock out Mary’s crutch on purpose?  This sounds pretty good to me.  John had just been dumped by his old girlfriend.  He sees Mary and the experience is brought back to his mind.  He makes a snide remark.  All of these factors could be viewed as indicating that John became angry and took it out on Mary by kicking her crutch on purpose.  While the first option focused on battery in general, this option focused on one element of battery, intent.  Clearly all of the other elements have been met because there was contact that was harmful.  These are not issues to be decided.  The only real issue to be decided is whether John did it on purpose.

Remember, when you are issue spotting you must find out why the parties are in court and what they are suing for.  Don’t get sidetracked, and focus on the real problem.  See if you can refine the broader problem into a narrower, specific problem.  State this problem in a single sentence and you will have the issue for your brief.