Research agrees that "issue spotting" or "issue identification" is an essential skill for lawyers. Clients don't always understand their legal rights or obligations; lawyers have to sort through facts to identify those rights and duties. Each legal matter, moreover, may generate a host of subsidiary issues. If the matter will be filed in court, what procedural rules govern filing the claim? What evidentiary issues may arise in the court proceeding? Lawyers must always be alert to new issues as they handle client matters.
The Building a Better Bar study found that issue identification in practice differs from the "issue spotting" that students and graduates do on exams (pp 44-47). Exams present compact fact patterns with words that often flag the relevant issue. Clients, on the other hand, offer complex stories with few flags; the lawyer often must dig to find the issues.
To perform the complex issue identification that practice demands, the Building a Better Bar study found that lawyers need three related skills: (1) the ability to think critically; (2) knowledge of threshold concepts in a wide range of subjects; and (3) the ability to interact effectively with clients. Issue identification is a distinct skill, but it builds upon the latter two skills.
This type of issue identification, which lawyers perform in practice, is difficult to test on written exams. Those exams tend to slip into the more superficial "issue spotting" described above. Instead, sophisticated issue identification is best tested through experiential education or postgraduate supervised practice.